[or, why when my older sister found the word "disputatious" in her SAT vocabulary list, she said, "Hey, that's you!"]
Last week, when I saw a guest op-ed in the NYTimes headlined "Bush Is Not Above the Law" and demanding to know why the FBI has not begun investigating the president for committing a serious felony, I didn't even bother to post about it because it seemed so obviously silly and its historical comparisons absurd. During the Watergate scandal, there was no serious legal debate as to wheter a break-in is against the law, nor whether covering up one's involvement in criminal activity is obstruction of justice. It essentially was a matter for the jury, not the judge, had it ever gone to trial: was there a break-in, and was Nixon involved, and did he try to cover up that involvement?
No such tidy questions of fact are presented with Bush. He isn't inclined to be forthcoming about what he's doing that might be legally questionable, but when wiretapping is traitorously disclosed by the media, he doesn't deny it either, and instead wades into court to argue that it is entirely legal. Therefore a single district judge's opinion that it's illegal, a violation of FISA unsupported by AUMF or Article II or pick-your-"this is war!"-justification, is wholly insufficient for the FBI to open any investigation. We would need a more definitive statement about the program's legality, and one is unlikely to be come now that the issue at least temporarily moot due to the program's shutdown.
That sort of behavior, along with the decision to ship Hamdi back to Saudi Arabia rather than put him on trial, gives me a sense that the Administration's participation in the debate about presidential power is a reluctant one. Will at Crescat Sententia* says that "it seems to me important that the legal controversy over the war on terror is at worst not an attack on the legal system or the idea that even powerful men are governed by laws, but rather an example of argument within it." When a commenter noted cases where the government has argued that courts cannot review the legality of executive action because the dispute implicates state secrets, Will replied, "Nonreviewability is not extra-legality." But I don't find the government's making legal arguments to be as reassuring a sign about the Bush Administration as Will apparently does.
What do you expect the government to do when the ACLU files suit or detainees petition for habeas -- refuse to show up in court and allow the judge to make a default judgment? I'd consider the non-reviewability cases cited to be as close as the government can get to extralegality in a system as intensely legal as ours. In the absence of the "loyal opposition" (or unpatriotic pawns of militant Islam, if it's Deputy Assistant Sec. Def. Stimson doing the characterizing), I doubt that the Administration would feel the need to justify itself under the law so much. This doesn't seem to be an inherent impulse in the government; it is a necessary response to the inherent impulse of left-wingers to challenge Bush. And by putting detainees before executive adjudicatory bodies, Congressional Republicans have done their best to minimize how much the radicals at the Vault Top 100 Firms can interfere with Bush's decisions.
I suppose that the anti-terror stalwarts could have told the suicidal constitutionalists** on the Supreme Court to put their decisions that detainees are entitled to some due process where the sun don't shine, and at this point Will might agree that the government is acting outside the law. Or perhaps not; if Article II demands that the president act to preserve the nation, even in the face of Article III judges' telling him not to do it, then his defiance itself can be defended by a clever lawyer as still being lawful. These clever lawyers, after all, were what inspired the post to which Will responded.
David Bromwich's desire that "Alberto Gonzales [be] slapped with a censure by the American Bar Association" strikes me as almost ignorant of the legal system as the above-criticized op-ed is. Let's be honest about our profession: how often does the ABA slap lawyers with censures for making arguments that are too clever for their own good? The paucity of censures against some of the wealthiest plaintiffs' attorneys -- those lawyers who managed to win big in cases that defendants thought were so long a shot as not to be worth settling -- indicates that it takes a pretty bad argument to rate such action from the bar. Indeed, those who think the Bush Administration's arguments are laughably bad should file FRCP Rule 11 sanctions against them, on the ground that Gonzales et al. are filing papers with the court with "claims, defenses, and other legal contentions therein" that are not "warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." I suspect even Judge Anna Diggs Taylor would have been reluctant to grant such a motion, because saying some arguments are impermissible squelches the vitality of our legal system. We allow lawyers to say almost any damnfool thing they want, and leave it to judges and juries to be convinced or not. This is our strength.
** I don't suppose I could get our new Congress to require that all references to Justice Robert Jackson's famous sentence be followed by an explanation of the actual holding. (Jackson wrote in dissent against the Terminiello v. Chicago majority's holding that an anti-Communist, anti-Semitic Catholic priest's speech could not be prosecuted as a breach of the peace. Jackson apparently regarded such an interpretation of the First Amendment as inviting anarchy: "There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.") Alas, incomplete information, like flag burning, Communism and anti-Semitism, is part of the First Amendment, much as arguments that don't pass the laugh test are part of the American legal system.