The Impeachment of George W. Bush
On December 17 President Bush acknowledged that he repeatedly authorized wiretaps, without obtaining a warrant, of American citizens engaged in international calls. On the face of it, these warrantless wiretaps violate FISA, which requires court approval for national security wiretaps and sets up a special procedure for obtaining it. Violation of the law is a felony.
While many facts about these wiretaps are unknown, it now appears that thousands of calls were monitored and that the information obtained may have been widely circulated among federal agencies. It also appears that a number of government officials considered the warrantless wiretaps of dubious legality. Reportedly, several people in the National Security Agency refused to participate in them, and a deputy attorney general even declined to sign off on some aspects of these wiretaps. The special FISA court has raised concerns as well, and a judge on that court has resigned, apparently in protest.
FISA was enacted in 1978, against the backdrop of Watergate, to prevent the widespread abuses in domestic surveillance that were disclosed in Congressional hearings. Among his other abuses of power, President Nixon ordered the FBI to conduct warrantless wiretaps of seventeen journalists and White House staffers. Although Nixon claimed the wiretaps were done for national security purposes, they were undertaken for political purposes and were illegal. Just as Bush's warrantless wiretaps grew out of the 9/11 attacks, Nixon's illegal wiretaps grew out of the Vietnam War and the opposition to it. In fact, the first illegal Nixon wiretap was of a reporter who, in 1969, revealed the secret bombing of Cambodia, a program that President Nixon wanted to hide from the American people and Congress. Nixon's illegal wiretaps formed one of the many grounds for the articles of impeachment voted against him by a bipartisan majority of the House Judiciary Committee.
Congress explicitly intended FISA to strike a balance between the legitimate requirements of national security on the one hand and the need both to protect against presidential abuses and to safeguard personal privacy on the other. From Watergate, Congress knew that a President was fully capable of wiretapping under a false claim of national security. That is why the law requires court review of national security wiretaps. Congress understood that because of the huge invasion of privacy involved in wiretaps, there should be checks in place on the executive branch to protect against overzealous and unnecessary wiretapping. At the same time, Congress created special procedures to facilitate obtaining these warrants when justified. Congress also recognized the need for emergency action: The President was given the power to start a wiretap without a warrant as long as court permission was obtained within three days.
FISA can scarcely be claimed to create any obstacle to justified national security wiretaps. Since 1978, when the law was enacted, more than 10,000 national security warrants have been approved by the FISA court; only four have been turned down.
Two legal arguments have been offered for the President's right to violate the law, both of which have been seriously questioned by members of Congress of both parties and by the nonpartisan Congressional Research Service in a recent analysis. The first--highly dangerous in its sweep and implications--is that the President has the constitutional right as Commander in Chief to break any US law on the grounds of national security. As the CRS analysis points out, the Supreme Court has never upheld the President's right to do this in the area of wiretapping, nor has it ever granted the President a "monopoly over war-powers" or recognized him as "Commander in Chief of the country" as opposed to Commander in Chief of the Army and Navy. If the President is permitted to break the law on wiretapping on his own say-so, then a President can break any other law on his own say-so--a formula for dictatorship. This is not a theoretical danger: President Bush has recently claimed the right as Commander in Chief to violate the McCain amendment banning torture and degrading treatment of detainees. Nor is the requirement that national security be at stake any safeguard. We saw in Watergate how President Nixon falsely and cynically used that argument to cover up ordinary crimes and political misdeeds.