Barron's raises possibility of Bush impeachment

[tristano's ghost]

Yes, that's correct--Barron's, hardly a journal of leftwing fire & brimstone:

AS THE YEAR WAS DRAWING TO A CLOSE, we picked up our New York Times and learned that the Bush administration has been fighting terrorism by intercepting communications in America without warrants. It was worrisome on its face, but in justifying their actions, officials have made a bad situation much worse: Administration lawyers and the president himself have tortured the Constitution and extracted a suspension of the separation of powers.

. . .

Willful disregard of a law is potentially an impeachable offense. It is at least as impeachable as having a sexual escapade under the Oval Office desk and lying about it later. The members of the House Judiciary Committee who staged the impeachment of President Clinton ought to be as outraged at this situation. They ought to investigate it, consider it carefully and report either a bill that would change the wiretap laws to suit the president or a bill of impeachment.

It is important to be clear that an impeachment case, if it comes to that, would not be about wiretapping, or about a possible Constitutional right not to be wiretapped. It would be about the power of Congress to set wiretapping rules by law, and it is about the obligation of the president to follow the rules in the Acts that he and his predecessors signed into law.

. . .

Published reports quote sources saying that 14 members of Congress were notified of the wiretapping. If some had misgivings, apparently they were scared of being called names, as the president did last week when he said: "It was a shameful act for someone to disclose this very important program in a time of war. The fact that we're discussing this program is helping the enemy."

Wrong. If we don't discuss the program and the lack of authority for it, we are meeting the enemy -- in the mirror.

More from Barron's:

"We also believe the president has the inherent authority under the Constitution, as commander-in-chief, to engage in this kind of activity," said Attorney General Alberto Gonzales. . . .

Putting the president above the Congress is an invitation to tyranny. The president has no powers except those specified in the Constitution and those enacted by law. President Bush is stretching the power of commander-in-chief of the Army and Navy by indicating that he can order the military and its agencies, such as the National Security Agency, to do whatever furthers the defense of the country from terrorists, regardless of whether actual force is involved.

Surely the "strict constructionists" on the Supreme Court and the federal judiciary eventually will point out what a stretch this is. The most important presidential responsibility under Article II is that he must "take care that the laws be faithfully executed." That includes following the requirements of laws that limit executive power. There's not much fidelity in an executive who debates and lobbies Congress to shape a law to his liking and then goes beyond its writ.

The possibility of Bush's being impeached by a GOP-controlled Congress remains all but improbable. OTOH, if a conservative rag like Barron's is suggesting that he may deserve it... well, let's just say the self-annointed boy king's influence & power may be diminishing even further. Barron's comment about "the enemy in the mirror" points to how he's becoming as much of a menace to democracy and freedom as the foes he purports to fight.

[graypencil]

if impeachment should in fact occur ...

It would be the best Xmas present the counrty ever got!!

[Dr Dave]

Hey, remember that study that said even The Wall Street Journal was liberally biased in its reporting? This is obviously proof of the correctness of their research results. It is not too late to save America from a free press! Shut these craven leftist rags down before it's too late!

(Seriously, foax, the chance of a GOP-controlled party allowing an impeachment to move forward is none and less than none. And no Democrat will dare to bring up the matter, since it will instantly be spun as both Partisan Politics in its most virulent form and also as disgraceful tit-for-tat Democrat behavior in the wake of the Clinton impeachment.)

[Scott Dolan]

self-annointed boy king's

Credibility post statement: 0

[Scott Dolan]

Originally Posted by Dr Dave

(Seriously, foax, the chance of a GOP-controlled party allowing an impeachment to move forward is none and less than none. And no Democrat will dare to bring up the matter, since it will instantly be spun as both Partisan Politics in its most virulent form and also as disgraceful tit-for-tat Democrat behavior in the wake of the Clinton impeachment.)

I have a feeling that this is exactly the kind of behavior that we will continue to see from both sides if we end up with a two-term President.

