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Barron's: Investigate a possible impeachable offense

I normally steer clear of politics (except when it relates to markets, science or technology).

But I had to sit up and take notice this morning, when I saw the normally conservative-leaning financial weekly Barron's calls for an investigation into the Bush administration's use of domestic surveillance as a possible impeachable offense:

"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 . . .

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 . . .

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.

>

Astonishing. When people ask me how I derived a 6,800 Dow in the BW survey, its not all that difficult to imagine any number of scenarios where the wheels all come off the bus -- and that was before this potentially troublesome issue raised its head.

>>

NOTE:  See if this link leads non-subscribers to the full article

>>

Source:
Unwarranted Executive Power
The pursuit of terrorism does not authorize the president to make up new laws
By THOMAS G. DONLAN
http://online.barrons.com/article/SB113538491760731012.html

Saturday, December 24, 2005 | 07:44 AM | Permalink | Comments (47) | TrackBack (4)
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Comments

So, in time of war we should not allow the commander-in-chief the authority to intercept the communications of the enemy.

Better yet, lets force the President to bow to Congress who will set the rules and demand court authorization. Have you ever seen an affadavit for a wiretap? No less than 60 pages long.

President had legal authority to OK taps
By John Schmidt
Published December 21, 2005

http://www.chicagotribune.com/technology/chi-0512210142dec21,1,2062394.story
?coll=chi-techtopheds-hed

Posted by: jill | Dec 24, 2005 10:03:55 AM

>>>"normally conservative-leaning financial weekly Barron's >>>

Ever read Alan Abelson??? Conservative?

Hardly.

Bruce Sherman
Oakland, Oregon

~~~
BR: The Op/Ed was not written by Abelson -- it was by THOMAS G. DONLAN, who is the conservative editor of the Opinions page.

Ever read Thomas Donlan??? Liberal?

Hardly.

Posted by: Bruce Sherman | Dec 24, 2005 10:17:39 AM

So, in time of war we should not allow the commander-in-chief the authority to intercept the communications of the enemy.
Better yet, lets force the President to bow to Congress who will set the rules and demand court authorization. Have you ever seen an affadavit for a wiretap? No less than 60 pages long.

In time of war or peace, anyone who tries to pass themselves off as an informed citizen should be able to pass a simple reading comprehension test. You only had to read as far as the 4th paragraph to glean that the author wasn't arguing against wiretaps, idiot.

I don't recall anybody saying it's an impeachable offense if the president can't recite what was on page 38 of the wiretap request, either. What transparent bullshit.

Posted by: fourmorewars | Dec 24, 2005 10:50:43 AM

407 U.S. 297 US Supreme Court decision
UNITED STATES v. UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN ET AL. (PLAMONDON ET AL., REAL PARTIES IN INTEREST) CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 70-153.

Argued February 24, 1972
Decided June 19, 1972

The United States charged three defendants with conspiring to destroy, and one of them with destroying, Government property. In response to the defendants' pretrial motion for disclosure of electronic surveillance information, the Government filed an affidavit of the Attorney General stating that he had approved the wiretaps for the purpose of "gather[ing] intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government." On the basis of the affidavit and surveillance logs (filed in a sealed exhibit), the Government claimed that the surveillances, though warrantless, were lawful as a reasonable exercise of presidential power to protect the national security. The District Court, holding the surveillances violative of the Fourth Amendment, issued an order for disclosure of the overheard conversations, which the Court of Appeals upheld. Title III of the Omnibus Crime Control and Safe Streets Act, which authorizes court-approved electronic surveillance for specified crimes, contains a provision in 18 U.S.C. 2511 (3) that nothing in that law limits the President's constitutional power to protect against the overthrow of the Government or against "any other clear and present danger to the structure or existence of the Government." The Government relies on 2511 (3) in support of its contention that "in excepting national security surveillances from the Act's warrant requirement, Congress recognized the President's authority to conduct such surveillances without prior judicial approval." Held:

1. Section 2511 (3) is merely a disclaimer of congressional intent to define presidential powers in matters affecting national security, and is not a grant of authority to conduct warrantless national security surveillances. Pp. 301-308. [407 U.S. 297, 298]

2. The Fourth Amendment (which shields private speech from unreasonable surveillance) requires prior judicial approval for the type of domestic security surveillance involved in this case. Pp. 314-321; 323-324.

(a) The Government's duty to safeguard domestic security must be weighed against the potential danger that unreasonable surveillances pose to individual privacy and free expression. Pp. 314-315.

(b) The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the Executive Branch without the detached judgment of a neutral magistrate. Pp. 316-318.

(c) Resort to appropriate warrant procedure would not frustrate the legitimate purposes of domestic security searches. Pp. 318-321.

444 F.2d 651, affirmed.

Clearly, Rhenquist et.al. didn't think the Executive Branch has the authority to Warrantless Wiretaps.

Methinks Bush & co. doesn't want to have to test Rhenquist et.al. over this issue AGAIN.

Posted by: BS Detector | Dec 24, 2005 11:17:25 AM

Jill - Schmidt sorta does the Dick Cheney thing, warping a few points and getting others dead wrong:

Warping example:
In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Just one problem -- Schmidt ignores this in his reasoning: The Keith case specifically addressed domestic surveillance and determined that it DID require a warrant.

Moreover, the Supreme Court in that case did not rule that any surveillance methods used to surveil foreign actors were okey-dokey. Rather, they expressly stated they were reaching no opinion whatsoever on that matter, since it was not addressable under the facts at issue in that case. I'd suggest a re-reading of Keith, along with the Youngstown case, for good measure, for Mr. Schmidt. And some contemplation as to why the FISA court was established in the first place -- it's called Presidential overreaching and bad faith and ignoring Congressional and legal oversight. Sound familiar?
(From firedoglake, which has cites to both Keith and Youngstown)

And an example of flat out wrong:
Schmidt states approvingly that [the] administration has offered the further defense that FISA's reference to surveillance "authorized by statute" is satisfied by congressional passage of the post-Sept. 11 resolution giving the president authority to "use all necessary and appropriate force" to prevent those responsible for Sept. 11 from carrying out further attacks.

Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens.

[snip]

..., a strong bipartisan majority could not agree to the administration's request for an unprecedented grant of authority.

The Bush administration now argues those powers were inherently contained in the resolution adopted by Congress -- but at the time, the administration clearly felt they weren't or it wouldn't have tried to insert the additional language.
Tom Daschle in the WaPo

Posted by: fatbear | Dec 24, 2005 11:32:20 AM

Seeking additional wording is not neccessarily evidence of an effort to change something. Wording is frequently proposed for clarification of what is already agreed.

