Maybe it was the orcas talking, but last weekend while I was off in Canada, something occurred to me about the Bush administration. Call it a flash of recognition, if you will.
Something Glenn Greenwald wrote the week before kept rattling about in my head:
- The significance of Judge Taylor's ruling lies in the act itself -- the re-affirmation of the principle that the President's conduct is subject to judicial review and is subordinate to the laws enacted by the American people through their Congress. This administration, while claiming it has substantial legal authority for its radical executive power theories, has desperately tried to avoid judicial review of the President's conduct at every turn --- with the abuse of the "state secrets" doctrine, the Specter bill, the denial of judicial review to detainees, the refusal to ask the FISA court for a ruling on the legality of its program.
The significance of Judge Taylor's ruling lay not in the quality of her judicial opinion (which everyone gets to feel really smart by demeaning), but instead it is the resounding rejection of the extremist and dangerous theory that the President, because of the "war" we are fighting, has the right to operate without constraints of any kind, including those imposed by the Constitution and Congressional statutes. [emphasis mine -- ed.] On that key issue, the court's analysis was correct and even powerful.
This all had a familiar ring to me: A group of extremist ideologues, creating their own pseudo-legal bubble, defy the jurisdiction of the federal courts over their actions, claiming this peculiar right by virtue of a radical and unsupportable misreading of the Constitution; and as the law runs its course, they huddle deeper inside their bubble, convinced that only they and their fellow true believers hold the keys to a proper interpretation of the law.
Then, out paddling in the silence of Johnstone Strait, I remembered finally where I had heard all this before: in Jordan, Montana, the spring of 1996, where for 81 days the Montana Freemen engaged in an armed standoff with authorities that eventually concluded in their arrests. (For my contemporaneous account of the standoff, see here.)
It's worth remembering that, as Mark Pitcavage's authoritative profile of the Freemen explains in detail, they had been operating their scam for several years before law enforcement finally descended upon them. Rodney Skurdal's paper terrorism campaign in the Garfield County courts actually began in 1992, though he and LeRoy Schweitzer had been learning about and participating in Posse Comitatus phony-lien schemes for some time before this.
The Bush White House, similarly, has been scamming the public with its pseudo-legal theories about their exemption from the vagaries of federal law for a number of years now, though obviously the scale of the enterprise dwarfs the Montana Freemen exponentially. And the pseudo-legal alternative universe they've created for themselves, as with the Montana band, has been closing in around them as the law, embodied by the courts, begins to manifest itself.
Of course, as long they occupy the White House, these particular Freemen aren't going to be surrounded by the FBI anytime soon, except perhaps in defense against their perceived enemies. What's even more noteworthy, perhaps, is that they're being joined inside their bubble by their fellow Beltway denizens in the media and pundiocracy, as Greenwald has pointed out:
- Most of these same "experts" and editorialists have stood by meekly and with a corrupt ambivalence while this administration implements radical theories of executive power which vest in the President the power, literally, to break the law. Yet now that a federal judge has courageously and correctly ruled that this administration is engaged in systematic law-breaking that not even the "war on terrorism" justifies, these same tepid, open-minded experts have suddenly found something to be excited about, as they eagerly parade themselves, showing everyone how smart and serious they are by scoffing at the Judge’s writing abilities. As I document here, and as Professor Tribe suggests, there is every reason to believe that it is these self-styled experts who lack serious scholarship with many of their misguided and ill-informed criticisms of the court’s decision.
But even if there are legalistic flaws in how the court defended its legal findings -- and most, including me, have acknowledged that there are -- the fact that we have a President who breaks the law at will because his administration has adopted the theory that he has the power to do so is surely of far greater importance. [emphasis mine] Only those with profoundly skewed priorities, or those seeking to find ways to defend the President's law-breaking, would view that as a close call.
Indeed, most of these pundits and "experts" were baffled by the Montana Freemen and assumed that they simply belonged in the klink, preferably sooner than later. Guess the tune changes when it's your own class you're talking about:
- This has been the most bizarre part of the NSA scandal all along: the President got caught red-handed violating an extremely clear law -- he admitted to engaging in the very behavior which that law says is a felony punishable by up to 5 years in prison and a $10,000 fine -- and yet official Washington (the political and pundit classes) simply decided to pretend that wasn't the case.
The Beltway right is increasingly living in its own Freemen-like alternative universe, replete with the usual vacuum of factuality, ripe for bizarre distortion (see, e.g., Fred Hiatt's take on the Plame affair blaming Joe Wilson for his wife's exposure) and the scapegoating of our "internal enemies" (see Donald Rumsfeld of late).
It's only a matter of time, one presumes, before they start posting rambling, nonsensical legal gobbledygook on the White House fence, warning away federal agents and members of the media. And threatening to hang the sheriff.