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December 19, 2005

More On That Whole Impeachment Thing

Over at the Volokh Conspiracy, some meaty thoughts on whether the president's wiretap program actually broke the law. The author's current, "extra-cautious" conclusion: "it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act." While I bask in my own I-am-not-a-lawyer-ness, I have to confess this is pretty close to my own reading of the situation as far as I can winkle it out under my own intellect, given what information is available to me. And if this particular reading is borne out, you can bet the folks rubbing their hands about the idea of impeaching Bush are going to cackle even more gleefully.

So let's ask: If after all is said and done the president did break the law, should he be impeached? As I've alluded to before, on general principles I'm against the process of impeachment because it's so immensely disruptive; personally, I'd want to see a president caught red-handed dealing crack cocaine or strangling babies before I'd consent to such a thing. But this isn't about my own dread of the impeachment process, it's about whether there's an actual case for impeaching the president.

And for me, what it comes down to is three things. First I'd want to know -- regardless of whether the president did break the law -- if he broke the law knowing unambiguously that his course of action was entirely beyond the pale of law. If the president can show a solid legal argument that a reasonable person versed in the relevant law could see as a not-entirely-specious rationale for thinking that FISA did not apply, then I'm inclined not have him frogmarched over to Capitol Hill. If on the other hand, he said something along the lines of "I don't care if it's illegal, just do it," well, then, I'd be more inclined to say "hoppity-hop, Mr. President" -- but not entirely, for reasons I'll get to in a moment.

We've been hearing the president and his people throwing out various legal interpretations to the press today to see if any of them stick, so I have no doubt Bush has got a rationale. But I think he has a very serious problem in that his administration has played fast and loose with legal and constitutional interpretations of the scope of its powers for so long that its credibility on the matter is entirely shot. Rationalizing spying on Americans in the US without a warrant might have been doable if we didn't already know the Adminstration was content to deprive US citizens of their constitutional rights (which required the Supreme Court to smack it down in an 8-1 decision), or to assert that agents of the US should be exempted from anti-torture strictures, until shamed into agreeing they shouldn't by a senator of its own party who had been tortured by the North Vietnamese. Time and time again the Administration has shown that it simply doesn't care about compromising civil rights in the pursuit of enemies. It's also shown that it doesn't particularly care about dialogue about its decisions, either -- the administration has contended that it kept key Congressional figures in the loop about the warrantless search thing, but some of those Congressional leaders have said, basically, that the Administration came to them and said "We're not asking you, we're telling you" -- and that even then they weren't told everything. Naturally that's an issue.

(And no, it doesn't matter that the Administration has only been depriving bad Americans of their rights. The Constitution doesn't say that only "good" citizens get rights. Get it right, people.)

Now, let's posit that the president knew his actions were illegal, but didn't care. Would that merit impeachment? In my opinion, no -- if the president could prove that his actions saved Americans from imminent harm that following the law could not have prevented. Basically, if the Administration can show that the FISA process was so broken that it needed to be ignored in order to protect Americans, I would be uninclined to have the president punished for doing what he quite rightly feels is his job: Protecting Americans from harm. Naturally, Bush and his administration are pushing some form of this rationale at the moment.

I'm open to hearing this argument, but my default position is to be very skeptical of it. The FISA court procedures seem to be quite flexible when it comes to allowing the government to deal with immediate threats: having a 72-hour retroactive window for warrants is something I suspect most law enforcement folks wish they could get. Moreover, I would say that even if the FISA procedures were in some way problematical and required a workaround, it would still be incumbent on the administration, while continuing to employ the workaround, to try to fix and improve the FISA court within the law to make a legal avenue more responsive to real world issues. It doesn't seem that the Administration has done that, or even tried to do that, which goes again to the Bush Administration's apparent lack of interest in playing well with the other branches of government.

If we granted that the president both knew what he was doing was illegal and that it was determined that such evasion of law was entirely unnecessary, now are we talking impeachment? This is the point where I go "gaaaaaaaaah" and raise a point that will be entirely unpersuasive to many, which is that I genuinely believe that Bush wants to protect Americans, and that matters to a non-trivial extent. I'd be loathe to impeach a president for that, and I would find it difficult to support people who would. There, I've said it: I don't think you get impeached for trying to protect Americans.

But that's about all the slack I'm ready to grant the man. Look, I don't doubt the Bush folks want to protect Americans. That's not even an issue for me. But I'm not at all convinced that fully protecting Americans requires going beyond the law, and I am deeply concerned about the precedent the Bush administration is attempting to set, which is that a president can do any damn thing he or she wants. This is a pretty simple thing: there are three branches of government, and the idea is that each of them is co-equal. The Bush folks pretty clearly wish to assert otherwise. I'm not inclined to agree, and I'm pleased that members of Congress, on both sides of the aisle, are finally starting to come around to my way of thinking. I appreciate that in wartime presidents should have leeway, but I think the Adminstration's had four years of leeway with some less-than-desirable results regarding civil rights. So that's been quite enough. A little more oversight would be nice. Well, a lot more, at this point.

Posted by john at December 19, 2005 06:15 PM

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Comments

Daniel H. Alvarez | December 19, 2005 09:24 PM

Wanting to protect Americans isn't a justification for breaking the law. That little slippery slope leads to a deep hole. Everything from killing your quiet next-door neighbor because he's obviously a serial killer to torching your neighborhood Hummer dealership to protect the environment can be justified that way. The President isn't and shouldn't be above the law.

However, I tend to think that we should wait until we have evidence of a high crime before we impeach chimpy. That would be much more fun in the long run.

Kevin Q | December 19, 2005 09:25 PM

The Constitution grants Congress the power to impeach the President for "treason, bribery, or other high crimes and misdemeanors." 'Misdemeanors' does not mean the same thing in the Constitution as it does in current criminal law - it's obvious from context that the framers had truly heinous criminal breaches in mind. So the question is, does ordering wiretaps in violation of law rise to that level.

As much as I hate Bush (and I do, truly, hate him) I just don't think that it does. If the police tapped phones without a warrant, I don't think we'd prosecute the police. (Correct me if I'm wrong.) We just wouldn't be able to use that evidence against anybody caught with an illegal tap. I think it's the same thing here. I don't think it's a prosecutable offense.

On the other hand, if it was a prosecutable offense, or was truly and clearly in violation of the Constitution, then I think we would be well within our rights to demand an impeachment. He does not get off because he thought he was helping America, though that argument might work to prove an insanity defense. I said it in another thread - the government acting in secret makes us less safe, both from outside threats, and from our own government. The government is not the same thing as the country, and the government's enemies are not always our nation's enemies. The government shouldn't get to use secrecy as a weapon against any enemy.

K

Greg Seery | December 19, 2005 09:38 PM

I'm with the "Hippity Hop Mr President" crowd.

I am continually struck by what little esteem President Bush holds the other two branches of government in. If in fact, he was looking for flexibility (we've heard that term before) in getting intel, he could have simply authorized the tapping, then gone to a FISA court afterward and received its blessing. But he clearly did not want to do that, and instead continued to reauthorize those taps.

Taken with his other power grabs, I think the clearest interpretation of his intent here is to establish greater Presidential Powers; absent any real clear message back from Congress and the Courts, this is what he'll get.

Since we've been told that this will be a very long war, I guess we should just get used to an Imperial President.

At least, until we grow a backbone.

emeraldcite | December 19, 2005 09:58 PM

My problem with the whole situation is that it's been going on since 2002, he's reauthorized thirty times, and by his own admission these reauthorizations include a review of its necessity and effectiveness, and that he has a slew of brilliant attorneys who should have been evaluating its legality from the start.

