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Tuesday, December 20, 2005

Larger matters than Kiwi

Like Steve, I too was surprised about the revelation that the NYT sat on the Snoopgate story for a year.  Some interesting developments.  First, Orin Kerr's got a thorough post up analyzing the various legal questions about the President's claim that the NSA snooping on domestic persons was legally permissible. Orin's basic thesis, I think, is that the snooping likely violated Congressional statutes but not necessarily (though possibly) the relevant constitutional provisions.  Dan Solove largely concurs

The suggestion that if Congress hadn't blocked the spying, the POTUS would be able to do it pursuant to his authority brings to mind an odd situation, noted by, among others, Justice Jackson:  "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject."

Bush in the meantime has been on the offensive.  On the NYT's decision to sit on the story for a year before releasing it, Jonathan Alter reports that Publisher Pinch and Editor Keller were summoned to Bush's office last week, so Bush could try to persuade them to kill the story (finally).  No dice.  And there's poor Albert Gonzales, whose credibility once again is undermined.  Pinned in questioning by Senator Feingold, Gonzales said "it is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes."  As Marty explains over at Balkinization, the Administration's posturing (under Gonzales' shilling) is English for chutzpah.

Update: the LA Times reports that the NYT had the story on Snoopgate prior to the 2004 election.

Posted by Dan Markel on December 20, 2005 at 12:52 AM in Criminal Law | Permalink

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