Carol Platt Liebau: Democrats Demand They Be Impeached...

Monday, August 06, 2007

Democrats Demand They Be Impeached...

Guest blogger TexasRainmaker at your service.

First, thank you to Carol for the opportunity to post here in her absence. I'm honored not only that she made such an offer, but that it's in the company of such other great guest bloggers. So without further adieu...

Get ready, it looks like it's time to impeach the entire Congress. At least that's what I would expect after both chambers voted to make the NSA wiretap program law.
WASHINGTON, Aug. 5 — President Bush signed into law on Sunday legislation that broadly expanded the government’s authority to eavesdrop on the international telephone calls and e-mail messages of American citizens without warrants.

Afterall, Zogby told us that a majority of Americans supported impeachment for the program.

Democrat Senator Jim Webb, in March of this year, called the program a "seriously under-examined issue" and demanded we "restore simple accountability to our government." This past week, he voted to codify the program.

Democrat Senator Diane Feinstein said, law May, "There is one basic in all of this. And that is that domestic surveillance of Americans, regardless of who is on one end of the phone or where they are, must be by individual warrant by a court on a showing of probable cause. That’s the exclusive standard in FISA. The Administration has chosen to disregard this law. For the life of me, I do not understand why." And then she voted to make the program legal.

I guess they were just mad they didn't get any of the credit for the Bush administration's tough stance on terrorists... so they had to act quickly before the next printing of campaign materials went out...

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22 Comments:

Blogger Greg said...

"Democrats Demand They Be Impeached..."

Ha! Good point. Great heading!

8:18 AM  
Blogger Chepe Noyon said...

I think you have misrepresented the positions that the Democrats took. They started off with their own version that had plenty of protections for civil liberties. But then they got caught in a political crunch: the White House had its own version, without any protections for civil liberties, and promised to veto anything other than its version. The Democrats knew that they couldn't override a veto. They were also coming up on the recess. They were faced with three choices:

1. Pass their own law, have it vetoed, and fail to override the veto. Result: nothing accomplished.

2. Defer the legislation until after recess. Result: the previous legislation would expire during recess and the Feds would be unable to do ANY surveillance.

3. Cave in and do the bidding of the White House. This is the course they chose.

The Democrats can certainly be accused of cowardice here. Faced with a ruthless opponent determined to win at any cost, they chose the pragmatic approach.

The only positive interpretation is that the Democrats are keeping their powder dry for the big confrontation coming soon. Who knows?

An interesting second thought occurred to me while writing this: the underlying assumption here is that it is perfectly acceptable for us to intercept phone calls and emails between foreigners. I wonder if we're consistent on this. Shouldn't we also hold that it's perfectly acceptable for other nations to intercept phone calls and emails between American citizens? If the Russians, for example, chose to carry out such activity, surely we would have no objection, would we? After all, we think its just fine to do it to their citizens. Right?

8:49 AM  
Blogger The Very Sane Woman Who Points Out the Obvious said...

Hey Tex,

I think you got the cart before the donkey here. Congress makes laws; that is what they do. There is no penalty to congress for passing bad laws.

This law makes legal what George W. Bush had been doing illegally.

Plain and simple, Dick Cheney and George W. Bush broke the law by going around the FISA court. And plain and simple, this is an impeachable offense.

They won't be impeached for this. How can a craven cowardly congress that passes a law that legalizes the crimes of the administration impeach the perpetrators of that crime?

The new law is clearly unconstitutional. It's very clear; to conduct a search the government needs to gain a warrant by showing probable cause. A court should throw this law out today.

But that won't happen. There are enough cowardly judges as well.

These are dark days for the republic.

11:06 AM  
Blogger Greg said...

Sane Woman,

Please, show me the LAW that was broken. What statute, specifically, was violated by what action, specifically?

This point has been argued to death. So far, no one has shown any illegality on the part of the Administration. Yes, there have been accusations. But I have yet to see anyone point out which law was broken by which statute.

As far as constitutionality, hasn't it been successfully argued by the Administration that the Constitution grants the President the power to intercept enemy communications? Is there some reason you do not want the administration to monitor enemy communications during a time of war?

12:35 PM  
Blogger Carol Platt Liebau said...

Coyote here.

Bear in mind that FDR had all international communications monitored during World War II.

1:22 PM  
Blogger Chepe Noyon said...

Greg, I believe that the Administration was indeed found guilty of violations of FISA in trial court last summer. I never saw the outcome of the appeal; it should have been decided by now. Does anybody know what the outcome was?

