Monday, January 29, 2007

Moot Court: The Bush Administration's Non-Litigation Strategy

The Bush administration has made a habit of pushing the boundaries of the law and then retreating slightly before meaningful legal challenges to its actions can be mounted. Most recently, the administration announced that it has submitted the controversial NSA domestic surveillance program to the jurisdiction of the FISA court. The announcement was made, coincidentally, the day before Attorney General Gonzales was due to testify before the Senate Judiciary Committee. Another notable example of this practice was the abrupt change in the government’s case against Jose Padilla—in 2005, he went from enemy combatant to garden-variety criminal defendant as the Supreme Court was considering whether to hear a challenge to the legality of his detention. A 2002 article by L.A. Times reporter David Savage examines a less high-profile example. Rounding up and detaining Muslim immigrants in the wake of 9/11, “[t]he government’s basic strategy: If an arrest is challenged, the detainee is simply deported.”

So the Bush administration is the legal equivalent of the kid who sweeps the chessboard off the table when you capture his queen—if we can’t finish the game, then I didn’t lose. In the current issue of Vanity Fair, editor Graydon Carter reveals that the President is actually famous among his friends for tactics like this. Apparently the young W. had a wily strategy when his golf game went awry at his mother’s Houston country club: he would just shout expletives until Barbara sent him to wait in the car. I assume he didn’t regularly make it to the 18th hole. If you beat the President in one game, you can bet you're going best two out of three, three for five, or whatever it takes.

This gives us an interesting glimpse of the way our President’s psychology affects public policy (cf. Oedipus/Iraq). But the emergent pattern of avoiding meaningful judicial review suggests a more-or-less comprehensive strategy, rather than simply a childish aversion to losing. Slate’s Dahlia Lithwick has recently argued that many of the administration’s legal maneuvers have been aimed primarily at expanding executive power for its own sake. Nina Totenberg of NPR reports that the real reason the administration kept Padilla’s case out of the Supreme Court was that “key players in the Defense Department and in Vice President Cheney's office insisted that the power to detain Americans as enemy combatants had to be preserved.”

What we are seeing, then, is a distinct strategy with distinct goals. And it is problematic for at least two reasons. First, the non-litigation strategy obfuscates legal and political issues in the public eye. For example, the L.A. Times headline on the NSA wiretap story was “U.S. ceases warrantless spy operation. Whether that statement is technically accurate is debatable; that it fails to capture the import of the administration’s maneuver is not. By avoiding litigation, the administration also avoids substantial fact-finding and virtually any obligation to tell the truth. Say what you will about judicial deference to executive power, but the national media is a softer forum than any federal court.

Second, the non-litigation strategy may actually have legal effects. By taking two steps forward and one step back, the administration doesn’t set any favorable legal precedent for itself, but it also avoids unfavorable precedent. Make no mistake--despite submitting the NSA program to the FISA court, the administration can maintain that it was good and legal all along. And by continuing questionable practices just under the legal radar, the administration may generate a patina of legitimacy—the quasi-legal justification of established practice. A court may be more deferential in reviewing an “established” policy than it would in hearing a fresh controversy.

The Bush administration defines a win as anything that is not a clear loss. In the legal realm this means that the administration believes its claims to power are justified so long as they are not definitively repudiated in court—and that can’t happen if they just keep the issue out of the courtroom. We also see the results of this idiosyncratic definition of victory in our Iraq policy, but that’s a subject for another day.

So I’m calling shenanigans on Team Bush. I say it’s time to lawyer up and see who is right about executive power, civil liberties, maybe even basic diction (would a court enjoin the use of the non-word “nucular”?) Ultimately, what’s at stake is not only the legality of specific policies, but the structure of legal discourse. Justification matters, and Fox News doesn’t provide an adequate forum for the sort of inquiry that the American tradition demands. Maybe I’m naïve, but it seems to me that if you can’t convince a court that what you’re doing is legal, then maybe you shouldn’t be doing it. And seriously, if you can’t win in the Roberts court, maybe it’s time to hang it up.

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