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Spying Smokescreens and Impeachment

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by Shayana Kadidal, Center for Constitutional Rights Lawyer and a contributor to ARTICLES OF IMPEACHMENT AGAINST GEORGE W. BUSH

This week the Senate Judiciary Committee held hearings on the illegal NSA domestic wiretapping program. Instead of addressing the illegality of the President’s conduct, several Senators tried to provide smokescreens for it. This failure of Congress to provide oversight and a check on the Executive Branch demonstrates why more serious remedies are necessary to protect the rule of law in America. Two immediately come to mind: suing to stop the wiretapping in federal court and introducing an impeachment investigation.

My colleagues at the Center for Constitutional Rights (CCR) and I have been working on both efforts. We filed suit against President Bush for authorizing the NSA spying program after its disclosure last year (CCR v. Bush), and we have outlined the case for impeachment in the new book, ARTICLES OF IMPEACHMENT AGAINST GEORGE W. BUSH (Melville House).

In the chapter on our domestic spying case, I examine why the NSA spy program is illegal and how it might be remedied, including impeachment. Warrantless surveillance -–electronic surveillance without review of some kind by a disinterested judge, either before or immediately after the wiretap is put in place -- is, with very limited exceptions, illegal and punishable as a felony. Congress provided comprehensive procedures for electronic surveillance in FISA, and it explicitly declared the executive had no other implied powers to conduct surveillance without FISA. Simply put, the NSA Program is illegal because it violates FISA. (There are also Fourth Amendment issues, but that is another story.)

Unfortunately, there is a lot of confusion about these facts, and Congress has clouded the issue by focusing more on allowing future warrantless spying than addressing the illegal NSA Program. For example, this week’s Senate hearing reviewed a bill by Republican Senator Mike DeWine that would legalize warrantless surveillance of international calls and emails whenever the president decides going to the court established by FISA is too much trouble. Periodic after-the-fact briefings by the President to small committees of Congressional leaders would replace judicial oversight entirely.

Under the DeWine bill the House and Senate will create new (i.e. partisan) intelligence subcommittees, which will receive reports every six months containing a “complete discussion” of the “operational details, effectiveness, and necessity” of the program. This is an unacceptable substitute for real oversight.

Instead, Congress should thoroughly investigate exactly why President Bush felt the need to authorize an illegal program when Congress and the FISA court have been so compliant with almost everything the Executive Branch attempts to do in the area of intelligence. Several of the potential answers bring us back to impeachment.

To reach the standard of misconduct that brought down Nixon, the key question is whether the President’s actions damaged our democratic system of government or the constitutional separation of powers. Nixon’s illegal wiretaps were motivated not by the desire to protect the nation but rather to protect his political power and weaken his political opponents, and thus rose beyond mere illegality to reach the level of impeachable conduct. Many of the facts about the NSA program are still poorly understood, and there is little formal evidence available about President Bush’s motivations. We can only speculate as to whether his intent was to protect national security or something more sinister. But several significant possibilities demand further investigation.

First, the program may betray a willful attempt by the executive branch to usurp power that rightly belongs to the two other branches of government.

Second, the program may have involved data mining of such broad scope — for example, using voice recognition technology and computers to scan every international phone call and email for certain words — that essentially everyone in the country would have been targeted. Such a program would be a long step on the way to a total surveillance society like East Germany, where the government kept files on every citizen. It would chill untold amounts of political activity, and of course it would be so broad that it could never be approved by a court under the Fourth Amendment.

Third, it may be the case that the administration is engaging in surveillance that even conservative FISA judges would never approve of: conversations of attorneys with their clients or of journalists with their sources. Surveillance like that would help silence two indispensable voices of dissent: civil rights attorneys and the press. If any of these motivations can be proven to be at the heart of the program, then impeachment could be warranted. This prospect appeared more likely last week, when the Justice Department notified Congress for the first time that the warrantless surveillance may include spying on the privileged conversations between Americans and their attorneys and doctors. (Such conversations have extra protection under the law.)

To resolve these important questions, Congress should begin a serious, non-partisan investigation into the illegal spying and potential remedies including impeachment. A toothless inquiry that does not include serious remedies will not get serious answers. (The Administration’s secretive stonewalling of the 9/11 Commission and the Senate’s pre-war intelligence investigations are prime examples.) We need a real investigation, as Rep. John Conyers has proposed, that gets past the trivial defenses the administration has offered. Those who implemented the NSA Program are clearly guilty of felonies under FISA; the fact that the President ordered his subordinates to commit felonies at least deserves a public investigation. After all, even Nixon believed the American people had to know whether or not their president was a crook.

ARTICLES OF IMPEACHMENT AGAINST GEORGE W. BUSH makes this case in detail, showing how an impeachment investigation could rein in the Presidency and protect our Constitution. Americans now have an opportunity to call on Congress to hold hearings on impeachment, before it’s too late.

A BUZZFLASH GUEST CONTRIBUTION

Shayana Kadidal a staff attorney at the Center for Constitutional Rights, where he is a lead attorney in the Center’s case on illegal NSA domestic spying program, CCR v. Bush. He is a contributor to ARTICLES OF IMPEACHMENT AGAINST GEORGE W. BUSH (Melville House).