Tuesday, January 20, 2009

"Unwarranted," Part II: Journal Back at It Today

It would be petty, on a day this mo[nu]mentous, to take on the nuance-proof editorial board at the Wall Street Journal. And petty I am. So here goes:
Building on last week's endeavor to misread the import of a judicial decision to defend Bush's secret program of warrantless wiretapping, the Journal runs an editorial today about Att'y General nominee Eric Holder's position on the question, quoting a confirmation hearing exchange between Holder and Senator Orrin Hatch:
Mr. HATCH: "Back to my prior point, the President's inherent authority under the Constitution. Can that be limited by a statute? You're relying on a statute as though that's binding on Article II of the Constitution."

Mr. HOLDER: "Well, the President obviously has powers under the Constitution that cannot be infringed by the legislative branch. That's what I was saying earlier. There are powers that the President has delegated to him — that he has — and Congress does not have the ability to say, with regard to those powers, you cannot exercise them. There's always a tension in trying to decide where that balance is struck. And I think we see the best result when we see Congress interacting with the President, the executive branch interacting with the legislative branch and coming up with solutions . . ."

Mr. HATCH: "That still doesn't negate the fact that the President may have inherent powers under Article II that even a statute cannot vary."

Mr. HOLDER: "Sure."

From here the editorial jumps to its logically untenable "Gotcha!" conclusion:
So let's see. Mr. Holder now concedes that Presidents have inherent powers that even a statute can't abridge, notwithstanding his campaign speeches. . . . [H]is concession is further evidence that the liberal accusations about "breaking the law" and "illegal wiretaps" of the last several years were mostly about naked partisanship. Mr. Holder's objection turns out to be merely the tactical political one that the Bush Administration would have been better off negotiating with Congress for wiretap approval, not that it was breaking the law. Now he tells us.

Uh, no, Journal. No — you're wrong, because Eric Holder did not tell you that. Nothing Holder said about the Article II war powers generally (to wit, that they exist) is inconsistent with his position on whether bulk warrantless wiretapping in secret is one of them (to wit, that it's not).

At this point, it's just laughable. At least last week the Journal did the good journalist's work of obfuscating the truth, by conveniently leaving out any discussion of what the FISA review court decision actually held. Here they quote an actual transcript, then — with the evidence right there in the column — try to make triumphal hay on a premise that Holder said something different.

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