[Gordon B]

If the Democrats want to cripple their chances of winning back the White House in 2008, they will bring impeachment proceedings against Bush.

I can't imagine the American public wanting to remove the President for possibly violating the law in his vigilant pursuit of Al Qaeda.

Did Bush violate the constitution? Legal experts have not reached a consensus on that. Below is a legal analysis by Orin Kerr over at the Volokh Conspiracy blog.

Legal Analysis of the NSA Domestic Surveillance Program: Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act. My answer is extra-cautious for two reasons. First, there is some wiggle room in FISA, depending on technical details we don't know of how the surveillance was done. Second, there is at least a colorable argument — if, I think in the end, an unpersuasive one — that the surveillance was authorized by the Authorization to Use Miltary Force as construed in the Hamdi opinion.

This is a really long post, so let me tell you where I'm going. I'm going to start with the Fourth Amendment; then turn to FISA; next look to the Authorization to Use Military Force; and conclude by looking at claim that the surveillance was justified by the inherent authority of Article II. And before I start, let me be clear that nothing in this post is intended to express or reflect a normative take of whether the surveillance program is a good idea or a bad idea. In other words, I'm just trying to answer what the law is, not say what the law should be. If you think my analysis is wrong, please let me know in the comment section; I'd be delighted to post a correction.

The Fourth Amendment. On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent. There are a bunch of different arguments here, but let me focus on two: the border search exception and a national security exception. Neither is a slam dunk, by any means, but each are plausible arguments left open by the cases.

The border search exception permits searches at the border of the United States "or its functional equivalent." United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985). The idea here is that the United States as a sovereign has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.).

As I understand it, all of the monitoring involved in the NSA program involved international calls (and international e-mails). That is, the NSA was intercepting communications in the U.S., but only communications going outside the U.S. or coming from abroad. I'm not aware of any cases applying the border search exception to raw data, as compared to the search of a physical device that stores data, so this is untested ground. At the same time, I don't know of a rationale in the caselaw for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the "functional equivalent of the border," much like airports are the functional equivalent of the border in the case of international airline travel. [UPDATE: A number of people have contacted me or left comments expressing skepticism about this argument. In response, let me point out the most persuasive case on point: United States v. Ramsey, holding that the border search exception applies to all international postal mail, permitting all international postal mail to be searched. Again, this isn't a slam dunk, but I think a plausible argument -- and with dicta that seems to say that mode of transportation is not relevant.]

The government would have a second argument in case a court doesn't accept the border search exception: the open question of whether there is a national security exception to the Fourth Amendment that permits the government to conduct searches and surveillance for foreign intelligence surveillance. Footnote 23 of Katz v. United States left this open, and Justice White's conccurrence in Katz expanded on this point:

Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.

The Supreme Court also left this question open in the so-called "Keith" case, United States v. United States District Court, in 1972. Justice Powell's opinion in the Keith case concluded that there was no national security exception to the Fourth Amendment for evidence collection involving domestic organizations, but expressly held open the possibility that such an exception existed for foreign intelligence collection:

Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government." There is no evidence of any involvement, directly or indirectly, of a foreign power.

The administration presumably takes the position that the President does have such power in cases involving foreign evidence collection, and that the NSA surveillance is such a case. The Supreme Court has never resolved the question, so it's an open constitutional issue. Nonetheless, between the border search exception and the open possibility of a national security exception, there are pretty decent arguments that the monitoring did not violate the Fourth Amendment. Maybe persuasive, maybe not, but certainly open and fair arguments under the case law.

Foreign Intelligence Surveillance Act. Now let's turn to FISA, a 1978 law that Congress enacted in response to the Keith case. FISA goes beyond the Keith case, including foreign intelligence surveillance in its scope even though it was left open as a constututional question.

Specifically, 50 U.S.C. 1809 prohibits "electronic surveillance" except as authorized by statutory law: "A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute." "Electronic surveillance" is defined in 50 U.S.C. 1801(f) to mean, in relevant part:

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States. . . .

