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4 comments January 31st, 2007at 12:31pm Posted by Eli

Looks like James Banford reads my blog, too…

LAST August, a federal judge found that the president of the United States broke the law, committed a serious felony and violated the Constitution. Had the president been an ordinary citizen — someone charged with bank robbery or income tax evasion — the wheels of justice would have immediately begun to turn. The F.B.I. would have conducted an investigation, a United States attorney’s office would have impaneled a grand jury and charges would have been brought.

But under the Bush Justice Department, no F.B.I. agents were ever dispatched to padlock White House files or knock on doors and no federal prosecutors ever opened a case.

The ruling was the result of a suit, in which I am one of the plaintiffs, brought against the National Security Agency by the American Civil Liberties Union. It was a response to revelations by this newspaper in December 2005 that the agency had been monitoring the phone calls and e-mail messages of Americans for more than four years without first obtaining warrants from the Foreign Intelligence Surveillance Court, as required by the Foreign Intelligence Surveillance Act.

In the past, even presidents were not above the law. When the F.B.I. turned up evidence during Watergate that Richard Nixon had obstructed justice by trying to cover up his involvement, a special prosecutor was named and a House committee recommended that the president be impeached.

And when an independent counsel found evidence that President Bill Clinton had committed perjury in the Monica Lewinsky case, the impeachment machinery again cranked into gear, with the spectacle of a Senate trial (which ended in acquittal).

Laws are broken, the federal government investigates, and the individuals involved — even if they’re presidents — are tried and, if found guilty, punished. That is the way it is supposed to work under our system of government. But not this time.

Last Aug. 17, Judge Anna Diggs Taylor of the United States District Court in Detroit issued her ruling in the A.C.L.U. case. The president, she wrote, had “undisputedly violated” not only the First and Fourth Amendments of the Constitution, but also statutory law, the Foreign Intelligence Surveillance Act. Enacted by a bipartisan Congress in 1978, the FISA statute was a response to revelations that the National Security Agency had conducted warrantless eavesdropping on Americans. To deter future administrations from similar actions, the law made a violation a felony punishable by a $10,000 fine and five years in prison.

(…)

On Jan. 17, Attorney General Alberto Gonzales unexpectedly declared that President Bush had ended the program, deciding to again seek warrants in all cases. Exactly what kind of warrants — individual, as is required by the law, or broad-based, which would probably still be illegal — is as yet unknown.

The action may have been designed to forestall a potentially adverse ruling by the federal appeals court in Cincinnati, which had scheduled oral arguments on the case for today. At that hearing, the administration is now expected to argue that the case is moot and should be thrown out — while reserving the right to restart the program at any time.

But that’s a bit like a bank robber coming into court and arguing that, although he has been sticking up banks for the past half-decade, he has agreed to a temporary halt and therefore he shouldn’t be prosecuted. Independent of the A.C.L.U. case, a criminal investigation by the F.B.I. and a special prosecutor should begin immediately. The question that must finally be answered is whether the president is guilty of committing a felony by continuously reauthorizing the warrantless eavesdropping program for the past five years. And if so, what action must be taken?

(…)

Under his program, President Bush could probably be charged with wiretapping… thousands of people without having obtained a court order authorizing the taps as required by federal law, in violation of FISA.

(…)

To allow a president to break the law and commit a felony for more than five years without even a formal independent investigation would be the ultimate subversion of the Constitution and the rule of law. As Judge Taylor warned in her decision, “There are no hereditary kings in America.”

What. I’ve. Been. Saying. This is a structural flaw in our government: Presidents are not subject to traditional (i.e., nonpartisan criminal proceedings, thus ensuring that political calculations and backscratching/-stabbing will always trump those Republican bugaboos of Fact and Law. Which has brought us to the point where a president can publicly announce that he has broken the law, and intends to continue breaking the law, supremely (and correctly) confident that he will suffer no adverse consequences.

I am reminded of a scene from Ahnold’s action-movie spoof, The Last Action Hero, in which a movie villain has just crossed over into the real world. As he gradually begins to realize just how different it is from his action movie universe, he loudly announces, “I’ve just shot a man! I did it on purpose!”, and… nothing happens.

Entry Filed under: Bush,Constitution,Politics,Wankers

4 Comments

  • 1. PoliShifter  |  January 31st, 2007 at 1:43 pm

    Bush is taking the Nixon tack of “If the President does it then it’s not illegal”

    It’s no surprise seeing as he has surrounded himself with ex-Nixonites that espouse the Unitary Executive theory of Presidential Power.

    Will Bush get away with it? Well so far Gonzales has done a good job for him in getting rid of pesky prosecutors and judge shopping.

    No doubt BushCo wanted to keep staking the appelate courts with sympathetic judges.

    Bush deserves to be impeached, tried, and if found guilty sentenced accordingly. It’s what would happen to any other American or even any other member of Congress.

    But Bush has set himself up to be above the law.

    I say Impeach Now. There is more than enough evidence to impeach him.

    It just depends if Congress can find the spine to do it and if the wingnut meme of “we don’t want to put the country through that again” will fall flat.

  • 2. Eli  |  January 31st, 2007 at 2:24 pm

    It just depends if Congress can find the spine to do it and if the wingnut meme of we dont want to put the country through that again will fall flat.

    Absolutely. But how often do you hear that kind of consideration come up in, say, a murder trial? That’s what’s wrong with the system – there should be no political dimension at all, yet there’s nothing but.

  • 3. bdr  |  January 31st, 2007 at 3:31 pm

    Like I’ve been saying, wait until a Democrat takes POTUS with all the power accumulated by this administration at his/her control.

    Can you imagine Conservative heads exploding once they realize what power – institutionalized by unchallenged precedent, so far – they’ve handed, say, Hillary?

  • 4. Eli  |  January 31st, 2007 at 3:45 pm

    Yeah, I saw that post and almost commented on it. The prospect of Emperor Hillary doesn’t make me a whole lot happier than Emperor Bush does (aside from the exploding heads, of course), but I think a President Al Gore, maybe even a John Edwards, could do a lot of good with expanded powers.

    But on the whole, I agree with you that it’s probably not worth it – the last thing I want the Democrats to do is make belief in the unitary executive a bipartisan position.

    However, if there is any way to use Republican outrage at the thought of Emperor Hillary/Gore/Obama/Edwards to set some limits in stone in such a way that neither party can get around them without a supermajority, then we could still realize some long-term benefit. That’s a pretty enormous if, though.


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