an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Where There's Smoke . . . There's Cheney and Addington
It was only a matter of time, right? This can't come as a surprise to anyone by now: The New York Times reports that the idea of engaging in electronic surveillance in violation of FISA was hatched by the Vice President's Office, on the theory that the President has the constitutional authority to run roughshod on piddling technicalities such as laws enacted in conformity with our constitutional design.
The story appears to have been leaked by those sympathetic to the NSA and General Hayden. The thrust of their account is that we should be grateful that the NSA surveillance is not much, much broader than has been; the only reason the program does not extend to surveilling purely domestic calls (rather than "merely" obtaining records of them) is that the NSA pushed back against Cheney and Addington.
It is increasingly clear that if any accurate and instructive histories are ever to be written about the Bush Administration, they will need to be much more focused on the Vice President's Office than previous presidential studies. My sense, and that of others who have been mcuh closer than I to the crucial debates within the Administration, is that there are a lot of people who have stories of Cheney and Addington they are anxious to tell, once there is no further prospect of professional retailiation.
This is an appropriate occasion for a partial response to Sandy Levinson's recent posts. Sandy, there are two reasons why Bush remains in office, and neither of them has anything to do with legal and historical testimony of Cass Sunstein and Sean Wilentz. The first is that the Republican Party controls both houses of Congress. The second is that even if the Democrats controlled both houses, impeachment and conviction of the President would only make matters worse -- much, much worse. Seethe Twenty-Fifth Amendment, section 1. Posted
by Marty Lederman [link]
I think Sandy is close, but my view is the problem was not with character so much as societal undercurrents; and in the process, at least with respect to the Clinton years, the Independent Counsel law gave way to the Special Prosecutor. See my comments in Sandy's thread about congress' need to continue to improve OSP if that is all we have, as Treanor warned. See linked papers in the other thread.
This addresses one of your topics. The other is monumental; got to read NYT.