A "United States person" is defined in 50 U.S.C. 1801(i) as "a citizen of the United States [or] an alien lawfully admitted for permanent residence." A "wire communication" is defined as a communication that is traveling by a wire; I don't know if "radio communication" is a defined term, but I assume it refers primary to satellite communications.

Putting aside the AUMF and statutory exceptions for now, let's consider whether the NSA surveillance program violates the basic prohibition of 50 U.S.C. 1809 — intentionally conducting electronic surveillance. I think the answer is probably yes. If the surveillance tapped wire communications under 1801(f)(2), the case is pretty clear: the surveillance involved people in the U.S. and survillance in the U.S., and that's all that is required. If the surveillance involved radio communications (satellite communications, I'm guessing), that's a bit trickier. There is at least a little wiggle room in Section 1801(f)(1). For example, you could say that the border search exception eliminates Fourth Amendment protection, such that there was no reasonable expectation of privacy and therefore there would be no warrant required in an analogous criminal case. In that case, the tapping of the radio communication wouldn't count as "electronic surveillance." I don't think we know the details of how the communucations were obtained, so I think it's fair to say that the surveillance probably violated the basic proibition but it at least arguably depends on some of the technical details we don't know.

Now, on to the exceptions. 50 U.S.C. 1802(a)(1) provides in relevant part:

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that--

(A) the electronic surveillance is solely directed at--
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title; [and]

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.

Does this exception permit the monitoring? Note that (i) and (ii) are both dealing with "foreign power, as defined in (a)(1), (2), or (3) of this title." FISA's definition of "foreign power" appears in 50 U.S.C. 1801:

(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.

So as I read the statutes, Congress was trying to give an exception for monitoring foreign governments (a1, a2, a3) but not terrorist groups (a4, a5, a6), so long as no citizens or lawful permanent resident aliens were being monitored. There are interesting questions of how that might have applied to Al Qaeda in Afghanistan, but I don't think we need to reach them. It's my understanding that the program monitored both citizens and non-citizens, so I don't see how the exception is applicable.

(Aside: Remember back in 2003 when a copy of the Administration's "Domestic Security Enhancement Act" — sometimes dubbed "Patriot II" — was leaked to the press? Section 501 of that Act would have made "providing material support" to a terrorist group an automatic ground for terminating citizenship. This is just a guess, but I wonder if the thinking was that this would make the NSA warrantless monitoring program legal under FISA. An individual who made regular contact with Al Qaeda could be giving them material support, and the individual would then no longer be a United States person and could then be legally subject to monitoring. Just speculation, but it might explain the thinking behind the legislative proposal. Anyway, back to our regularly scheduled programming.)

Authorization to Use Military Force. The next question is whether the Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, justified the monitoring. The authorizaton states in relevant part:

AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL.--That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

I assume that the Administration's claim is that the AUMF counts as a "statute" that authorizes the surveillance: 50 U.S.C. 1809 states that "A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute," so if the AUMF authorized the electronic surveillance, then the NSA program didn't violate FISA.

The Supreme Court considered the legal effect of the AUMF in Hamdi v. Rumsfeld. Yaser Hamdi was being held as an enemy combatant, and claimed that his detention violated 18 U.S.C. 4001. Section 4001(a) states that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Given Justice Thomas's very broad reading of the AUMF in his dissent, I think the key interpretation is that of Justice O'Connor's plurality opinion, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer. Justice O'Connor concluded that the the AUMF was "an act of Congress" that authorized Hamdi's detention, such that the detention did not violate 4001(a):

The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.
The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." Ex parte Quirin, 317 U. S., at 28. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. . . .
. . .
In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.
. . .
Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.
. . .
The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF.

