December 21, 2005
Despite the brazen declaration by President Bush that he authorized
illegal electronic eavesdropping on Americans and will continue
to do so, in defiance of clear legislative prohibitions, the response
in official Washington has been remarkably muted. There has been
some verbal condemnation and calls for congressional hearings
on the secret spying by the National Security Agency (NSA), but
no serious consideration of the constitutional remedy for presidential
lawbreaking: impeachment.
One congressman, Democrat John Lewis of Georgia, suggested
in a radio interview that Bush’s actions recalled "the
dark past when our government spied on civil rights leaders and
Vietnam War protesters," and could warrant impeachment. "It’s
a very serious charge, but he violated the law," Lewis said.
"The president should abide by the law. He deliberately,
systematically violated the law. He is not king, he is president."
One senator, Barbara Boxer (Democrat of California), has announced
that she is investigating the possibility of impeachment, seeking
opinions from four presidential scholars on whether Bush’s
actions constitute "high crimes and misdemeanors." But
no other senator or congressman, and not a single congressional
leader of either party, has allowed the "i-word" to
cross his or her lips.
Five senators, two Republicans and three Democrats, issued
a call for a joint investigation by the Senate Intelligence and
Judiciary committees into whether the NSA eavesdropping was conducted
"without appropriate legal authority." Republicans Chuck
Hagel of Nebraska and Olympia Snowe of Maine joined Democrats
Carl Levin of Michigan, Dianne Feinstein of California and Ron
Wyden of Oregon in signing a joint letter.
"It is critical that Congress determine, as quickly as
possible, exactly what collection activities were authorized,
what were actually undertaken, how many names and numbers were
involved over what period, and what was the asserted legal authority
for such activities. In sum, we must determine the facts,"
they wrote.
It is highly unlikely, however, that the Bush administration
will agree to cooperate with such an investigation. Bush, in his
belligerent press conference Monday, declared that the fact that
he was compelled to address the subject in public was "shameful."
He bristled in response to one reporter’s question about
his assertion of unchecked executive power, declaring "To
say 'unchecked power’ basically is ascribing some kind
of dictatorial position to the president, which I strongly reject."
In ordering the NSA to spy on international phone calls placed
by US residents without obtaining a warrant, Bush acted in direct
violation of a federal law passed in 1978 in the wake of the systematic
abuses of power by the CIA, FBI, military intelligence and other
federal intelligence agencies exposed in the early 1970s. The
high point of these abuses came in the Watergate scandal, which
led to the ouster of President Richard Nixon in 1974. Nixon resigned
rather than face impeachment for, among other crimes, authorizing
illegal spying on US citizens.
The Foreign Intelligence Surveillance Act (FISA) of 1978 established
a secret judicial panel, the Foreign Intelligence Surveillance
Court, which had to approve all intelligence-related wiretapping
inside the United States. Under FISA, the requirements for obtaining
a wiretap order for intelligence purposes were considerably looser
than for ordinary criminal investigations, and very few requests
were turned down. Of nearly 19,000 eavesdropping requests since
1978, FISA has turned down only five. In 2004, the Bush administration
sought 1,754 warrants, and not a single one was rejected.
FISA, moreover, allows the government to initiate a wiretap
without a warrant from the special intelligence court, provided
such authorization is sought and granted retroactively within
72 hours. This in itself undercuts the arguments of Bush and other
administration officials that the procedure laid down by law is
too "slow."
Bush instructed the NSA to bypass the FISA procedure, and reaffirmed
that order on at least 30 occasions over the past four years,
according to his own statements. As former Nixon White House aide
John Dean observed over the weekend, Bush is thus the first president
to publicly declare that he has committed an impeachable offense.
Given the rubberstamp character of FISA, the decision to bypass
the required legal procedure must have been motivated by some
other reason than avoiding a bureaucratic encumbrance. Logic and
the political record of the Bush administration suggest two basic
motives: the administration was deliberately seeking to establish
a precedent for executive powers unconstrained by the constitutional
requirements of judicial and congressional oversight, and it wanted
to carry out surveillance of people who could not plausibly be
connected to any terrorist threat, even in the eyes of the compliant
FISA. In other words, the Bush White House has been compiling
a Nixon-style "enemies list" of political opponents,
especially opponents of the war in Iraq, and targeting them for
illegal spying.
That this is the case is underscored by the reports Tuesday,
based on documents obtained by the American Civil Liberties Union,
that FBI counterterrorism units have conducted political spying
and infiltration against environmental and antiwar groups such
as Greenpeace, the Arab-American Anti-Defamation Committee and
Catholic Worker (a pacifist group whose "semi-communistic
ideology" was noted in one internal FBI report). This follows
the revelation last week that the Pentagon was accumulating a
database on antiwar activists through surveillance of meetings
and protests opposing the war and military recruitment.
