December 23, 2005
Impeachment Nonsense
By Charles
Krauthammer
WASHINGTON -- 2005 was already the year of the demagogue, having
been dominated for months by the endlessly echoed falsehood that
the president ``lied us into war.'' But the year ends with yet
another round of demagoguery.
Administration critics,
political and media, charge that by ordering surveillance on communications
of suspected al Qaeda agents in the United States, the president
had clearly violated the law. Some even suggest that Bush has
thereby so trampled the Constitution that impeachment should now
be considered. (Barbara Boxer, Jonathan Alter, John Dean and various
luminaries of the left have already begun floating the idea.)
The braying herds have already concluded, Tenet-like, that the
president's actions were slam-dunk illegal. It takes a superior
mix of partisanship, animus and ignorance to say that.
Does the
president have the constitutional authority to conduct warrantless
searches against suspected foreign agents in the United States?
George Washington University law professor Orin Kerr (one critic
calls him the man who ``literally wrote the book on government
seizure of electronic evidence'') finds ``pretty decent arguments''
on both sides but his
own conclusion is that Bush's actions were ``probably constitutional.''
In 1972, the Supreme
Court required the president to obtain warrants to eavesdrop on
domestic groups, but specifically declined to apply this requirement
to snooping on foreign agents. Four appeals courts have since
upheld presidential authority for such warrantless searches. Not
surprisingly, the executive branch has agreed.
True, Congress
tried to restrict this presidential authority with the so-called
FISA law of 1978. It requires that warrants for wiretapping of
enemy agents in the U.S. be obtained from a secret court. But
as John Schmidt, associate attorney general in the Clinton administration,
writes:
``Every president since FISA's passage has asserted that he retained
inherent power to go beyond the act's terms.'' Indeed, Clinton's
own deputy attorney general testified to Congress that ``the president
has inherent authority to conduct warrantless physical searches
for foreign intelligence purposes,'' then noted a few minutes
later that ``courts have made no distinction between electronic
surveillances and physical searches.''
Presidents always
jealously guard executive authority. And Congress always wants
to challenge the scope of that authority. This tug-of-war is a
bipartisan and constant feature of the American system of separation
of powers. President Bush's circumvention of the FISA law is a
classic separation-of-powers dispute in the area in which these
powers are most in dispute -- war powers.
Consider the War
Powers Resolution passed over Nixon's veto in 1973. It restricts,
with very specific timetables, the president's authority to use
force. Every president since Nixon, Democrat and Republican, has
regarded himself not bound by this law, declaring it an unconstitutional
invasion of his authority as commander in chief.
Nor will it do to
argue that the Clinton administration ultimately accepted the
strictures of FISA law after a revision was passed. So what? For
the last three decades, presidents have adhered to the War Powers
Resolution for reasons of prudence, to avoid a constitutional
fight with Congress. But they all maintained the inherent illegitimacy
of the law and the right to ignore it. Similarly, Clinton's acquiescence
to FISA in no way binds future executives to renounce Clinton's
own claim of ``inherent authority'' to conduct warrantless searches
for purposes of foreign intelligence.
Attorney General
Alberto Gonzales chose a different justification for these wiretaps:
They were covered by the congressional resolution shortly after
9/11 authorizing the use of ``all necessary and appropriate force''
against al Qaeda. Gonzales' interpretation is based on a plurality
Supreme Court opinion written by Sandra Day O'Connor that deemed
legal the ``executive detention'' of U.S. citizen and enemy combatant
Yaser Hamdi. ``Detention'' is an obvious element of any authorization
to use force. Gonzales argues that so is gathering intelligence
about the enemy's plans by intercepting his communications.
I am skeptical
of Gonzales' argument -- it implies an almost limitless expansion
of the idea of ``use of force'' -- while the distinguished liberal
law professor, Cass Sunstein, finds
it ``entirely plausible'' (so long as the wiretapping is limited
to those reasonably believed to be associated with al Qaeda).
Sunstein maintains that ``surveillance, including wiretapping,
is reasonably believed to be an incident of the use of force''
that ``standardly occurs during war.''
Contrary to the administration,
I also believe that as a matter of political prudence and comity
with Congress, Bush should have tried to get the law changed rather
than circumvent it. This was an error of political judgment. But
that does not make it a crime. And only the most brazen and reckless
partisan could pretend it is anything approaching a high crime
and misdemeanor.
©
2005, Washington Post Writers Group