Since FISA is fairly straightforward and flexible, it does not need to be worked around. Bush argues that a two-minute snippet of conversation could spell doom to America and they need to be fast and catch it. Well, since FISA provides a 72 hour window of warrant-free recording and everything is retroactive, it seems that either the president and his staff is entirely too lazy to follow law, or they do not deem American law to be worthy of their means.

If we decide to exchange liberties for safety, then why not move to implement martial law? We would be safer if there were more laws, more control, more curfews, more identification. Trampling on civil liberties is the highest crime in America. These are the things we hold so dear. These basic rights are the reasons we are given that soldiers have to die in war. They are protecting the liberties home and abroad.

The precedent for impeachment has been lowered, especially by Bush's own party. Although, I don't think impeachment should be used for retaliation, I don't believe that war is an excuse for looking the other way when the president knowingly transgresses the law. We want to be a shining example of democracy in action, well then, we better be a damn fine model too.

I'm not sure the Iraqi people now faced with a fledgling democracy look to us and see a fair and honest government. How can we claim to provide and protect liberties when we trample on them here at home?

Scott | December 19, 2005 10:27 PM

I selfishly, would like something to get documented officially in the records of congress, senate, or judiciary stating that our current president is a jackass. I desire this greatly.

Even if the president shouldn't be impeached for ordering people to break the law... I think it would be sufficient to see the people who followed the president's orders put in jail for violating the law. (G. Gordon Liddy did time... didn't he?) And just because it's not an impeachable offense, doesn't mean it's not still criminal for the people that do it.

I think it would be a suitable "spanking" for the president to have people imprisoned for following his orders, and for evidence to be discarded in a court of law because he ordered them to gather it in violation of the law. As much as I don't really like the idea of terrorists being set free, it would gratify a particularly petty and vicious part of me to see the headlines like "Bush Intelligence Policy frees Terrorists."

Cognitive Dissonance is a M.F.

Patrick | December 19, 2005 10:29 PM

Generally, necessity is a valid legal defense. Its almost never used because the necessity has to be incredibly clear and overwhelmingly strong, but it does exist.

So the president could conceivably use that in an impeachment process as an affirmative defense, and, I suppose that since impeachment is a discretionary act on the part of congress, they could decline to do it if they think the president has a strong necessity defense.

That being said, he doesn't have a strong necessity defense. FISA is a rubber stamp. He could have used it.

As for whether this rises to the level of an impeachable offense, well, it was a systematic violation of the 4th amendment (not just FISA, FISA just codifies how the 4th amendment is to be satisfied in these contexts, the violated law at the base of this is the Bill of Rights) based on a set of legal arguments that don't pass the laugh test. In terms of gravity, this is about a hundred times more serious than the clinton debacle. Perjury is nothing compared to willful violation of the constitution on the theory that the inherent power of the president allows the Bill of Rights to be ignored during "times of war," as defined not by a congressional declaration of war, but rather by the whim of the president.

So, the president hasn't got any meaningful defenses, and his crime (crime under FISA and a civil wrong for which sovereign immunity is not available for willful deprivation of constitutional rights under color of law) is, at the very least, more serious than crimes for which other presidents have been impeached.

Should he then be impeached?

I don't actually think so. As a practical matter, impeachment is more than a criminal prosecution. Its an act of political will. If at least a large portion of the american public isn't behind it, it shouldn't happen. And I don't think the american people have the political will to do this.

I'm seriously disappointed in them for that, but there you go.

Tim | December 19, 2005 10:30 PM

John,

Hugh Hewitt has a great set of posts on his blog citing some of the legal precedents for this matter and what I am about to say.

In your post you stated, "it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act."

Accordingly, if the President acted within his constitutionally authorized powers then the congress does not have the authority, under the constitution, to restrict the powers of the executive branch through legislation. The only way to restrict the constitutionally granted powers of the executive branch is through the ammendment process of the constitution itself.
Therefore, if the President's actions violated some provision of the Foreign Intelligence Surveillance Act that provision of the law is unconstitutional.

Now I get to wrap myself in the cloak of I-am-not-a-lawyer-ness. I don't know exactly what the President did, only what the NYT article described, which seemed to have the approval of the FISA court and the oversite committees. Also, I never studied constitutional law, but that aggrees with my understanding of it and the apparent gist of the legal excerpts on the Hugh Hewitt blog. Hugh Hewitt btw is a lawyer.

You also said, "which is that I genuinely believe that Bush wants to protect Americans, and that matters to a non-trivial extent. I'd be loathe to impeach a president for that, and I would find it difficult to support people who would."

I aggree with you completely on this, in principle and on politics. I think it would be absolute political suicide for the Democrats to even suggest the "I" word on this matter.

Kevin_Q said, "If the police tapped phones without a warrant, I don't think we'd prosecute the police. (Correct me if I'm wrong.) We just wouldn't be able to use that evidence against anybody caught with an illegal tap. I think it's the same thing here. I don't think it's a prosecutable offense."

I don't think the officers would be prosecuted but, unless the police officers weren't trying to prevent or solve some particullarly heinious offense, I think they would be fired. In the context of the President's action, I would consider this well within the category of "trying to prevent a particullarly heinious offense", so I would say that if this turns out to be a violation of the law. The law needs to be changed to allow it. We need the ability to monitor terrorist communications with cells in-country. Hell, I assumed that this is exactly what the NSA was and should be doing!

Jim Winter | December 19, 2005 10:43 PM

Considering what a mockery the impeachment process was the last time, I'm inclined to simply hire a special prosecutor or whatever the hell they have now, investigate it, and then try him after he's out of office. It'll still have been illegal in 2009.

Devin L. Ganger | December 19, 2005 10:43 PM

John, most of the other posters have argued about legal basis (or lack thereof) for the President's actions. My point is a bit more subtle, and addresses your rationale for whether or not the President should be impeached even if it is clear that he's knowingly violated the law.

My argument is this: if someone thinks that the laws of the land are broken and determines to violate them in the pursuit of what they deem to be a higher ideal, they should be prepared to pay the legal consequences for their actions. This is the heart of civil disobedience, and by the ideals of our country and our Constitution it applies to everyone up to and including the Oval Office.

If Bush truly thinks that protecting Americans is a greater ideal than following the law of the land (especially where that law is extremely flexible and easy to work around), then he should be prepared to pay the consequences, up to and including impeachment if that is the eventual end. Even if the main drive behind the impeachment is politics, that's part of the risk you take when you seek political office -- especially when you yourself are more than ready to play divisive, partisan political games.

My children understand that they need to accept the consequences of their actions, even if those consequences are not always "fair." Do we hold our President to a lower standard than we hold our children, or do we hold him to a higher standard commensurate with the greater power and privilege he holds?

Kevin Q | December 19, 2005 10:55 PM

Tim, somebody needs to tell me why the President couldn't get a warrant. He had 72 hours after the wiretapping started to get a warrant. I'd cut him some slack if he had gotten a warrant at all. I'm willing to agree that there should be some domestic monitoring. But why didn't they get a warrant?

The other issue is that of the President's inherent powers under the Constitution. I understand that Bush is arguing that this falls under his powers as Commander-in-Chief of the military. But his war powers are not a blank check to do as he wishes with the Defense Department. It is Congress' power to define the nature and scope of the military. They get to decide whether we have a military, what the military can do, and what they cannot do. (Article I, Section 8, Clauses 11-14.) The President can command the armed forces, but those commands must be within the laws passed by Congress, or he is acting in violation of the Constitution.

FISA is a law passed by Congress and ratified by the President, and as such is the law of the land. His actions as C-in-C of the military must be within that law. If his actions are in violation of FISA, then he is overstepping his Constitutional bounds, not Congress.

