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December 22, 2005

High crime

Posted by Phil on December 22, 2005 9:15 AM

"Bush's Impeachable Offense," Michelle Goldberg, Salon, 12/22/05:

"Looking at this controversy objectively, you inevitably end up with a question of impeachment," says Jonathan Turley, a professor at the George Washington University School of Law.


According to Turley, there's little question Bush committed a federal crime by violating the 1978 Foreign Intelligence Surveillance Act.

The act authorizes a secret court to issue warrants to eavesdrop on potential suspects, or anyone even remotely connected to them, inside the United States. The bar to obtain a FISA warrant is low; more than 15,000 have been granted, with only four requests denied since 1979. In emergency situations, the government can even apply for FISA warrants retroactively. Nevertheless, Bush chose not to comply with FISA's minimal requirements.

"The fact is, the federal law is perfectly clear," Turley says. "At the heart of this operation was a federal crime. The president has already conceded that he personally ordered that crime and renewed that order at least 30 times. This would clearly satisfy the standard of high crimes and misdemeanors for the purpose of an impeachment."

Turley is no Democratic partisan; he testified to Congress in favor of Bill Clinton's impeachment. "Many of my Republican friends joined in that hearing and insisted that this was a matter of defending the rule of law, and had nothing to do with political antagonism," he says. "I'm surprised that many of those same voices are silent. The crime in this case was a knowing and premeditated act. This operation violated not just the federal statute but the United States Constitution. For Republicans to suggest that this is not a legitimate question of federal crimes makes a mockery of their position during the Clinton period. For Republicans, this is the ultimate test of principle."

Of course, that may be exactly the problem. While noted experts--including a few Republicans--are saying Bush should be impeached, few think he will be. It's not clear that the political will exists to hold the president to account. "We have finally reached the constitutional Rubicon," Turley says. "If Congress cannot stand firm against the open violation of federal law by the president, then we have truly become an autocracy."

A way of thinking about this that I've seen a few places and makes sense to me is that, in times of crisis and danger, the president may have not the right but the responsibility to break, expand, or circumnavigate the law--and then be prepared to explain himself and perhaps face certain consequences.

The Constitution, not any president, is the governing entity of the nation. The president protects and defends it. The presidency is a position not of power and privilege but of duty and sacrifice. When circumstances force a president into actions that go against existing law, he doesn't get to break the law, he has to. Then his decision must be tried against the law.

Otherwise, the law is whatever he thinks it is and he can make it up as he goes, and the rest of us are just pawns, scribes, and onlookers. Which just about describes the state of affairs we have allowed to exist in this country for more than four years.

It may be naive to think this isn't already merely academic. It may be that an apparatus already exists to undermine democracy and make it impossible for the people to force the government to act in their interest when it contradicts the interests of the powerful. Certainly the impulse to do that has existed throughout history, and will always threaten the people. Until now, our Constitution was the most effective defense against it ever devised.

Everything this president does is calculated to expand the powers of the executive so that the will of the people can be more efficiently and effectively disregarded. If this clear violation of the law is allowed to stand uncontested, then the apparatus will be that much stronger.

More here, here, here, and here.

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Tracked on December 22, 2005 1:12 PM