January 31, 2006
"Some legal questions are hard. This one is not. The President’s
authorizing of NSA to spy on Americans is blatantly unlawful."—Geoffrey Stone, University of Chicago law professor
There comes a time when the nakedness of the emperor can no longer be denied. Such a time is now.
George Bush’s
policy of eavesdropping on U.S. citizens without a warrant proves he
has placed himself above the law. Add this to the long list of other
impeachable offenses—lying the country into war, torturing prisoners,
exporting detainees for torture, paying columnists to propagandize the
American public—that George W. Bush has committed, and put it at the
top.
The President
swears an oath of office that he will uphold the Constitution and
faithfully execute the laws of the land.But he has been brazenly
flouting the law that prohibits domestic spying without a warrant.
When The New York
Times revealed on December 16 (after sitting on the story for a year
and then omitting details at the request of Administration officials!)
that Bush ordered the National Security Agency to monitor "the
international telephone calls and international e-mail messages of
hundreds, perhaps thousands, of people inside the United States without
warrants over the past three years," I expected Bush to deny it or to
say he was going to review the policy. Instead, he has been vehemently
defending that policy, citing both his authority under the Constitution
as commander in chief and Congress’s authorization to go after Al Qaeda.
These were the
very same rationales that the Bush Administration put forward at the
Supreme Court in the 2004 case of Yaser Hamdi, one of the U.S. citizens
Bush detained without charge or trial for more than two years.
The Supreme Court
was especially critical of Bush’s end around the courts. "A state of
war is not a blank check for the President when it comes to the rights
of the nation’s citizens," Justice Sandra Day O’Connor wrote in the
court’s majority opinion. She warned, in her own italics, of the danger
of an approach that "serves only to condense power into a single branch
of government."
Bush, however,
keeps invoking the state of war as a justification. At a December 19
press conference, he said his Administration bypassed going to a court
and getting a warrant, as required by the Foreign Intelligence Service
Act (FISA), because he wanted to "move faster and quicker."
Leaving aside the
fact that the law already allows the government to move expeditiously
and then seek a warrant seventy-two hours after the fact, Bush’s excuse
could have been used by any President at any time in our history to
flout the law in a time of war.
During the Cold
War, for instance, Presidents needed to "move faster and quicker," too,
since the Soviets had hundreds, then thousands, of intercontinental
ballistic missiles that could annihilate the United States. But that
didn’t give Eisenhower or Kennedy permission to violate a citizen’s
right to privacy whenever they wanted to.
Many people have
been scratching their heads about one paradox in this whole scandal:
The FISA court almost never turns the President down. Of some 19,000
requests for warrants, the court has rejected only five, says James
Bamford, an expert on the NSA. So why didn’t the President just go get
this rubber stamp?
It may be that the
Administration worried that some of its specific requests were simply
too intrusive and expansive even for the pliant FISA court, and so
Bush’s people simply skirted the court. Or it may not have wanted to do
the paperwork. "The court has been subjecting the applications to
closer examination," Richard Lacayo of Time magazine reported. "It made
what the Justice Department calls 'substantive modifications’ to
ninety-four of last year’s requests—for example, reducing the scope,
timing, or targets in the original application."
"If you’re calling Aunt Sadie in Paris, we’re probably not really interested."—Dick Cheney
But I suspect
that the Bush decision to bypass the court had less to do with
practicality and more to do with ideology: The Bush folks, especially
Vice President Dick Cheney and Attorney General Alberto Gonzales, do
not believe the President has to answer to anybody when it comes to his
conduct as commander in chief. Just as Cheney urged Bush not to go to
the United Nations, so, too, he urged Bush not to go to the FISA court.
Each is a fetter on Presidential power. And Cheney fantasizes about a
President completely unfettered.
"I believe in a
strong, robust executive authority," Cheney said on December 20. The
NSA’s spying, he added, was "totally appropriate and consistent with
the constitutional authority of the President." Faulting Congress for
pursuing Reagan in the Iran-Contra scandal, Cheney said, "The President
of the United States needs to have his constitutional powers
unimpaired, if you will, in terms of the conduct of national security
policy."
Gonzales, the
chief law enforcement officer in the country, testified at his
confirmation hearing in January 2005 that the President could disregard
the law.