~~~~

BR: The change was from international to domestic -- thats not a clarification, thats a signficant alteration and expansion

Posted by: Zephyr | Dec 24, 2005 11:59:40 AM

Only, of course, if "the wording" is rejected that rather proves the point that it was not, in fact, "clarifiying" but obscuring the intent of what was agreed upon. Once specific words are brought into the discussion and rejected it can not then be argued that they were merely redundant to what is already in the text.

aimai

Posted by: aimai | Dec 24, 2005 12:03:25 PM

The Congress' specific rejection of that language goes to "legislative intent," and clearly shows that the resolution did NOT endorse those efforts "in the United States."

Posted by: BS Detector | Dec 24, 2005 12:06:14 PM

I am more concerned about our safety from terrorists than from the dangers of unnecessary wire taps.

This issue is a silly side show, and potentially damaging to the physical safety of Americans.

Time to drop the politically motivated attacks and think about the peoples' safety -- here and elsewhere.

Posted by: Zephyr | Dec 24, 2005 12:06:48 PM

Article One:
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Congress shall have the power...To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Article Two:
"he [The President] shall take Care that the Laws be faithfully executed"

Congress passed a law, and the President signed that law, FISA 1978, that specifically made it a felony to do what President Bush admitted to.

Congress made the law, and the President is tasked by the Constitution to execute the law, not break it.

Posted by: BS Detector | Dec 24, 2005 12:20:40 PM

Either you believe in the Constitution and that all officers duly sworn to "protect and defend" same should honor their promises to God (oath of office), or you are UN-AMERICAN and hate what America stands for.

Why do you hate America, Zephyr?

Posted by: BS Detector | Dec 24, 2005 12:23:55 PM

BS Detector: There are often conflicting requirements in the law and conflicting requirements in life. One goal is served at the violation of another. Perhaps you should become a bit less one dimensional in your thinking and recognize this.

Or perhaps you just think that anyone who disagrees with you must be un-American.

Posted by: Zephyr | Dec 24, 2005 12:38:30 PM

As for hating America, would it not be the one who wants to not wire tap the terrorists who is the more likely hater of America?

Why do you want to help the terrorists?

Posted by: Zephyr | Dec 24, 2005 12:40:41 PM

I think this all politically motivated by people who want to bash Bush. These same people sat silent while Clinton did his shenanigans.

I don't like Bush either, and I didn't like Clinton. But the safety of the people is more important than partisan positioning.

Posted by: Zephyr | Dec 24, 2005 12:44:51 PM

I raised my right hand many years ago before putting on a Uniform and made a promise.

A promise I refuse to break.

Posted by: BS Detector | Dec 24, 2005 12:50:46 PM

I think anyone who disagrees with defending the Constitution from all enemies, foreign and domestic, and sides with the violators of the Constitution is Un-American.

Posted by: BS Detector | Dec 24, 2005 12:52:25 PM

Any enemy of the Constitution is an enemy of mine.

Posted by: BS Detector | Dec 24, 2005 12:53:33 PM

"Have you ever seen an affadavit for a wiretap? No less than 60 pages long."

