I don't want to join the public debate over the Comey testimony on Tuesday. The debate is very much alive on editorial pages and blogs, and I won't have anything useful to ad. If you haven't followed it (which I guess is unlikely), I recommend reading last week's posts on Balkinization and The Volokh Conspiracy, including the comments, as well as today's WashPost op-ed by Douglas Kmiec.
As I said, here I don't want to join the evaluative debate, but I want to point to the theoretical (and instructional) importance of Comey's (and other's) objection to the NSA surveillance program as it existed before March 2004. From the perspective of the attitudinal model, we should expect Comey, Ashcroft, Mueller, and other Justice Dept. officials to disagree with Bush, Cheney, Gonzalez, etc., over the surveillance program *if* Comey et al. are attitudinally more inclined to protect the individual privacy rights of Americans. But that's not a plausible assumption in this case: Ashcroft et al. were selected by the president; for all we know, they were reliably conservative allies of their political bosses; there is no reason to presume that they were more liberal than Bush, Cheney, Addington, Gonzalez, etc. Indeed, the fact that they were happy with the surveillance program under an alternative legal basis, indicates that their objection to the program was not based on attitudinal or ideological differences with the president, but on legal differences.
In other words, here we have an example of a case where we know - as well as we can ever know - the attitudes of the actors involved, and we find that some are willing to act against their attitudes and in accordance with their view of the law. The attitudinal model fails to explain this case, the legal model (or some version of it) provides an explanation. But how precisely does this explanation look like? One possibility is the one suggested by Brian Tamanaha in this Balkinization post: "The obvious conclusion to be drawn: Gonzales’s legal justification, while perhaps arguable, was extraordinarily weak, beyond the pale of plausibility." From this point of view, the pursuit of attitudinally motivated goals is constrained by the plausibility of legal arguments - and here we have a case where the legal arguments, at least in the view of Comey et al., were not plausible.
Another possibility is based on a strategic (or, if you prefer, legal-realism) argument: Comey et al. followed the law as they believed the courts would interpret it, and they did not believe that, should the program become public, the Supreme Court would support the Yoo/Cheney/Addington view of presidential power (you can find a good discussion of this view in the series of Yoo/Calabresi/et al. papers on the unitary executive; see for example here and here). Still, the law constrained Comey et al., but it did so not directly on the basis of the plausibility of its arguments, but on the basis of the composition of the Supreme Court: According to this argument, with a couple of Harriet Mierses on the Supreme Court, Ashcroft, Comey, and the others would have signed off on the program as it was. Segal and Spaeth (link) would probably be happier with this view, as their main argument is that the attitudinal model explains Supreme Court behavior, but not necessarily that of other actors. But we don't have an alternative universe with a bunch of Harriet Mierses on the Supreme Court, so we don't know if it was the (im)plausibility of legal arguments or the fear of prosecution was the decisive factor.
As I said, here I don't want to join the evaluative debate, but I want to point to the theoretical (and instructional) importance of Comey's (and other's) objection to the NSA surveillance program as it existed before March 2004. From the perspective of the attitudinal model, we should expect Comey, Ashcroft, Mueller, and other Justice Dept. officials to disagree with Bush, Cheney, Gonzalez, etc., over the surveillance program *if* Comey et al. are attitudinally more inclined to protect the individual privacy rights of Americans. But that's not a plausible assumption in this case: Ashcroft et al. were selected by the president; for all we know, they were reliably conservative allies of their political bosses; there is no reason to presume that they were more liberal than Bush, Cheney, Addington, Gonzalez, etc. Indeed, the fact that they were happy with the surveillance program under an alternative legal basis, indicates that their objection to the program was not based on attitudinal or ideological differences with the president, but on legal differences.
In other words, here we have an example of a case where we know - as well as we can ever know - the attitudes of the actors involved, and we find that some are willing to act against their attitudes and in accordance with their view of the law. The attitudinal model fails to explain this case, the legal model (or some version of it) provides an explanation. But how precisely does this explanation look like? One possibility is the one suggested by Brian Tamanaha in this Balkinization post: "The obvious conclusion to be drawn: Gonzales’s legal justification, while perhaps arguable, was extraordinarily weak, beyond the pale of plausibility." From this point of view, the pursuit of attitudinally motivated goals is constrained by the plausibility of legal arguments - and here we have a case where the legal arguments, at least in the view of Comey et al., were not plausible.
Another possibility is based on a strategic (or, if you prefer, legal-realism) argument: Comey et al. followed the law as they believed the courts would interpret it, and they did not believe that, should the program become public, the Supreme Court would support the Yoo/Cheney/Addington view of presidential power (you can find a good discussion of this view in the series of Yoo/Calabresi/et al. papers on the unitary executive; see for example here and here). Still, the law constrained Comey et al., but it did so not directly on the basis of the plausibility of its arguments, but on the basis of the composition of the Supreme Court: According to this argument, with a couple of Harriet Mierses on the Supreme Court, Ashcroft, Comey, and the others would have signed off on the program as it was. Segal and Spaeth (link) would probably be happier with this view, as their main argument is that the attitudinal model explains Supreme Court behavior, but not necessarily that of other actors. But we don't have an alternative universe with a bunch of Harriet Mierses on the Supreme Court, so we don't know if it was the (im)plausibility of legal arguments or the fear of prosecution was the decisive factor.