BTW, Congress needs no statute violation to impeach and convict. They pretty well impeach and convict if they don't like the President's tie. The impeachment of Mr. Clinton clearly demonstrates that no violation of law is required for impeachment, although it does not speak to conviction.

hasn't it been successfully argued by the Administration that the Constitution grants the President the power to intercept enemy communications?

Not quite. The problem lies in the definition of "enemy". There's another little problem that none of the Constitutional provisions applying to war can be invoked here, because Congress has not declared war, and in fact the Administration has on several occasions stated in legal documents that we are NOT at war. Basically, the whole area is murky.

I'm still curious to know if supporters of Mr. Bush's wiretapping believe that turnabout is fair play.

2:03 PM  
Blogger The Very Sane Woman Who Points Out the Obvious said...

Greg,

This is the law that Cheney and Bush were breaking:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

And a court ruled that they were breaking the law.

5:12 PM  
Blogger Carol Platt Liebau said...

Coyote here.

VSW, you have quoted the Fourth Amendment to the US constitution, which is not a law.

An international electronic communication is not a person, house, paper or effect. You will have to argue that an electronic communication should, by logical extension, be treated as a paper.

The problem is, when someone transmits that paper (electronic communication) through a third-person medium such as the internet or the international mails, he might no longer have a reasonable expectation of privacy, so there is no right being violated. Moreover, you have now implicated Congress's explicit power to regulate post offices and post roads, interstate commerce and customs.

You might or might not also be implicating the President's constitutional powers as Commander in Chief and who knows what other powers given to the Executive branch by federal law.

Suffice it to say the issue is not cut and dried. You might pride yourself on pointing out the obvious, but in my view, have yet to do so here.

6:08 PM  
Blogger Chepe Noyon said...

BTW, we're getting close to a clear legal resolution from another direction: Next week, the 9th Circuit will be hearing what is considered the best case against the Feds' wiretapping. There's a real Catch-22 with these cases: nobody can bring suit because nobody can prove that they were wiretapped. Since nobody can bring suit, there's no way to say it's illegal, right? Cute trick.

But in THIS case, the Feds goofed: they accidentally sent the log of intercepted calls between a defendant and his lawyers to the lawyers inside a package of other materials. Thus, the lawyers saw clear proof that the FBI had been eavesdropping on their telephone conversations with their client. Now, not only did the FBI have no warrant to do so, but this was ALSO a violation of lawyer-client privilege.

The hearing is on a motion to dismiss the case on grounds of national secrecy. ("We can't have courts checking our actions because national security is involved.")

Let's see if the justices approve of warrantless wiretapping of lawyer's conversations with their clients.

6:23 PM  
Blogger Earth to Carol said...

SCOTUS may find the bill a violation of the Constitution. Perhaps it will be corrected before it comes to that.

9:11 PM  
Blogger The Very Sane Woman Who Points Out the Obvious said...

Wile E.

There are a couple things that you missed. The U.S. Constitution is the supreme law of the land; therefore all amendments are by extension laws. if they aren't what are they? Suggestions?

An electronic communication is the creation of its author and therefore can be considered a personal effect, just as anything else - such as a work of art - he might create.

It's true that privacy is something that is not assumed in electronic communication. The law stipulates, however, that the government cannot unreasonably search and seize our personal effects - which is different. As for example, I give up some of my privacy by walking down the street. Anyone, including the government, can see where I am, who I'm with, what I'm wearing, and where I might be going. If a policeman wants me to stop so he can examine the contents of my pocketbook, that is a different story.

As to the powers of the president as commander in chief, the law says that the president is the commander in chief. But does that mean he can suspend the fourth amendment? I don't think so. If that were to be the case, one supposes that this would only occur in a drastic case during war. Only Congress can declare war. That's the law, too. We currently have no declaration of war from congress; so any sort of special powers that George W. Bush claims to have as commander in chief are not there.

10:24 PM  
Blogger One Salient Oversight said...

The lefty netroots are not impressed with the Democrats. Don't expect them to be silent about this - or forget it.

11:19 PM  
Blogger Carol Platt Liebau said...

VSW,

Constitutional provisions may be supreme norms but are not laws, per se. There is no constitutionally prescribed penalty for violating the Fourth Amendment, which is why the Supreme Court came up with the exclusionary rule and Congress passed civil rights legislation.

Effect means property. The work of art you refer means the intangible property has been captured in a physical medium. Once the electronic communication has been captured and stored in a physical medium, it is more akin to a paper. How would you search and seize intangible property that was not stored in a medium (compare to the taking of intangible property that is protected by copyright or patent.)

When your pocketbook is on your person, or in your car, the Fourth Amendment would apply. What happens, though, when you go through airporrt security or customs? What if you try to mail the purse through international post?