K

Kevin Q | December 19, 2005 11:00 PM

Devin, Terry Pratchett summed it up this way:

The rules are there to make you think before you break them.
(Thief of Time)

If I felt that Bush had thought about this before he did it (if, indeed, he did break the law), then I would feel a little better. But his response seems to have been "I did it, I'd do it again, and I don't care if it is against the law," and that scares me. Is a respect for the laws too much to ask from our nation's political leaders?

K

mythago | December 19, 2005 11:26 PM

COINTELPRO 2, anyone?

Scott | December 19, 2005 11:33 PM

They get to decide whether we have a military, what the military can do, and what they cannot do.

I'm no kind of lawyer, especially a constitutional one... but I don't think the NSA is a branch of the military. For example, I doubt NSA operatives are subject to the Universal Code of Military Justice. From what I understand, they're in the same legal limbo as the CIA. They're given certain privs and restrictions according the legislation and/or executive order that creates them. If those privs involve allowing them to violate otherwise extant law, it must be stated in their originating document... and you have all sorts of "separation of powers" struggles if an executive order creates an agency which is supposed to violate congressional law, etc. Just a nickel from the back-row.

Megan | December 20, 2005 12:57 AM

I think this is probably the sort of situation impeachment was intended to address. Having for once made (cloaked in my IANAL-ness) a founder's intent argument, I think history has demonstrated that impeachment isn't a response to high crimes and misdemeanors. Practically speaking, impeachment is an extreme way to beat up on your political opponents, and the impeachers come off looking worse than the impeachee. It's too bad it's been misused, because I think it's a potentially useful part of the political toolbox.

Matt McIrvin | December 20, 2005 01:14 AM

Good intentions are meaningless if you can think in a sufficiently self-serving manner to get any result you like. If Bush honestly wants to protect Americans, but can also convince himself whenever necessary that the protection of Americans demands that he do pointless things, ignore the law and comport himself as an absolute monarch, what good is that?

I'm not even sure he considers me an American. The talking-point generators at the RNC certainly don't.

claire | December 20, 2005 02:55 AM

i am mind-boggled that anyone of any intelligence at all genuinely believes that bush has any interest at all in protecting americans.

he ignored intelligence on 9/11 and 3000+ americans died.

he ignored years' worth of reports on the state of the levees in new orleans and 1300+ americans died.

he ignored diplomacy, his own advisors, and common sense, and over 2000 americans have died in iraq as a result, and are still dying.

his interest is not in protecting americans, but preventing another catastrophic terrorist act from destroying his regime's credibility. and he'll do anything, including neglecting to protect americans' rights, to accomplish that.

if i ever wondered before why liberal americans are so helpless against neo-conservatism, i don't wonder any more. liberal ranks are full of people who will talk themselves and each other out of effective action.

Tim | December 20, 2005 05:23 AM

Claire,

I am mind-boggled that anyone of any intelligence at all genuinely believes that they should ignore all accepted rules of capitalization and expect their argument to be seriously considered.

Tim | December 20, 2005 06:37 AM

Kevin_Q

I don't know the answer to the question. I hate to say this to you, but, go read the original NYT article. I hate to say that because the article itself is long, disjointed and IMHO poorly written. By the time I completed reading it my reaction was basically, "so what?". As I previously said, "Hell, I assumed that this is exactly what the NSA was and should be doing!" I was astounded that it's news to anyone that the NSA is doing it under some special Presidential order.

We're in a war. It's long past time that the government and the people of this country recognize that. If the President of this country, the commander in chief of it's military, had adopted a less aggresive posture I would have considered it a dereliction of his duty under oath.

That's why I said to John that I aggree with him that you cannot reasonably impeach a President on the basis that he has too zealously executed his oath to protect the country and the constitution from all enemies, both foreign and domestic.

I think most people would agree with me. Especially anyone that has taken that oath. And taken it seriously! (lousy grammar, I confess) I, therefore, think this entire issue redounds to the President's positive side of the political ledger. To paraphrase another blogger, "This may have looked bad for the President on Friday, but it will look alot badder for the leakers by next week".

I think this is assumed by the administration and accounts for why the President was willing to come out so forcefully on this issue on Saturday and Sunday. The administration knew about this story for well over a year. They had a plan for dealing with it, and that's probably because they have all their ducks in a row. I would not want to be one of those individuals that leaked this information.

I reiterate, I expected the NSA to be engaged in exactly this type of surveillance without Presidential authorization. I expect that most americans citizens expected the same. The fact, that it has been revealed that the NSA only undertook this surveillance under Presidential order after 9/11, will probably be seen by most americans not as some abuse of authority, but rather as the proper use of National Command Authority.

Rachel | December 20, 2005 06:38 AM

I'm willing to listen to people who don't use capitalization.

I'm even willing to listen to people who repeatedly mispronounce "nuclear" and try to fight wars on emotions, which is only slightly sillier than trying to fight a tactic.

That said, I do think Bush wants to protect Americans, but I fail to see why his intent is relevant. If nothing else, it's abstract and easily obfuscated. I'd rather judge his actions than his character.

John Scalzi | December 20, 2005 06:45 AM

Claire:

"i am mind-boggled that anyone of any intelligence at all genuinely believes that bush has any interest at all in protecting americans."

I am mind-boggled that anyone of any intelligence would say such an obviously stupid thing.

He is indeed interested in protecting Americans. He's just not good at it.

Also, in the list of problems liberals have, believing that Bush means well is far down on the list.

Everyone else: back off on Claire about the capitalization thing. Small caps were good enough for ee cummings and kd lang.

Rachel | December 20, 2005 06:52 AM

Claire:

I'm sorry if that came off as if I was attacking you. I was trying to point out that conservatives trying to discount someone because of grammatical considerations are skating on thin ice. I have no trouble with people using casual grammar conventions online.

Tim | December 20, 2005 07:18 AM

John,

You said, "He is indeed interested in protecting Americans. He's just not good at it."

We were attacked on September 11, 2001. Since then there have been two successful terrorist attacks on the american people; the anthrax scare (to my knowledge never attributed) and the Washington D.C. sniper (without doubt attributed to a domestic source islamic fanatic). Aside from these there have been no successful published attacks from foreign terrorists. There have been several reported attempts which have been thwarted by law enforcement personnel.

To me at least this seems to be a reasonable good record of success. What level of proof do you require to categorize President Bush's tenor as successful in protecting against terrorism?

John Scalzi | December 20, 2005 07:36 AM

Tim:

"To me at least this seems to be a reasonable good record of success."

One could equally say (and some here would) that there we no foreign terrorist attacks on US soil prior to the Bush administration, and that the Bush administration was on point responsible for not preventing that one. Which would indicate a rather terrible record of success.

However, my argument that he's doing a bad job is based more on the administration's lack of competence in fundamental preparation (borne out in its failing grade by the 9/11 commission) and its lack of concern for civil liberties in its pursuit of terrorists. One is an organizational failure, which is not surprising given the general lack of competence of this administration, and the other is a failure of intellect, since the grasping the idea of following the laws and the constitution of this land is not a difficult thing to do, particularly when it is in one's job description (by saying this you can assume I find your previously-presented Hewitt-spun rationale a poor one).

Anne KG Murphy | December 20, 2005 07:41 AM

Some might find Bruce Schneier's Essay on salon.com relevant to this topic. It starts out:


When President Bush directed the National Security Agency to secretly eavesdrop on American citizens, he transferred an authority previously under the purview of the Justice Department to the Defense Department and bypassed the very laws put in place to protect Americans against widespread government eavesdropping. The reason may have been to tap the NSA's capability for data-mining and widespread surveillance.

tommyspoon | December 20, 2005 08:15 AM

I've got a pretty simple test regarding impeachment: if your job would be at risk for perpetrating the same thing that the President is accused of, then an investigation should be launched immediately.