So does the AUMF authorize the surveillance? As often happens when you're trying to draw guidance from an O'Connor opinion, it's not entirely clear. Under her opinion, the key question is whether the act is "so fundamental and accepted an incident to war" that it falls within the authorization. But that depends on the level of generality you chose to use to define "the act." Is "the act" spying on the enemy? In that case, perhaps it is a fundamental incident to war. Or is "the act" conducting U.S. domestic surveillance of U.S. citizens? In that case, the answer is no, it's not a fundamental incident to war.

In the end, my best sense is that the AUMF doesn't extend to this. I have three reasons. First, O'Connor's opinion says the following about detention for interrogation: "Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized." It seems to me that surveillance and wiretapping is pretty similar to interrogation: the point of both is getting information about your enemy. Second, it doesn't seem like wiretapping counts as a "use of force." If you read the text of the AUMF, it doesn't seem to me that it authorizes wiretapping. Finally, note that Congress passed the Patriot Act about a month after passing the AUMF; if Congress had intended the AUMF to give the president wide authority to conduct domestic surveillance against Al Qaeda, I don't think they would have spent so much time amending FISA for terrorism investigations. So at bottom, I think the AUMF probably didn't authorize this, although the Hamdi case gives some colorable (if ultimately unpersuasive) arguments that it might.

Article II. The final argument is that Article II of the Constitution gives the President inherent authority to conduct such monitoring. The Administration introduced this theory in a supplemental brief filed in the FISA Court of Review:

The President Has Inherent Authoritv to Conduct Warrantless Electronic Surveillance to Protect National Security from Foreign Threats.

In considering the constitutionality of the amended FISA, it is important to understand that FISA is not required by the Constitution. Rather, the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority. Both before and after the enactment of FISA, courts have recognized the President's inherent authority to conduct foreign intelligence surveillance. See, e.g., Butenko, 494 F.2d at 608 (grounding exception to warrant requirement in the President's Commander-in-chief and foreign-affairs powers; noting that the country's self-defense needs weigh on the side of reasonableness); Truong, 629 F.2d at 914 (citing the President's foreign affairs power as justifying an exception to the warrant requirement); cf. United States v. United States District Court (Keith), 407 U.S. 297, 308 (1972)(reserving the question whether the President's foreign-affairs powers justify exception from warrant requirement).

So the argument, as I understand it, is that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power, a judgment made, I suppose, by the President himself.

I have been unable to find any caselaw in support of this argument. Further, the argument has no support from the cases cited in the government's brief. In all three of those cases — Butenko, Truong, and Keith - the Courts were talking about whether the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment. In other words, the issue in those case was whether the Constitution bars warrantless surveillance absent Congressional action, not whether Congressional prohibitons in this area cannot bind the Executive branch.

Consider the citation to the Butenko case. Here is the relevant section, from 494 F.2d at 608:

Both executive authority in the foreign affairs area and society's interest in privacy are of significance, and are equally worthy of judicial concern.
. . .
The importance of the President's responsibilities in the foreign affairs field requires the judicial branch to act with the utmost care when asked to place limitations on the President's powers in that area. As Commander-in-Chief, the President must guard the country from foreign aggression, sabotage, and espionage. Obligated to conduct this nation's foreign affairs, he must be aware of the posture of foreign nations toward the United States, the intelligence activities of foreign countries aimed at uncovering American secrets, and the policy positions of foreign states on a broad range of international issues.
To be sure, in the course of such wiretapping conversations of alien officials and agents, and perhaps of American citizens, will be overheard and to that extent, their privacy infringed. But the Fourth Amendment proscribes only 'unreasonable' searches and seizures. And balanced against this country's self-defense needs, we cannot say that the district court erred in concluding that the electronic surveillance here did not trench upon Ivanov's Fourth Amendment rights.

