All Intensive Purposes

Two people whose views I usually respect are Atrios and Cass Sunstein, so when one calls the other a wanker, it's worth a longer look. (If you're not sure who was doing the name calling, you don't know either one well enough.)

Atrios linked to this post by Armando at Kos, which accuses Sunstein -- in an appearance on Hugh Hewitt's radio show" of "virtually ignor[ing] the central issue here -- the Congressional prohibition against that which the President has done and is doing," and of "smear[ing] and distort[ing] those who disagree with him." According to Armando, Sunstein "utterly ignores FISA's prohibition on the actions taken by the President." For his part, Atrios simply links to Armando's post instead of the transcript of the radio show.

In thinking about the legal issues raised by whatever the NSA has been doing, there are (at least) three big legal questions: (1) Does the NSA program violate the Constitution; (2) Does the NSA program violate FISA; and (3) if FISA purports to bar the NSA program, is it within Congress's power to restrict the President's Article II powers in that way. Armando (and Atrios, apparently relying on him) unfairly accuses Sunstein of ignoring (2); in fact, Armando ignores (3).

Most of Hewitt's interview with Sunstein focused on the first constitutional question above, (1). (Note, however, that the transcript may not be complete, as discussed below.) Notwithstanding Armando's characterization of the interview, Hewitt and Sunstein did turn to the possibility that FISA prohibits what the NSA did, with Sunstein speaking in general terms (out of a stated concern that it's not clear exactly what the facts are). Hewitt asks Sunstein to assume (2), and proceeds to (3):

[Hewitt]: So if we assume, and I do, that FISA is Constitutional, if it puts into place an arguably exclusive means of obtaining warrants for surveillance of al Qaeda and their agents in the United States, does the president's avoidance of that necessarily make him a law breaker? Or does it make the FISA ineffective insofar as it would attempt to restrict the president's power?

[Sunstein]: Yeah. I guess I'd say there are a couple of possibilities. One is that we should interpret FISA conformably with the president's Constitutional authority. So if FISA is ambiguous, or its applicability is in question, the prudent thing to do, as the first President Bush liked to say, is to interpret it so that FISA doesn't compromise the president's Constitutional power. And that's very reasonable, given the fact that there's an authorization to wage war, and you cannot wage war without engaging in surveillance. If FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional. So I don't think any president would relinquish the argument that the Congress lacks the authority to prevent him from acting in a way that protects national security, by engaging in foreign surveillance under the specific circumstances of post-9/11.

This pretty clearly demonstrates that Armando is simply wrong when he states that Sunstein "utterly ignores FISA's prohibition on the actions taken by the President." (Armando adds some other thoughts that are less pleasant.)

A sharp interviewer advancing a particular viewpoint -- and we all know that Hewitt fits this bill -- will use the Socratic method to make a point, asking some questions and leaving others alone. We all like this game when we agree with the questioner. Hewitt decided not to ask Sunstein questions about how to interpret and apply FISA -- perhaps because reasonable people -- and even unreasonable people -- seem to agree that this is where the Administration is on the shakiest ground. Hewitt jumped from (1) to (3), asking Sunstein to assume that the NSA was violating FISA -- hell, perhaps even Hewitt is willing to concede that the Administration has a problem here, although I'd rather not research that one.

Perhaps one can fault Sunstein for failing to push the interview back to (2), when Hewitt apparently preferred to discuss the constitutional issues. But Sunstein is a polite fellow, a guest on Hewitt's show, a professor, and an expert on constitutional law, not FISA. All of this suggests why he might have simply answered the questions he was asked.

Moreover, it appears to me that Hewitt's transcript may have excised a portion of the interview immediately following the question and answer quoted above. The text includes a symbol ("---") suggesting as much, and then it jumps to the discussion of the media coverage. Anyone who actually listened to the show would be in a better position to say what else Sunstein may have added.

Many people around the country are justifiably troubled by the Administration's apparent propensity to find lawyers who will construct arguments seemingly designed to vault any limits on executive power. Legal reasoning should matter; it should not be a tool to an ideologically determined end. In excoriating Professor Sunstein, it seems to me that Armando is doing much the same thing, as is Atrios. If they disagrees with Sunstein's analysis of constitutional law, they should explain why. But it looks to me like they object mostly to some of his conclusions.