Over at the Volokh Conspiracy, some meaty thoughts on whether the president’s wiretap program actually broke the law. The author’s current, “extra-cautious” conclusion: “it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act.” While I bask in my own I-am-not-a-lawyer-ness, I have to confess this is pretty close to my own reading of the situation as far as I can winkle it out under my own intellect, given what information is available to me. And if this particular reading is borne out, you can bet the folks rubbing their hands about the idea of impeaching Bush are going to cackle even more gleefully.
So let’s ask: If after all is said and done the president did break the law, should he be impeached? As I’ve alluded to before, on general principles I’m against the process of impeachment because it’s so immensely disruptive; personally, I’d want to see a president caught red-handed dealing crack cocaine or strangling babies before I’d consent to such a thing. But this isn’t about my own dread of the impeachment process, it’s about whether there’s an actual case for impeaching the president.
And for me, what it comes down to is three things. First I’d want to know — regardless of whether the president did break the law — if he broke the law knowing unambiguously that his course of action was entirely beyond the pale of law. If the president can show a solid legal argument that a reasonable person versed in the relevant law could see as a not-entirely-specious rationale for thinking that FISA did not apply, then I’m inclined not have him frogmarched over to Capitol Hill. If on the other hand, he said something along the lines of “I don’t care if it’s illegal, just do it,” well, then, I’d be more inclined to say “hoppity-hop, Mr. President” — but not entirely, for reasons I’ll get to in a moment.
We’ve been hearing the president and his people throwing out various legal interpretations to the press today to see if any of them stick, so I have no doubt Bush has got a rationale. But I think he has a very serious problem in that his administration has played fast and loose with legal and constitutional interpretations of the scope of its powers for so long that its credibility on the matter is entirely shot. Rationalizing spying on Americans in the US without a warrant might have been doable if we didn’t already know the Adminstration was content to deprive US citizens of their constitutional rights (which required the Supreme Court to smack it down in an 8-1 decision), or to assert that agents of the US should be exempted from anti-torture strictures, until shamed into agreeing they shouldn’t by a senator of its own party who had been tortured by the North Vietnamese. Time and time again the Administration has shown that it simply doesn’t care about compromising civil rights in the pursuit of enemies. It’s also shown that it doesn’t particularly care about dialogue about its decisions, either — the administration has contended that it kept key Congressional figures in the loop about the warrantless search thing, but some of those Congressional leaders have said, basically, that the Administration came to them and said “We’re not asking you, we’re telling you” — and that even then they weren’t told everything. Naturally that’s an issue.
(And no, it doesn’t matter that the Administration has only been depriving bad Americans of their rights. The Constitution doesn’t say that only “good” citizens get rights. Get it right, people.)
Now, let’s posit that the president knew his actions were illegal, but didn’t care. Would that merit impeachment? In my opinion, no — if the president could prove that his actions saved Americans from imminent harm that following the law could not have prevented. Basically, if the Administration can show that the FISA process was so broken that it needed to be ignored in order to protect Americans, I would be uninclined to have the president punished for doing what he quite rightly feels is his job: Protecting Americans from harm. Naturally, Bush and his administration are pushing some form of this rationale at the moment.
I’m open to hearing this argument, but my default position is to be very skeptical of it. The FISA court procedures seem to be quite flexible when it comes to allowing the government to deal with immediate threats: having a 72-hour retroactive window for warrants is something I suspect most law enforcement folks wish they could get. Moreover, I would say that even if the FISA procedures were in some way problematical and required a workaround, it would still be incumbent on the administration, while continuing to employ the workaround, to try to fix and improve the FISA court within the law to make a legal avenue more responsive to real world issues. It doesn’t seem that the Administration has done that, or even tried to do that, which goes again to the Bush Administration’s apparent lack of interest in playing well with the other branches of government.
If we granted that the president both knew what he was doing was illegal and that it was determined that such evasion of law was entirely unnecessary, now are we talking impeachment? This is the point where I go “gaaaaaaaaah” and raise a point that will be entirely unpersuasive to many, which is that I genuinely believe that Bush wants to protect Americans, and that matters to a non-trivial extent. I’d be loathe to impeach a president for that, and I would find it difficult to support people who would. There, I’ve said it: I don’t think you get impeached for trying to protect Americans.
But that’s about all the slack I’m ready to grant the man. Look, I don’t doubt the Bush folks want to protect Americans. That’s not even an issue for me. But I’m not at all convinced that fully protecting Americans requires going beyond the law, and I am deeply concerned about the precedent the Bush administration is attempting to set, which is that a president can do any damn thing he or she wants. This is a pretty simple thing: there are three branches of government, and the idea is that each of them is co-equal. The Bush folks pretty clearly wish to assert otherwise. I’m not inclined to agree, and I’m pleased that members of Congress, on both sides of the aisle, are finally starting to come around to my way of thinking. I appreciate that in wartime presidents should have leeway, but I think the Adminstration’s had four years of leeway with some less-than-desirable results regarding civil rights. So that’s been quite enough. A little more oversight would be nice. Well, a lot more, at this point.