As I read this analysis, it is entirely focused on the Fourth Amendment, and specifically whether the President's Commander in Chief power should trigger a relaxed Fourth Amendment standard. That seems quite different from a claim that Article II makes Congressional regulation inoperative. The same goes for the citation to Truong, 629 F.2d at 914. In the course of discussing whether the Courts should require a warant for foreig intelligence surveillance, the court tried to balance the ability of courts to regulate intelligence surveillance with the strong governmentg interest:

Perhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs. The President and his deputies are charged by the constitution with the conduct of the foreign policy of the United States in times of war and peace. Just as the separation of powers in Keith forced the executive to recognize a judicial role when the President conducts domestic security surveillance, so the separation of powers requires us to acknowledge the principal responsibility of the President for foreign affairs and concomitantly for foreign intelligence surveillance.
In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance.

While the Court was recognizing the President's constitutional role, it was in a very specific context: balancing reasonableness in the context of Fourth Amendment law to determine whether the surveillance required a warrant. Again, this doesn't seem to go to whether Congress can impose binding statutory prohibitions beyond the Fourth Amendment.

Conclusion. Anyway, that's my tentative take; I hope it's helpful. It's entirely possible that I goofed the analysis somewhere along the way; FISA, the AUMF, and Article II aren't my area of expertise, so we should consider this post a work in progress. I look forward to comments — civil and respectful, please.

UPDATE: A lawyer I know who works in this area e-mails in additional thoughts:

Of course you’re right that Keith and Katz reserved the question whether the President may engage in warrantless surveillance of foreign-based threats to the national security. While the Supreme Court has never addressed the issue, a number of federal appellate courts, some of which you cite at the end of your post, answered that question in the affirmative in the years immediately after Keith. See, e.g., United States v. Brown, 484 F.2d 418 (5th Cir. 1973); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en banc); United States v. Buck, 548 F.2d 871 (9th Cir. 1977); United States v. Truong, 629 F.2d 908 (4th Cir. 1980). But see Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975).
The interesting question is whether FISA somehow extinguishes this inherent Presidential power to conduct foreign-intelligence surveillance. There’s a respectable argument that it does. FISA repealed Title III’s reservation clause (18 USC 2511(3)), in which Congress expressly had forsworn any intent to regulate the collection of foreign intelligence. Given that repeal, we might be in Category Three from Justice Jackson’s Steel Seizure concurrence — "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject."

Originally Posted by Gordon B

I can't imagine the American public wanting to remove the President for possibly violating the law in his vigilant pursuit of Al Qaeda.

LOL!
Beautifully timed, so that second part of the sentence really kicks it into comedy!

[tristano's ghost]

Originally Posted by Scott Dolan

Credibility post statement: 0

Credibility of your response: less than zero.

This is a common tactic of yours. Somebody posts an article or argument--you seize upon one subjective statement or throwaway line uttered by the poster and then dismiss the entire post. At least Gordon B quotes a long and substantial discussion in which the writer ascertains that Bush probably violated the law, but that the act itself is probably not unconstitutional.

That aside, a leader who elevates himself above the law is surely acting king-like. And if you think Bush is a man, as opposed to a surly boy in a man's body, then I guess you & I have very different opinions of what constitutes manhood. Weak, spiteful, stupid & afraid, lets others do the fighting for him... not my definition.

[tristano's ghost]

Originally Posted by graypencil

if impeachment should in fact occur ...

It would be the best Xmas present the counrty ever got!!

It won't happen. But the fact that a conservative periodical like Barron's suggests that it might possibly be justified is more evidence that it's not just liberals and moderates who think that Bush is acting tyrannical. In fact, "tyranny" is the very word that Barron's used in its piece to describe where Bush's actions are taking us.

[Dennis Gonzalez]

Barron's raises possibility of Bush impeachment...Very, Very Fine!

As the billboard said, "Someone give him a blowjob so we can impeach him!"

[Dennis Gonzalez]

I can't imagine the American public wanting to remove the President for possibly violating the law in his vigilant pursuit of Al Qaeda.

Funny.

