Congress must act to stop the rise of an Imperial Presidency in the United States of America.
Presidential Oath of Office,
United States Constitution
Article II, § 1, clause 6.
Legalism and the rule of law are two different things. In the hands of skilled and deceitful men, the former can too easily be manipulated to dodge or even subvert the latter and thus further poison the wells of public life.
William J. Bennett,
The Death of Outrage
Presidential power grabbing and congressional cowardice have imperiled the Constitution. If our Congress continues doing nothing to stem President George W. Bush’s consolidation of power, our country could face grave abuses of our most cherished civil liberties. Certain events are not in dispute. Last December, the President admitted that he initiated a domestic “terrorist surveillance” program. A program that allowed the National Security Agency (“NSA”) to listen in on “international electronic communications”—phone calls and emails—between “suspected terrorists,” in a manner inconsistent with United States law. Furthermore, on May, 11, 2006, we learned that the Administration has also been building a database containing domestic call records for millions of Americans. In the past weeks we have heard television and radio newscasters use the phrases, “suspected terrorist” and “millions of Americans,” in the same sentence. President Bush has admitted that both courses of conduct were his ideas; and he has justified them by asserting their necessity for protecting national security. In short, President Bush has deliberately chosen to disregard the law under the pretext of national security. And for those of you out there who are OK with what President Bush is doing, I ask, how comfortable would you be if in the future it is President Hillary Clinton doing the same things?
The Foreign Intelligence Surveillance Act (“FISA”) is the federal law that protects our privacy from arbitrary governmental intrusion under the pretext of national security. As such, FISA forbids the President from authorizing a warrantless wiretap if it is more likely than not that the government will be listening in on the conversation of a United States person. Under FISA, a “United States person” is a U.S. citizen, a permanent resident alien, an association predominantly made up of U.S. citizens or permanent resident aliens, or a corporation which is incorporated in the U.S. FISA only authorizes warrantless wiretaps of United States persons in two situations. First, if an emergency arises, and then only for a period of up to 72 hours, after which the President must apply to the Foreign Intelligence Surveillance Court to continue the surveillance. Second, in the event of declaration of war, FISA authorizes warrantless wiretaps of United States persons for a period of up to 15 days. (To read the text of FISA please see Title 50 United States Code, Sections 1801–1811; 50 U.S.C. §§ 1801–1811).
What is often overlooked is that the burden of proof which the government must meet to obtain a FISA warrant is extremely generous. So long as the government’s application for a FISA warrant meets the six requirements of FISA, the Foreign Intelligence Surveillance Court (“FISC”) must issue a warrant. Of these six requirements the single most important factor is that the government show probable cause tying the target to a foreign power. The probable cause that must be shown is not that a crime has been committed, but that a person has an affiliation with a specific group. Legally, the burden of proof is “not clearly erroneous.” Which means that as long as the government’s facts are not obviously wrong, the court must allow the government to eavesdrop. Moreover, because no one can challenge the government’s application, in essence the warrant is granted so long as the government’s application is not self-contradictory. The fact that from its inception in 1979 to 2004 the FISC has turned down a paltry 4 out of over 18,000 applications is a testament to the leniency of the “not clearly erroneous” burden of proof.
This is the letter of the law, and there is a difference between the letter and the rule of law. Legalists fail to see factual nuance or mitigating and aggravating circumstances because they are consumed by the letter of the law. On the other hand, those who believe in the rule of law understand that every situation is different because they discern the spirit of the law as well as knowing the letters. Legalists posit that theft is theft; and thus a man stealing a loaf of bread to feed his family is equivalent to a man embezzling the pension funds of thousands of his employees; but, those who believe in the rule of law understand the fundamental difference between those two acts.
The legalistic conception of impeachment asserts that if the President violates the law—any law—he has shown disrespect for the rule of law, and hence has destroyed his ability to fulfill his presidential duties. However, the rule of law concept of impeachment states that it is not enough simply that the President has broken the law; his actions must have undermined our constitutional system of government or have been so terrible that the public has lost confidence in the President’s ability to do his job. The President is especially vulnerable to calls for his impeachment if caught violating the law, because the Constitution obligates him to “take care that the laws be faithfully executed.” After all, how can the highest law enforcement official in the United States faithfully execute the laws upon others, when he cannot be troubled to obey the laws himself?
If the House of Representatives, the only body of our government imbued with the power of impeachment, should find that President Bush violated FISA by authorizing the warrantless wiretaps, then he would stand accused of a serious crime, punishable by a fine of up to $10,000 and 5 years in prison. If the House were to adopt a legalistic attitude toward impeaching President Bush, it is practically certain that his action would rise to the level of a high crime or misdemeanor, and his name would be added to the list: Johnson, Nixon, Clinton … W.
