Legal FictionsThe Bush administration's dumbest legal arguments of the year.By Dahlia Lithwick
Slate.com
Posted Friday, Dec. 28, 2007, at 6:32 PM ET
This time last year, I offered up a top 10 list of the most appalling civil-liberties violations by the Bush administration in 2006. The grim truth is, not much has changed. The Bush administration continues to limit our basic freedoms, conceal its own worst behavior, and insist that it does all this in order to make us more free. In that spirit, it seemed an opportune moment to commemorate the administration's worst legal justifications and arguments of the year. And so I humbly offer this new year's roundup: The Bush Administration's Top 10 Stupidest Legal Arguments of 2007.
10. The NSA's eavesdropping was limited in scope.Not at all. Recent revelations suggest the program was launched earlier than we'd been led to believe, scooped up more information than we were led to believe, and was not at all narrowly tailored, as we'd been led to believe. Surprised? Me neither.
9. Scooter Libby's sentence was commuted because it was excessive.Dick Cheney's former chief of staff, Scooter Libby, was found guilty of perjury and obstructing justice in connection with the outing of Valerie Plame. In July, before Libby had served out a day of his prison sentence, President Bush commuted his sentence, insisting the 30-month prison sentence was "excessive." In fact, under the federal sentencing guidelines, Libby's sentence was perfectly appropriate and consistent with positions advocated by Bush's own Justice Department earlier this year.
8. The vice president's office is not a part of the executive branch.We also learned in July that over the repeated objections of the National Archives, Vice President Dick Cheney exempted his office from Executive Order 12958, designed to safeguard classified national security information. In declining such oversight in 2004, Cheney advanced the astounding legal proposition that the Office of the Vice President is not an "entity within the executive branch" and hence is not subject to presidential executive orders. When, in January 2007, the Information Security Oversight Office asked Attorney General Alberto Gonzales to resolve the dispute, Cheney recommended the executive order be amended to abolish the Information Security Oversight Office altogether. In a new interview with Mike Isikoff at Newsweek, the director of the ISOO stated that his fight with Cheney's office was a "contributing" factor in his decision to quit after 34 years.
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2. State secrets.Again, it's virtually impossible to cite the single most egregious assertion by the Bush administration of the state-secrets privilege, because there are so many to choose from. This doctrine once barred the introduction into court of specific evidence that might compromise national security, but in the hands of the Bush administration, it has ballooned into a doctrine of blanket immunity for any conduct the administration wishes to hide. The privilege was invoked in 2007 to block testimony about its torture and extraordinary rendition program, its warrantless surveillance program, and to defend the notion of telecom immunity for colluding in government eavesdropping, among other things. No longer an evidentiary rule, the state-secrets privilege has become one of the administration's surest mechanisms for shielding its most egregious activities.
1. The United States does not torture.First there was the 2002 torture memo. That was withdrawn. Then there was the December 2004 statement that declared torture "abhorrent." But then there was the new secret 2005 torture memo. But members of Congress were fully briefed about that. Except that they were not. There was Abu Ghraib. There were the destroyed CIA tapes. So you see, the United States does not torture. Except for when it does.
The rest:
http://www.slate.com/id/2179934/pagenum/all/#page_start
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