http://www.insightmag.com/Media/MediaManager/impeachment.htm Issue Date: January 23-29, 2006, Posted On: 1/23/2006 Impeachment hearings: The White House prepares for the worst (Susan Walsh/Associated Press) The Bush administration is bracing for impeachment hearings in Congress. "A coalition in Congress is being formed to support impeachment," an administration source said. Sources said a prelude to the impeachment process could begin with hearings by the Senate Judiciary Committee in February. They said the hearings would focus on the secret electronic surveillance program and whether Mr. Bush violated the 1978 Foreign Intelligence Surveillance Act. Administration sources said the charges are expected to include false reports to Congress as well as Mr. Bush's authorization of the National Security Agency to engage in electronic surveillance inside the United States without a court warrant. This included the monitoring of overseas telephone calls and e-mail traffic to and from people living in the United States without requisite permission from a secret court. Sources said the probe to determine whether the president violated the law will include Republicans, but that they may not be aware they could be helping to lay the groundwork for a Democratic impeachment campaign against Mr. Bush. "Our arithmetic shows that a majority of the committee could vote against the president," the source said. "If we work hard, there could be a tie." The law limits the government surveillance to no more than 72 hours without a court warrant. The president, citing his constitutional war powers, has pledged to continue wiretaps without a warrant. The hearings would be accompanied by several lawsuits against the administration connected to the surveillance program. At the same time, the Electronic Privacy Information Center has filed a Freedom of Information Act lawsuit that demands information about the NSA spying. Sen. Arlen Specter, Senate Judiciary Committee chairman and Pennsylvania Republican, has acknowledged that the hearings could conclude with a vote of whether Mr. Bush violated the law. Mr. Specter, a critic of the administrationâs surveillance program, stressed that, although he would not seek it, impeachment is a possible outcome. "Impeachment is a remedy," Mr. Specter said on Jan. 15. "After impeachment, you could have a criminal prosecution. But the principal remedy under our society is to pay a political price." Mr. Specter and other senior members of the committee have been told by legal constitutional experts that Mr. Bush did not have the authority to authorize unlimited secret electronic surveillance. Another leading Republican who has rejected the administration's argument is Sen. Sam Brownback of Kansas. On Jan. 16, former Vice President Al Gore set the tone for impeachment hearings against Mr. Bush by accusing the president of lying to the American people. Mr. Gore, who lost the 2000 election to Mr. Bush, accused the president of "indifference" to the Constitution and urged a serious congressional investigation. He said the administration decided to break the law after Congress refused to change the Foreign Intelligence Surveillance Act. "A president who breaks the law is a threat to the very structure of our government," Mr. Gore said. "I call upon members of Congress in both parties to uphold your oath of office and defend the Constitution,â he said. âStop going along to get along. Start acting like the independent and co-equal branch of American government that you are supposed to be under the constitution of our country." Impeachment proponents in Congress have been bolstered by a memorandum by the Congressional Research Service on Jan. 6. CRS, which is the research arm of Congress, asserted in a report by national security specialist Alfred Cumming that the amended 1947 law requires the president to keep all members of the House and Senate intelligence committees "fully and currently informed" of a domestic surveillance effort. It was the second CRS report in less than a month that questioned the administration's domestic surveillance program. The latest CRS report said Mr. Bush should have briefed the intelligence committees in the House and Senate. The report said covert programs must be reported to House and Senate leaders as well as the chairs of the intelligence panels, termed the "Gang of Eight." Administration sources said Mr. Bush would wage a vigorous defense of electronic surveillance and other controversial measures enacted after 9/11. They said the president would begin with pressure on Republican members of the Senate Judiciary Committee. Mr. Bush would then point to security measures taken by the former administration of President Bill Clinton. "The argument is that the American people will never forgive any public official who knowingly hurts national security," an administration source said. "We will tell the American people that while we have done everything we can to protect them, our policies are being endangered by a hypocritical Congress."