[Gordon B]

Originally Posted by Dennis Gonzalez

I can't imagine the American public wanting to remove the President for possibly violating the law in his vigilant pursuit of Al Qaeda.

Funny.

That's how he'd frame it.

If Bush were caught wiretapping Democrats, he'd be in big shit. However, wiretapping suspected terrorists? Legal or not, it's not going to resonate with the public.

Dr. Dave, the article about liberal bias found the WSJ news page to be liberal. Thomas Donlan is the editorial page editor of Barrons. He wrote the article. He's not a liberal.

I'm against the wiretapping myself. I just think it's laughable to think that it's going to bring down Bush.

[stonemonkts]

Originally Posted by tristano's ghost

It won't happen. But the fact that a conservative periodical like Barron's suggests that it might possibly be justified is more evidence that it's not just liberals and moderates who think that Bush is acting tyrannical. In fact, "tyranny" is the very word that Barron's used in its piece to describe where Bush's actions are taking us.

I've always viewed Barrons as very left-leaning, far as financial publications go.

[Brian Olewnick]

I can never quite understand why some Dems fondly wish that Cheney would have the chance to become President....? Say GW was impeached in a year, giving Cheney the opportunity to place a Frist or someone in the VP chair, allowing him to gain traction/recognition for the '08 race. How could you possibly want that?

[Gordon B]

Originally Posted by Brian Olewnick

I can never quite understand why some Dems fondly wish that Cheney would have the chance to become President....? Say GW was impeached in a year, giving Cheney the opportunity to place a Frist or someone in the VP chair, allowing him to gain traction/recognition for the '08 race. How could you possibly want that?

GP, is that what you want?

[Jon Abbey]

I can't speak for GP, but I'd personally like to see Bush and Cheney both burned at the stake on national TV. Cheney should die just a little sooner, so that he'd never be President even for a second. then I'd like to see every subsequent person in the Presidential chain struck by lightning until new elections had to be held.

happy holidays!

[Scott Dolan]

This is a common tactic of yours. Somebody posts an article or argument--you seize upon one subjective statement or throwaway line uttered by the poster and then dismiss the entire post.

I threw away nothing.

I was responding to your imbecilic comment.

If Bush broke the law, then by all means, bring on the impeachment.

[patricia]

I think that Dick Cheney has FAR more influence and power over the affairs of the administration than any other vice-President in my memory.
Considering that I had always thought of the vice-President as being comparable to the runner-up in the Miss America pageant,["if the President can no longer serve, through devasting illness or death..."] this one is downright scary.
If, and I don't think it will happen, GW is impeached, having Dick Cheney in the Big Chair would if anything confirm what many already think. Many think that Cheney is, for all intents and purposes, in charge and responsible for the direction the administration has taken since GW took office.
Probably the only thing that can be done is to ride this out and hope that no other big decisions have to be made and that no other natural disaster strikes.
The citizens seem to be in the position that they must hold their breaths and cross their fingers until this administration expires. An impeachment could make things worse, if that's possible.

[Gordon B]

Originally Posted by tristano's ghost

At least Gordon B quotes a long and substantial discussion in which the writer ascertains that Bush probably violated the law, but that the act itself is probably not unconstitutional.

Wow, somebody cares enough about the issue, not just haranging Bush to have read it

Originally Posted by tristano's ghost

that it's not just liberals and moderates who think that Bush is acting tyrannical.

I am not speaking for the author of the Barron's piece but you will find a higher percentage of libertarian leaning Republicans within the financial services sector than probably any other. They cannot be happy with government accumulating greater powers through the Patriot Act nor when the President decides that laws that require warrants before wiretapping only apply to lesser officers of the law, not himself.

Dennis, you may think the Republicans were wrong to impeach Clinton, but get the crime right. It wasn't the blowjob, it was the perjury. Clinton was above the law; he only got away with it because he was President. If a Clinton Administration official had perjured himself for any reason and been caught, he most likely would have done time. Similarly, if Clinton had admitted under oath that he got a blowjob, there would have been no impeachment proceedings.