The arguments I've read here and elsewhere are very pretty, but most people look to those three words inscribed over the entrance to the Supreme Court of the United States: EQUAL JUSTICE UNDER LAW. That applies to me, you and the President of the United States.

John Scalzi | December 20, 2005 08:20 AM

Yeah, but, Tommyspoon, I don't get to order around the NSA.

But, man! If I did..... bwa ha ha ha ha ha!

tommyspoon | December 20, 2005 08:26 AM

Note to self: Do not write in "John Scalzi" for President in 2008...

WizarDru | December 20, 2005 08:54 AM

I suppose the thing I find most troubling is the prevailing attitude that it's okay to violate the constitution, if the administration feels that it's justified. My conservative sister-in-law saw no trouble with even the possiblity of secret torture camps...because they were terrorists, right?

A friend once said something that has stayed with me to this day (and which changed my attitude on gun control): "A right is easy to take away, but very hard to win back." Bush's actions may mean well, but the precedent they set is potentially disastrous.

Phillip J. Birmingham | December 20, 2005 09:00 AM

To me at least this seems to be a reasonable good record of success. What level of proof do you require to categorize President Bush's tenor as successful in protecting against terrorism?

Well, let's see: in the Clinton Administration, there was an attack on the WTC in 1993, then no successful domestic attacks until 2001. I'd say we've got a few years to wait beore we see how well the President is protecting us.

Patrick Nielsen Hayden | December 20, 2005 09:41 AM

Sorry, but leaving aside the meta-argument over whether anyone intelligent could possibly disagree, I agree with Claire on her central point: I don't believe GWB is primarily interested in protecting Americans.

I used to. I don't, any more.

John Scalzi | December 20, 2005 09:59 AM

Well, Patrick, "primarily interested" and "any interest at all" are two separate things.

dave | December 20, 2005 10:09 AM

One could equally say (and some here would) that there we no foreign terrorist attacks on US soil prior to the Bush administration, and that the Bush administration was on point responsible for not preventing that one.

In which case, one would be speaking complete nonsense. In addition to numerous attacks on U.S. embassies abroad (technically US soil), ships at sea, and military bases, there was a minor issue of the truck bomb attack on a the World Trade Center. That would seem to be unquestionably a "foreign terrorist attack on US soil, prior to the Bush administration".

John Scalzi | December 20, 2005 10:10 AM

Dave:

Yeah, forgot the '93 bombing. Apologies. Although the embassy attack rationale is weak, if technically correct, as there's a whole lot of foreign soil around those little bits of US land.

Andrew Wade | December 20, 2005 10:45 AM

He is indeed interested in protecting Americans. He's just not good at it.

Hrrm, he may be thinking about protecting Americans entirely in terms of fighting evil. Now, you or I can see that there are other, perhaps more effective ways to protect Americans, but the President is not the brightest bulb on the tree. It would explain the blind spot (if that's what it was) regarding New Orlean's: protecting Americans did not fit the "fight evil" model there.

Midwestern Progressive | December 20, 2005 10:50 AM

Does anyone else think, as I do, that Kevin Q hit on a terribly important point in his first comment here?

"We just wouldn't be able to use that evidence against anybody caught with an illegal tap."

Does the same not hold true for whatever evidence is gathered through these illegal means? Would any evidence gathered from this super-secret spying be admissable in court?

If not, then, what the heck is the point of super-secret spying? What if they get some information that leads them to, say, a terrorist cell? What do they do? There is no point in arresting the suspects, since the evidence is, in all likelihood, tainted and inadmissable.

So what do they do? Simply kill the suspects, in order to "protect Americans?" Is that where this is going? Is the Bush administration angling to declare themselves not only head of the super-secret spy agency, but judge, jury and executioner of anyone they suspect of terrorist activity?

I shudder to think where the current administration is going to try to take this.

Paul | December 20, 2005 11:02 AM

John,

There are a few points that you are overlooking. First Mark Levin over at NRO has uncovered a series of documents showing that past presidents have been using the NSA to do exactly this kind of domestic spying for years including during the Clinton years. The difference here is that Bush has a clear national security reason ( a war) for his actions while the others were arguably pursuing political agendas. Clearly Levin shows that Bush hasn't been doing anything novel. Second everyone here keeps stating that the FISA regs are a flexible rubber stamp, when in fact the law enforcement people who deal with it and have been interviewed all say the opposite. Apparently it can take weeks to put together the neccessary paperwork just to get in front of a judge. the fact that it works quickly after that doesn't change the equation. Finally, you and others keep saying that Bush should have just fixed FISA if it was broken. If it were only that easy. Clearly the Democrats in the Senate have shown a partisan opposition to everything that the President has brought to them. Do you really think that they would have voted to give him broader wiretapping authority when they won't even approve low level appointees without a filibuster? Given the political climate and the necessity of action President Bush appears to have found a legal way to work around a flawed FISA and he did it with the knowledge and consent of both the courts and the congress. That makes the current blow up just another political attack. And yes the fact that the NYT sat on this for a year and then released it weeks before the reporter's book dealing with the same issue is due to be published is not a non-trivial fact.

paul | December 20, 2005 11:12 AM

I just saw this piece in the WSJ and believe it to be germaine to the discussion:

"The allegation of Presidential law-breaking rests solely on the fact that Mr. Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978. But no Administration then or since has ever conceded that that Act trumped a President's power to make exceptions to FISA if national security required it. FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed.
The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that "we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

John Scalzi | December 20, 2005 11:16 AM

Paul:

"Finally, you and others keep saying that Bush should have just fixed FISA if it was broken. If it were only that easy. Clearly the Democrats in the Senate have shown a partisan opposition to everything that the President has brought to them. Do you really think that they would have voted to give him broader wiretapping authority when they won't even approve low level appointees without a filibuster?"

And? The president shouldn't follow the law because it's a hassle? Give me a goddamn break. I have absolutely no time for the "he had to do it because he wouldn't be allowed otherwise" line of reasoning. It's crap, and it also spectacularly fails my "Clinton test," which is if Bill Clinton were attempt the same thing, the Republicans would be calling for his head. So, if you please, try not to unload that line of crap here.

Let's all repeat this until fucking sinks in: The president is not above the law. He's not king, he's not despot and he's not dictator. He's a citizen, one of us, and he serves the law and the nation, not the other way around. I have NO tolerance for a proposition contrary to this.

Also, Paul, an editorial from WSJ should not be considered an unimpeachable and impartial view of the matter; the WSJ's editorial board is about as far to the right as it gets. Their interpretation supporting the president is unsurprising to the extreme; naturally, there are other interpretations that are far less exansive regarding the president's powers.

Q | December 20, 2005 11:28 AM

I'm getting a bit sick of the "we're at war" rationale too... The "War on Terror" is not a declared war in a legal sense. Dubya loves to use it as all his justification... but why exactly are we suddenly "at war" with terrorists instead of preventing and fighting them like we have for oh the last several decades that they've been trying to kill US citizens. Just because they have one spectacular success and the government couches their response to it as a "war" does not give them a right to claim the primacy of Executive Branch powers that could conceivably be attributed to a President during actual war time.

tonydismukes | December 20, 2005 11:52 AM

Suggested edit:

(And no, it doesn't matter that the Administration has only been depriving bad Americans of their rights. The Constitution doesn't say that only "good" citizens get rights. Get it right, people.)

should read

(And no, it doesn't matter that the Administration says that it has only been depriving bad Americans of their rights. The Constitution doesn't say that only "good" citizens get rights. Get it right, people.)

I think there's a significant difference. (Although your point is well taken either way.)

dave | December 20, 2005 12:03 PM

Just because they have one spectacular success and the government couches their response to it as a "war" does not give them a right to claim the primacy of Executive Branch powers that could conceivably be attributed to a President during actual war time.

