Together or Separately Hanging

For all who haven’t been paying attention to such things, last week Senator Russ Feingold (D-WI) proposed a motion that President Bush be censured for approving the National Security Agency (NSA) Terrorist Surveillance Program (or “domestic” warrantless “wiretap” program as the uninformed have deemed it). However, the motion went nowhere, simply because almost none of the senator’s Democrat colleagues were willing to back him up.

However, if the Democrats win control of the House (the body which votes to implement an impeachment; the Senate tries impeachments) in this year’s election, some predict that more than a mere “censure” may be in the offing for the president.

If Bush’s opponents find themselves in a position of power, the temptation to humiliate him is likely to be irresistible. [SNIP]

The urge to impeach is partly payback for the Bill Clinton era when Republicans dragged the president through the mud over his dalliance with the intern Monica Lewinksy.

I suppose vengeance is an only-too-human trait. But to what long-term end would partisan vengeance lead? Assuming that the Democrats take back the House—or assuming that, by off chance, a barely Republican-controlled House votes to impeach President Bush in regard to the NSA program, what can be expected?

• All aspects of the very classified program in question will be laid before the American public—and before the enemy, al Oaeda, which it was designed to monitor
• Many of the operational techniques of the NSA will receive identical exposure
• The program in question will be rendered useless
• If the president is found guilty of ‘high crimes and misdemeanors’ for approving the program, he will be forced to step down from his office and Dick Cheney will become president
• Much of the American public—most of whom approve of the program, but even some who didn’t initially do so—will be very disillusioned by the Congress they have put into power
• Much of the military’s morale—especially that of those in Iraq and Afghanistan--will plummet
• We pull out of Iraq and, probably, Afghanistan

(If vengeance is theirs, one might figure that the Democrats might have something brewing for a President Cheney as well. After all, the third in line for presidential succession is the Speaker of the House. In a Democrat-controlled House…well, you guessed it.)

Let’s say that the Democrats get back at the Republicans for all of their misdeeds—real and imagined. George Bush goes home to Texas and Dick Cheney goes home to Wyoming or to wherever. (I don’t think that the Democrats would dare incarcerate either man, though I could be wrong; some of them have already said and done things beyond the specter of imagination--mine, at least.)

What happens after that? Will my Democrat relatives laugh and say something like “haha! We got your president and your vice-president?” Maybe, and they will be right. But what will happen after that? What will happen to all of us?

What is the long-term Democrat goal for our country and its place in the world if all they (may) hope for comes to pass?

Some might opine that the congressional Democrats plan on impeaching President Bush. However, yesterday on FoxNews, Senator Dick Durbin (D-IL) refused to take impeachment off of the table when pressed on the subject by Chris Wallace. Maybe he didn’t want to show the Democrats’ hand, as I suspect that Senator Feingold did with the censure motion. (Don’t get me started on the senior senator from Illinois, a man who, himself, was in dire need of censure last year.)

Many have mused ad infinitum on the strategic goals of the Democrats--what they could possibly be. To regain a measure of power in the federal government, sure, but to what purpose? Breaking the present Republican monopoly in at least two of the branches of government is a fair goal, but how far are some of them willing to go to achieve that goal? Using the exposure of a top-secret security measure designed to protect all Americans, while reframing the details of that measure in order to make the uninformed believe that it is meant to invade the privacy of those same Americans in order to regain power is a tactic that is more than Machiavellian. I suppose that those who would approve of such a tactic would say that the ends make the means worthy.

Is the goal simply this: holding power for its own sake? If true, it's a pretty mundane target. Shreading an intelligence program to get at one's political rivals, however, would bring infinitely more dire problems.

If the Democrats regain majorities in both houses of Congress, I hope that the vast majority of them remember that we're all in this together. If the don't...well it's on, I guess, in more ways than one.

(Thanks to Jeff Goldstein)

Comments

[skinner The 1st]

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[Justin]

No classified information would have to be revealed in any impeachment/censure proceeding, and that really has nothing to do with the issue at hand. Asking that the President obey the law, and let's throw in asking the Administration to stop torturing as well, does not help are enemies.

[baldilocks]

No classified information would have to be revealed in any impeachment/censure proceeding

*Methods* are classified, Justin, and exposing such would be necessary in adjudicating whether this program is legal or not. This has been pointed out over and over again to you and sundry by those of us who have actually worked with similarly-purposed programs.

[Teal Marie]

I used to visit Protein Wisdom when one of my other favorite blogs linked to him. Now it's the first place I look for news and discussion. The man is a genius!

Right now he is serving up a frosty mug of Hitchen's boot rear.