The Clinton impeachment did not help the Republicans in part because the public was against it. It may have indirectly helped Bush because it made Al Gore reluctant to run on Clinton's record in 2000, even though the economy had performed very well during Clinton's second term and most middle-class Americans had profitted from the stock market bubble.

[Gordon B]

Bush should have campaigned for a change in the law, not ignored it. He wouldn't have gotten a warrant because if the NSA is data mining it doesn't have 'probable cause.' The government foiled a terrorist plot to blow up the Brooklyn Bridge because the NSA monitored phone conversations, mining data for mentions of "Brooklyn Bridge." That was illegal because there was no probable cause for any specific communication that was tapped. The government went fishing but caught the live ones, saving lives.

The NSA should be allowed to data-mine but there must be some legal body- independent of the executive branch that approves the wiretap. Otherwise, there's no check on the President or one of his agencies wiretapping anybody, ostensibly to stop terrorism.

The NSA wiretapping that was disclosed by the NYT and led to more Bush hating, was known by many key Democrats for years. Furthermore, illegal wiretapping by the NSA pre-dates Bush. Maybe Frankiepop can tell us about Clinton's "Echelon" program.

[Al in NYC]

There's someone who actually believes that hoohah bs about the Brooklyn Bridge?

(and they stopped the Golden Gate Bridge from being blown up too! And the White House! And the Washington Monument! I mean, look how many famous places are still there, unblown up, all because of their wiretaps! What a wonderful thing it is they violated that stupid little law!)

I have yet to see a single suspect. If this was so damned effective, where are the people they stopped/caught? Or have they been slipped into the also extra-constitutional and illegal "enemy combatant" sinkhole in Guantanamo (aka the neutral zone, limbo, the land that time forgot) or one of our other lovely torture chambers that protects our "freedom"?

[patricia]

Al, that all reminds me of an old joke.
A guy is standing on a street corner, snapping his fingers and hopping from foot to foot and mumbling.
Finally, after dozens of people have walked past him with puzzled looks on their faces, one brave soul approaches him and asks what he is doing.
He tells the questioner that he is scaring away the murauding wooly mammoths.
The questioner, humouring him, looks around and says that he doesn't see any wooly mammoths, murauding or otherwise.
The guy on the corner smiles and says, "That's because I'm doin' a good job."


Saying that something didn't happen, for whatever reason can never be proven. So, the Administration can say whatever they like about attacks which were twarted and there will always be those who think that that's because they are doing a heck of a security job.

What puzzles me is that I get the impression that all the millions and millions of dollars, spent on National Security before 9/11 were being poured down a sinkhole. But, because of 9/11, suddenly the U.S. HAS security. What did they have before 9/11??

[Gary Sisco]

Assuming a repub senate would initiate the proceedings (a wildy improbable assumption), there isn't enough time, in DC World, for them to follow through. His term would be up, first.

[Dr Dave]

Originally Posted by Gordon B

That's how he'd frame it.

If Bush were caught wiretapping Democrats, he'd be in big shit. However, wiretapping suspected terrorists? Legal or not, it's not going to resonate with the public.

Dr. Dave, the article about liberal bias found the WSJ news page to be liberal. Thomas Donlan is the editorial page editor of Barrons. He wrote the article. He's not a liberal.

I'm against the wiretapping myself. I just think it's laughable to think that it's going to bring down Bush.

I was being facetious, Gordon. As is my wont. And no, nothing is going to happen to the Boy King. It would take a village of blowjob-administering bimbos to end his Presidency.

Anyway if I understand it correctly, what the NSA is doing doesn't exactly pass muster as "wiretap" anyway. It does seem to be wholesale invasion of privacy, but the only way it would get political traction would be if the Bushies were using NSA information against domestic enemies. Although, they really don't need to, do they? In theory, at least, they could declare Harry Reid an Enemy Combatant tomorrow and just lock him up.

