A series of revelations this new year has shifted the semantics of the case for President Bush’s impeachment profoundly. A Dec. 16 New York Times article set off the cascade, uncovering offenses the president personally authorized that are criminal in more than a metaphorical sense, and are more than merely offensive to those who share the assumptions of left-liberalism.
We now know that Mr. Bush’s conduct has been criminal in the strict de dicto sense, in which the various legal mechanisms for remedying crime are triggered — a matter of urgency for both the republicanism and the democracy essentaial to our nation’s political ideals in ways that the Republicans and Democrats clearly are not.
There is nothing to embellish or exaggerate in the narration of presidential misconduct that commenced with the Times piece and has been bolstered by reams of subsequent reporting. The factual case, unavoidably incomplete, remains so strong and so consistent that the administration has barely bothered to deny it. Instead, Mr. Bush pivoted from an official “no comment” on the evening of Dec. 16 to an official confirmation the very next day, coupled with a truly disgraceful exercise of one of his few rhetorical tropes — symbolically brandishing the remains of victims of terrorism in order to exculpate himself. The most sordid of all the details of this affair is how utterly simple it actually is.
Beginning mere days after the Sept. 11 attacks and continuing to the present moment, George Bush has ordered the National Security Agency to conduct domestic surveillance absent any judicial oversight, wantonly breaching the Foreign Intelligence Surveillance Act of 1978.
The language of FISA is unmistakable. It speaks of itself as “the exclusive means by which electronic surveillance … and the interception of domestic wire, oral and electronic communications may be conducted” (18 USC § 2511f), and provides for the empaneling of a special court for the purposes of obtaining domestic surveillance warrants. No statutory provisions dilute the requirements of FISA at all; absent either a FISA warrant or a standard criminal warrant, government surveillance of domestic communication is just illegal, without exception.
This illegality has, I believe, three salient features: Firstly, unlike the partisans of the previous administration, Bush’s defenders have not one shred of justification for brushing aside the president’s suborning of crime as trivial or incidental to his position in government. (Clinton’s apologists had at least a few shreds.) It is indeed difficult to imagine any criminal act that could strike so directly at Bush’s constitutional responsibilities. In commissioning illegal domestic spying by an unaccountable executive agency, the president has declared himself unconstrained by the legislative and judicial checks the Constitution explicitly places upon his office.
Secondly, the law that Bush broke is no mere state law or civil regulation; it is a federal statute and a constituent of the U.S. Code, within the stratum of the law, that the institution of the presidency is obliged to defend at any cost. To violate FISA once is to commit a felony; by conservative estimates, Bush enabled the violation of FISA on hundreds of occasions.
Thirdly, his crimes are not only ongoing, but also coterminous with even more egregious crimes he swears he is preparing to commit. Recall that, some months ago, after a prolonged struggle with the administration, Sen. John McCain assembled a veto-proof congressional majority for including unequivocal prohibitions on torture and cruel, inhumane and degrading treatment of detainees in U.S. custody in an appropriations bill.
Having lost the fight within the framework of constitutionalism, what was an executive to do but usurp the judiciary’s authority to interpret law? Thus, on Jan. 2, President Bush appended a signing statement to the bill reserving the right to violate the McCain language whenever he deemed it necessary to do so.
For the most part, neither the administration nor its supporters takes issue with this account. Instead, they preposterously claim that its Commander in Chief role invests the presidency with quasi-regal powers. They further claim that Bush is justified in breaking the FISA statute because it unduly hobbles his ability to carry out time-sensitive surveillance of terrorists. As the philosopher Harry Frankfurt would put it, the technical term for this latter claim is “bulls–t.”
For any particular act of surveillance to comply with FISA, the Attorney General merely needs to file an application for a warrant within 72 hours of beginning the surveillance. Whether the FISA court is speedy or slothful in processing applications is a non sequitur. Time-sensitive surveillance is specifically authorized under FISA; the only stricture that FISA imposes on the executive branch is that it submit to eventual oversight, and it is against this most unobjectionable principle of constitutionalism that the administration rebelled.
So what is to be done? In a memorable essay called “Why I Write,” George Orwell remarked that one of the forces propelling his political engagement was “a power of facing unpleasant facts.” Undoubtedly the realization that justice demands the president’s impeachment will strike many people as unpleasant, to put it mildly. Despite that unpleasantness, any legal remedy for the president’s crimes short of impeachment is simply insufficient; the president’s debt to society for the wrongs he has inflicted upon it can only be recouped by removing him from office.
These wrongs, moreover, are not distant abstractions; they have far-reaching precedential implications. If they go unpunished, Bush promises he will continue to commit them. It is not merely the prerogative of Congress to terminate his presidency, but its positive obligation. Should Mr. Bush complete his term, it will mark an abject failure of one branch of government to perform its constitutional duties, and will hasten the transformation of two branches of government into mere auxiliaries of an unaccountable, unlimited third.
Daniel Koffler is a senior in Calhoun College. His column appears on alternate Wednesdays.