As painful and distasteful as election campaigns have become over the past several years, I fear that the upcoming mid-term elections may prove to be the bloodiest in our long history for what is at stake is not simply the balance of power in both chambers of Congress, but the viability of the Bush Presidency. Each day we bear witness to mounting evidence that this President and his advisors either lied or conspired to mis-lead the nation in virtually every aspect of its agenda, whether it be the war in Iraq, the so-called, “war on terrorism”, taxes, healthcare, social security or education. Indeed, in some instances, the conduct of this administration has bordered on the treasonous if the suspicions about the leaking of Valerie Plame’s identity are born out and traced to the Vice President himself.
At the very least, this administration has been grossly negligent in its conduct of the nation’s business, both home and abroad, and should be called to task for that negligence and the damage that it has caused now and for much of the foreseeable future.
Ultimately, however, it may be the administration’s warrantless wiretapping of US citizens that provides the strongest argument for proceeding to impeachment proceedings. The FISA legislation makes clear that any person who willfully engages in electronic surveillance in any fashion other than that prescribed by the legislation is subject to criminal prosecution. That language would certainly extend to anyone who orders another to engage in such illegal surveillance and that would certainly place Bush in jeopardy of impeachment under the “high crimes and misdemeanors” clause of the Constitution.
The question, of course, is not whether an argument can be made that Bush is guilty of criminal conduct under the Foreign Intelligence Surveillance Act, but whether there are reasons to believe that a prosecution will be successful. The arguments, unfortunately, are not as clear as one would hope and expect given the amount of attention that this issue has and is continuing to receive.
On the one hand, on their face, neither the FISA legislation or the Authority for Military Action (AUMF) granted by Congress on September 18, 2001 would appear to give the executive the authority to spy on his constituents without warrant. That interpretation has received wide-ranging support throughout the political and apolitical landscape including, interestingly enough, the Congressional Research Service, the public policy research arm of the Congress. The CRS, in a January 5, 2006 Memorandum proffered the opinion that the President is without authority to ignore the limitations imposed by Congress in enacting AUMF and amending FISA noting, however, that the Supreme Court has yet to take a position on Congressional authority in the acquisition of foreign intelligence.
Bush, on the other hand, through his Attorney General, of course, takes a very expansive view of his role as described by the constitution, particularly that of Commander-in-Chief, believing that that status somehow imbues him with sweeping power to reinterpret and ultimately disregard established civil and criminal law in the name of national security. The argument, however, ignores the very basic principle that the commander in chief’s authority is limited to his command of the military and its affiliated agencies. He is otherwise simply an elected official occupying one of three equal branches of the government and without the right or authority to ignore or evade laws enacted by and at the will of the People. While the President may have broad and perhaps unlimited authority to direct and control the military, including establishing and defining the rules and laws under which the military operates, he enjoys no such authority over the general population.
There are without question ambiguities and gaps in the legislation and judicial interpretation of the authorities and limitations imposed by the legislation. The CRS Memorandum makes this reality abundantly clear. Consequently, it may ultimately come to pass that whether these criminal violations are, in fact, confirmed as such will rest in the hands of the Justices of the Supreme Court and its newly appointed Chief Justice Roberts and soon-to-be confirmed Associate Justice Alito. Given that both men share an expansive view of executive authority with Justices Scalia and Thomas, it is certainly unlikely that neither man was nominated and pushed to confirmation and appointment at this precise moment in time by happenstance. It is indeed ironic that Mr. Alito will be replacing the Justice who authored the Court’s seminal decision on Presidential authority after the enactment of the AUMF and made clear in her plurality opinion that a state of war is not a blank check for unlimited executive authority.
Were the Court to rule in the President’s favor it would certainly damage, though not irreparably, any move toward impeachment, particularly on the basis of his having engaged in the unlawful surveillance of his constituents. Whether and to what extent the nation has the stomach to press on toward impeachment in the face of a judicial acknowledgment of the President’s nearly unlimited authority over his citizens remains to be seen. Unfortunately, incompetence in itself is not a basis for impeachment as contemplated by the Constitution and whether Congress will be of a mind to pursue impeachment will depend, in large measure upon the composition of Congress and, in turn, the interpretation of the facts which underlie the gross incompetence that has dominated so much of the Bush Presidency. It is not enough to simply say that we were misled by this President into going to war. It is not enough to simply say that we invaded Iraq without a strategy for success. It is not enough to simply say that we threw our troops into harms way without the basic resources to protect themselves against the onslaught which has produced so much death and destruction. It is not enough to simply say that Mr. Bush appears to care more about rewarding political cronies with jobs for which they are unsuited than in protecting and preserving the Republic. There has to be a provable belief that those acts rise to the level of a high crime and misdemeanor. The current Congress can be expected not pursue the type of accountability from our executive that we are entitled to even if the Court, for example, were to opine that the President acted without authority under FISA and is thus indictable for a criminal violation of its provisions. While one would expect the vast majority of Democratic legislators to take issue with the expansive view of executive prerogative adopted by Mr. Bush, it is remarkable (though in this climate not surprising) that Republican and Conservative Democratic legislators seem untroubled by Mr. Bush’ abject disregard for the authority and responsibility imposed upon Congress by the Constitution. Perhaps it is the expectation that through their support for this unsupportable view of executive authority (and concomitant denigration of their own authority) that these legislators stand the best chance of surviving the electoral process they face in the Fall.