Bush cannot wholly suspend the Fourth Amendment, but I don't know how the powers of Commander in Chief effect international communications, even without his invoking the doctrine of war powers. Here, I would not get too hug up on the declaration of war issue, since it has no clear relevance when fighting against a non-state actor that is attacking us.

6:53 AM  
Blogger Greg said...

All very interesting points. But let's back away for a moment from the legal theory and consider some common sense.

I would like to think it is beyond debate that there are groups of people who wish to and are actively trying to kill Americans in America and destroy property in America. They've already done so.

Isn't it the job of the Executive Branch to protect American citizens - especially on American soil - from foreign attack? Does this responsibility take effect only after a Congressional declaration of war?

I would also like to think it is beyond debate that in order to coordinate and carry out these attacks these people are communicating with each other.

Isn't it the responsibility of the Executive Branch, in an effort to protect the citizens, to try to foil these planned attacks? Isn't it not only acceptable but required for the Executive Branch to try to intercept and decode the messages between these groups in an effort to discover and foil these plans?

Again, it should be beyond debate that some of the people involved in these actions and communications are actually inside the U.S. right now.

So if the President is required to protect the citizens, and if he must intercept attack plans by monitoring communications between those who are planning the attacks, and since some of those people actually reside in the United States; doesn't it follow that the President is required by his responsibilities to monitor communications involving some people in the U.S.?

I understand the concern some have that even if justified and legal, this kind of monitoring could easily be abused. There's always the possibility that governmental authority can be abused. I'm simply not convinced that this is the case here.

If you think the President's actions are not warranted or are illegal, then how do you propose he go about the business of intercepting and thwarting planned attacks?

8:17 AM  
Blogger Chepe Noyon said...

Ms. Liebau:

Constitutional provisions may be supreme norms but are not laws, per se.

I consider this argument sophistical. While it is strictly correct, within the context of this discussion, the distinction you draw is meaningless. A violation of the Fourth Amendment constitutes an excellent justification for impeachment.

I think your argument regarding the distinction between tangible and intangible property is not as solid as Mr. Coyote's earlier argument regarding reasonable expectation of privacy. We all know that hackers can intercept anything that travels over the web; that's why sensitive information is sent encrypted.

Bush cannot wholly suspend the Fourth Amendment

No, Mr. Bush can NEVER suspend the Fourth Amendment -- it's the supreme law of the land. The amendment itself provides for the special case of insurrection.

I would not get too hug up on the declaration of war issue, since it has no clear relevance when fighting against a non-state actor that is attacking us.

This argument bothers me because it dismisses the congressional declaration of war as a mere technicality, yet simultaneously plays the other side of the fence by invoking the commander-in-chief provisions to justify any and all actions by the President. Either we operate under the rule of law or we don't -- we must make up our minds on this.

8:31 AM  
Blogger Carol Platt Liebau said...

VSW,

Coyote here. The above post was mine, not Carol's

1. The Fourth Amendment gets violated all the time. Typically, you would seek impeachment for an intentional abuse of power. If Bush were acting pursuant to interpretations of the law by White House counsel or the Justice Department that were not patently unreasonable, it would be hard to call this an intentional abuse of power.

2. If "wholly suspend" was the wrong phrase, the fact is that the Fourth Amendment's contours bump up against other Constitutional provisions. So for example, the writ of habeus corpus can be "suspended" in time of rebellion, allowing the seizure of persons without the procedural protections normally in force. During the Civil War, Lincoln claimed the Executive had the power to suspend the writ even though the suspension appears in legislative, Article I of the Constitution.

3. Congress did not formally declare war in the Korean or Vietnamese conflicts. The Congress did, however, as in the case of Afghanistant Iraq, authorize the use of force. I have not and am not advocating the extreme positions of executive authority you seem to think I am. It is just not clear to me that the President has engaged in intential abuse of power (or common crime, I suppose) justifying impeachment. To Greg's point, if any of us had the responsibility the President has in this case, we would likely take a position close to the one he has.

9:36 AM  
Blogger TexasRainmaker said...

"The impeachment of Mr. Clinton clearly demonstrates that no violation of law is required for impeachment, although it does not speak to conviction."

Clinton committed perjury. He took a 5-year suspension of his law license in exchange for avoiding an indictment for it.

11:14 AM  
Blogger Chepe Noyon said...

The Fourth Amendment gets violated all the time.

And every single such case deserves to be prosecuted, wouldn't you agree?

If Bush were acting pursuant to interpretations of the law by White House counsel or the Justice Department that were not patently unreasonable, it would be hard to call this an intentional abuse of power.

