Home > Bush’s Impeachable Offense
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By Michelle Goldberg
Yes, the president committed a federal crime by
wiretapping Americans, say constitutional scholars,
former intelligence officers and politicians. What’s
missing is the political will to impeach him.
Is spying on US citizens an impeachable offense. US
President Bush would rather not talk about it.
Is spying on US citizens an impeachable offense. US
President Bush would rather not talk about it. On
Tuesday, Dec. 20, Washington Post polling editor
Richard Morin participated in an online chat with
readers. The liberal blog MyDD urged its users to take
part, and evidently they did. In previous days, legal
experts had declared that Bush had committed a federal
crime by authorizing the surveillance of American
citizens without a court order, and Morin was grilled
about the issue of impeachment. First, someone from
Naperville, Ill., asked Morin why the Post hasn’t
polled on public support for impeaching Bush. "This
question makes me mad," Morin replied. Someone else
repeated the question and Morin typed, "Getting
madder." It came up again, and he wrote, "Madder
still."
Finally, a fourth person asked it, and he answered:
"[W]e do not ask about impeachment because it is not a
serious option or a topic of considered discussion —
witness the fact that no member of congressional
Democratic leadership or any of the serious Democratic
presidential candidates in ’08 are calling for Bush’s
impeachment. When it is or they are, we will ask about
it in our polls."
Morin was wrong. It may be exceedingly unlikely that
President Bush will be impeached, but in the past few
days, the I-word has become a topic of considered
discussion among constitutional scholars, former
intelligence officers and even a few politicians.
"If you listen carefully, you can hear the word
’impeachment,’" curmudgeonly commentator Jack Cafferty
said on CNN. "Two congressional Democrats are using it.
And they’re not the only ones."
Indeed, speaking on the Diane Rehm show on public
radio, Norman Ornstein, a scholar at the conservative
American Enterprise Institute, said, "I think if we’re
going to be intellectually honest here, this really is
the kind of thing that Alexander Hamilton was referring
to when impeachment was discussed."
"All necessary force"
On Dec. 17, after the story of Bush’s domestic spying
broke in the New York Times, the president conceded
that he had ordered the National Security Agency to
intercept Americans’ communications without seeking
judicial approval. Unrepentant, the White House
insisted that Bush had been granted such authority by
the post-9/11 congressional resolution authorizing "all
necessary force" in the fight against terrorism, and
that the president would continue to order warrantless
searches.
The next day, during a public discussion with Sen.
Barbara Boxer, D-Calif., former Nixon White House
counsel John Dean called Bush "the first president to
admit to an impeachable offense." Boxer took Dean
seriously enough to consult four presidential scholars
about impeachment.
"This startling assertion by Mr. Dean is especially
poignant because he experienced firsthand the executive
abuse of power and a presidential scandal arising from
the surveillance of American citizens," she wrote to
them. "Given your constitutional expertise,
particularly in the area of presidential impeachment, I
am writing to ask for your comments and thoughts on Mr.
Dean’s statement."
Boxer has not made public any of the responses yet. But
other political scholars have weighed in. "The American
public has to understand that a crime has been
committed, a serious crime," Chris Pyle, a professor of
politics at Mount Holyoke College and an expert on
government surveillance of civilians, tells Salon.
"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.
Similar abuse of power led to Nixon’s demise
On Dec. 18, Rep. John Conyers, D-Mich., the highest-
ranking Democrat on the House Judiciary Committee,
released a 250-page report detailing Bush’s misconduct
and, on his Web site, called for the creation of a
select committee to investigate "those offenses which
appear to rise to the level of impeachment." Rep. John
Lewis, D-Ga., said in a radio interview that he would
support trying Bush. "If there is a move to impeach the
president, I will sign that bill of impeachment," he
said.
Assessing the controversy, Newsweek columnist Jonathan
Alter wrote on Dec. 19, "This will all play out
eventually in congressional committees and in the
United States Supreme Court. If the Democrats regain
control of Congress, there may even be articles of
impeachment introduced. Similar abuse of power was part
of the impeachment charge brought against Richard Nixon
in 1974."
It was bracing to see impeachment mentioned as a
possibility in the mainstream media. But experts say
it’s not unreasonable. 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.
FOUND IN... Salon.com
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at: Salon.com "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."
"The ultimate test of principle"
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."
Similar fears are voiced by Bruce Fein, a former
associate deputy attorney general under President
Ronald Reagan. Fein is very much a member of the right.
He once published a column arguing that "President
George W. Bush should pack the United States Supreme
Court with philosophical clones of Justices Antonin
Scalia and Clarence Thomas and defeated nominee Robert
H. Bork."
Suddenly, though, Fein is talking about Bush as a
threat to America. "President Bush presents a clear and
present danger to the rule of law," he wrote in the
right-wing Washington Times on Dec. 20. "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."
What alarms Fein is not only that Bush has broken laws
but also that he has repeatedly shown contempt for the
separation of powers. Fein wants to see congressional
hearings that would explore whether Bush accepts any
constitutional limitation on his own authority.
"The most important thing to me, in terms of thinking
about the issue of impeachment, is to recognize that
the Constitution does place a value on continuity,"
Fein says. "We don’t want to have a situation where you
make a single error, and you’re exposed to an
impeachment proceeding."
Little possibility that impeachment would succeed
Fein says Congress should probe Bush on whether he
plans to keep "skating the edge" of federal law by
trying to concentrate power in the executive branch.
"That’s the key. It’s that probing that’s essential to
knowing whether we’re dealing with somebody who’s
really a dangerous guy. If he maintains this disregard
or contempt for the coordinate branches of government,
it’s that conception of an omnipotent presidency that
makes the occupant a dangerous person. We just can’t
sacrifice our liberties for ourselves and our posterity
by permitting someone who thinks the state is him, and
nobody else, to continue in office."
In fact, though, that may be exactly what America is
permitting Bush to do. "Politically, I see no
possibility that impeachment will succeed," says
Jonathan Entin, a professor of political science and
law at Case Western Reserve University.
"The Democrats are a minority in both houses of
Congress," Entin says. "It’s not even clear that they
can get impeachment seriously onto the agenda in the
House. Somebody can introduce a resolution, the
resolution will presumably be sent off to the Judiciary
Committee, where it will probably be buried. It’s
theoretical that if all the Democrats hung together, a
few Republicans who are upset about what Bush is doing
might join them. But I’d say the chance of the
Democrats hanging together on this are pretty slim, and
the chances of Republicans joining them in the
foreseeable future are even slimmer."
"The only question here is the political one," says
Pyle of Mount Holyoke College. A former military
intelligence officer, Pyle blew the whistle on the U.S.
Army’s domestic spying program during the Vietnam War.
He believes that Bush has committed an impeachable
offense — and that right now there’s no prospect he
will be impeached. "This president has admitted
committing the crime. He just claims he’s above the
law," Pyle says. "So the issue is: Is the president
above the law?"
If so, Pyle continues, "then we need not argue over the
PATRIOT Act. We do not need the PATRIOT Act, because
the president can do anything he wants in time of war.
He can ignore all the criminal laws of the United
States, including the laws against indefinite detention
and against torture. I don’t think we want to go down
that road."
But aren’t we already down that road? "We may be," Pyle
says. "Maybe it’s time to call a halt."
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