Impeachment Nonsense

[Fred Jones]

Impeachment Nonsense

By Charles Krauthammer

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/22/AR2005122201102.html

2005 was already the year of the demagogue, having been dominated for months by the endlessly echoed falsehood that the president "lied us into war." But the year ends with yet another round of demagoguery.

Administration critics, political and media, charge that by ordering surveillance on communications of suspected al Qaeda agents in the United States, the president clearly violated the law. Some even suggest that Bush has thereby so trampled the Constitution that impeachment should now be considered. (Barbara Boxer, Jonathan Alter, John Dean and various luminaries of the left have already begun floating the idea.) The braying herds have already concluded, Tenet-like, that the president's actions were slam-dunk illegal. It takes a superior mix of partisanship, animus and ignorance to say that.

Does the president have the constitutional authority to conduct warrantless searches against suspected foreign agents in the United States? George Washington University law professor Orin Kerr (one critic calls him the man who "literally wrote the book on government seizure of electronic evidence") finds "pretty decent arguments" on both sides, but his own conclusion is that Bush's actions were "probably constitutional."

In 1972 the Supreme Court required the president to obtain warrants to eavesdrop on domestic groups but specifically declined to apply this requirement to snooping on foreign agents. Four appeals courts have since upheld presidential authority for such warrantless searches. Not surprisingly, the executive branch has agreed.

True, Congress tried to restrict this presidential authority with the Foreign Intelligence Surveillance Act of 1978. It requires that warrants for wiretapping of enemy agents in the United States be obtained from a secret court. But as John Schmidt, associate attorney general in the Clinton administration, wrote: "Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms." Indeed, President Bill Clinton's own deputy attorney general testified to Congress that "the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes," then noted a few minutes later that "courts have made no distinction between electronic surveillances and physical searches."

Presidents always jealously guard executive authority. And Congress always wants to challenge the scope of that authority. This tug of war is a bipartisan and constant feature of the American system of separation of powers. President Bush's circumvention of FISA is a classic separation-of-powers dispute in the area in which these powers are most in dispute -- war powers.

Consider the War Powers Resolution passed over Richard Nixon's veto in 1973. It restricts, with very specific timetables, the president's authority to use force. Every president since Nixon, Democrat and Republican, has regarded himself not bound by this law, declaring it an unconstitutional invasion of his authority as commander in chief.

Nor will it do to argue that the Clinton administration ultimately accepted the strictures of the FISA law after a revision was passed. So what? For the past three decades, presidents have adhered to the War Powers Resolution for reasons of prudence, to avoid a constitutional fight with Congress. But they all maintained the inherent illegitimacy of the law and the right to ignore it. Similarly, Clinton's acquiescence to FISA in no way binds future executives to renounce Clinton's claim of "inherent authority" to conduct warrantless searches for purposes of foreign intelligence.

Attorney General Alberto Gonzales chose a different justification for these wiretaps: They were covered by the congressional resolution passed shortly after Sept. 11, 2001, authorizing the use of "all necessary and appropriate force" against al Qaeda. Gonzales's interpretation is based on a plurality Supreme Court opinion written by Sandra Day O'Connor that deemed legal the "executive detention" of U.S. citizen and enemy combatant Yaser Esam Hamdi. "Detention" is an obvious element of any authorization to use force. Gonzales argues that so is gathering intelligence about the enemy's plans by intercepting his communications.

I am skeptical of Gonzales's argument -- it implies an almost limitless expansion of the idea of "use of force" -- while the distinguished liberal law professor Cass Sunstein finds it "entirely plausible" (so long as the wiretapping is limited to those reasonably believed to be associated with al Qaeda). Sunstein maintains that "surveillance, including wiretapping, is reasonably believed to be an incident of the use of force" that "standardly occurs during war."

Contrary to the administration, I also believe that as a matter of political prudence and comity with Congress, Bush should have tried to get the law changed rather than circumvent it. This was an error of political judgment. But that does not make it a crime. And only the most brazen and reckless partisan could pretend it is anything approaching a high crime and misdemeanor.

[dreamingwolf]

I was hoping to hear your opinions on this article, and not just the article.

[Fred Jones]

I don't think Bush should be impeached because of his actions in domestic spying. I am not saying he is right, but he should not be impeached. The Democrats should not bring it up either. Besides the fact that Clinton didn't get impeached, Bush was trying to protect the country.

However, the administration was also grabbing for power, but that is Congress's fault for allowing him to walk all over them. Presidents before Bush have exercised the executive branch power so why shouldn’t Bush. My only problem is the same problem I have had with this administration. Where is the accountability? I also find the hypocrisy a bit annoying as well. The right yelled at Clinton and his administration for hiding things and look at what Bush and his people are doing.

[TGateNGDad]

In recent decades, the balance of power has shifted to the legislature. We can expect all Presidents to test the edges to see if they can move the balance more to their benefit. Otherwise, they feel they have limited room within which to govern--regardless of party afiliation. Is that an impeachable offense of just a necessary part of pushing the envelop? I believe its the latter.

[Sarge]

I don't think Bush should be impeached because of his actions in domestic spying. I am not saying he is right, but he should not be impeached. The Democrats should not bring it up either. Besides the fact that Clinton didn't get impeached, Bush was trying to protect the country.