I disagree. As Mr. Truman said, "The buck stops here." If an executive (not just a president, ANY executive) selects advisers who give him bad advice, and the result of that bad advice is injurious to somebody, then the executive is responsible for the injury. If Mr. Bush commits a crime because he chose lawyers who gave him bad advice, he should still go to prison after impeachment and conviction. That's the whole idea of "accountability".

the fact is that the Fourth Amendment's contours bump up against other Constitutional provisions

Indeed so. And when such conflicts arise, we rely upon the Supreme Court to resolve them. For the most part, the Court has given Mr. Bush broad leeway, but not all of Mr. Bush's actions have been vetted, and in particular, this matter involving warrantless wiretapping has yet to be resolved. Until such time as it is resolved by the Supreme Court, we must remain open to the notion that Mr. Bush has possibly violated the law and, if so, must pay the price for the violations as specified in the FISA.

Congress did not formally declare war in the Korean or Vietnamese conflicts. The Congress did, however, as in the case of Afghanistant Iraq, authorize the use of force.

Yes, the law on these matters is murky and we cannot say of a certainty (yet) that Mr. Bush has violated the law. I can therefore agree with you that we have yet to clearly establish Mr. Bush's criminal culpability in this matter. I'd like to see a trial to clear up the matter once and for all.

if any of us had the responsibility the President has in this case, we would likely take a position close to the one he has.

I certainly wouldn't. I would have operated within the limitations imposed by FISA, and proposed legislation to correct the matter, requesting expedited treatment of the issue. At the very least, I would have remained within the 90-day post-action requirement for a judicial review.

11:50 AM  
Blogger Greg said...

What, no suggestions on how we SHOULD protect American citizens from terrorist attacks?

If I were on the left I would ignore this line of discussion, too. It's a lose-lose proposition.

If the left actually discusses their defense policy positions (rather than criticizing existing policy), they are shown to be weak and ineffectual. They lose.

If the left were to actually get to implement their defense policies (or lack thereof), the American public would be more vulnerable to attack. The American public loses.

Yep, I would stay away from this line of discussion, too, if I were on the left.

5:59 AM  
Blogger Chepe Noyon said...

What, no suggestions on how we SHOULD protect American citizens from terrorist attacks?

That wasn't the point under discussion.

If I were on the left I would ignore this line of discussion, too.

I'm not avoiding the issue; I am staying on topic regarding the issue of impeachment. Moreover, I make no claim to speak for the left. If you wish to attack phantoms, be my guest; if you have something to say about my own comments, I'll be happy to respond.

9:35 AM  
Blogger Tom said...

If the program violated the 4th A before Congress acted it is hard to see how it would not also violate it now. But the 4th A does not require a warrant for a search or seizure.

A while back I saw an essay that listed about 20 exceptions to the requirement that there be a warrant. One example is that the police can (and do) set up road blocks at random and detain every driver and passenger on the road. (As an aside – I know a man that was arrested for making a u-turn near such a roadblock and charged with trying to avoid it.)

I’ll admit that it troubled me when the USSC found these random, warrant-less stops are not a violation of the 4th A. But given that we are all subject to a random stop at any time, also allowing the government to monitor communications without a warrant (as is being done now) does not bother me at all.

BTW – if anyone thinks that a 9th Circuit decision will give a clear legal resolution, I’d suggest they check the reversal rate!

10:22 AM  
Blogger Chepe Noyon said...

But given that we are all subject to a random stop at any time, also allowing the government to monitor communications without a warrant (as is being done now) does not bother me at all.

Tom, there is a distinction between the traffic stops and this situation. The locations of the stops may be randomly chosen, but the crucial aspect is that EVERYBODY is stopped. The Supreme Court has many times rejected traffic stops based on "a hunch" or "that car looks suspicious to me." The police have to show a clear reason why they stop any individual citizen. If they stop everybody, then that's legal. That is not the case with these wiretaps -- the Feds aren't intercepting everybody's messages.

As to your lack of concern for this, I remind you that the fundamental purpose of judicial oversight is to insure that the Feds remain within the legal bounds. Sure, so long as the Feds confine themselves to intercepting messages from bad people, that's fine. But the problem is, who decides who a "bad person" is? The FBI during the 60s decided that Martin Luther King was a bad person, so they engaged in all sorts of skulduggery against him. Do you applaud these actions?

So long as the Feds confine themselves to actual terrorists, then there's no basis for objection. But I guarantee you, without requiring some sort of accountability, they'll be wiretapping a lot more than terrorists.

There's a great explanation of this here

11:53 AM  

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