High Crimes And Misdemeanors

As sickening as Big Brother counterintelligence is in abstract, it is essentially legal. The Foreign Intelligence Surveillance Act of 1978 enables the executive branch to monitor domestic communications provided that the government can obtain a warrant from specially empaneled FISA courts in camera (i.e. in secret). The reason the NSA program is newsworthy is that it specifically bypassed FISA, which is, obviously, the only mechanism that can provide oversight for such surveillance. The administration and its apologists claim that it was necessary to conduct warantless surveillance because a FISA court might not grant a warrant in a case in which, post-9/11 mugging by reality and all, rational assessment of the risk involved would justify surveillance even if strict adherence to the letter of the law would not. The administration and apologists further claim that even when FISA grants a warrant, it does not always do so quickly enough to meet the unyielding deadlines of national secuirty necessity. Both claims are simply false:

1. Between 1979 and 2002, the FISA court rejected 0 (zero) warrant applications. In 2003, it rejected 4 (four). In 2004, it rejected 0 (zero). This is out of thousands of applications per year. And of the four applications that were rejected, several were modified and later approved.
2. FISA specifically provides the attorney general emergency power to conduct surveillance prior to application for a warrant just as long as he applies for a warrant within 72 hours of doing so---i.e., the AG merely needs to apply for a warrant within 72 hours of commencing surveillance, so any footdragging on the part of the FISA court does not delay national security work in the slightest. See 50 USC § 1805 (f).

So, Tom Lehmanite panglossianism aside, the government's infringements on individual liberty were literally purposeless---the law provides a mechanism through which they can do whatever it is they have deemed it necessary to do. The administration chose to break the law anyway.

Lawbreaking is precisely what this is about. The NSA domestic surveillance program was not merely extra-legal and extra-constitutional; the US Code specifically prohibits any domestic surveillance except through the FISA mechanism. When the president, in his weekly radio address, claimed that "The authorization I gave the National Security Agency after September the 11th helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities," he was uttering simple untruth. I hesitate to claim that he was lying only because it is not at all apparent that he minimally comprehends the legal issues involved. On the other hand, a Yale Law graduate like Glenn Reynolds who throws up his arms in indecision about the legality of the NSA's conduct is a paradigm of prostrationism. The simple fact is that the relevant federal statute is unambiguous:

[P]rocedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted. Cf. 18 USC § 2511 (f).

According to the AP, the president personally approved explicit and direct violations of this statute on more than three dozen separate occations. In simple terms, the president's conduct was criminal, not in the metaphorical sense in which most of his conduct as president has been criminal, but in the strict de dicto sense in which the various legal mechanisms for remedying crime are triggered. The president's crimes, moreover, are high crimes. There is only one adequate remedy: Mr. Bush's immediate impeachment, removal from office, and criminal prosecution.

ADDENDUM: John Yoo, the leading and only exponent of the constitutional theory of dictatorial powers inherent in the presidency, is the prime mover behind the administration's violations of domestic and international law regarding torture, and now, as we have learned, domestic surveillance. Yoo is currently comfortably ensconced as a Professor of Law at Boalt Hall at the University of California. This is an intolerable situation. He used delegated executive powers specifically to subvert the laws and Constitution of the United States. His sorry ass needs to be tried for crimes against the American people and Congress.

UPDATE: I see that AG Gonzales has been on the boob tube claiming that the post-9/11 authorization of force granted the president the power to conduct warrantless domestic spying. Disbar him.

UPDATE: Thanks to Kieran Healy at CT for the link.