Tomgram: David Cole on How the Supreme Court Struck Back
Last week Attorney General Alberto J. Gonzales testified before the Senate Judiciary Committee that the President had personally shut down a Justice Department investigation into the domestic eavesdropping program being run by the National Security Agency. According to Neil Lewis of the New York Times,
"'Why wasn't O.P.R. given clearance as so many other lawyers in the Department of Justice were given clearance?' Mr. Specter asked.
"Mr. Gonzales replied, ‘The president of the United States makes decisions about who is ultimately given access," and he added that the president ‘makes the decision because this is such an important program.'"
It was the first time in its thirty-one year history that investigators from the OPR, who regularly conduct "investigations into executive branch programs involving the highest levels of classified information," were blocked from doing so.
An anonymous "senior Justice Department official" offered the following explanation to Lewis: "We had to draw the line somewhere" -- one of those classic descriptions that should have been in the headline, not deep in the piece. For the most secretive administration in American history, even the anonymity of the source was perfect. The only inaccuracy in the line was that splendidly placed "somewhere." As on every other issue of legal, ethical, or constitutional import, this administration never draws the line "somewhere"; it always draws its line at the same place -- the place, to be exact, which gives the commander-in-chief presidency that is this administration's heart and soul the most possible power and denies power most outrageously to any other branch of, or agency of, government (except, of course, the Pentagon).
Recently, though, one of those branches refused to accept the administration's "somewhere" in the sand and instead drew some rather striking lines of its own. David Cole, law professor and author of Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism, offers a canny and vivid account of how the Supreme Court drew those lines, challenging an administration that, until recently, brooked no challenge. Thanks to the kindness of the editors of the New York Review of Books in whose most recent issue this piece appears, Cole's essay is now posted here. Tom
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posted by Annamarie at
1:37 AM
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