The presidential crime blotter

"Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny." -- Thomas Jefferson

"In framing a government which is to be administered by men over men the great difficulty lies in this: You must first enable the government to control the governed, and in the next place, oblige it to control itself." -- Alexander Hamilton

WaPo's big headline for Wednesday: one of the judges on the FISA court has resigned in protest over the president's secret spy program, which he apparently believes has undermined the court and its work (another judge has apparently wondered out loud whether the Bush administration has turned FISA into a "Potemkin court.") And WaPo also has more on the Bush administration's quest for almost limitless executive power to fight this neverending "war" against terrorism...

Over the weekend, former Nixon White House Counsel John Dean called George W. Bush "the first president to admit to an impeachable offense" in the NSA domestic spying scandal (BTW, Media Matters has cold busted the WaPo polling outfit on its refusal to ask the "I" question in its polls, and a poster on TPM Cafe answers the key legal question posed by Barbara Boxer, who first reported the Dean quote, and who is now seeking advice from four presidential scholars specializing in impeachment...) Also, George Will asks the simple but unavoidable question: "why didn't he (just) ask Congress?" Despite the pooh-poohing of the Bush-bot crowd, I find it hard to see what legal ground the president can possibly be standing on. Says the TMP Cafe poster:

Bush has admitted to a violation of FISA without colorable defense. He is liable to prosecution with sentence for each illegal wiretap of up to five years in the penitentiary.

50 USCS § 1809 (2005)
§ 1809. Criminal sanctions
(a) Prohibited activities. A person is guilty of an offense if he intentionally--
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.
(b) Defense. It is a defense to a prosecution under subsection (a) that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
(c) Penalties. An offense described in this section is punishable by a fine of not more than $ 10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction. There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.

He has no colorable defense - not in the Use of Force Resolution nor in some unenumerated "plenary power" of dictatorship in the Constitution

Bush has dared the Congress to impeach him. I think that the Congress should oblige him, and if this Congress refuses, let it stand before the American people next year to tell us why.

According to the very statute we're arguing over, the only defense against the illegal wiretapping of people on American soil is being an investigating officer operating under a court order or search warrant. Bush has openly, and rather brazenly, admitted that there were no warrants, no court orders, because his administration couldn't be bothered to go to the FISA court, even after they'd done their "critical" phone surveillance. What possible argument could there be for this distortion of the president's role? The Cheneyesque notion (shared by uber-neocon Bill Kristol and other supporters of the Endless War) of almost limitless and unchecked presidential power, both abroad and on American soil, is chilling in the Old Soviet sense of the word. Someone ought to send this band of neocon Trotskyites and Jacobins back to the Tolstoy novel from whence they came... They're ruining America.

Related: David Ignatius says the Bushian national security structure is coming apart, and the professional intelligence gatherers aren't exactly unhappy about it. Writes the columnist:

The civil liberties debate is indeed a welcome sign that we are returning to normality. We wouldn't be anguishing over these issues if terrorists were continuing to fly airplanes into our skyscrapers. As we learned after Sept. 11, a frightened nation loses its sense of balance. Now that the nation feels more secure, we insist anew on the rule of law. Presidents may claim extraordinary powers in times of crisis (and Bush is hardly the first), but the checks and balances inherent in our system push us back toward the center line drawn by the Founders.

One little-noted factor in this re-balancing is what I would call "the officers' revolt" -- and by that I mean both military generals in uniform and intelligence officers at the CIA, the NSA and other agencies. There has been growing uneasiness among these national security professionals at some of what they have been asked to do, and at the seeming unconcern among civilian leaders at the Pentagon and the CIA for the consequences of administration decisions.

The quiet revolt of the generals at the Pentagon is a big reason U.S. policy in Iraq has been changing, far more than Bush's stay-the-course speeches might suggest. Defense Secretary Donald Rumsfeld is deeply unpopular with senior military officers. They complain privately about a management style that has stretched the military to the breaking point in Iraq. For months they have been working out details of troop reductions next year in Iraq -- not just because such action will keep the Army and Marine Corps from cracking but because they think a smaller footprint will be more effective in stabilizing the country.

A similar revolt is evident at the CIA. Professional intelligence officers are furious at the politicized leadership brought to the agency by ex-congressman Porter Goss and his retinue of former congressional staffers. Their mismanagement has peeled away a generation of senior management in the CIA's Directorate of Operations who have resigned, transferred or signaled their intention to quit when their current tours are up. Many of those who remain are trying to keep their heads down until the current wave of political jockeying and reorganization is over -- which is the last thing you would want at an effective intelligence agency.

The CIA, like the military, wants clear and sustainable rules of engagement. Agency employees don't want their careers ruined by future congressional or legal investigations of actions they thought were authorized. Unhappiness within the CIA about fuzzy rules on interrogation, and the risk of getting clobbered after the fact for doing your job, was a secret driver for Sen. John McCain's push for a new law banning cruel interrogation techniques.

President Bush needs to do what he so often talks about, which is to provide strong leadership. In place of the post-Sept. 11 emergency structure, the country needs clear rules that Congress can debate and finally endorse. It may be, for example, that the NSA does need more agile and more flexible techniques for wiretapping suspected terrorists, like those the president secretly imposed in 2001. If so, it's time to amend our laws. Framing clear rules that meet traditional American legal standards is a sign of the nation's recovery from Sept. 11 -- and it's a process that will serve, above all, the professionals fighting terrorism on the front lines.

Well said. On the flip side, appeals court judge/law professor Richard Posner defends so-called "data mining", says our domestic intelligence services are in crisis, and says the government must sweep in large amounts of raw data, including form the innocent, in order to protect the U.S. from another terrorist attack.

Tags: politics, News, Bush, national security, NSA, government, spying, president, impeachment