The "I" Word?

I have problems, sometimes, following the logic of our maximum leader. I'm told we don't permit torture, yet we can't pass a law prohibiting torture (evidently we need to allow the CIA the ability to do something it isn't supposed to have the ability to do). I'm told that because there hasn't been a terrorist attack on the US since 9.11, that the administration's strategy is successful (this may be correct, but may also simply be a post hoc, ergo propter hoc fallacy). But the current argument--some say "kerfluffle," others see it as a bit more serious--about the domestic role of the NSA seems to require some attention. It is, of course, getting it, but I get to take my shot at it, as well.

This seems to be the argument:

1) The US is in a war (the Global War on Terror)
2) The Congress passed a resolution providing the President the right to use all force necessary and appropriate to fight terrorism.

therefore

3) The President can do whatever he wishes to.

In terms of the logic of this argument, I think it is clear that the sticking point is 2), in that 3) only (or at best) follows from 1) and 2) on a specific interpretation of both; the claim in 1) is so amorphous and, ultimately, dubious that 2) has to carry the weight of the argument.

The difficulty is that what 2) means is almost certainly going to be settled politically, not in a court, because the only way a court could get to interpret it is for someone to challenge the right of the President to bypass the FISA court to order wiretaps; thus for someone to possess the appropriate "standing" to challenge this action of the President is to know that he or she had been wiretapped. It is, as they like to say in this White House, almost a "slam dunk" that no one is going to know this, thus no one will have the standing to bring a case.

Here's one interpretation, cited in the New York Times of 12.17 (p. A18); it is that of John C. Yoo's memorandum of 09.25.01: as cited there,

no statute passed by Congress 'can place any limits on the president's determination as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response.'

The whole memorandum is given here; the above quotation is from the concluding summary.

That's quite a claim. Let's say that Bush loses his mind, and decides that the real terrorist threat is red-haired US citizens who have bought blenders in the last six months. He orders the Justice Department to start compiling lists of these people, who are then arrested, denied access to legal representation, detained for awhile, tried before a military tribunal and then executed. John C. Yoo seems to think that Congress couldn't offer legislation to prevent this; and, evidently, an independent judicial branch has no role to play here.

[If we throw in the FBI, the DoJ, and Lord-Knows-What-the-NSA-is-doing, the current administration has identifed others as potential threats worthy of investigation, such as the Quaker House of Fayetteville, NC, the Campus Anti-War Network, and the Des Moines Catholic Worker, among many others. Bush claims the NSA is only monitoring intercontinental traffic but, to be honest, I don't really trust him to tell the truth. More on domestic surveillance here.]


Sandra Day O'Connor--wild-eyed anarchist that she is--offered a different interpretation in her majority opinion in the case of Yaser Esam Hamdi:

We have long since made it clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens. . . . Whatever powers the U.S. Constitution envisions for the executive (branch) ... it most assuredly envisions a role for all three branches when individual liberties are at stake.

But this brings us premise 1) above, which also returns me to the difficulty of following Bush's logic. Now the argument seems to be this (as was helpfully pointed out in the rare news conference Bush held on Monday (12.19)):

a) The President has expansive powers during a state of war
b) The GWOT is a state of war
c) The GWOT may last indefinitely, and almost certainly past the lifetime of anyone reading this

therefore

d) The President has expansive powers for an indefinitely-defined future, which may well be quite a long time.

This may be the reason people like Sununu and other conservative Republicans were worried about Bush's position on wiretapping, and more generally about his claim of inherent powers that cannot be checked by Congress or the Judicial branch: because it is possible that the Republicans won't hold the White House forever. Do conservatives really want to establish a precedent that gives this kind of power to, say, John Kerry, or Hilary Clinton, or Russell Feingold? And if one isn't so cynical, the argument is even easier: the Executive branch of government is not first among equals, and is not a dictatorship or monarchy. The tradition of American democracy cannot possibly tolerate a President who acts as if he (or she) is not subject to the constraints imposed by the other branches.

Which is why the "I" word--impeachment--is starting to be thrown around. This is going on a bit long, but let's review the articles of impeachment for Clinton. In brief, they were

The president provided perjurious, false and misleading testimony to the grand jury regarding the Paula Jones case and his relationship with Monica Lewinsky; The president provided perjurious, false and misleading testimony in the Jones case in his answers to written questions and in his deposition; The president obstructed justice in an effort to delay, impede, cover up and conceal the existence of evidence related to the Jones case; The president misused and abused his office by making perjurious, false and misleading statements to Congress.

The whole text (and history) is available here, but the gist is that Clinton, when deposed, lied to a Grand Jury and to Congress about his sex life, and tried to prevent Congress from discovering that. While immaterial, it might be worth pointing out that the actual case for which Clinton was deposed was thrown out as without merit.

This, as was mentioned at the time, debased our political culture and trivialized the notion of impeachment. Johnson was impeached for almost purely political reasons, growing out of a conflict that was clearly the biggest threat to the notion of a "United" states this country ever confronted. Nixon was threatened with impeachment for abuse of power and using various governmental agencies to harrass and punish his enemies. The right doesn't like to admit it, and gets on its ideological high horse when Clinton's impeachment is described this way, but fundamentally he was impeached for lying about blow jobs. If one wishes to mount this particular horse, however, I think we have to stay in the saddle, for if lying before a Grand Jury is sufficient reason to impeach a President (and vote for guilt), then what does one do when confronted with what Bush has done: declared himself not subject to constraints imposed by Congress or the Judiciary, and able to do whatever he wishes that falls within the law, where "law" now is determined by his own Department of Justice?

How am I to take seriously someone who suggests that Clinton should have been found guilty and removed from office, and simultaneously suggests that Bush is not guilty of an impeachable offense when he declares his actions require no justification or legal scrutiny beyond that provided by the executive branch, and are thus without check?

It is not me, and not just the crazed opponents of Bush, who are throwing around the "I" word, by the way. Jonathan Turly (a law professor at George Washington University and a specialist in surveillance law), a frequent talking head during the impeachment hearings of Clinton and no particular friend of that administration, says this:

The president's dead wrong. It's not a close question. Federal law is clear. . . . When the president admits that he violated federal law, that raises serious constitutional questions of high crimes and misdemeanors.

Then there is Bruce Fein--also a frequent talking head during the Clinton impeachment, and, as he admits, one with a long record of arguing for a strong Presidency--who served as associate deputy attorney general for Reagan, saying this:

President Bush presents a clear and present danger to the rule of law. He cannot be trusted to conduct the war against global terrorism with a decent respect for civil liberties and checks against executive abuses. Congress should swiftly enact a code that would require Mr. Bush to obtain legislative consent for every counterterrorism measure that would materially impair individual freedoms.

Fein added on the radio interview I heard Sunday that if such a "code" is not successful, impeachment is warranted.

I don't think it will happen, as much because of the fiasco that was the Clinton impeachment, as the fact that we have bigger things to worry about (at least in the short term).

I must admit, as well, that it takes chutzpah not only to have done what Bush did with his executive order, repeatedly updated, but to announce publically (and often) that he had done so. For on many interpretations (albeit not that of Alberto Gonzales), he is proclaiming that he broke the law which he is sworn to faithfully execute.

Maybe he thought he was supposed to execute the law as he did Karla Faye Tucker, as in do away with?