Agreed, it wasn't how their response was counched that did that. It was the Congressional Authorizations to Use Military Force in Afghanistan and Iraq that did that. Under long-established case-law, those unequivocally qualify as "declarations of war" under the constitution, and as such do indeed give the president extra powers to act against our enemies. During wartime, for instance, the president can legally order our soldiers to shoot at enemy soldiers on a battlefield, something peacetime laws frown on. I'm normally a pretty firm libertarian, and certainly don't have any fondness for this administration, but that's pretty much a no-brainer, constitutionally.

As to whether it gives the president the power to do what he's been doing, I'm not a lawyer, but I gotta say it seems pretty likely. Tapping the phones of spies and saboteurs seems well within the bounds of war as it commonly understood. The only question I see is why they didn't apply for the hypothetical post-facto rubber-stamp warrants, and from everything I've read I all can say is that we don't have enough information to know. Other than that, it looks like they followed the letter and spirit of the law rather punctiliously, which they probably wouldn't if this were the case of an imperial presidency overreaching.

If you've got issues with the "there's a war on" argument, you really should write to your congressman, and ask him to rescind the war authorizations. That should do the trick. Until then, there is in fact a war on.

tonydismukes | December 20, 2005 12:12 PM

"In your post you stated, "it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act."

Accordingly, if the President acted within his constitutionally authorized powers then the congress does not have the authority, under the constitution, to restrict the powers of the executive branch through legislation."

Tim, I think that "constitutional" in the John's quote just means "does not violate the constitution" as opposed to "is explicitly authorized by the constitution." If the president should decide that his duties required barbecuing and eating innocent babies, that would not be inherently unconstitutional, but it would still be illegal. It would not be an overreach for Congress to pass laws making such baby-eating illegal even for the president.

I'm pretty darn certain we fought a war over 200 years ago to get rid of kings in this country.

Joe Hass | December 20, 2005 12:15 PM

To throw some more food into this discussion: Josh Marshall at Talking Points Memo has posted this letter from July, 2003, from Senator Jay Rockefeller (D-WV), the ranking member on the Senate Intelligence Committee to Vice President Cheney. The letter is important for three reasons:

1. It validates the fact that someone from the Bush administration did reach out to Congress and tell them about this. But it also shares the seemingly extreme conditions that the information is shared: it can't even be discussed with non-briefed members of the committee, much less with the senator's own staff members.

2. It references John Poindexter's Total Awareness Information program (for those who don't recall, the Electronic Privacy Information Center reviews it here), and not in a good way. This leads to one of the current hypotheses about what made this so secretive: that this involves technology that doesn't quite meet the Webster's Eleventh definition of "wiretapping" that would necessitate a FISA warrant.

It also would explain why the administration's stance of why it would take so long: this is no ordinary wiretap. Would the FISA court force the administration to draw up court documents explaining what this technology represents?

3. The most chilling part is the last graf: "I am retaining a copy of this letter in a sealed envelope in the secure spaces of the Senate Intelligence Committee to ensure that I have a record of this communication." The idea that a United States Senator heard something from the executive branch and thought, "Not only must I send them a letter of my belief that this is a bad idea, I'm going to make a copy of this and secure it so I can prove I sent it when I sent it to tell them it was a bad idea" send up more flags than the front door of the United Nations.

I think the biggest challenge in this discussion is to realize that what the Bush administration is being accused of here is more than just a standard wiretap. The Bush administration says that, if the rules don't explicitly cover a behavior or technology, it's okay for them to do it. What will decide whether this goes any further is if the rest of us agree or disagree.

Midwestern Progressive: "Would any evidence gathered from this super-secret spying be admissible in court?" Remember: this is an administration that has not done particularly well when it comes to handling anything terrorist-related in the venue of the courts. Anything they get from this would in all likelihood never hit the courts; rather, it would appear in the "special tribunals" with their extremely relaxed rules of evidence (e.g. evidence obtained illegally is still acceptable)

Paul: "Clearly the Democrats in the Senate have shown a partisan opposition to everything that the President has brought to them." Refresh my memory, Paul: what exactly was the final vote for the PATRIOT Act back in 2001?

In response to your second statement, Paul: What changes the rules on this are two things: that this behavior is being done to unquestioned U.S. citizens, as opposed to non-U.S. citizens living in the U.S., and that this is more than just a wiretap.

I'll close with this question for John: If there had been no impeachment of Clinton, do you think you would be more comfortable with an impeachment of GWB?

Joe Hass
Warren, Michigan

paul | December 20, 2005 12:19 PM

John,

I never said that the President should ever be above the law or that he shouldn't be held accountable. I believe very strongly in the rule of law and if the President knowingly broke the law than I agree that he should be impeached for it. I do think that you are reading that into my comments because you think that that is what is going on here and your use of profanity belies the depth of your emotion on the topic. I said that he didn't try to fix the FISA because there was no chance that such a request would get an honest bi partisan review. It would have been politicized. The alternative for the President was not to break the law, the alternative was to use another legal avenue to accomplish the same thing. There are always more than one way to accomplish things. And I will repeat that this was not a new position that he came up with, it was a continuation of a policy that preceeded his term. In that sense it should pass your Clinton test because Clinton clearly engaged in it.

Also, while the WSJ does lean right on the op-ed pages that does not mean that they have no credibility. For the record a recent study showed that while the op-ed page leans right the news pages lean left which gives the paper as a whole a bit of balance. Furthermore when they quote an actual court case that adresses the issue, that is a fact and not an opinion and can therefore be used by either side of the argument. If you think that the case they cite doesn't apply or is being used incorrectly then say so. However to imply that that they are a bunch of mendacious hacks who can never be trusted to even stumble across the truth is a bad ad hominem ploy. I had thought better of you than that.

J | December 20, 2005 12:28 PM

Hmmm.....doesnt' seem that the FISA is so straighforward.....Look at this spectacular failure of FISA:

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/19/AR2005121901027.html


Consider the case of Zacarias Moussaoui, the French Moroccan who came to the FBI's attention before Sept. 11 because he had asked a Minnesota flight school for lessons on how to steer an airliner, but not on how to take off or land. Even with this report, and with information from French intelligence that Moussaoui had been associating with Chechen rebels, the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files. Had they opened his laptop, investigators might have begun to unwrap the Sept. 11 plot. But strange behavior and merely associating with dubious characters don't rise to the level of probable cause under FISA."

From the official 9-11 report:

http://www.9-11commission.gov/report/911Report_Ch8.htm

"The FBI legal attaché's office in Paris first contacted the French government on August 16 or 17, shortly after speaking to the Minneapolis case agent on the telephone. On August 22 and 27, the French provided information that made a connection between Moussaoui and a rebel leader in Chechnya, Ibn al Khattab. This set off a spirited debate between the Minneapolis Field Office, FBI headquarters, and the CIA as to whether the Chechen rebels and Khattab were sufficiently associated with a terrorist organization to constitute a "foreign power" for purposes of the FISA statute. FBI headquarters did not believe this was good enough, and its National Security Law Unit declined to submit a FISA application.97"


End of quote.


John Scalzi | December 20, 2005 12:49 PM

Paul:

"However to imply that that they are a bunch of mendacious hacks who can never be trusted to even stumble across the truth is a bad ad hominem ploy. I had thought better of you than that."

I didn't say that they were mendacious hacks -- although I approve of using the word "mendacious" whenever applicable because it is such a fine word, and I congratulate you for doing so. What I am saying is that quite naturally the WSJ editorial board is going to craft an argument that persuasively supports the president's position, just as, say, the Mother Jones editorial board would naturally craft a persuasive opinion on the other side, and could present legal rationales just as solid as the ones WSJ editorial folks produce. This is why I'm not entirely convinced by the WSJ rationale (nor, for that matter, would I be by Mother Jones).