It will certainly require a manifest change of the political landscape in order to bring Mr. Bush to account and the first opportunity for that change lies in the Autumn of the year. It would not be far-fetched to expect that with a change in the majority of either or both houses of the legislature, articles of impeachment would likely occupy much, though not all of the Congressional agenda during 2007 and beyond. At the very least, a change would subject Mr. Bush to the bright light of accountability that he has long avoided.
Yes, the stakes are high though not without reward. Let us hope for the strength to endure what promises to be a very rough journey.
At the very least, this administration has been grossly negligent in its conduct of the nation’s business, both home and abroad, and should be called to task for that negligence and the damage that it has caused now and for much of the foreseeable future.
Ultimately, however, it may be the administration’s warrantless wiretapping of US citizens that provides the strongest argument for proceeding to impeachment proceedings. The FISA legislation makes clear that any person who willfully engages in electronic surveillance in any fashion other than that prescribed by the legislation is subject to criminal prosecution. That language would certainly extend to anyone who orders another to engage in such illegal surveillance and that would certainly place Bush in jeopardy of impeachment under the “high crimes and misdemeanors” clause of the Constitution.
The question, of course, is not whether an argument can be made that Bush is guilty of criminal conduct under the Foreign Intelligence Surveillance Act, but whether there are reasons to believe that a prosecution will be successful. The arguments, unfortunately, are not as clear as one would hope and expect given the amount of attention that this issue has and is continuing to receive.
On the one hand, on their face, neither the FISA legislation or the Authority for Military Action (AUMF) granted by Congress on September 18, 2001 would appear to give the executive the authority to spy on his constituents without warrant. That interpretation has received wide-ranging support throughout the political and apolitical landscape including, interestingly enough, the Congressional Research Service, the public policy research arm of the Congress. The CRS, in a January 5, 2006 Memorandum proffered the opinion that the President is without authority to ignore the limitations imposed by Congress in enacting AUMF and amending FISA noting, however, that the Supreme Court has yet to take a position on Congressional authority in the acquisition of foreign intelligence.
Bush, on the other hand, through his Attorney General, of course, takes a very expansive view of his role as described by the constitution, particularly that of Commander-in-Chief, believing that that status somehow imbues him with sweeping power to reinterpret and ultimately disregard established civil and criminal law in the name of national security. The argument, however, ignores the very basic principle that the commander in chief’s authority is limited to his command of the military and its affiliated agencies. He is otherwise simply an elected official occupying one of three equal branches of the government and without the right or authority to ignore or evade laws enacted by and at the will of the People. While the President may have broad and perhaps unlimited authority to direct and control the military, including establishing and defining the rules and laws under which the military operates, he enjoys no such authority over the general population.
There are without question ambiguities and gaps in the legislation and judicial interpretation of the authorities and limitations imposed by the legislation. The CRS Memorandum makes this reality abundantly clear. Consequently, it may ultimately come to pass that whether these criminal violations are, in fact, confirmed as such will rest in the hands of the Justices of the Supreme Court and its newly appointed Chief Justice Roberts and soon-to-be confirmed Associate Justice Alito. Given that both men share an expansive view of executive authority with Justices Scalia and Thomas, it is certainly unlikely that neither man was nominated and pushed to confirmation and appointment at this precise moment in time by happenstance. It is indeed ironic that Mr. Alito will be replacing the Justice who authored the Court’s seminal decision on Presidential authority after the enactment of the AUMF and made clear in her plurality opinion that a state of war is not a blank check for unlimited executive authority.
Were the Court to rule in the President’s favor it would certainly damage, though not irreparably, any move toward impeachment, particularly on the basis of his having engaged in the unlawful surveillance of his constituents. Whether and to what extent the nation has the stomach to press on toward impeachment in the face of a judicial acknowledgment of the President’s nearly unlimited authority over his citizens remains to be seen. Unfortunately, incompetence in itself is not a basis for impeachment as contemplated by the Constitution and whether Congress will be of a mind to pursue impeachment will depend, in large measure upon the composition of Congress and, in turn, the interpretation of the facts which underlie the gross incompetence that has dominated so much of the Bush Presidency. It is not enough to simply say that we were misled by this President into going to war. It is not enough to simply say that we invaded Iraq without a strategy for success. It is not enough to simply say that we threw our troops into harms way without the basic resources to protect themselves against the onslaught which has produced so much death and destruction. It is not enough to simply say that Mr. Bush appears to care more about rewarding political cronies with jobs for which they are unsuited than in protecting and preserving the Republic. There has to be a provable belief that those acts rise to the level of a high crime and misdemeanor. The current Congress can be expected not pursue the type of accountability from our executive that we are entitled to even if the Court, for example, were to opine that the President acted without authority under FISA and is thus indictable for a criminal violation of its provisions. While one would expect the vast majority of Democratic legislators to take issue with the expansive view of executive prerogative adopted by Mr. Bush, it is remarkable (though in this climate not surprising) that Republican and Conservative Democratic legislators seem untroubled by Mr. Bush’ abject disregard for the authority and responsibility imposed upon Congress by the Constitution. Perhaps it is the expectation that through their support for this unsupportable view of executive authority (and concomitant denigration of their own authority) that these legislators stand the best chance of surviving the electoral process they face in the Fall.
It will certainly require a manifest change of the political landscape in order to bring Mr. Bush to account and the first opportunity for that change lies in the Autumn of the year. It would not be far-fetched to expect that with a change in the majority of either or both houses of the legislature, articles of impeachment would likely occupy much, though not all of the Congressional agenda during 2007 and beyond. At the very least, a change would subject Mr. Bush to the bright light of accountability that he has long avoided.
Yes, the stakes are high though not without reward. Let us hope for the strength to endure what promises to be a very rough journey.
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