"I do believe
there may come an occasion when the Congress might pass a statute that
the President may view as unconstitutional," Gonzales told Senator
Patrick Leahy. "Obviously, a decision as to whether or not to ignore a
statute passed by Congress is a very, very serious one, and it would be
one that I would spend a great deal of time and attention [on] before
arriving at a conclusion that, in fact, a President had the authority."
So Bush, with Cheney and Gonzales whispering in each ear, defiantly says he’s going to do whatever the hell he wants.
When he signed
the anti-torture law in late December, for instance, Bush reserved the
right to ignore it, The Boston Globe reported. Bush specified in a
"signing statement" that said he would construe the law "in a manner
consistent with the constitutional authority of the President to
supervise the unitary executive branch and as commander in chief" with
the objective "of protecting the American people from further terrorist
attacks."
Bush may intend to use such "signing statements" to nullify just about any act of Congress he chooses.
We haven’t seen
such disdain for our system of checks and balances since the days of
Richard Nixon. And like Nixon in the Pentagon Papers case, Bush is
trying to shift blame to the press and to the whistleblowers,
denouncing the leak as "shameful." Gonzales is now pursuing the leaker,
though he has a double conflict of interest.
First, he’s an old crony of Bush’s.
Second, and more
importantly, when he was White House counsel, he was one of the
architects of the NSA spying program. So much so that he and Chief of
Staff Andrew Card had "to make an emergency hospital visit to John
Ashcroft, then the Attorney General, to try to persuade him to give his
authorization" to continued NSA spying after Ashcroft’s deputy, James
B. Comey, refused to go along, according to The New York Times.
Rather than investigating the leaker, Gonzales should be investigating himself—and Bush.
But, of course,
he won’t do that. Nor is he appointing a special prosecutor to look
into the matter. Nor does he seem to be recusing himself from the leak
investigation, as he has an obligation to do. Even Ashcroft recused
himself from the Karl Rove case.
"It is completely
and facially unethical for Gonzales to head this investigation," says
Jonathan Turley, professor of constitutional law at George Washington
University.
The NSA spying
scandal cries out for an impeachment inquiry. Our democracy cannot
survive the assertion of Presidential power to be above the law.
Senator Russ
Feingold made this point quite well. "The President believes that he
has the power to override the laws that Congress has passed. This is
not how our democratic system of government works. The President does
not get to pick and choose which laws he wants to follow. He is a
President, not a king. . . . He’s President George Bush, not King
George Bush."
Even some
conservatives who have often supported Bush have come out strongly
against the NSA spying (though The Wall Street Journal and The Weekly
Standard applauded it).
"The executive
branch cannot unilaterally set the rules and enforce the rules, then
eliminate court review of possible civil liberties violations," said
Robert Levy, the libertarian Cato Institute’s senior fellow in
constitutional studies. Bush’s policy "makes a mockery of the principle
of separation of powers."
Conservative
legal scholar Bruce Fein, who served as associate deputy attorney
general in the Reagan Administration, was even more blunt."If President
Bush is totally unapologetic and says I continue to maintain that as a
wartime President I can do anything I want—I don’t need to consult any
other branches—that is an impeachable offense," he said on The Diane
Rehm Show. "It’s more dangerous than Clinton’s lying under oath because
it jeopardizes our democratic dispensation and civil liberties for the
ages."
"The
chilling danger created by President Bush’s claim of wartime
omnipotence to justify the NSA’s eavesdropping is that the precedent
will lie around like a loaded weapon ready for the hand of the
incumbent or any successor who would reduce Congress to an ink blot."—Bruce Fein, writing in
The Washington Times, January 4
Norman
Ornstein of the American Enterprise Institute was on the same program
and echoed Fein’s comments. "I think if we’re going to be
intellectually honest here, this really is the kind of thing that
Alexander Hamilton was referring to when impeachment was discussed,"
said Ornstein.
Richard Nixon
was impeached, in part, for such power grabs and privacy invasions. One
of the three articles of impeachment that came out of the House
Judiciary Committee in 1974 said: "Using the powers of the office of
President of the United States, Richard M. Nixon, in violation of his
constitutional oath faithfully to execute the office of President of
the United States and, to the best of his ability, preserve, protect,
and defend the Constitution of the United States, and in disregard of
his constitutional duty to take care that the laws be faithfully
executed, has repeatedly engaged in conduct violating the
constitutional rights of citizens."
If you replace Nixon’s name with Bush’s, the article still stands.
© 2006 The Progressive, Inc.i>
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