Michael | December 20, 2005 01:01 PM

I understand your argument about making sure that this crime rises to the level of impeachability. However, the Republicans already lowered that threshold to lying about a simple blow job. They lowered the rope. Let them now hang themselves on it. There will be just that many fewer greedy, self righteous jerks in office.

paul | December 20, 2005 01:29 PM

John,

While your position is safely post-modern, I don't think that it is wise to categorically discount people who have strong opinions simply becuase they are consistant. By your reasoning only people who have a reputation of straddling the middle and not taking reasoned positions should have credibility. In my opinion those are the last people to listen to because they will wait for a consensus before they decide. Rather the intellectual route would be to read both Mother Jones and the WSJ and then reach a conclusion based on the facts presented. One or the other could turn out to be right. The Truth is still the Truth even if it doesn't get a majority in a vote.

Back to the topic, Findlaw has the text of the FISA statute on line. Section 1802 clearly says that the President can do what he did, and section 1801 sub section 2 says that any person conspiring with terrorists or a foreign government is fair game even if they are a US citizen. I'm not a lawyer but it looks pretty clear anyway.

Harry Connolly | December 20, 2005 01:51 PM

Investigate him. Make it the start of the impeachment process.

If his crimes don't merit impeachment, the impeachment process would (and should) fail. If they do, he's out of office in the most undignified way possible, which is what he deserves.

His intentions don't matter. I'm pretty sure there are no politicians (and damn few citizens) who do not want to act to protect the American people. "I wanted to protect our citizens," is an unremarkable assertion.

However, we need and deserve an administration that obeys the law.

Dave Griffith | December 20, 2005 02:03 PM

If his crimes don't merit impeachment, the impeachment process would (and should) fail.

But pulling that particular trigger and missing would almost certainly cost the Democrats mightily in both the House and Senate. Most likely, it would end up with the Dems dropping below the magic number to filibuster in the Senate. Moreover, given the current makeup of the House and Senate, there's no chance of a bill of impeachment actually passing or of the president actually being found guilty of impeachable offenses.

It's a trap. Don't fall for it.

John Scalzi | December 20, 2005 02:10 PM

Paul:

"While your position is safely post-modern, I don't think that it is wise to categorically discount people who have strong opinions simply becuase they are consistant. By your reasoning only people who have a reputation of straddling the middle and not taking reasoned positions should have credibility."

Huh? No. Bear in mind I've had a Wall Street Journal subscription for a number of years -- when I'm not writing here I consult for a number of Wall Street firms regarding their customer collateral, so it's useful (and the WSJ is a fine newspaper generally) -- and my experience reading its opinion pages is not at all insignificant. My experience with the WSJ editorial board is that it is on target on some things, but when push comes to shove it would rather be Right than right; they're consistent, just not about something I find useful.

That's perfectly fine -- editorials are opinion pieces by definition -- but it also doesn't mean I'm going to think that just because the WSJ editorial board shovels some facts my way that they don't serve to justify the WSJ editorial board political slant first, and some useful approach to the real world second. My years of reading the WSJ informs me otherwise. So if you please, don't try to school me on WSJ editorials. There's nothing "post-modern" about my position -- it's a position based knowing something about the WSJ and its editorial board. How long have you had a subscription to the WSJ, Paul?

Incidentally, re: Hewitt, you'll be interested to note that the writer of one of the works Hewitt quoted in his formulation says that Hewitt misrepresented his work. Guess even lawyers can make mistakes, no?

doubt | December 20, 2005 02:21 PM

Dodging the political arguments going on here, here's some more on the technical aspects of what might have been going on.

Some people might find it interesting.

doubt | December 20, 2005 02:22 PM

Huh, that didn't work. Here's the full link:

http://arstechnica.com/news.ars/post/20051220-5808.html

John Scalzi | December 20, 2005 02:26 PM

Thanks, doubt. That's interesting stuff.

mds | December 20, 2005 02:28 PM

Well, then, paul, I wish you would inform Attorney General Gonzales about the administration's complete compliance with FISA, so he can stop noting how it would have been too difficult to get the law changed to cover the administration's actions.

And as US vs. US District Court for the Eastern District of Michigan et al demonstrated back in 1972, it is unconstitutional to conduct warrantless eavesdropping on American citizens. (Note that Hugh Hewitt, for some reason, is flogging this as saying the exact opposite of what it says). FISA built upon this to establish a system that balanced the Fourth Amendment with national security concerns.

Now on to FISA itself:

Section 1802 allows for warrantless surveillance of up to one year, if the Attorney General certifies in writing under oath that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party" [1802(a)(1)(B)]. Section 1802 surveillance must also have compliance monitored by having the Attorney General report to the House and Senate Intelligence committees.

So it shows that the President can do what he did by explicitly forbidding what he did. Check.

1802(a)(1)(A) makes it clear that communications among foreign powers does not apply to 1801(a)(4)-(6), which includes terrorist organizations. So a US person is not fair game for section 1802 warrantless wiretaps under any circumstances.

And, of course, even this type of warrantless surveillance can only continue for a year. Yet the executive finds getting the retroactive 72-hour warrants to be too much of an impediment, so who's making sure they abide by 1802? Oh, right, the President will simply tell us that he is.

Too bad Senator Biden is too partisan. Otherwise, the author of FISA stating that these actions don't comply with FISA would carry some weight.

Anyway, as others have rightly observed, FISA is certainly unconstitutional, since it places legislative limits upon the President's unlimited Constitutional power to conduct war however he sees fit, even if the war is defined as perpetual, and the war was not declared in keeping with the text of the Constitution. And we know it's unconstitutional because the President, who is also the judicial branch, says so. I would suggest that a law would have to be declared unconstitutional by the Supreme Court before the President could ignore it, but that's just that pre-9/11 thinking.

And as for Clinton's evil spying program,

(1) The right wing wants to argue that it must be okay if Clinton did it?

(1) CIA Director Tenet testified under oath in 2000 that the electronic eavesdropping was being conducted under the auspices of FISA warrants, and

(3) if this is untrue, than President Clinton violated a federal law and the Fourth Amendment, and should certainly be removed from office forthwith.

Scott | December 20, 2005 02:43 PM

It was the Congressional Authorizations to Use Military Force in Afghanistan and Iraq that did that. Under long-established case-law, those unequivocally qualify as "declarations of war" under the constitution, and as such do indeed give the president extra powers to act against our enemies.
-This is an outright falsehood. Congress is only declaring war when they say they are declaring war. Authorizing military action is actually a explicit constitutional priviledge of the executive branch. Congress is asked to fund military actions. If the executive branch can convince soldiers and suppliers to work for free congress actually has no control on the use of the military short of impeachment. That's where the "commander in chief" bit comes in. (FWIW, if the president starts violating standing treaties, I think that counts as a sort of treason and therefor impeachable).

During wartime, for instance, the president can legally order our soldiers to shoot at enemy soldiers on a battlefield, something peacetime laws frown on.
-This is also untrue. Members of the U.S. Military are exempt from U.S. domestic law. That's why there is the UCMJ. The UCMJ doesn't outlaw shooting people in general and then make exceptions for war. There are people standing outside of military posts with firearms all the time if you think they're legally forbidden to use them until congress authorizes the president to order them to shoot... you're terribly mistaken.

dave | December 20, 2005 03:26 PM

This is an outright falsehood. Congress is only declaring war when they say they are declaring war.

A common but legally unfounded view. Here's a helpful post from the good law professors at the Volokh Conspiracy to set you right, with many, many legal citations.

http://volokh.com/2002_09_08_volokh_archive.html#85444270

It's also worth noting that Senator Biden (D-Ego), in particular, has explicitly said that he viewed the authorization for the use of force in Iraq as a declaration of war when he drafted it.