But, then, we have Skinner, my pet wookie, and Porkstar, so nyah nyah nyah, ha ha ha and poo poo pa poo poo to actus uppus. Piker.

When the Demlibs hang I'll bring a picnic.

[Justin]

Baldilocks, forgive me for being a bit thick, but I still don't get it. Why would classified information have to be released? To the extent anything would damage national security if made public, it wouldn't be made public.

So, if I could take your argument one step further, do you think that the President should be able to break the law in the interests of national security, or more precisely, can he break the law and have no adverse repurcussions (ie, impeachment)? That appears to be what you are saying. Am I wrong?

[DarkStar]

Justin, if it happens, and it won't, they don't have to give out information of how data was obtained, just that it was obtained and the medium over which it was obtained.

Let's say someone is communicating with a person in the U.S. If the person in the U.S. is on a cell phone and assumes because he has a digital phone that it is "secure", by saying that the person's line was targeted and information was obtained, they know that the digital phone is not a "safe" way to communicate.

The way that they line was tapped doesn't matter, how it was tapped or how they did it doesn't matter. What matters is now, all terrorists know that the method of communication is not safe.

*BAM*

End of communicating via cell phones.

[DarkStar]

Clinton committed perjury on the stand. I understand why he as impeached. It was ALL politics but he gave the "loyal opposition" an opening.

The Republicans did grave danger to his presidency and to the safety of the U.S., IMO.

I say that because when Clinton ordered a hit on what was believed to be OBL's camp, the Republicans and their conservative backers started screaming "WAG THE DOG!"

It was bad then, it will be bad if Baldilock's scenario came to pass.

[Mescalero]

I have already put my congressman on notice that if he signs anything approving impeachment proceedings he will definitely face a serious recall campaign!

[Justin]

DarkStar--I'm still not following you. Any potentially sensitive information could be kept from the public.

Again, the argument seems completely absurd to me--The logic is that, basically, the President can break the law as long as he is doing something that is classified and involves national security. If that's what his defenders think, fine, just come out and say it. Am I missing something?

[DarkStar]

Any potentially sensitive information could be kept from the public.

That is an "unfortunate" side-effect. And I'm serious about that statement.

Let's put it this way. If a bad guy is in email conversation with someone, and the bad guy uses PGP with an encryption key of 128 bytes, and it becomes known that PGP can be decrypted and the email can be read, that tells the bad guy to use another scheme.

The logic is that, basically, the President can break the law as long as he is doing something that is classified and involves national security.

Not at all. That is what FISA is all about.

[Tully]

Any potentially sensitive information could be kept from the public.

Telling many members of Congress anything senstive or classified is the functional equivalent of publishing it on the front page of the New York Times.

[yankees]

GM, Delphi and UAW Reach Worker Buyout Deal

Did you see this...

[bigger]

I find I agree with Tully. Back during the Revolution Ben Franklin never informed Congress of the help we were receiving from the French, because he did not want the British to find out. Nor does the Constitution give congress much say in running a war beyond funding it. One can imagine the politics of the "Military Strategy Committee."
As to what the Dems want to do to Bush and Cheney -- in January I met up with an old friend I had not seen for fifteen years at an SF convention here in Boston. He is looking forward to the day Bush and Cheyney are publically taken out and shot. He was quite serious. Deluisonal, I suspect, but he can still hold down a PA government job and pay his bills and navigate from Central PA to Eastern MA. He was not the only one. BDS seems to come in a variety of flavors.

[Tully]

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[Justin]

Nor does the Constitution give congress much say in running a war beyond funding it.

Article I gives Congress the power to:

"To make Rules for the Government and Regulation of the land and naval Forces"

This isn't the power to run the war, but it is the power to make broad ground rules for the conduct of war.

Again, am I misunderstanding the arguments, or are people here arguing that the President can break the law in wartime as long as he is doing something classified that he claims is related to national security? Why don't people just come out and say that?

[Tully]

Well, here we go again...

Is there something new you can point to in the way of actual case facts or new court decisions that would indicate that laws were actually broken by the executive, Justin? Is there something new going on in the two-centuries-old dance between the executive and Congress over the "middle ground" between Constitutional authorities that I've missed?

Or should I just link back to our archived arguments on the NSA flap so we don't have to re-type them all?

(Side issue: Would you care to place a small wager on the origins of the original leak to the NYT on the NSA program? I've got $10 for a non-partisan non-political community charity that says at least one source was a Congresscritter's office...)

[Justin]

Tully--Whether FISA was violated is irrelevant to my point.