Dream on. This article must have been written at the DNC. You gotta love Arlen Spector though, the biggest friggin' ingrate ever to serve in congress. The guy owes his reelection to Bush, then tortures him over judicial nominees, now this ridiculous showboating. This hearing, to the extent it is held at all, should be in the Intelligence Committee, not the heavily politicized Judiciary. Another misstep by the increasingly irrelevant and over his head Maj. Leader Bill Frist. Bill, maybe you ought to think seriously about letting someone who is up to the job handle it. You are a great guy, but you've got that whole stock thing stinking you up and you don't seem to be able to handle the guys in your own caucus. It's hard to tell if the Democrats smell blood on this wiretap issue or if they are being dragged into it by their increasingly radical left base. If the administration handles this correctly, think Ollie North standing tall, this could be a disaster of epic proportions for the Dem's. They risk branding themselves in the public's mind as the guys who care more about legalisms and protecting people who talk to terrorists than protecting the country. I'll take Bush's side of this one. All he has to say is I'm not apologiziing for protecting the people of this country.
AAA you wouldn't know a bush from a Bush from a beaver. Don't fret. The Bush white house won't be able to resist utilizing information gleaned from illegal wiretaps to pursue action against thier domestic political enemies, on issues completely immaterial to national security. The congress may have decided that the Presidency has accrued too much power, centered upon 4 individuals of dubious character and ability, Bush, Cheney, Rove, Rumsfeld, and this issue may provide the pretext for thier fashioning a remedy. Bush said, I am invading Iraq to protect the American people, and I won't apologize. Hiding illegal domestic actions under the umbrella of national security won't work. Hang Em High!
I think perhaps our President has bitten off a bit more than he can chew this time -- although I'm sure he means well (or, I hope he does). Under 50 U.S.C. 1802(a)(1)(b) the President may conduct a warrantless electronic surveillance if the U.S. Attorney General certifies in writing 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." 50 U.S.C. 1801(i) defines U.S. person as: "a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section." It seems to me pretty straightforward, i.e., the President has openly admitted to wiretapping U.S. persons, who are specifically not amenable to warrantless electronic surveillance under the above-stated laws. Bush is apparently operating under the belief that Pub. Law 107-40, Section 2(a)("Authorization for Use of Military Force") provides the President with authority "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." So, the question, it seems is: what facts does the President have, a priori, that the U.S. persons whom the NSA has and is wiretapping, were directly involved in, or harbored those who were directly involved in, the 911 attack. If no facts exist, then the Pres has violated the statute, and is subject to up to 5 years and $10,000. Ironically, there is a statutory defense to breaking this law. If the person who violates the law gets a warrant first, even if the warrant turns out to be based on bad facts, the offender cannot be held criminally liable. But this is exactly what Mr. Bush didn't do. Neither did Attorney General Gonzalez or any of the NSA employees or agents. Now, having done the analysis, I must say that I doubt that the Senate Judiciary Committee will recommend impeachment, or that the House will vote it, or the Senate will convict. And, Mr. Bush may have saved lives and done everything for the benefit of the People. But, technically, he broke da law. Not that this actually means much in this particular case.
