From Archibald Cox’s Courage to Alberto Gonzales’s Star Chamber

In its great series on the Cheney vice presidency, the Washington Post notes that “As the election season got underway in early 2004, a secret battle over the legality of warrantless domestic surveillance brought the Bush administration to the brink of a mass exodus from the Justice Department and FBI.” But there was no Saturday Night Massacre, and the illegal wiretapping continued. Its apologists complacently reassure us that there’s not a remedy for every constitutional wrongdoing, and that selective enforcement of the law is a sacred prerogative of the executive branch–especially when it’s protecting itself.

As election 2008 drags on, one of the key questions we must answer is: who will be Sarah Palin’s David Addington? Barton Gellman’s extraordinary series on the Cheney vice presidency, soon to be published as a book, shows why. Here’s a confrontation between lawyers for the NSA and the vice president’s office:

A burst of ferocity stunned the room into silence. No other word for it: The vice president’s attorney [David Addington] was shouting. “The president doesn’t want this! You are not going to see the opinions. You are out . . . of . . . your . . . lane!”

[Vito] Potenza, the NSA’s acting general counsel, and [Joel] Brenner, its inspector general, were supposed to be the ones who kept their agency on the straight and narrow. . . . .Yet neither man had been allowed to see the [domestic espionage] program’s codeword-classified legal analyses, which were prepared by John C. Yoo, Addington’s close ally in the Justice Department’s Office of Legal Counsel. Now they wanted to read Yoo’s opinions for themselves. “This is none of your business!” Addington exploded.

Berkeley law professor Christopher Kutz has written about the repugnance of secret law, but apparently it’s his colleague John Yoo’s specialty. It’s a splendid way to pursue vendettas, evade statutes, and jail innocent people indefinitely. As privacy laws are trampled and the state gets to know more and more about us, we get to know less and less about it.

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