The president’s direct order to conduct domestic wiretaps without warrants is a very big deal. I’m ready to change my whole view of the Bush Administration if the facts turn out for the worst. For almost five years, I have been making these arguments:
1. What’s bad about the Bush Administration are some of its overt priorities and policies. The way to respond to a public policy that you don’t like is to propose a better idea. But who knows what ideas the House Democrats support today–or what Kerry and Edwards wanted to do in 2004? To concentrate on the characters and secret behaviors of men like Bush, Cheney, and Rove is to miss the point of politics, which is supposed to be a contest of ideas.
2. It is also bad political strategy for the Democrats to concentrate on attacking Republican leaders. In times of war or terror, if the conversation dwells on personal characters and behaviors, the incumbents tend to win and the critics look merely opportunistic (especially if they don’t have plans of their own).
However, last Friday’s revelation of the domestic wiretap order adds a whole new dimension. I don’t believe that it alters the two points listed above. The country still needs policy alternatives, especially regarding Iraq. And the Democrats will still be better off if they talk about future directions, rather than attack the President. Nevertheless, to order domestic wiretaps without warrants may violate a federal criminal statute. If a president issues such an order knowingly, operating under the principle that the law doesn’t cover his behavior–and he gets away with it–then we don’t have limited government or constitutionalism.
Therefore, I think the president should face a congressional investigation to determine whether he knowingly violated ? 2511 of 18 USC I(119). If he did, then he should face an article of impeachment. An impeachment debate would be a distraction and would probably energize the Republican base in ’06, yet I don’t believe the country can ignore possible lawlessness in the White House.
I would not support piling on other charges, such as allegedly lying to the American people about the war in Iraq or presiding over an executive branch that has committed torture. The lying charge is best addressed by voters on Election Day (and I’m not even sure it’s true). The torture charge is criminal, but I don’t believe it’s helpful to make the president personally liable or to try to impeach him. The domestic wiretap order is different because it may have been a direct act by the president himself that violated a US criminal statute. Impeachment is meant for cases in which high officials directly and personally break the law.
The congressional investigation should not be narrowly partisan. It should also explore the role of Congress. If, for example, Nancy Pelosi knew of the illegal order, why didn’t she do anything about it? Granted, the administration must have warned her that disclosing the order would be a crime. But the order itself was probably criminal. I don’t see the point of congressional oversight if Congress doesn’t use its power to oversee.
Impeachment would not be appropriate if the president’s orders were simply unconstitutional–for then the appropriate remedy would be to strike them down. Impeachment is for violations of federal criminal law (“high crimes and misdemeanors”). The Bush order does seem to me to be potentially criminal. But–as they say–I’m not a lawyer, and the statute isn’t perfectly clear.
The law makes wiretapping illegal except under certain circumstances, which include “a certification in writing by a person specified in section 2518 (7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required …” The President received such a certification from the Attorney General. But was the certification valid? The AG had to find that domestic wiretaps met “all statutory requirements.” The statute bans wiretaps without a warrant. Thus, it seems to me, the only question is whether section (2)(f) creates a loophole that would allow a certification. That section says, “Nothing contained in this chapter … shall be deemed to affect the acquisition by the United States Government of … foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system.” Whether this section creates a loophole depends on whether the domestic communications that have been intercepted under Bush have always used “a foreign electronic communications system”–whatever that phrase may mean in the age of the Internet.