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Carts Before HorsesImpeachment inquiry first, ask questions later.

By Bruce Fein
Posted Friday, Aug. 31, 2007, at 4:55 PM ET

(Continued from page 1)

The president has labored successfully through legal technicalities such as a lack of "standing" or the "state secrets doctrine" to circumvent a definitive judicial ruling on the legality of the TSP. One could have been quickly obtained if the attorney general had submitted in an application for a FISA warrant evidence obtained under the TSP. In determining whether probable cause had been established, the FISA court would have been required to decide whether the TSP was legal and its intelligence admissible.

An impeachment inquiry should demand the president's defense of the TSP's violations of FISA's criminal prohibition for many years. Soon-to-be-former Attorney General Gonzales has asserted that crafting a legal rationale has been a dynamic, not a static, exercise. The committee should insist on access to the attorney general's legal evolution from the inception of the TSP. The inquiry should also demand to know, among other things, how many Americans were targeted by the TSP, how they were selected, what was the intelligence yield from the FISA violations, and what safeguards were erected to prevent misuse of the intelligence collected. Moreover, the committee should demand an explanation of why statutory amendments to FISA to correct perceived deficiencies were bypassed in favor of flouting the law.

This information is necessary before the committee can assess whether mitigating factors partially justified Bush's criminal violations of FISA. During the Civil War, President Abraham Lincoln, in explaining to Congress his unilateral suspension of the Great Writ of habeas corpus, rhetorically asked whether a republic must inescapably be too strong for the liberties of its people or too weak to maintain its existence. The committee should similarly explore whether in the aftermath of 9/11, Bush was confronting such a dilemma.

An impeachment inquiry should further examine Bush's repeated assertions of executive privilege to operate a secret government eavesdropping program. He has refused to disclose to Congress details of the TSP redacted to protect intelligence sources and methods. Other spying programs that have not yet leaked to the media remain secret. The president has additionally prohibited current and former White House aides and advisers, including Karl Rove, Harriet Miers, and Joshua Bolten, from appearing before Congress. Their testimonies have been sought to probe suspected perjury or obstruction of a congressional investigation by Gonzales and the manipulation of U.S. attorneys and civil servants in the Department of Justice to advance the political fortunes of the Republican Party. If Bush's conception of executive privilege had been asserted by Nixon, the Watergate investigation starring former White House counsel John Dean would have been stillborn.

If what Bush has said and done falls short of warranting an impeachment inquiry, then impeachment of the president has become a virtual dead letter.

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Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda.
Photograph of George Bush by Mandel Ngan/AFP/Getty Images.
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Remarks from the Fray:

We have a president and vice president that have brought back torture, made a joke of the Geneva conventions, and allowed their bosom buddies to run a corrupt occupational government in Iraq, and we're going to impeach him for eavesdropping? Keep in mind that innocent people have almost certainly been caught up in this little "it's not torture" experiment, notably Khalid El-Masri and Maher Arar.

Nothing shows the American trait of putting legalisms before justice than this sort of thing. Either that or most people (and senators) consider making a joke of basic human rights and treaties regarding warfare a minor offense, unworthy of impeachment (well, that's sadly most likely the case anyway). I suppose we also don't want to shed too much light on the help we've received from various European and Middle Eastern allies in these schemes either...

If we're going to get rid of the president, lets bring out the big guns. The most likely illegal NSA programs are certainly crimes, but I hesitate to use them as the basic foundation for impeachment when there's so much worse material floating around. Is this the logical end that a legalistic society leads us to? Can't we call a spade a spade?

--Adamatari

(To reply, click here.)

First, the President signed into law on Aug. 5th a bill from Congress containing provisions essentially legalizing for 6 months warrantless wiretapping as conducted by the NSA on orders from the President after 9/11. One would surely conclude that the Congress itself understands that modifications to FISA must be made to provide our intelligence agencies with additional, more powerful tools necessary to stop terrorists, and furthermore that the President, the Justice Department, and the NSA acted earlier in good faith in instituting the TSP even though its legality was clearly in question.

Second, the Constitution is technically silent on the question of whether the Congress has oversight into the dismissal of Federal officials. But if the majority of Congress do believe that the President and the AG improperly fired the federal prosecutors, they can and should appoint a non-partisan special prosecutor to bring the case to a real, non-partisan Grand Jury and thereby avoid highly partisan and occasionally theatrical Congressional hearings. If I'm not mistaken, it was the experience with President Nixon that lead to the independent consul statute in the first place.

So the opinion that impeachment in necessary or warranted, or that it is a "dead letter" is hereby remanded back to the readers for a second, closer look.

--NeverYouMind

(To reply, click here.)

(9/4)

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