OK, so, hypothetically, the President admits he is running a classified national security-related program that may be in violation law X. Members of Congress want to investigate whether law X was actually violated. Supporters of the President say no investigation because a classified national security program would be revealed. The implication of that is that the President can break the law for national security reasons, becuase no one would be allowed to investigate or punish him.

Or, to take it further, the President says "I have and will continue to violate law X, but I will not reveal anything about what I'm doing because it would expose and ruin a classified program and help the terrorists."

Am I stating the argument and its implications correctly?

I think you may be correct about the Conressional leak, but I love to bet so I'll take you up (I'll pick the Special Olympics). To clarify, it must be someone who works for a congressman (either paid or as an intern)--e.g., not the building IT guy or janitor.

Hopefully Baldilocks won't ban us for turning her blog into a den of iniquity (-:

[Tully]

I accept the terms, and pick my local non-profit autism therapy clinic. Note that only one primary source has to be Congressional, not all.

"I have and will continue to violate law X, but I will not reveal anything about what I'm doing because it would expose and ruin a classified program and help the terrorists."

OK, placing it as a hypothetical makes a difference. Especially as your hypothetical doesn't claim any superseding authorities, other than implied necessity.

Two answers, one practical and one idealistic. Last first--no one should be able to break the law with impunity, but they should always be allowed to present a defense. Whether or not the jury buys the defense is up to the jury.

Last next: In practical terms, the ONLY comeback against a President for things done in the execution of his official duties is Congress and its powers of impeachment. Censure is a joke. The President is immune from civil liability in the execution of official duties, but not immune to civil liability for non-related torts [Nixon v. Fitzgerald, Clinton v. Jones].

The question of whether or not a sitting President can be criminally prosecuted for anything, relating to official duties or not, remains an open one, as it's never happened. Opinions are mixed, but I fall into the camp that believes that a President is completely immune from criminal prosecution while they are in office. If the offense is serious enough to actually warrant prosecution the proper route to accomplish that would be impeachment. I'll avoid the arguments over self-pardoning, other than to note the Prez can only pardon "offenses against the United States."

Otherwise every gun-slingin' county DA with an attitude would be indicting the President right and left, tying up the office whether or not the indictments were sustainable and material. And leaving office wouldn't help, as every ex-Prez would be open to criminal claims for everything they ever did in office, encouraging political vendetta and blackmail.

In a nutshell, IMHO the practical remedy for criminality by the executive while in office lies with Congress, and nowhere else.

Now, drunk driving in the Rose Garden would give us a lovely hypothetical to play with....

[Deb]

As far as I know, the reason classified info. would become public is that an impeachment is a LEGAL proceeding. That means "lawyers" will be involved and that means a little thing called "discovery."

It's the same reason you should never ever sue someone for libel--if you have something, anything to hide--discovery process will ferret it out. That's how they got Alger Hiss, remember? The stupid bastard's pride got the best of him and even though there wasn't enough evidence to get him for espionnage, he was accused of it in the media and when he sued for libel, the discovery process enabled lawyer for the defendant to dig up all manner of dirt on him, which further enabled him to be formally charged.

What I'm trying to say is that those trying to "prosecute" the Executive will demand (and by rights get) any and all documentation pertaining to the so-called "wiretapping" program.

They'll have to, in my opinion, if only to find some mud that will stick to the wall they're throwing it at (in the way of illegality). The President's opponents (and concerened, if misinformed citizens) keep acting like it's been proven already that the President "lied" or "broke the law," when in fact no such thing has been proven. In fact, it's still a very gray area--more than that, it's a hotly disputed statement.

To analogize the whole situation to the Clinton impeachment is absurd. In his case, there was proof positive (in the form of his own admission basically) that Clinton had LIED UNDER OATH prior to any charges being brought against him. That's a different kettle of fish entirely from what we now have.

Mind you, I opposed the impeachment then on pretty much the same grounds--even though I thought it more warranted than impeaching Bush. I think it's a collossal waste of the people's time and money, a major distraction from a war we MUST win, and ultimately not to anyone's benefit.

Well and good people should "ask" whether what he did was by-the-books legal, but it's been my experience that asking in such cases is almost good enough to keep a check on executive power. It's when we're all asleep at the wheel watching American Idol that our leaders take liberties. But "punishing" the Bush administration for --at worst in my view--overreaching does no one any good.

[Justin]

Tully, I agree with your post, and I'm not claiming that the President should be subject to criminal liability while in office.

More importantly, I think your hypothetical turns on whether the Rose Garden is considered quasi-public property. It's not against the law to drive drunk on private property, right? What about government owned property? Is there a special law that applies to a government office or residence? What if the President had to drive drunk for national security reasons?

Deb--I don't think that impeachment is a legal proceeding the same way a civil or criminal case is--i.e., there is no special right to discovery.

