The I Word

I don't favor impeachment in the domestic spying case at this time. There, I've said it. I respect the opinion of Barbara Boxer, and particularly John Dean, on this matter:

On Sunday, December 18, former White House Counsel John Dean and I participated in a public discussion that covered many issues, including this surveillance. Mr. Dean, who was President Nixon’s counsel at the time of Watergate, said that President Bush is “the first President to admit to an impeachable offense.” Today, Mr. Dean confirmed his statement.

And I'm angry that the Republicans, in 1998, corrupted the impeachment process so much that any invocation of this perfectly Constitutional remedy immediately provokes cries of "partisan witch hunt" and ultimately renders it unusable. I predict there will not be another impeachment trial in this country for 100 years. Maybe that was part of a larger plan by the GOP to consolidate power in the hands of the executive. They thought they could get back in power, so if they tainted the impeachment process so much, the Presidency could then be a blank check. Speculative, sure, but it would be ingenious.

Here's my point, however. There's another remedy in this domestic spying case. It's quite simple. Congress needs to demand that their authority has been usurped, and in a bipartisan fashion, request that the President cease this program immediately, obtain warrants for all active and future eavesdropping cases, and destroy any evidence illegally obtained that is not germane to antiterror practices. This would alter exactly ZERO cases of spying currently pending. I'd even be willing to start the 72-hour retroactive clock over, giving the White House ample time to solicit FISA courts for warrants in any active cases. I think there are most likely majorities for such an action in the House, and certainly the Senate.

The current belief, that the President has these inherent powers and will continue to use them and shut your mouth, will not suffice. This idiotic lawyer who looked like Rip Torn on O'Reilly tried to answer why the President couldn't have simply used the retroactive capability to get a warrant from FISA (which has a 99.6% rate of issuing warrants when asked) within 72 of surveilling, answered with two reasons. One was that it would be too slow to get the FISA warrant. You have to be joking. Over the spring, during the Terri Schiavo affair, two different Circuit Courts of Appeals, who have literally hundreds of cases on their dockets, mobilized within 24 hours many times for a host of motions and rulings. You're telling me a FISA court specifically designed for speed with nothing else to do but rule on warrants of this type wouldn't be able to do the job given 3 times as many days to do so? Bullshit. His other answer was that the government needed to keep this a secret. What part of "secret court" don't you understand? Has there EVER been a case of this court leaking information? How many people in the country even knew about the existence of this court before last Friday? Are they newsmakers? Does the Attorney General think members of his Justice Department would behave like traitors? Is there any reason for them to give up this information if it's going through legal channels? Bullshit bullshit bullshit.

The congressmen who did hear about this, Republican and Democratic, kept their mouths shut as required by law. Read Jay Rockefeller's tortured letter to the Vice President, confirming that members of Congress weren't briefed about this as an interrogative, but as an imperative:

July 17, 2003

Dear Mr. Vice President,

I am writing to reiterate my concern regarding the sensitive intelligence issues we discussed today with the DCI, DIRNSA, and Chairman Roberts and our House Intelligence Committee counterparts.

Clearly the activities we discussed raise profound oversight issues. As you know, I am neither a technician or an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities.

As I reflected on the meeting today, and the future we face, John Poindexter's TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveiliance.

Without more information and the ability to draw on any independent legal or techical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.

I am retaining a copy of this letter in a sealed envelope in the secure spaces of the Senate Intelligence Committee to ensure that I have a record of this communication.

I appreciate your consideration of my views.

Most respectfully,

Jay Rockefeller

He couldn't tell anyone else on the Intelligence Committee about this. He didn't even tell his own staff about this. He couldn't. He had no outlet to raise concerns. And he was one of only 8 Senators and Representatives who even got that courtesy. The great majority heard about this for the first time last Friday. That's not oversight. Especially when this letter received no response.

So I'm angry as hell that this happened, and think it's causing a constitutional crisis with each passing day. But I don't support impeachment - yet. There is a remedy that gives the President all the powers he desires - to eavesdrop on terrorist conversations - while still acting under 215-plus-year-old laws that serve as the foundation of the country. As long as he acquieses we can put this behind us. The reason I don't support impeachment (for now) is that this entire process could have occurred in a legal manner without one principle being violated. Spying would have continued on Americans, and it would have been perfectly viable. It's the arrogance of believing he doesn't need a warrant that makes this a crime. A felony, actually. But until we have discovery of who was wiretapped, surveilled, et al., we have no idea what kind of harm, if any, this did to American citizens. And if the President ceases and desists, I believe it's reversible (although I wouldn't object to official censure).

If the President continues to insist that some amorphous inherent powers as commander-in-chief, which only he and a few of his lawyers believe (really, only a couple people, John Yoo and Alberto Gonzales primarily, have decided this, and at this point, nobody agrees with them) enables him to act above the law, then we can talk about other options. The President is not a king, and Congress may have to sue him for violating their Constitutional rights by dismissing their authority. If articles of impeachment are the only recourse then, we can talk about it then.

This was a major mistake. I predict public pressure will force the President to back down because he really doesn't have a leg to stand on. I'm comfortable with that result.