Bush, Attorney General Alberto Gonzales, Secretary of State
Condoleezza Rice and Vice President Dick Cheney have asserted
two supposed legal and constitutional justifications for the secret
spying program: that the 1978 law was superseded by the congressional
resolution passed after the terrorist attacks of September 11,
2001 authorizing military action against those who attacked the
World Trade Center and the Pentagon; and that the 1978 law is
overridden by Bush’s authority under Article II of the Constitution,
which makes the president the commander in chief of the armed
forces.
The entire authorization of force resolution of September 18,
2001 consists of a single sentence, authorizing the use of "all
necessary force" against Al Qaeda and its ally, the Taliban
government in Afghanistan. To claim that this language can be
read to authorize massive domestic electronic spying is not only
preposterous, but cynically so.
As one legal expert, Professor Jonathan Turley of George Washington
University, told the Washington Post, "The president’s
dead wrong. It’s not a close question. Federal law is clear.
I can’t believe anyone sincerely believes these arguments.
This is really beyond the pale." Turley added, "When
the president admits that he violated federal law, that raises
serious constitutional questions of high crimes and misdemeanors."
The constitutional claim is equally preposterous, and more
ominous, since, as one legal expert pointed out, it would invalidate
every legal protection for civil and democratic rights in time
of war. With Bush declaring a "war on terror" of indefinite
duration and worldwide scope, his claim of absolute power as commander
in chief implicitly calls into question the Bill of Rights, as
well as such constitutional restraints as the 22nd Amendment,
which compels him to leave office in 2009 by barring him from
a third term.
The administration’s sweeping claims of unreviewable executive
power were summed up in a September 2002 brief signed by then-Attorney
General John Ashcroft, in an appeal related to the FISA rules.
Ashcroft claimed, "[T]he Constitution vests in the president
inherent authority to conduct warrantless intelligence surveillance
(electronic or otherwise) of foreign powers or their agents, and
Congress cannot by statute extinguish that constitutional authority."
(Emphasis added.)
In other words, according to Bush, as president he exercises
power which is above the law and above the Congress. This makes
a mockery of fundamental constitutional principles: the notion
that democracy is a government of laws, rather than men; and the
principle of checks and balances, with a separation of powers
between the executive, legislative and judicial branches of government,
none of them absolute.
In television interviews Sunday, several Senate Republicans
publicly disavowed the Bush administration’s more extravagant
claims. Arlen Specter, chairman of the Senate Judiciary Committee,
said, "There are limits to what the president can do under
the Constitution." John McCain of Arizona said that why Bush
refused to use the FISA procedure was "a legitimate question,"
while Lindsey Graham of South Carolina, a reserve member of the
Judge Advocate Generals, the military’s legal corps, said
he did not know "of any legal basis" to evade FISA.
He added, "Even in a time of war, you have to follow the
process, because that’s what a democracy is all about: a
process."
None of these senators, however, suggested any means by which
Congress could compel the administration to obey the law. From
a constitutional standpoint, the mechanism is impeachment.
As for the congressional Democratic leadership, it is both
cowed and compromised: frightened that the Bush administration
will target Democrats politically as opponents of the "war
on terror," and complicit in having received briefings from
the administration on the secret illegal spying at various times
over the past four years, and saying nothing about it.
House Minority Leader Nancy Pelosi confirmed that she had been
briefed on the NSA domestic spying as long ago as 2002, when she
was the senior Democrat on the House Intelligence Committee. Senator
Jay Rockefeller, the senior Democrat on the Senate Intelligence
Committee, revealed that he had been personally briefed on the
program by Vice President Cheney and then-CIA Director George
Tenet, as well as General Michael Hayden, head of the NSA.
Senate Minority Leader Harry Reid and former senator Tom Daschle,
the Senate majority leader in 2001-2002, also confirmed that they
had known of the secret program and remained silent about it until
now.
Relying on the acquiescence of the congressional Democratic
leadership, the Bush administration successfully prevailed upon
the New York Times to put off publication of an exposé
in the fall of 2004, when the revelation might have affected the
outcome of the presidential election. As late as December 6, 2005,
Bush summoned Times publisher Arthur Sulzberger and Times
editor Bill Keller to the Oval Office, seeking to browbeat them
into suppressing the story.
Once it became impossible to keep the story quiet, the Bush
administration, as it has consistently done, decided to up the
ante and denounce all criticism of its police-state measures as
unpatriotic and dangerous. On Tuesday, Vice President Cheney weighed
in with characteristic thuggishness, denouncing criticism of the
domestic spying and suggesting that such comments would facilitate
another 9/11-style terrorist attack.