[Peace-discuss] Impeachment on the table

[C. G. Estabrook]

[This is from the conservative financial weekly Barron's,
sibling publication to the WSJ. US financial elites are
calling down the adminsitration. --CGE 

  MONDAY, DECEMBER 26, 2005   	
  EDITORIAL COMMENTARY  
  Unwarranted Executive Power
  The pursuit of terrorism does not authorize 
  the president to make up new laws
  By THOMAS G. DONLAN

AS THE YEAR WAS DRAWING TO A CLOSE, we picked up our New York
Times and learned that the Bush administration has been
fighting terrorism by intercepting communications in America
without warrants. It was worrisome on its face, but in
justifying their actions, officials have made a bad situation
much worse: Administration lawyers and the president himself
have tortured the Constitution and extracted a suspension of
the separation of powers.

It was not a shock to learn that shortly after the Sept. 11
attacks, President Bush authorized the National Security
Agency to conduct intercepts of international phone calls to
and from the United States. The 1978 Foreign Intelligence
Surveillance Act permits the government to gather the foreign
communications of people in the U.S. -- without a warrant if
quick action is important. But the law requires that, within
72 hours, investigators must go to a special secret court for
a retroactive warrant.

The USA Patriot Act permits some exceptions to its general
rules about warrants for wiretaps and searches, including a
15-day exception for searches in time of war. And there may be
a controlling legal authority in the Sept. 14, 2001,
congressional resolution that authorized the president to go
after terrorists and use all necessary and appropriate force.
It was not a declaration of war in a constitutional sense, but
it may have been close enough for government work.

Certainly, there was an emergency need after the Sept. 11
attacks to sweep up as much information as possible about the
chances of another terrorist attack. But a 72-hour emergency
or a 15-day emergency doesn't last four years.

In that time, Congress has extensively debated the rules on
wiretaps and other forms of domestic surveillance.
Administration officials have spent many hours before many
committees urging lawmakers to provide them with great
latitude. Congress acted, and the president signed.

Now the president and his lawyers are claiming that they have
greater latitude. They say that neither the USA Patriot Act
nor the 1978 Foreign Intelligence Surveillance Act actually
sets the real boundary. The administration is saying the
president has unlimited authority to order wiretaps in the
pursuit of foreign terrorists, and that the Congress has no
power to overrule him.

"We also believe the president has the inherent authority
under the Constitution, as commander-in-chief, to engage in
this kind of activity," said Attorney General Alberto
Gonzales. The Department of Justice made a similar assertion
as far back as 2002, saying in a legal brief: "The
Constitution vests in the president inherent authority to
conduct warrantless intelligence surveillance (electronic or
otherwise) of foreign powers or their agents, and Congress
cannot by statute extinguish that Constitutional authority."
Gonzales last week declined to declassify relevant legal
reviews made by the Department of Justice.

Perhaps they were researched in a Star Chamber? Putting the
president above the Congress is an invitation to tyranny. The
president has no powers except those specified in the
Constitution and those enacted by law. President Bush is
stretching the power of commander-in-chief of the Army and
Navy by indicating that he can order the military and its
agencies, such as the National Security Agency, to do whatever
furthers the defense of the country from terrorists,
regardless of whether actual force is involved.

Surely the "strict constructionists" on the Supreme Court and
the federal judiciary eventually will point out what a stretch
this is. The most important presidential responsibility under
Article II is that he must "take care that the laws be
faithfully executed." That includes following the requirements
of laws that limit executive power. There's not much fidelity
in an executive who debates and lobbies Congress to shape a
law to his liking and then goes beyond its writ.

Willful disregard of a law is potentially an impeachable
offense. It is at least as impeachable as having a sexual
escapade under the Oval Office desk and lying about it later.
The members of the House Judiciary Committee who staged the
impeachment of President Clinton ought to be as outraged at
this situation. They ought to investigate it, consider it
carefully and report either a bill that would change the
wiretap laws to suit the president or a bill of impeachment.

It is important to be clear that an impeachment case, if it
comes to that, would not be about wiretapping, or about a
possible Constitutional right not to be wiretapped. It would
be about the power of Congress to set wiretapping rules by
law, and it is about the obligation of the president to follow
the rules in the Acts that he and his predecessors signed into
law.

Some ancillary responsibility, however, must be attached to
those members of the House and Senate who were informed,
inadequately, about the wiretapping and did nothing to
regulate it. Sen. John D. Rockefeller IV, Democrat of West
Virginia, told Vice President Dick Cheney in 2003 that he was
"unable to fully evaluate, much less endorse these
activities." But the senator was so respectful of the
administration's injunction of secrecy that he wrote it out in
longhand rather than give it to someone to type. Only last
week, after the cat was out of the bag, did he do what he
should have done in 2003 -- make his misgivings public and
demand more information.

Published reports quote sources saying that 14 members of
Congress were notified of the wiretapping. If some had
misgivings, apparently they were scared of being called names,
as the president did last week when he said: "It was a
shameful act for someone to disclose this very important
program in a time of war. The fact that we're discussing this
program is helping the enemy."

Wrong. If we don't discuss the program and the lack of
authority for it, we are meeting the enemy -- in the mirror.

http://online.barrons.com/article_email/SB113538491760731012-lMyQjAxMDE1MzI1NDMyODQ0Wj.html