Dot Connections

Conservative business magazine, Barron's, has published an editorial that echoes the points I made in my December 21, 2005 post on this blog. An excerpt from the Barron's Editorial:

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.

Personally, I do not believe President Bush will actually face impeachment for this. Although the President arguably disregarded FISA in ordering the warrantless NSA surveillance, he will be able to say he was motivated by his duty to protect the American people, and that he relied on qualified legal advisors who told him he was not required to comply with FISA. Similar to his defense that he relied on flawed intelligence that he claims he did not know was flawed in deciding to invade Iraq, the President will say it is not a high crime or misdemeanor to rely on legal advice that he had no reason to believe was erroneous. And nothing short of a U.S. Supreme Court decision saying so will legally establish that the President's legal position is erroneous. The likelihood of such a case ever reaching the U.S. Supreme Court is miniscule, at best.