Saturday, January 07, 2006

Kobach on the Spying

Via Can O' Fun, TfK nemesis Kris Kobach discusses warrantless spying with Chris Matthews (video link).

Chris Matthews points out that the war is sort of endless. Kobach says that the President can do as he pleases so long as he can make a "colorable argument" that the nation is at war.

He doesn't need legislative approval? Matthews asks if he needs legislative approval. Kobach answers that he might, but doesn't explain how we're supposed to know when. Magic 8-ball?

Matthews asks if Bush could be tapping Kobach's phones right now.

Oh, no, replies Mr. Kobach, "there has to be some reasonable connection between the person I'm talking to …[crosschat]… there has to be some connection between my conversation and the wartime activities."

"Who monitors that?" asks the politely perplexed Matthews.

"Well, to a certain extent, in a democracy like this where the all is dependent on the executive branch, the police themself." explains the professor of constitutional law. (My emphasis) Why bother with checks and balances? Let's just have one branch, and the other branches can make some helpful suggestions now and then. I bet that's what the Founding Fathers meant to establish as a replacement for King George III and his Houses of Parliament.

Matthews points out that this precise point is where a lot of moderate people and libertarians start to get worried. "Once a government says 'we don't have to follow legal restrictions,' then it's up to what they do in private."

Once I'm arrested, Kobach explains, I can challenge the program in court.

Then he says that Congress was notified. Matthews says that a lot of congresscritters weren't, including the chairman of the Judiciary committee. Kobach makes a funny face and says that occasionally the intelligence committee was let in on the secret, but if you told the whole Congress, then they'd all know, and it wouldn't be secret any more.

Matthews: "You're justifying secret government."

Kobach: "No I'm not. I'm not saying it's justified."

Matthews: "You're saying 'trust them to follow the law,' except they're not following the law, and you're saying they don't have to follow the law."
Kobach: "I'm not saying completely trust them, there are judicial checks and balances, and we do have those members of the intelligence committee"

Later, Kobach says that at some point, a court might declare that a war has gone on long enough that a president doesn't have wartime powers any more.

Matthews: "But you said he doesn't have to go to court."

Kobach: "He doesn't."

Matthews asks how the court can rule if the president keeps his actions secret.

Kobach lamely replies that sooner or later a defendant brings it up in court. One presumes that we aren't talking about people unilaterally declared to be enemy combatants and tossed in secret Stalinist prisons.

Honestly, recent UMKC law grads should get their money back. If this is what they're learning, they'll get eaten alive.

As Brandon noted in passing this on to me: "when Chris "Tweety" Matthews beats you up in a debate, that's a pretty good sign that you're an idiot."