Tuesday, December 20, 2005

Unauthorized, unlawful wiretapping and the meaning of words in the law and the Constitution

The President's scheme for warrantless wiretapping outside the structure of
FISA cannot be defended by pointing to the Congressional authorization to
use force against Afghanistan. When he argues that the word "force"
includes domestic surveillance he implies that laws composed of words no
longer have meaning to him and his legal advisors.

The revelation of this scheme, by the way, cannot endanger our national
security. That the United States is using every conceivable technology and
technique to detect and monitor potential terrorists cannot be news to any
such terrorist. Revelation that the NSA is monitoring telephone calls
without warrants, when those calls could have been monitored by the FBI by
following FISA, cannot make any difference to the activities of potential
terrorists, and thus the revelation cannot endanger national security.

Our system of government is designed to maintain a rule of law. When the
Executive operates outside the rule of law, it is the duty of the Congress
to take steps to maintain checks and balances.

Assuming that we are not at a stage in which impeachment is warranted, then
what are the tools that Congress has, and should use, to curtail abuses by
the president?

Members of Congress must, at a minimum, express their rejection of lawless
behavior by the Executive, even if the opportunity for sanctions through
"the power of the purse" or oversight hearings and investigations are limited.

Obviously to introduce a resolution of impeachment is an extremely serious
allegation. Unfortunately its importance was undermined by the frivolous
misuse of this important congressional power by the Republican majority
against President Clinton.

I fear that it is time for Members of Congress to begin to study the proper
use of the Constitutional power of impeachment, and to sharpen their
understanding of "high Crimes and Misdemeanors." (Article II, section 4).

If the President is insisting on highly expansive or creative
interpretation of the meaning of words in a Congressional authorization of
"force" to include "electronic surveillance," then it might be time
for Members of the House Judiciary Committee to begin to publicly clarify
their understanding of the meaning of an important constitutional term,
"high Crimes and Misdemeanors."

My recollection, having studied the literature of impeachment on several
occasions, is that "high Crimes and misdemeanors" are not criminal offenses
in the traditional sense, but are uniquely political offenses against the
state, such as abuse of power. An example of such an abuse of power would
be to authorize unlawful and unconstitutional activities that violate civil
liberties. Another example would be misrepresenting national security
intelligence for the purpose of tricking the Congress and the Nation into
supporting a war.

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