FISA allows the NSA to start wiretapping someone before they get a warrant. They just have to apply for one within 72 hours after the fact. So Bush's "we have to act fast" excuse is completely bogus. They're hiding something they didn't want the courts to see.

Posted by: LondonLee | Dec 24, 2005 1:06:20 PM

"I think this all politically motivated by people who want to bash Bush. These same people sat silent while Clinton did his shenanigans.

I don't like Bush either, and I didn't like Clinton. But the safety of the people is more important than partisan positioning."

I am not wild about Clinton either, however there is a vast difference between lying about a sordid sexual episode and breaking the 4th Amendment as well as the FISA law. Comparing the two is patently ridiculous.

Honestly, what Clinton did in the privacy of his office is none of my business. However the fact is, that he harmed no one but Monica, Hillary and himself.

On the other hand, Bush has harmed thousands who have had their 4th Amendment rights ignored. And for what? So that he could spy on Quakers and suggest that they were terrorists? Or Greenpeace, or whoever else?

If it was even slightly sensible to wiretap these folks, Bush could have used FISA to do it.

And the fact that the best example of a failed plot they could come up with is some nitwit who wanted to take down the Brooklyn Bridge with a torch is proof of how ridiculous the "they have saved us from the terrorists" excuse is.

And for those of you who want to give up your freedoms for "security": How does wasting our time, money and energy with wiretaps of people who obviously yielded no useful information make us secure? (Why aren't they using that energy to secure our borders - they've gotten dummy nukes through the Mexican border several times, just to test it.) How does the possibility that someone might use our personal information which was overheard make us more secure? (For instance they could have stolen your credit card numbers.)

How does it make you secure when the President of the United States, who has sworn to uphold the laws of our country, is willing to callously break them? What other laws is he willing to break?

Perhaps the one that stops him from dragging you out of your home for no reason at all, denying you right to counsel or even to allow your family to know what happened? Perhaps the one that prevents you from being tortured, regardless of the fact that you know nothing?

For those who are willing to give up freedom for "security", Ben Franklin had a few words for you.

Posted by: Lemur | Dec 24, 2005 1:40:34 PM

I suspect that what is being hidden is that they have wiretapped many suspects or contacts of suspects on a hunch or on flimsey evidence.

The wire taps should be subject to scrutiny, and not freely done without explanation.

Posted by: Zephyr | Dec 24, 2005 1:42:05 PM

Zephyr: assuming good faith on your part aren't you disturbed by the callous disregard for the Law (and for that matter treatiers that became laws) exhibited by this administration.

The President has ample opportunities to change laws, make new ones, etc. Let him do so.

Right now he's not better than a petty criminal. Shame!

As for security concerns, if MI5 with their CCTV everywhere and wiretaps couldn't stop the London Bombings... what hope does this perenially incompetent administration have? Realistically I'm in favor of more security, the the current bunch of clowns seems to me more devoted to power-grabbing than true security.

Posted by: Lupin | Dec 24, 2005 1:44:21 PM

The finanical industry is not interested in the government having access to insider information.

Why Barrons cares:

Applied: Arrests overdue

The chairman and chief executive officer of Palm Beach technology company Applied Digital Solutions (Nasdaq: ADSXE) said news of the arrests of individuals who may have manipulated Applied shares is long overdue.

On Wednesday, Reuters reported an FBI special agent and former agent were among five people indicted for using confidential law-enforcement information to operate an insider stock market trading and extortion ring.

http://www.bizjournals.com/southflorida/stories/2002/05/20/daily113.html

Data mining can be exploited for financial gain.

~~~~

BR responds: Barron's is not a defender of Wall Street -- they are historically cynical, and have long looked at the shenanigans of the major firms, CEOs, brokers, etc. with distaste and disgust.

So you are barking up the wrong tree here . . .

Posted by: Nicole | Dec 24, 2005 1:50:28 PM

I am concerned about meaningful violations and potential abuses by the people in positions of power -- including but not limited to the President.

I am conserned about the safety of our people and other people in the world who are at risk because of terrorists and oppressive regimes.

Sometimes the work of preventing the terrible requires commision of acts that are themselves not ideal.

The power to do these things must not be absolute, and must not be absent as well. Some things can only be done in secret.

I do not know where the wiretaps under discussion here fit into this reality. But, I do know that we face real danger and the trades offs must be considered. It is not a simple as the one dimensional issue of a law being broken.

Posted by: Zephyr | Dec 24, 2005 1:57:58 PM

It is not a simple as the one dimensional issue of a law being broken.

(remember that promise? Oath of office? That promise to God? Remember?)

Tell it to the Creator on Judgement Day.

Posted by: BS Detector | Dec 24, 2005 2:03:03 PM

I can hear you now,

"Trade-offs had to be be considered God. It is not a simple as the one dimensional issue of a promise being broken."

Yeah, go tell it to God!

Posted by: BS Detector | Dec 24, 2005 2:06:03 PM

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