JC | December 20, 2005 03:56 PM

I looked up the reference to Levin at NRO that Paul mentioned earlier in the thread, and I'm afraid that what was posted here reads to me as a distortion of what Levin wrote

It reads to me that what Levin is saying is not that Clinton et al. committed similar illegal acts, but that the acts the Bush administration committed are legal due to FISA and because one party is outside the United States, those wiretaps do not need a FISA warrant.

The article doesn't saying anything at all about what sort of wiretapping the Clinton administration might have done. Nor is it fact-based journalism. An interesting piece about this would have gone back to the facts to construct a argument for the legality or illegality of these actions. All we have here is Mark Levin's opinion, which might be worthwhile if he were established as an expert in this area of law. However, I do not know this, so all I'm left with is that some guy who writes for the National Review laid out what is precisely the administration's position.

Actually, that's not quite true. The president also added that it was ok because they were doing it only to the bad guys. I'm sad that that argument actually played.

Levin's article follows up laying out the administration position by charging that the LA Times, among others, have cherry picked from among their sources to provide a misleading image of the situation. It is a shame then, since he was in a position to do something about this, that he did not report using information from the overlooked sources to give us the objective view rather than writing an opinion piece. The most convincing proof of bias is to provide examples of what those who were biassed left out. In this case, these would be those other unjustly silenced experts.

Getting back to this thread, my point is that there either must be another Levin article which actually makes the points Paul says it makes or I will, regrettably, be forced to consider Paul not credible.

So, I would gratefully appreciate it if Paul would point out which Levin article he was talking about. If this is something which has, in fact, gone on during the Clinton administration purely for the sake of politics, I'd be extremely interested in see it adequately sourced and reported.

As for Bush, whether his actions were legal or not, at the end of the day, that he ordered the Federal Government to wiretap American citizens without a warrant is not in dispute. He has confirmed this on the record. I'm surprised that an administration which has been so skillful with the use of PR did not realize that warrantless wiretaps of Americans would sit with Americans badly. Even if it were perfectly legal, it still looks bad.

skylion | December 20, 2005 05:03 PM

John, I have to point you to an blog written by another John,
here: http://americablog.blogspot.com/2005/12/did-bush-domestic-spy-program.html

The points presented are not entirely without merit. Bush and his administration have often held any opposition in high contempt, be they political or media jounalists.
I cannot apologize for the President. If it is resolved that he broke the law, no amount of necessity should be able to allow him to keep his office. If he is indeed, the "leader of the free world" then he has a high standard to keep.

Paul | December 20, 2005 05:08 PM

JC,

While I can see why you might be tempted to suggest that I am fabricating arguments from whole cloth here because it is easier than dealing with the actual issue, you are in fact looking at a different Levin piece than I was. The problem is that the comments are on their blog and so can't be linked directly. If you try your own link you will see that the relevant comment has already moved way down the page which is why I didn't provide a link. However The Levin piece i was referencing dealt with the Echelon and Carnivore initiatives that got major boosts from the Clinton folks. This link http://cryptome.org/echelon-60min.htm will take you to a 60 minutes transcript that I believe was the source document for much of what mark was saying. Echelon is still being funded by the current congress and essentially represents a blanket wire tap on all domestic conversations. I won't debate Clinton's reasons for promoting this because we would never agree.

MDS

Article 1801 (2) states "any person" without qualification as to nationality. I read that to allow tapping Americans who are actively working with the enemy. You can read it how you like but that seems to be the nub of the legal argument. As to informing the congress and the courts as outlined in the statute Bush seems to be claiming that he did just that.

John,

I have been reading the WSJ for close to 15 years but I don't claim to have your depth of experience. However that was not my point. At it's core "post-modernism" hinges on the belief that truth is relative and unknowable. I read your statement to mean that Mother Jones and the WSJ could put out competing and contradictory statements and that you couldn't tell who was right and so you discount both of them. I wasn't trying to be cute, that's a classic post modern position and it happens to be the dominate philosophy in the west at the moment. I'm sorry if I misunderstood your position.

paul | December 20, 2005 05:14 PM

mds,

the section of the FISA iwas referring to under 1801 etc is this:


" (2) any person who -
(A) knowingly engages in clandestine intelligence gathering
activities for or on behalf of a foreign power, which
activities involve or may involve a violation of the criminal
statutes of the United States;
(B) pursuant to the direction of an intelligence service or
network of a foreign power, knowingly engages in any other
clandestine intelligence activities for or on behalf of such
foreign power, which activities involve or are about to
involve a violation of the criminal statutes of the United
States;
(C) knowingly engages in sabotage or international
terrorism, or activities that are in preparation therefor,
for or on behalf of a foreign power;
"


The "any person" appears to be clear cut but I could be wrong.

John Scalzi | December 20, 2005 05:32 PM

Paul:

"I'm sorry if I misunderstood your position."

No worries. That's why the comment thread is here: to talk and better understand each other.

claire | December 20, 2005 05:38 PM

john:

He is indeed interested in protecting Americans. He's just not good at it.

i've given three major examples of his behavior that demonstrate that bush is not interested in protecting americans. can you give some examples of what has convinced you that he IS?

JC | December 20, 2005 05:53 PM

Paul,

I do not recall suggesting that you were "fabricating arguments from whole cloth." By asking you for a specific reference, I was, in fact, attempting to establish the credibility of your argument. (As a snide aside, wouldn't your leading paragraph be considered the sort of "easier than dealing with the actual issue" gambit of which you accuse me of playing? The difference being that I was seeking to establish the credibility of an argument for the legality of Bush's action. I'm afraid I'm insufficiently clever to understand what you are doing.)

As for my link, I trusted that this blog's readers were intelligent enough to look further down the page. I'm glad to see that I was right.

Thank you for supplying the reference. However, I will point out that the issue here is that the NSA was wiretapping American citizens in the United States. According to the reference you supplied, this was what Echelon was explicitly not not doing. I quote:

He still believes, though, that the NSA does not eavesdrop on innocent American citizens.

If the NSA has capabilities to screen enormous numbers of telephone calls, faxes, e-mails, whatnot, how do you filter out the American conversations, and how do you--how can you be sure that no one is listening to those conversations?

Rep. GOSS: We do have methods for that, and I am relatively sure that those procedures are working very well.

Whether Echelon was filtering out American conversations or not, it is clear that it was not a goal to listen to American conversation as was the case here. Likewise, this reference says nothing about the Clinton misusing wiretapping powers for political gain. (I'm surprised that this did get more play during Clinton's presidency as it would have been a more persuasive charge for impeachment.)

I won't debate Clinton's reasons for promoting this because we would never agree.

This is not a matter for debate. Either you have the reference to substantiate this or you do not. No amount of debate will reveal whether or not have you this reference,

You said that you had a reference to an article by Levin at NRO which showed that Clinton did what Bush has done, that is, use the NSA to wiretap Americans on American soil, but for political gain. I was unable to find the reference through Google, so I asked you to provide the reference so that I can establish your credibility

What you have offered instead is a reference to an article about a project which does exactly the opposite of what Bush did since it targets non-Americans on non-American soil and the article says nothing at all about the motivations of the Clinton administration.

Again, part of your argument for legality of allowing the NSA to wiretap Americans on American soil is that the Clinton administration did the same. Furthermore, you argue the Clinton administration did it for political gain rather than to defend the country against terrorism. You said you had a reference which substantiated your argument. I was unable to find it so I'm merely asking you for the reference. What is so difficult here?

What you have supplied thus far is for a project whose purpose is diametrically opposite to the actions of the Bush administration. I'm assuming that you posted the incorrect URL by accident. All I am doing is seeking to establish the credibility of your argument.It's clear to me that in order for people to agree that Bush's actions are legal by your argument, we will need to see the precedent you cite from the Clinton administration.

