What’s Impeachment For Again?

Bush photochopped on NixonThere’s been a Patriot Act filibuster, a Presidential address, and a press conference since the New York Times revealed that the President ordered the NSA to engage in domestic spying. Orin Kerr has a long analysis of the potential legal arguments that the Administration can put forth and how likely they are to persuade a court. It’s a good, well-researched post, but takes no opinion on the propriety of the actions.

To summarize his analysis, the actions taken by the President may be part of the inherent Article II powers, not be implicated under the Fourth Amendment under the so-called “national security exception” ( the “border search exception” argument is bullshit; a phone call is not a border.), and probably violated the Foreign Intelligence Surveillance Act (FISA) statute, 50 U.S.C. 1801-11. There’s also the bullshit argument that the Congressional Authorization of Military Force magically trumps all of our laws, but (a) that’s too Orwellian for words and (b) wiretaps are not force. The colorable arguments that the Administration can make might keep impeachment at bay, by showing that the President was acting in “good faith” based on competent legal advice.

All well and good, but let’s start looking at the suspiciously Bavarian forest, instead of examining tree bark. The Fourth Amendment requires probable cause before warrants can be issued. FISA courts keep the argument for probable cause secret in order to not tip off the foreign power being investigated. However, FISA courts still require the government to show (retroactively in case of emergency) probable cause that “the target of the electronic surveillance is a foreign power or an agent of a foreign power,” with the specific limitation “[p]rovided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States.” See 50 U.S.C. 1805(a)(3)(A) for all the statutory language.

Since the President specifically chose not to use FISA, it’s likely that he’s spying on people for engaging in First Amendment protected private speech. While you might be able to get a FISA wiretap for someone being called by Khalid Sheik Mohammed, there aren’t many courts who would give a secret wiretap for everybody in his cell phone, or everybody in their cell phone, or so on, in an ever-expanding and attenuated net. However, this is the kind of eavesdropping that the NSA specializes in. Connect the dots.

As an aside, I’m wondering how many bizarre Administration policies Professor Kerr can defend try to explain before his head explodes. Similarly, for those Administration apologists, I ask you this: “What violation of the Constitution and/or the law would be sufficient for you to impeach him?”

There was a previous President who felt justified in conducting warrantless wiretaps of people and organizations in America. Here’s hoping that the New York Times will play the role of the Washington Post this time around. When the President abuses his power, he must go. Sic semper tyrannis.

Previously: Bush Curses the Constitution Again

Nicholas Sarwark

Mr. Sarwark lives in Colorado and keeps poor people out of cages for a living. His views are his own, not his employer's, his wife's, or his dog's. They are also awesome and always right.

  1. “I want to make clear to the people listening that this program is limited in nature to those that are known al Qaeda ties and/or affiliates.”

    That’s probably going to be the quote that comes back to bite him in the ass. I’ve seen a fair share of PATRIOT Act abuses that had nothing to do Al Qaida or affiliates and I don’t doubt for a second that the administration let the NSA fast and loose with who they were snooping on and why.

    I’m still waiting for Bush to have his “I did not have sexual relations with that woman” moment, because the minute he does all hell is gonna break loose.

  2. I read both Kerr’s analysis and reread FISA yesterday. My take is much more simple. Whether or not FISA is deemed constitutional by case law or by a higher court does not make it so.

    There are enough unconstitional scraps of legal code around this country to fill a convoy of semis. Lower courts generally uphold this garbage and it becomes case law for future crapola legislation.

    We have a Supreme Court which upholds that growing medicinal weeds in one’s backyard involves interstate commerce. Screw them, as they no longer hold the Constitution as their guiding standard.

    If Bush’s actions are upheld in by the court system, it will serve as an indictment of the entire system and of our use of case law.

    BTW, the parallel used on the Nixon impeachment was absolutely brilliant. Only Bush as taken it a lot further than Nixon ever considered.

  3. I don’t give a damn what the courts say they didn’t even have the power to declare something unconstitutional until they gave it to themselves in 1803. That would be like me giving myself the power to go over to my neighbors house, take his girlfriend and watch his tv. I don’t have that power.

    When all three branches are corrupt we vote them out or impeach them. Don’t stay home bitching in 2006 and then bitch because we still have the problems in 2007 vote them out of office next election.

  4. Looks like “Sic semper tyrannis” has been uttered before the murder of many a corrupt public figure.

    Perhaps Bush’s days have fewer numbers than he thinks…

  5. “the courts … didn’t even have the power to declare something unconstitutional until they gave it to themselves in 1803.”

    They didn’t just give it to themselves, they argued it — which is a lot better than your ad hominem. Without judicial review, the Constitution would be a toothless document; the legislature and the executive would have a free hand to ignore it — just as Bush is doing now. That’s not something that any libertarian should want.

    “That would be like me giving myself the power to go over to my neighbors house, take his girlfriend and watch his tv.”

    No, actually, it’s nothing like that. As a rule, a position argued by analogy probably can’t stand on its own.

    “When all three branches are corrupt we vote them out or impeach them.”

    No, “we” don’t impeach them — try reading the Constitution.

    “Don’t stay home bitching in 2006 and then bitch because we still have the problems in 2007 vote them out of office next election.”

    Aye to that. But who voted them in?

  6. Jake, by your comments, I take it you don’t believe that the federal courts have the power of judicial review. I will note that judicial review was in practice and was a power of state courts before 1803.

    Now if the federal courts shouldn’t have the power of judicial review for federal matters, how can we be protected from unconstitutional laws/policies being passed?

  7. I don’t have much time but I think we should have had a Constitutional amendment granting them the power of judicial review.

    Article 2, Section 4. How about having the new congress remove them from power. Impeachment certainly is in the Constitution and you can’t vote out civil officers.

    The people voted them in and the people can vote them out.

    “They didn’t just give it to themselves, they argued it” Amongst whom. Argue it amongst the people and get an amendment.

  8. Every politician everywhere in this country and the entire world is corrupt and worthless. They all need to be arrested and tried for something even if it is an invented offense just to get rid of them.

  9. I don’t care if we spy on “people and organizations in America” as long as they are not U.S. citizens. Our guaranteed rights under the Constitution does not extend to them.

    Why even have the CIA or NSA if not for spying?

    I draw the line at our government spying on citizens. I will go down fighting when that happens on a wholesale scale. Those that practice this type of spying deserve the full force of the law be used against them including impeachment or arrest of those responsible.

    What if the NSA is eavesdropping on a know terrorist and he is having a conversation with a U.S. citizen that advocates bombing New York and the citizen is an active participant in the plot? Do we shut down the listening devices and forget about it? This is a hard one to call.

  10. If we don’t vote out this congress in 2006, with every single house member up for reelection, kiss America as the LAND OF THE FREE goodbye. The House of Representatives has the Judiciary Committee, where the process of impeachment begins. We need balance, we need checks. Vote out Republicans in the House so that we may start the impeachment process.

    We must not waste a single day in furthering that cause. If we are lazy, we will lose it all for us and our children.