I asked the other day if anyone knew if anyone knew of any principled conservatives who are outraged about the Bush administration’s program to lay the infrastructure for a future authoritarian regime, and I found one in Bruce Fein, a conservative and former Justice Department official in the Reagan administration. He appeared on Open Source with Glenn Greenwald and Laurence Tribe to discuss the recent Comey testimony, and he was by far the most eloquent in his condemnation of the Bush administration’s undermining the constitution and the rule of law.
If you still think this is much ado about nothing, you need to listen to a guy like Fein. There’s no transcript, so I can’t excerpt anything he said. Just listen. If you go to the Open Source link for this show, you will find several other links to commentary about the incident at the center of Comey’s testimony. I think this is a very big deal, and it’s a key element in the uncovering of what we have felt pretty certain is going on, but have so far been unable to prove.
While praise is owed Comey, Ashcroft, and Mueller for their purported willingness to resign if the administration went ahead with their clearly illegal plans to keep wiretapping without warrants or oversight, the whole incident raises more questions than it answers. For instance, what had been going on before that had disturbed these officials so much that they couldn’t sign off on its continuation? How bad had things gotten? Ashcroft, Comey, and Mueller are not your typical ACLU types. Second, what changed that they backed away from their threat to resign? Was it a substantive change or just a technical one to provide them with legal cover? I think it’s legitimate to ask whether these officials were more concerned about defending the rule of law or about being indicted themselves should Kerry have won in 2004.
Another important post to understand some background, particularly the role of Jack Goldsmith is this one by Marty Lederman:
Jack Goldsmith was confirmed to be head of OLC in October 2003. He was a loyal Republican and supporter of the President. And yet almost as soon as he took office, he began reviewing much of John Yoo’s handiwork, and found it lacking. Barely two months into his new job, for instance, Goldsmith called the Pentagon and told them that they must immediately cease relying on the critical Yoo Opinion that formed the basis for the Department of Defense’s abusive interrogation policies in Iraq and elsewhere. (I’ve reviewed this fascinating story in detail here.)
Here’s the thing. It’s one thing to have the tools to do the job needed to fight terrorists, but that has to be weighed against protecting the country from future abuses by our own government. If we so readily allow our constitutional protections to be taken away, the threat of the occasional terrorist attack will be the least of our worries. We won’t be living in America anymore. We’ll just be another police state.
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