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The Washington Post and the Lawless President

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The dramatic testimony of former Deputy Attorney General James Comey provides the perfect framework for re-examining some of the less-than-brilliant editorial page writing appearing recently in the Washington Post. The Post’s national security reporting has been second to none. On the other hand, the Post’s editorial page has maintained a schizophrenic balance between its advocacy of the White House’s various war agendas and its piously articulated concerns about the extra-legal extremes with which that agenda is pursued: torture, the establishment of concentration camps, the use of torture-by-proxy, the creation of illegal surveillance and a war of terror against journalists.

But the ultimate in buffoonery on the WaPo editorial page has been the writing of the intellectually incontinent David Broder. Indeed, it’s worth revisiting what Broder wrote in a column published on November 14, 2004, in which he excitely forecast a more moderate Justice Department under Alberto Gonzales:

George Bush was re-elected by 51 percent of the people. His first significant action following Election Day was to retain Andrew Card, a Massachusetts-based business moderate, as his chief of staff.

His second was to accept the resignation of John Ashcroft, the hero of the religious right and the favorite bogeyman of civil libertarians, as attorney general. Ashcroft’s replacement, White House Counsel Alberto Gonzales, will receive close scrutiny from Democratic senators but almost all of them who commented said they welcomed the choice.

As usual, Broder’s characterizations of what Democrats say and think is simply – and documentably – fraudulent. Gonzales drew an almost unprecedented number of “no” votes and the harshest critical comments directed at an attorney general nominee in recent memory.

But the core of Broder’s thesis – which evidently comes pretty close to the editorial board consensus at WaPo is that the post-election move at the end of 2004 was towards a more moderate stance on civil liberties issues. I noted at the time that the only way any one could come to that view would be on the basis of regurgitating White House press releases without undertaking any independent analysis (which is, generally speaking, exactly what Broder does). It was clear from the outset that far more virulently anti-civil liberties views were moving into the Justice Department and at their heart was what a group of retired generals and admirals quite accurately described as thinking on “the wrong side of history.” It was a rejection of the view that the president needed to obey the law.

This was available for all to see: in the regime of torture, introduced through Gonzales’s machinations, in the evasions of FISA, as to which Comey testified so convincingly, in the disgraceful conduct at Guantánamo, for which Gonzales also was the pointsman. Anyone arguing that Gonzales would be a “moderate” alternative to Ashcroft was either a patent fool or completely blind to the dealings in which Justice and the White House counsel’s office were engaged.

Comey’s testimony did not break new ground. Rather it reinforced what we already knew. The Post’s editorial today paints some of this picture:

The dramatic details should not obscure the bottom line: the administration’s alarming willingness, championed by, among others, Vice President Cheney and his counsel, David Addington, to ignore its own lawyers. Remember, this was a Justice Department that had embraced an expansive view of the president’s inherent constitutional powers, allowing the administration to dispense with following the Foreign Intelligence Surveillance Act. Justice’s conclusions are supposed to be the final word in the executive branch about what is lawful or not, and the administration has emphasized since the warrantless wiretapping story broke that it was being done under the department’s supervision.

Now, it emerges, they were willing to override Justice if need be. That Mr. Gonzales is now in charge of the department he tried to steamroll may be most disturbing of all.

With all respect for the Post’s sudden awakening to this problem, they’re far off the mark. The fact that the Bush Administration doesn’t pay attention to its own lawyers, and essentially views lawyers as pipefitters who will dispense the opinions as to the law that they are ordered to dispense, isn’t the core problem. The essential problem, which threatens the foundation of the American Republic, is the BushAdministration’s refusal to abide by the law – its tenacious assertion that it stands above the law.

If four hundred years of Anglo-American legal history can be boiled down to a single proposition, then it is the famous words that Thomas Fuller uttered in the seventeenth century: “Be ye ever so high, nevertheless, the law is above thee.” George W. Bush holds himself above the law. Bush would do well to contemplate the fate of the monarch about whom Fuller spoke: Charles I.

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