[Tully]

Digression time:

It's not against the law to drive drunk on private property, right?

It's a facetious hypothetical, but the serious reply is that it depends on the jurisdiction, and in my jurisdiction operating a motor vehicle while impaired is illegal and prosecutable regardless of whether the property is public or private. And there are numerous cases on point in other jurisdictions. I recall one that went to the Colorado Supreme Court back in the '80s, where the man never even actually drove the car, wasn't in the driver's seat, the car was stationary with the engine off, but he was still convicted of DUI.

That one was so stupid you couldn't help but feel sorry for him. He got drunk at a bar, called a relative to drive him home in his own car. The relative did so, but couldn't rouse him when they got there and left him in his own driveway, passed out in the back seat, with his keys in the ignition. That last was the entire case.

An officer noticed him sleeping in the car, found him drunk, and cited him for DUI. He was convicted, and appealed. And lost, all the way up the line, even though the facts were uncontested. The Court said, "So sorry, but you lose. Your vehicle, your keys, you're in it, you're drunk, the finding of intent to operate the vehicle while intoxicated is valid."

Moral--if you're too toasty to travel and are trying to sleep it off in the vehicle, TAKE THE KEYS OUT OF THE IGNITION. They constitute "intent." This guy never had a chance, as he was out cold before the vehicle was parked.

What if the President had to drive drunk for national security reasons?

Now the fun part of the hypothetical. It doesn't matter at all why he's driving drunk if he's immune to prosecution, except for civil liability purposes. If he was being sued for driving drunk and causing damages, THEN it would matter why. Otherwise, legally irrelevant.

The only other recourse remains Congress, and their judgement and discretion as regards the offense and its qualifications as grounds for impeachment and conviction. Sure, they can censure him, but that's of no legal force whatsoever, just coordinated official whining. Impeach, or constrain through legislation that does not encroach executive authority--or at least that will be followed without an active contest of authorities--or de-fund the activity.

[Justin]

Tully--you've just destroyed my dream of buying land, building my own road and drivind around all liquored up.(-:

Anyway, to bring my President hypotheticals into the real world, here's another example of GWB saying he can disobey the law b/c he feels like it (OK, because he has some vague national security power that nobody can have oversight over). Are no conservatives here concerned?

http://www.boston.com/news/nation/
washington/articles/2006/03/24/
bush_shuns_patriot_act_
requirement/

[Theresa]

Justin

You are arguing from the standpoint that the President did in fact break the law. That premise has been debunked repeatedly on other blogs. The reason nothing has moved on this issue recently I suspect. Both parties need to pull their collective heads out and start earning their paychecks by working together to keep this country safe and on track. This bickering is insanity when we are fighting such an insidious enemy who is a technically astute as they are. I detest the fact that the welfare of this nation is taking a back seat to politics. Every time I hear a dhimmicrat spout hatred for the President I seriously worry about how much longer we will survive as a nation. The old adage “divide and conquer” comes to mind. The islamonazis are quite adept at waiting for the underbelly to show itself. Our elected fucktards are showing it to them daily.

[Justin]

Theresa--every time I hear someone get mad when the President is criticized or accept that the President is above the law in wartime "I seriously worry about how much longer we will survive as a nation" to quote you.

[Tully]

Tully--you've just destroyed my dream of buying land, building my own road and drivind around all liquored up.

Hey, the laws might be different in your state! And if you buy enough land and put up gates and lock them, who would know? :-) I am NOT, of course, encouraging you to engage in illegal activities. Just noting some realities.

You can now read the DoJ responses to Democrat and Republican Congressional questions about the TSP. [PDF warning] Interesting reading.

My favorite is the answer indirectly noting that FISA 1806(j) requires that if the AG initiates an emergency surveillance under FISA and same is later turned down for a retroactive warrant by a FISA judge, then the subject of the surveillance MUST be served with notice of the surveillance by the FISA court, and others involved may be served with notice at the discretion of the judge.

Hey, um, Osama? I got these papers here for you....

Oodles of stuff to argue about in there.

[Suricou Raven]

Look at the Alito confirmation votes.

Democrats: All except one against.
Republicans: All except four for.

Or was it four demos, one republican... I might have them reversed. In either case, it comes down to a negligable number dissenting from their party vote.

Its all party politics now. Power games and playing the system. Running a country? Hah, anyone competent at doing that would never get any amount of power - they would be too idealistic to play 'I'll vote for your ill-considered bill if you vote for mine.'

Republicans, democrats... there is hardly even a difference any more. The only point on which they will work together is ensuring that the effectively two-party system stays that way.