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Their intellectual mentor Barbra has been talking about this for months, and the impressionable Boxer has finally ceded to her Streisand-driven mentality and called for Bush’s impeachment.
But some scholars aren’t so sure that Bush’s limited program is illegal. The Washingon Post has a column by Charles Krauthammer which includes the following:
George Washington University law professor Orin Kerr (one critic calls him the man who "literally wrote the book on government seizure of electronic evidence") finds "pretty decent arguments" on both sides, but his own conclusion is that Bush's actions were "probably constitutional."
Cass Sunstein, a self-described liberal and author of a widely-used textbook on Constitutional Law as well as University of Chicago Law Professor, gives the following thoughtful analysis on Hugh Hewitt's radio show:
HH: Do you consider the quality of the media coverage here to be good, bad, or in between?
CS: Pretty bad, and I think the reason is we're seeing a kind of libertarian panic a little bit, where what seems at first glance...this might be proved wrong...but where what seems at first glance a pretty modest program is being described as a kind of universal wiretapping, and also being described as depending on a wild claim of presidential authority, which the president, to his credit, has not made any such wild claim. The claims are actually fairly modest, and not unconventional. So the problem with what we've seen from the media is treating this as much more peculiar, and much larger than it actually is. As I recall, by the way, I was quoted in the Los Angeles Times, and they did say that in at least one person's view, the authorization to use military force probably was adequate here.
On being asked by Hewitt if the media are being purposefully ill-informed, the liberal Sunstein replies by giving a very generous tilt toward the wild-eyed Jonathan Alter types:
You know what I think it is? It's kind of an echo of Watergate. So when the word wiretapping comes out, a lot of people get really nervous and think this is a rerun of Watergate. I also think there are two different ideas going on here. One is skepticism on the part of many members of the media about judgments by President Bush that threaten, in their view, civil liberties. So it's like they see President Bush and civil liberties, and they get a little more reflexively skeptical than maybe the individual issue warrants. So there's that. Plus, there's, I think, a kind of bipartisan...in the American culture, including the media, streak that is very nervous about intruding on telephone calls and e-mails. And that, in many ways, is healthy. But it can create a misunderstanding of a particular situation.
Hewitt steps in with a stronger take on the situation:
Hewitt responds:
The libertarian panic that you referred to, I actually believe that that probably did prompt a lot of the original egregiously wrong analysis. But now I'm beginning to be concerned that the media is intentionally ignoring the very strong arguments defending what the president did. Do you believe that's taking place?
Sunstein replies with typically liberal waffling, but finally owns up that this may be another media spasm:
....I think the tide is turning a little bit in terms of the legal analysis. If it turns out that this goes on for months, and facts don't come out that are worse than the facts we now have, then it looks...then it will look like a continuing panic, which would be worse than what we've seen just in a couple of days.
The media is ignoring some salient background material. As I have pointed out in previous blogs, the House/Senate Joint Inquiry of 2002 did issue a "Finding 12" that:
In the summer of 2001, when the Intelligence Community was bracing for an imminent Al-Qa’ida attack, difficulties with FBI applications for Foreign Intelligence Act surveillance and the FISA process led to a diminished level of coverage of suspected Al-Qa’ida representatives in the United States. The effect of these difficulties was compounded by the perception that spread among FBI personnel at Headquarters and the field offices that the FISA process was lengthy and fraught with peril. [xvii][emphasis mine]
So far the Joint Inquiry has been brushed aside, the media has been sidestepping the Bush defense and it appears that the UCLA study recently published on the media that both electronic and print outlets are left-of-center are correct.
But the media also is saying nothing about the crime of the leak to James Risen. While the media hounds are baying after leakers in the Plame affair, there is utter silence over who broke the law concerning the FISA affair.
This is not a surprise, and goes back to the old hard-left motto: "No Fault On The Left." The MSM spontaneously blurts leftward when consciously-timed illegal leaks like the NYT printed are released. It is a crime when a leak like the Plame affair happens to affect the left. But it is “patriotic” for bolshie types like Jonathan Alter to leak when it helps the right.
Sunstein, who was hired by the Carter Department of Justice, has an old-fashioned respect for the law. As he tells Hugh Hewitt about leaking:
It was implicit. I mean, no one, when I was there, so far as I know, would even spend a second thinking of leaking classified material. That was the most obvious thing in the world. It was a moral requirement, not a…[legal one]….when we were there, we wouldn't leak. It was a moral requirement. It wasn't we were afraid of crime, it was we wouldn't do something that was wrong.
Back in the day, liberals had moral requirements that superseded even the law to obey the law and not do harm to American interests.
Now, Democrats believe it is "patriotic" to break the law, but only if it harms the Bush Administration.
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