However, the administration was also grabbing for power, but that is Congress's fault for allowing him to walk all over them. Presidents before Bush have exercised the executive branch power so why shouldn’t Bush. My only problem is the same problem I have had with this administration. Where is the accountability? I also find the hypocrisy a bit annoying as well. The right yelled at Clinton and his administration for hiding things and look at what Bush and his people are doing.

clinton was impeached. Just never convicted in the impeachment.

Like I said in another thread, if the Dems had the goods on Bush they'd be 24/7 on TV drumming up the case for impeachment

[Fred Jones]

clinton was impeached. Just never convicted in the impeachment.

Like I said in another thread, if the Dems had the goods on Bush they'd be 24/7 on TV drumming up the case for impeachment

Sorry for the mistake. I have to agree with you concerning the Democrats and what they would do if they had the evidence.

[Thiebear]

I don't think Bush should be impeached because of his actions in domestic spying. I am not saying he is right, but he should not be impeached. The Democrats should not bring it up either. Besides the fact that Clinton didn't get impeached, Bush was trying to protect the country.

You see people.. there are people that can walk the walk of not ALWAYS taking the party line...

And all four instances this year SHOULD be pointed out... Its off to the tailgate pro-bowl for you Fred...

[Fred Jones]

You see people.. there are people that can walk the walk of not ALWAYS taking the party line...

And all four instances this year SHOULD be pointed out... Its off to the tailgate pro-bowl for you Fred...

I have always been a moderate. The right has labeled me a liberal the last couple of years because I do not agree with all their viewpoints. I didn’t appreciate that either.

If the American people don’t like what the Republicans are doing, vote them out of office.

[Larry]

I don't think Bush should be impeached because of his actions in domestic spying. I am not saying he is right, but he should not be impeached. The Democrats should not bring it up either. Besides the fact that Clinton didn't get impeached, Bush was trying to protect the country.

However, the administration was also grabbing for power, but that is Congress's fault for allowing him to walk all over them. Presidents before Bush have exercised the executive branch power so why shouldn’t Bush. My only problem is the same problem I have had with this administration. Where is the accountability? I also find the hypocrisy a bit annoying as well. The right yelled at Clinton and his administration for hiding things and look at what Bush and his people are doing.

Um, you been asleap lately?

[Larry]

I do somewhat think that this whole "domestic spying" thing really needs some more information, if it's to be discussed as anything other than hypotheticals or party-line blanket declarations.

I think, to pick one extreme, that is a Russian saboteur were to swim ashore from a Russian submarine, and use a pay phone to contact his sleeper cell in Brooklyn, nobody would claim that Bush needs a warrant to listen in on the conversation. (Assuming he was somehow tracking the agent, and had the ability to order the tap in the time he was dialing the phone.)

OTOH, (to pick an opposite extreme), if an American citizen donates money to a Muslim charity that claims to provide Korans to starving Ethopians, but the FBI suspects them of doing fundraising for Hezbolah under the table, then he's still an American citizen.

Who decides that the Constitution applies to one person, but not the other?

I think we can all agree that the Fourth Ammendment applies to person B, but not person A.

Obviously, somebody needs to decide exactly where the line is that seperates those two people.

I would assert that the way our system is supposed to work is: The legislature draws up rules for determining where that line is, and the judiciary then applies those rules on a case-by-case basis.

The solution is not to assert that, since there is, somewhere, a hypothetical case in which a commander in chief might need the authority to ignore the Constitution, that therefore, that President has the authority to decide on his own where that Constitution does or does not apply.

In short, FISA (to use an example) is not, and never was, an attempt by the legislature to limit a President's unlimited authority. It is rather the Legislatures' job to establish laws to determine where "Commander in Chief" ends and "Fourth Ammendment" begins.

(I could also see an argument that it's the Judicial branches job to draw the lines between those two contradictory clauses. But to me, the Judiciary's job is more in terms of deciding individual cases, rather than rules.)

[Tarhog]

I have always been a moderate. The right has labeled me a liberal the last couple of years because I do not agree with all their viewpoints. I didn’t appreciate that either.

If the American people don’t like what the Republicans are doing, vote them out of office.

Nice to see. Good for you Fred.

Hey, Chopper Dave and I agreed a couple days ago. Can world peace be far around the corner?

[Cskin]

I want the Dems to follow through... go for Impeachement.... get in front of any camera and microphone and grin from ear to ear about their intention. It'll be like knocking a hole in the hull of their ship and then setting it a blaze. The American people aren't behind this.... many feel the govt. should do whatever necessary to prevent another 9-11... including torturing enemy combatants to glean vital intelligence.

Additionally, the Repubs have already painted the Dems into the corner as being defeatists.... cut and runners.... so denying Bush the means to wiretap SUSPECTED AL-QAEDA sympathizers is just another way of for the Dems to declare to the country.... "we simply don't want to win the war on terror".

[Prosperity]

I agree with the article. There may have been some shady aspects to all this, but because it has a reasonable backing in the 1972 court ruling an impeachment would be silly and pointless.

[Destino]

clinton was impeached. Just never convicted in the impeachment.

Like I said in another thread, if the Dems had the goods on Bush they'd be 24/7 on TV drumming up the case for impeachment

Wouldn't matter. They don't have control in congress and thus anything they did have unless it was a absolute political career destroyer would never amount to impeachment.

Do you think this congress would have impeached Nixon?

[Destino]

I have always been a moderate. The right has labeled me a liberal the last couple of years because I do not agree with all their viewpoints. I didn’t appreciate that either.

Welcome to the club.