Dover Bitch

Sunday, May 20, 2007

Kmiec responds to Lederman

Marty Lederman did a superior job of responding to Doug Kmiec, so DB should probably just sit back and wait for his response to Kmiec's response.

But I'll just chime in with a couple things. First, Kmiec writes with considerably more respect for Lederman and his readers than he does for the readers of the Washington Post (and therefore, the public at large). Had his op-ed been written with a similar tone, it would have elicited a less abrasive response from some bloggers, myself not least.

However, Kmiec is still unpersuasive. In fact, he doesn't really address the substance of Lederman's points. I'll wisely let Marty deal with all that. But I will note that he didn't address the things that bothered me (not that I have any reason to believe he read my post), namely that the comparison of the threat of resignations was compared to the Saturday Night Massacre, not the actual break-in at Watergate.

My other complaint, which had nothing to do with the legal aspects that Lederman addressed, was that Kmiec began his piece by stating that Nixon's demise was somehow different, as it the result of playing politics. But then he ended his op-ed by implying that Bush is also playing politics (and to that end, should be doing it better).

My only response to the substance of Kmiec's reply that will likely be addressed by Lederman is in regards to this paragraph:

Instrumentally, were it not a close question for Mr. Comey as well, I do not understand how, after meeting with the President, he could modify the surveillance program to eliminate his stated legal objection. Were the "exclusivity" language in FISA as absolute as Marty's reference to the criminal liability under section 1809 implies, mere tinkering with a program that, until recently, was not operating with a FISA warrant or some other as yet publicly unidentified approval or order of the FISA court, would not be capable of obviating the legitimate statutory concerns.

It still doesn't. This is precisely the point that Lederman and so many other bloggers were making: What on earth could they have been doing that didn't sit well with this DOJ?

The fact that this program was eventually made acceptable to Comey, Ashcroft & Co. does nothing to legitimize the view that some minimal violation of FISA was appropriate. As Bruce Fein has warned, let's not make Comey and Ashcroft into heroes just for demonstrating that they do, indeed, have some limits.

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