In this case, although the legalistic approach fails to provide a complete justification for impeaching President Bush, it is a good starting point because it highlights the hypocrisy of President Bush’s actions. The President, in his official capacity, determined that he did not need to obey FISA because, according to Attorney General Alberto Gonzalez, FISA’s requirements “can be cumbersome and burdensome.” By that logic, because I find stop signs to be cumbersome and burdensome to my goal of spending as little time inside my car as possible, then it is ok for me to circumvent stop signs—after all, if President Bush can do it, why can’t I?
However, legalism is not just for those who might favor impeachment. After the domestic “terrorist surveillance” program was exposed, President Bush’s Attorney General told Congress that the “program is lawful in all respects.” The statement is legalism at its worst and indicative of the administration’s overall attitude toward the rule of law, which is essential that it does not apply to the President. Take for example this exchange between Attorney General Alberto Gonzales and Illinois Senator Dick Durbin on February 6, 2006:
GONZALES: … it has never been our position that we are circumventing or ignoring FISA. Quite the contrary, the president has authorized activities that are totally consistent with FISA, with what FISA contemplates.
I have indicated that I believe that, putting aside the question of the authorization to use military force, that, while it's a tough legal question as to whether or not Congress has the authority under the Constitution to cabin or to limit the president's constitutional authority to engage in electronic surveillance of the enemy, that is not a question that we even need to get to. It has always been our position that FISA can be and must be read in a way that it doesn't infringe upon the president's constitutional authority.
DURBIN: So let me read to you what your own Justice Department just issued … in relation to the president's authority, the NSA program and FISA. I quote, "Because the president also is determined that NSA activities are necessary to defend the United States from a subsequent terrorist attack in the armed conflict with Al Qaida," I quote, "FISA would impermissibly [sic] interfere with the president's most solemn constitutional obligation to defend the United States against foreign attack." You can't have it both ways.
DURBIN: You can't tell me that you're not circumventing it and then publish this and say that FISA interferes with the president [sic] constitutional authority.
GONZALES: And that's why you have to interpret FISA in a way where you don't tee up that very difficult constitutional question under the canon of constitutional avoidance.
Thus the Attorney General claims that although President Bush is not violating FISA, FISA interferes with the President’s constitutional authority. If the President is not violating FISA with the warrantless wiretaps, then how can FISA possibly interfere with his constitutional authority to authorize them? To accentuate the legalism that is being employed by this administration to subvert the rule of law, the Attorney General condescendingly referred to FISA as “an extremely important tool;” but nevertheless, merely a tool, not the exclusive means for collecting electronic surveillance that may be employed for collecting foreign intelligence, as Title XVIII of the United States Code makes obvious. According to the American Bar Association, Congress made explicit its intention that FISA is the exclusive means by which electronic surveillance for foreign intelligence purposes may be conducted. [Title] 18 U.S.C. §2511 provides in part: “[T]he Foreign Intelligence Surveillance Act of 1978 [50 U.S.C. § 1801 et seq.] shall be the exclusive means by which electronic surveillance, as defined in Section 101 of such Act [50 U.S.C. §1801] … may be conducted.”
Hence, President Bush has shown the utmost contempt for the rule of law first by violating it, second by keeping that violation secret, and finally, by making a patently untenable argument that he was acting lawfully after he got caught.
President Bush has broken the law, but more importantly he has deceived Congress, the Judiciary, and the American people. First, in his deception of Congress, President Bush secretly initiated the domestic “terrorist surveillance” program after Congress passed the Authorization to Use Military Force (“AUMF”) against Al Qaeda but prior to the passage of the Patriot Act. That means that while the President was lobbying Congress to change FISA as it was eventually amended by the Patriot Act, President Bush had already determined that he could operate outside the limits of FISA. He was violated FISA while lobbying Congress to amend it. Bush’s argument: that FISA needed to be amended because it hampered the President’s ability to protect national security.
Second, in his deception of the Judiciary, the Administration went to the Foreign Intelligence Surveillance Court of Review, the highest court authorized to review FISA warrants. In In re Sealed Case, the Bush Administration appealed an order by the Foreign Intelligence Surveillance Court (“FISC”) which imposed certain restrictions on who could recommend electronic surveillance and how the information could be shared. The government argued that FISA did not authorize the FISC to impose the restrictions and that FISA (as amended by the Patriot Act) is constitutional because the searches it authorizes are “reasonable” under the Fourth Amendment. In fact, the government affirmatively argued that FISA was a constitutional statute. Thus, the administration would have it both ways, when its power to collect and share intelligence within the confines of FISA is questioned—the law is constitutional; but when its power to collect the very same information outside the confines of FISA is questioned—well, then the law is unconstitutional.