Ted | December 20, 2005 06:16 PM

Clinton consistently obeyed FISA. Also, Bush has always claimed that wiretaps require court orders. Was he lying then about what was legally required, or is he lying now in claiming his actions were legal?

And frankly, I'm not particularly confident Bush really cares about protecting Americans. He certainly cares about protecting his image and keeping the support of his base, but I've just always gotten the vibe from him that he couldn't care less about the average American. He certainly doesn't want another terrorist attack, because it would make him look bad and might hurt specific people he does care about, or at least hurt their wallets, but if we could make him confess his true inner feelings, I think protecting the lives of average people would be low on his list of priorities.

I think Bush's actions are probably deserving of impeachment, and they would certainly be a more valid reason for impeachment than the reasons presented for Clinton's, but I would agree that it's probably not a good idea to try. Besides the points that have already been raised, I'd be concerned with who we'd wind up having as president once we did impeach him: Cheney's at the top of the list, and though I'm sure we could find grounds to impeach him too, I don't think a string of impeachments would be at all good for the country, and I need to go pretty far down the succession list before I find someone who would be a significant improvement over Bush.

John Scalzi | December 20, 2005 06:19 PM

Claire:

"i've given three major examples of his behavior that demonstrate that bush is not interested in protecting americans."

No, you've provided three examples of where Bush and his administration's lack of competence arguably resulted in the death of Americans, which is not the same thing as saying he has no interest in protecting Americans overall. At best it's an example of the recent modification of Clarke's Law which states "Any sufficiently advanced incompetence is indistinguishable from malice."

If you want to argue that Bush bears a significant amount of responsibility for American deaths in the three examples you name, you'll get very little argument for me, particularly in the last of these. But again, that's an entirely different argument.

Also, before I forget, Claire: w00t! Congratulations! I'm very happy for you.

claire | December 20, 2005 08:31 PM

okay, even if i agree my examples sucked (and i don't), the question still stands: what has he done specifically that leads you to believe that he is interested in protecting americans? and just to clarify, i mean protecting americans for its own sake, and not protecting americans to protect his presidency or party, or for any other ultimate purpose.

and thanks, btw. i am mightily relieved 'n' stuff.

Tim | December 20, 2005 08:34 PM

John,

Jack Kelly addresses most of the points you made on his blog for today at

http://irishpennants.com/

So it certainly seems to pass your Clinton test.

It may surprise you, but I have seen several calls for an investigation on this matter on conservative blogs. I think this relates to what Dave Griffith posted earlier. Conservatives see this issue as a political win-win. The more Democrats try to beat up the President for trying to protect the american people, the more they'll lose, and the easier it is to paint the Democrats as the Defeatocrats.

Scott | December 20, 2005 08:51 PM

The more Democrats try to beat up the President for trying to protect the american people, the more they'll lose, and the easier it is to paint the Democrats as the Defeatocrats.

Only if, counterfactually, it turns out that "trying to protect the American people" is effected by assaulting America. Which somehow, seems to be the domestic policy and plan for protection.

John Scalzi | December 20, 2005 08:59 PM

Claire:

"just to clarify, i mean protecting americans for its own sake, and not protecting americans to protect his presidency or party, or for any other ultimate purpose."

Well, golly, Claire. Who adjucates that? Since you've already determined that Bush doesn't care about protecting Americans at all, allow me to express skepticism that one could provide an example which you wouldn't feel protects his presidency and/or party. So it hardly makes it worth one's effort, does it? Especially considering most presidents give at least cursory consideration as to whether their actions have some benefit to their presidency or party.

In short, if you want an answer, don't rig it so that a satisfactory answer cannot be given.

JC | December 21, 2005 08:14 AM

Personally, I'm rather troubled by the whole impeachment thing. On one hand, yes, what Bush has done here is certainly more worthy of impeachment (and his subsequent conviction by the Senate) than what Clinton did. But that is an extremely low bar. Should we continue to have a republic, I don't want it to be one where we can get rid of a sitting president because he got a speeding ticket. "He is more worthy of impeachment than Clinton" is not the precedent I want set. (Yes, I know, presidents don't drive themselves. Please substitute a more appropriate example.)

Now, if we are talking about blithedly violating the 4th Amendment rights of American citizens, not to mention abuse of presidential power, that's a more tenable case. I mean, it sounds positively Nixonian. This should not be surprising since the Bush administration has been trying to re-establish the Imperial Presidency since its first days in office. For example, Bush has been quite blunt about saying that he is allowed to authorize the wiretaps based on Article 2 of the Constitution. Whether he's right or not is another issue.

The problem is something I heard on the "On Point" on NPR last night which makes a lot of sense to me. Bush can mount what might be a very compelling affirmative defense based on the fact that he was acting on legal advice from his legal counsel and the Attorney General. He could quite innocently claim that he acted on what turned out to be bad legal advice. In terms of procedure, he has done the right things for this defense to appear credible. (Nevermind that he's surrounded himself with yes-men and Alberto Gonzalez is on the record as saying that the situation in Guantanamo is perfectly legal.)

This sort of affirmative defense has to be able to hold because while it probably leads to the wrong result in this case, not allowing it to hold would lead to the wrong result in many more cases. e.g., any case where a President genuinely acts in good faith based on what is only in retrospect bad legal advice or encounters ramifications he could not have reasonably predicted.

Finally, as the Clinton impeachment shows, impeachments are not (solely) legal acts, they are political acts (unless one thinks that a Democratically controlled legislature would have started impeachment proceedings against Clinton). Unless the Democrats take over the HR in 2006, it's hard to imagine the HR would start proceedings. Even in that case, I think the charges of political motivation (or retribution for Clinton) would likely stick. Then again, I thought there would be a backlash from the Clinton impeachment and I'm apparently wrong about that.

I guess my question is that while we can clearly impeach a president who has committed a crime against the state, can we impeach a president for being plain incompetent?

I'm with John Scalzi here. I don't think Bush is actually being malicious. I just don't think he's any good at this sort of thing. His administration has shown itself to be much more concerned about being perceived well rather than operating well. The Clintons, who seemed to have a scandal every week, none of which were ever substantiated, seemed to be the opposite. If the republic endures, maybe we'll have an administration which is perceived well because it operates well.

GSLamb | December 21, 2005 10:48 AM

Frankly, I hope to see a Senate investigation to determine if laws were,in fact, broken. Since this deals with National Security, not all of the facts have been released: we're putting together a puzzle without some key pieces. One would hope that the Senate Intelligence Committee has the clearance to see\hear the evidence.

Once the people whose job it is determines if laws were broken, then we can call for blood\claim coverup\whatever.

[sits back down and grabs a long book]

Jeff Porten | December 21, 2005 11:48 PM

Anyone who has any doubts about how "restrictive" the FISA court is, pop over to This American Life and listen to episode 229 from 2003. Let's see if this URL posts: http://www.thislife.org/ra/229.ram

Seems to me, the Bush administration has been pushing for an executive power grab in Congress since 2001 -- and then went ahead and took on their own set of powers with a policy that no one should ever know about it. This makes the argument that we attribute this to incompetence rather than deliberate criminality a hard sell, in my book.

Remember, these are also the guys with the secret prisons, the secret courts, and the secret arrests. Do you really think you know all of the powers that the Bush administration has arrogated to itself? Or only those places where they've gotten caught so far?

Phil | December 24, 2005 01:10 PM

"While I bask in my own I-am-not-a-lawyer-ness"... Well, as I bask in my "I-happen-to-be-a-lawyer"-ness, I have come to my own conclusion that the President a) broke the law and b) violated the Constitution. Especially as we now find out how much more widespread it was, the violation is more abhorrent.

Impeachable? Technically, probably, but it would never happen.

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