[Gary Sisco]

They've changed the wiretap laws, Doc, to account for new technology. There's no doubt about the illegality of their practices. They don't even deny it. They deny that they are or even should be accountable to the law -- any law. Bush and Cheney have both been emphatic about it.

And in any case, their practices violate every constitutional issue of due process, search and seizure, and many other constitutional principles -- all of which they also publicly and emphatically insist do not and will not bind them.

[Gary Sisco]

When it comes to one of their own, blow jobs wouldn't be a factor, either -- unless of the gay variety. That would do it.

Thankfully, this monarchy/autarchy is term limited. Each day they grow lamer, and each day the cowards in Congress, both parties, grow a bit bolder in opposing King Alfred E. Shitforbrains the 1st.

[Dr Dave]

Originally Posted by Gary Sisco

They've changed the wiretap laws, Doc, to account for new technology. There's no doubt about the illegality of their practices. They don't even deny it. They deny that they are or even should be accountable to the law -- any law. Bush and Cheney have both been emphatic about it.

And in any case, their practices violate every constitutional issue of due process, search and seizure, and many other constitutional principles -- all of which they also publicly and emphatically insist do not and will not bind them.

If either of them is impeached (I guess it would have to be both of them) I will personally deliver a sixpack of Westhoffe Tripel Bock (voted best Trappist Ale by the NY Times tasting panel) to your door.

It's funny, there's a front page story in the Times this morning about the Chinese government facing the prospect of actually obeying its own laws, in this case regarding the environmental impact of a new hydroelectric project. Meanwhile, here in this country, we're heading in the opposite direction...

[Gary Sisco]

I'd not bet on even an initiation of impeachment proceedings, or even an official attempt to talk about one in public.

They're self-destructing, in any case. They'll not require much in the way of help in that regard. As their power wanes, daily, the rats will start attacking and chewing on each other.

I loved Powell's response. He said it wasn't necessary as they'd have been given the warrants in any case (no one has refused them a single one so far, talk about goosestepping), but it wasn't wrong to do it without warrant, either. What a shit-for-brains wuss he's made himself. At least he's out of the running for any presidential talk, now, and thank goodness for that. I've only rarely overestimated a man's character as much as I did Powell's. He's an opportunist extraordinaire.

After learning that the Times had this information in hand *before* the election and sat on it, I will lay a large share of the blame for this admin's damage to the republic squarely on its publishers' and editors' shoulders.

[Gary Sisco]

I should have taken that wager that Christmas offered me some long while back -- that the troops would be home by Christmas of this year -- but I don't make blood wagers.

[tristano's ghost]

Originally Posted by Scott Dolan

I threw away nothing.

No, no, champ--I was the one using the throwaway line.

I was responding to your imbecilic comment.

You said "Credibility of POST," not credibility of comment. And hey, if the prez walks like a boy-king, squawks like a boy-king (or chicken hawk)... if he acts as if he is accountable to no one, if he speaks only to audiences who will not challenge him, if he's unwilling to fight in wars that he supports... who's being imbecilic here, hmmm?

If Bush broke the law, then by all means, bring on the impeachment.

He did break the law, but it won't happen. What surprises me is Barron's saying that perhaps it SHOULD happen. The extremely conservative GOP rep Bob Barr sums it all up:

What's wrong with it is several-fold. One, it's bad policy for our government to be spying on American citizens through the National Security Agency. Secondly, it's bad to be spying on Americans without court oversight. And thirdly, it's bad to be spying on Americans apparently in violation of federal laws against doing it without court order.

The issue is that there needs to be a legal accountability for what the admin is doing--even if it's simple retroactive requests for warrants--and the admin is arguing (once again) that it is above the law & need not answer to anybody. And don't think for a moment that their surveillance has been, or will be, limited to true threats... these are the same folks who've been spying on gay groups, the Quakers, and anti-war activists for the past several years.