Third, in his deception of the Public, President Bush himself made a terribly deceptive statement to the American people in Buffalo, New York in 2004, saying “Any time you hear the United States government talking about wiretaps, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.” [emphasis added] President Bush was fully aware that the NSA was engaged in warrantless wiretapping at the time he made that statement—because he himself authorized it. President Bush violated the implicit trust placed in him when he deceived and misled the Congress and the Public about the nature of the government’s electronic surveillance activities on American soil.
The Constitution is a contract. A contract which bestowed the sovereignty of the American people upon the Federal government. A contract which defined the allotment of power to each branch of government. And those powers remain allocated accordingly unless the contract is altered in the form of a Constitutional Amendment. The very core of our government is the separation of powers. Hence, under the Constitution, Congress possesses “all legislative Powers.” President Bush claims to have circumvented FISA because it was necessary to institute “an early warning system” that accomplishes what FISA prohibited—the warrantless electronic surveillance of United States persons within our own national borders. But President Bush’s decision to break the law “out of necessity” also pilfered legislative power from Congress.
This President has stolen for his office, powers that the Constitution places in the Congress, the Judiciary, and the People. The Fourth Amendment states “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Supreme Court has unequivocally decided that a neutral and detached judge determines probable cause and not the President. With one decision to authorize warrantless electronic surveillance of United States persons outside the generous confines of FISA, President Bush stole for himself the judicial authority from the Federal Courts and destroyed the most common check and balance against presidential excess.
Regardless of the intrinsic nature of his actions (criminal or not), the President has attempted to steal for the executive, powers vested in the legislature and judiciary by the Constitution—the power to define the law, and the power to interpret it. His attempts at usurpation have been marked by deception that has destroyed the public’s confidence in his ability to lead the country. His actions in fighting the war on terror have threatened the Constitution, the most basic principles of our government, and prevented the continued performance of his official duties as President. According to George Washington, although usurpation, “in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
The Constitution of the United States of America sanctions only one remedy for dealing with executive usurpations—impeachment. I believe that President Bush’s actions rise to the level of high crimes and misdemeanors and are impeachable; however, I implore Congress to take action to deal with these recent executive thefts of power. To date, the Congress has not seen fit to do so. Congress has failed to investigate the program or to force the administration to divulge the full extent of its domestic surveillance activities. While the Senate Judiciary Committee has held hearings, they have only generated more questions, and the Senate Intelligence Committee has refused to investigate the program, instead proposing a bill that would allow the President to actually continue his domestic spy program with some minor alterations.
During the Nixon impeachment investigation, Congress actively pursued the truth in an effort to uncover all the potentially criminal activities in which Nixon was implicated. Even during the highly partisan Clinton impeachment, Congress spent millions to investigate every alleged criminal act of President Clinton. So far, Congress has failed to act to protect the Constitution, and that inaction is paramount to the same disregard of the constitutional separation of powers as President Bush’s actions.
Therefore, it would be premature to institute impeachment proceedings because Congress has not yet exercised meaningful oversight to determine the full extent of the program. Before impeachment becomes a viable option, Congress needs to pass a joint resolution clarifying the extent to which the Authorization to Use Military Force authorizes warrantless wiretaps on American soil. Moreover, an impeachment investigation cannot commence if Congress is ignorant of the specifics of the program. Therefore, Congress must vigorously interrogate Attorney General Alberto Gonzales, former Head of the NSA and current nominee for Director of the CIA General Michael Hayden, and President Bush himself to determine the true extent of executive intrusion into the private lives of Americans.
Currently, the Illinois Legislature is considering a joint resolution which, under Section 603 of Jefferson’s Manual of the Rules of the United States House of Representatives, could force a Congressional impeachment inquiry. It remains to be seen whether that resolution will pass, and if so, what Congress will do as a result. A critical mass of people opposed to President Bush’s policies appears to be forming around the country. With mid-term elections this November and the distinct possibility of a change in control over the House of Representatives, the possibility that we will see a Congress that takes action in opposition to President Bush is no longer a shot in the dark, but a real and hopeful possibility.
I would prefer to see Congress attempt to reign in the excesses of this administration before exercising the option of impeachment. In the end, I do not see impeachment as a process for punishing a president who has abused his office and betrayed the public trust, but as a last resort for protecting the integrity of our constitutional system of government.
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