Why Oh Why Can't We Have a Better Press Corps?
Outsourced to Emptywheel, who takes on the latest that the Washington Post's Fred Hiatt thinks is deserving of a megaphone. Five years. I give the Washington Post as we know it five years:
The Next Hurrah: Hiatt's Crumbling Soapbox: I rarely engage with Fred Hiatt's personal soapbox because the WaPo's choice of columns has already been so discredited. But... two problems with Douglas Kmiec's op-ed this morning.
First, Kmiec is necessarily wrong in his depiction of whether a crime did or did not take place.... "Comey... did his best not to disclose that his testimony related to an interpretive disagreement over the highly classified but nevertheless well-known terrorist surveillance program. Sparring between the Office of Legal Counsel (OLC) and the White House... over the legal basis for this program in wartime is leagues different from burglary for purposes of political dirty tricks." Quite simply, both statements--that there is no crime and that Comey's testimony relates to a "well-known terrorist surveillance program" cannot be true. Because if Comey's testimony relates to the program that is well-known--wiretapping those with a close association to Al Qaeda without a warrant--then Alberto Gonzales has perjured himself on at least two occasions in his statements to Congress.
I think Kmiec is probably wrong, and the program Comey talked about and Gonzales has not admitted a dispute about is another program. But that then raises questions about this statement: "Even if OLC attorneys had been unanimous that the president lacked the legal authority to conduct the kind of military intelligence-gathering that every other wartime president has pursued, that would hardly warrant the conclusion that the president had 'broken the law'.... Comey conceded that he had no idea whether the certification of the continuation of the surveillance program he was being asked to make had a basis in statute or regulation. In fact, it has neither. It was a 'form and legality' determination that the president had self-imposed to internally discipline an exercise of power...."
If Kmiec is ignorant about which program we're discussing, then why should we believe Kmiec knows a damn thing about what kind of certification the program required?... And while he's at it, Kmiec collapses Comey's statements. Comey would not commit to whether or not reauthorizing the program without his signature was a violation of law. But he was clear that OLC as a whole could not find any legal basis for the program. As Comey pointed out in a part of his testimony Kmiec chooses to ignore, OLC judgments are legally binding throughout the Executive Branch.
All of which is a nice way of saying that Kmiec can borrow Hiatt's soapbox for yet another argument defending the unitary executive all he wants. But he's either ignorant about key facts or Gonzales has broken a law. In which case, the entire premise of the op-ed falls apart. Either Kmiec doesn't know whether Comey's tale involves crime, venal political intrigue, and raw politics. Or the comparison between this domestic spying program and that of Watergate is apt.