Some legal thoughts: from someone on this board?????????? The 4th Amendment prohibition against unlawful search and seizures has no express enforcement mechanism. That is, the government can go around searching and seizing anything it wants, but if it does so in an unlawful manner, the evidence, and all evidence derived therefrom (also known as the "fruits of the poisonous tree") seized will be suppressed in a subsequent criminal action. And, if obtained in a sufficiently egregious manner, such evidence will also be excluded in a civil action wherein the government is a party. What President Bush could have violated then, is not the 4th Amendment itself, but rather his oath of office, which is to uphold and defend the Constitution and laws of the U.S. And, this is where it gets sticky. The President, as commander and chief of the military has before him a Resolution from Congress stating that he may take ALL STEPS NECESSARY to protect the U.S. from the threat of terrorism. Arguably, then the President can argue that he has been relieved of the overarching duty of his oath of office by express consent of Congress, and so, Mr. Bush may do whatever he deems necessary to protect the nation from the threat of terrorism. Additionally, the National Security Court (NSC) that we are now all hearing so much about is NOT, I repeat, NOT a court of the Judicial Branch of Government (also known as an Article III court). The NSC is an Article II court, expressly created by Congressional Act, and that means that the court and any determination issuing from it, can be expressly set aside by (you guessed it), the head of the Article II Branch of the Federal Government. Anyone want to guess who that head person is? Final Jeopardy Answer is: President Bush. So, folks it's like this: Congress has through some really stupendous legislative artistry (or stupidity, depending on which side of the issue you're on), set up our current Chief Executive of the United States as basically having a de facto absolute authority over anything reasonably related to the 'war" on terror. President Bush can sign an executive order that permits him and any agency of the Executive to do whatever he wishes to accomplish and, absent an Act of Congress, repealing the current War on Terror Resolution, that executive order will have the same authority of any other law enacted by the Congress. In short, your federal legislative representatives/senators have appointed President Bush, Emperor of the U.S. The question that is raised is whether or not the broad authority granted by Congress to act with almost unrestrained power in the war on terror, violates the separation of powers, because Congress has effectively abrogated its legislative duties entirely to the President. Generally, the real courts, i.e., Article III courts under supervision of the U.S. Supreme Court could review a Presidential order for example re a wiretap and determine that the order is Ultra Vires, i.e., outside of the reasonable scope of authority delegated by Congress, or that Congress has simply "gone too far," and given the President absolute authority without oversight, and thereby violated the Separation of Powers doctrine that prohibits a member of one branch of government from undertaking the Constitutional role reserved for another Branch (or both Branches). But, at the moment, until the Article III Courts are actually asked to address the issue and unless they rule that the Act of Congress authorizing the Presidential power to conduct the war on terrorism violates the Separation of Powers, what President Bush is doing, is simply not illegal, and it doesn't matter what other laws may be on the books, because the authorizing act re the war on terrorism, gives the President authority to legally violate any and all of those laws, as long as the President is acting reasonably to protect the nation in the war on terror. Now, if some or all of you don't like what's being done, then you're certainly free to write/call your Congresspersons and complain about what they've done, but until and unless you do, the Chief Executive is pretty much free to do whatever the !@#$ he wants, without committing an impeachable offense. In closing, please don't jump on me for being a Bush supporter, because I'm not. I think the guy is as nutty as a fruitcake, but my interpretation of his legal position is that he is pretty much immune to prosecution/impeachment for almost anything right now. I honestly don't know if Congress has done what it has intentionally or inadvertently, but in either case, it's pretty obvious that no one behind the beltway wants to stand up and say, "Whoops, my bad!" And, the law is so convoluted at the moment, that I seriously doubt that anyone in the media will be able to coherently explain to the public what's taken place. However, I believe that what I'm referring to here is commonly known as a silent "Coup d'état." Pretty cool, huh?
Kj - I have nothing against new nuanced views. Unless you are John Kerry. You now write: Bush is apparently operating under the belief that Pub. Law 107-40, Section 2(a)("Authorization for Use of Military Force") provides the President with authority "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." So, the question, it seems is: what facts does the President have, a priori, that the U.S. persons whom the NSA has and is wiretapping, were directly involved in, or harbored those who were directly involved in, the 911 attack. --- To me your question above is sort of a narrow reading of the above law. I think it could be argued that if he thinks al queda had something to do with 911 then he is entitled to use all necessary force against them. Which would include monitoring communications by anyone with them. Also since when is it a crime for our intelligence agencies to not pick off communications with the enemy. That is what a commander in Chief ought to be doing as part of his inherent authority. Inherently authority does not mean Bush can do whatever he wants and become dictator. But he does possess inherent authority. I realize that the scope of his authority will have to be weighed by the U.S. Supreme court, and they will probably decide if is authority is at its lowest ebb because of fisa. But this is a constitution law call. It is pathetic for democrats to get in front of cameras and rave about his actions as if he has no basis for believing his actions ar legit.