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December 19, 2005

domestic spying and impeachment

The president's direct order to conduct domestic wiretaps without warrants is a very big deal. I'm ready to change my whole view of the Bush Administration if the facts turn out for the worst. For almost five years, I have been making these arguments:

1. What's bad about the Bush Administration are some of its overt priorities and policies. The way to respond to a public policy that you don't like is to propose a better idea. But who knows what ideas the House Democrats support today--or what Kerry and Edwards wanted to do in 2004? To concentrate on the characters and secret behaviors of men like Bush, Cheney, and Rove is to miss the point of politics, which is supposed to be a contest of ideas.

2. It is also bad political strategy for the Democrats to concentrate on attacking Republican leaders. In times of war or terror, if the conversation dwells on personal characters and behaviors, the incumbents tend to win and the critics look merely opportunistic (especially if they don't have plans of their own).

However, last Friday's revelation of the domestic wiretap order adds a whole new dimension. I don't believe that it alters the two points listed above. The country still needs policy alternatives, especially regarding Iraq. And the Democrats will still be better off if they talk about future directions, rather than attack the President. Nevertheless, to order domestic wiretaps without warrants may violate a federal criminal statute. If a president issues such an order knowingly, operating under the principle that the law doesn't cover his behavior--and he gets away with it--then we don't have limited government or constitutionalism.

Therefore, I think the president should face a congressional investigation to determine whether he knowingly violated 2511 of 18 USC I(119). If he did, then he should face an article of impeachment. An impeachment debate would be a distraction and would probably energize the Republican base in '06, yet I don't believe the country can ignore possible lawlessness in the White House.

I would not support piling on other charges, such as allegedly lying to the American people about the war in Iraq or presiding over an executive branch that has committed torture. The lying charge is best addressed by voters on Election Day (and I'm not even sure it's true). The torture charge is criminal, but I don't believe it's helpful to make the president personally liable or to try to impeach him. The domestic wiretap order is different because it may have been a direct act by the president himself that violated a US criminal statute. Impeachment is meant for cases in which high officials directly and personally break the law.

The congressional investigation should not be narrowly partisan. It should also explore the role of Congress. If, for example, Nancy Pelosi knew of the illegal order, why didn't she do anything about it? Granted, the administration must have warned her that disclosing the order would be a crime. But the order itself was probably criminal. I don't see the point of congressional oversight if Congress doesn't use its power to oversee.

Impeachment would not be appropriate if the president's orders were simply unconstitutional--for then the appropriate remedy would be to strike them down. Impeachment is for violations of federal criminal law ("high crimes and misdemeanors"). The Bush order does seem to me to be potentially criminal. But--as they say--I'm not a lawyer, and the statute isn't perfectly clear.

The law makes wiretapping illegal except under certain circumstances, which include "a certification in writing by a person specified in section 2518 (7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required ..." The President received such a certification from the Attorney General. But was the certification valid? The AG had to find that domestic wiretaps met "all statutory requirements." The statute bans wiretaps without a warrant. Thus, it seems to me, the only question is whether section (2)(f) creates a loophole that would allow a certification. That section says, "Nothing contained in this chapter ... shall be deemed to affect the acquisition by the United States Government of ... foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system." Whether this section creates a loophole depends on whether the domestic communications that have been intercepted under Bush have always used "a foreign electronic communications system"--whatever that phrase may mean in the age of the Internet.

December 19, 2005 8:25 AM | category: none

Comments

Great post, I have been actually quite excited that people, especially the media, have sniffed out the significance of this question. I just want to add something about this as I understand it.
Not only is it offensive that the President would given an order in known violation of the law, but it is doing the whole thing in secret that is especially offensive. Even if the White House believes its flimsy defense of its actions, even if the American people, now upon hearing this flimsy defense, believe that the action itself is okay, it STILL does not xcuse the secrecy. It is probably well across the line for the President to have knowingly authorized these wire taps. It is without question beyond the line to authorize the taps and decide that no one has the right to question your authority.
I worry about the impact of back-to-back impeachments of second term Presidents, but if the office of the President is not severely punished for this, then it is not clear what final authority rests any more with the legislature or the judiciary anymore. If they are allowed to exercise power at "the pleasure of the President", then I would have to believe that the whole enterprise of deomcratic republic is on the verge of being sunk.

December 19, 2005 12:15 PM | Comments (3) | posted by Steven Maloney

From Tom Hilde, via email:

I think a lot of people have agreed for some time with your two points. But the domestic spying issue isn't the only instance of thwarting law (and morality). International law matters. It's only now, however, when faced with domestic legal violations, that some have come to the conclsuion that this president is attacking the very basis of democratic constitutional government. This can imply that it matters only when it's us and the US Constitution. I don't subscribe to that. The war has been an excuse to break any number of widely accepted legal norms both domestic and international and then pooh pooh them as if laws and moral norms don't apply to the leader's self-defined and ambiguous war. If the US is the global superpower who both exerts enormous influence over international norms and sets the terms by which they're evaluated, we're headed in the direction of an international and domestic dictatorship of which we US citizens are complicit.

December 19, 2005 7:42 PM | Comments (3) | posted by Peter Levine

I agree that international law is extremely important, as is the US Constitution. Nevertheless, violating a federal criminal statute is different, in my opinion, because it triggers a different response.

If a president violates the Constitution, a court should strike down his policy and order a remedy. If he lies, the people should weigh his mendacity at the next election. If he violates international law, the US should be held collectively accountable, and we Americans should strongly express our displeasure. All of these presidential misbehaviors are serious, but they can be addressed through the normal mechanisms of constitutional democracy and diplomacy (debates, votes, lawsuits, UN resolutions). In each case, it is ultimately citizens who must respond. One of the reasons that I haven't welcomed criminal investigations of the Bush administration is that they circumvent the citizens' role.

However, to violate a US statute is different. Statutes are not vague, like constitutional principles. They do not apply to nations, like many precepts of international law. They clearly assign responsibility to individuals, along with standards of proof and penalties. You either violate a statute or you don't. If you happen to be then president when you break a law, then you must be impeached before you can be indicted.

A different point: Although international law and constitutional principles (not to mention ethics) are extremely important, criminal law ought to have a different pyschological effect. Powerful people, even in secret, should be afraid to do things that are defined as felonies. If they break clear laws with impunity, then we have no hope of controlling them.

December 19, 2005 8:25 PM | Comments (3) | posted by Peter Levine

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