Update

Thinking Loud

For those arriving via the Sock Puppet Show, I no longer post at Glenn Greenwald's blog for reasons that should be obvious. Nor do I maintain this blog or seek traffic to it. For the past couple of months I have been posting at QandO, which I highly recommend for those interested in non-partisan, respectful discussion of substantive issues.

The Time is Now

Very important things are happening now and they are happening fast. This is a real moment in the history of this nation. What are the limits of Presidential power? Is the President bound by the law? Those questions are being decided at this moment in the halls of the Senate. Please make your opinions known to the Senators who matter most at this crossroads in our history: Hagel and Snowe on the Inteeligence Committe and Specter and Graham on Judiciary.

It is the time for action. The NSA spying investigation is at a critical moment. It is time -- it is urgent -- that pressure be brought to bear on all vital Congresspeople. We must ensure passage of the Rockefeller bill in Sen Intel to authorize a meaningful investigation into the Bush Administration's FISA lawbreaking. And we must ensure the defeat of DeWine's Nixon Law in Judiciary that would sweep it under the rug ("if the president does it, that means it's not illegal"). I have already contacted all of the above senators and I urge all of those who care about this issue to do the same immediately.

Now is the time! This may all be decided by next Tuesday. The Bush Adminstration is in full pressure mode to get the Senate Republicans to whitewash this criminal activity.

This is from yesterday's LATimes:

Republican senators reported progress Wednesday toward developing legislation that would impose stricter congressional and judicial oversight on the Bush administration's warrantless domestic spying program.

Senators who took part in an ad hoc working group said there was agreement that Congress should permit such National Security Agency intercepts as long as the administration would be required to seek a court warrant at some point after a terrorist suspect had been identified. The legislation also would increase the number of members of Congress who are kept informed about the surveillance activities, probably through a special subcommittee in each chamber.

Under the program authorized by President Bush shortly after the Sept. 11 attacks, the NSA does not need a warrant to intercept international communications by people in the United States with suspected links to terrorists.

Lawmakers said that divisions remained on many specifics, though, and that it was too soon to describe the discussions as reaching a consensus.

"We've got to get it resolved, and we can't bring anything to the floor until we have agreement among the core senators, which we don't have yet," said Sen. Mike DeWine (R-Ohio), a member of the Senate Intelligence and Judiciary committees, whose proposal appeared to be gaining support among Republican leaders.

A meeting convened Tuesday by Senate Majority Leader Bill Frist (R-Tenn.) "produced great progress in unifying senators around a core approach to terrorist surveillance legislation," Frist said in a statement.

The White House, as I understand it, has agreed to nothing so far, but is undoubtedly hoping for a global resolution capped by the Nixon Law. The Bush Administration is likely hoping that it can can get away with agreeing to only further cosmetic Congressional oversight. The deal is that the Senate Judiciary Committe will be the vehicle for the Nixon Law, which is why Frist told DeWine (the Nixon Law proponent) and Spector to come up with a single bill the White House and Senate Republicans can live with.

There are many moving parts in this, and it is unclear what the resolution will be. However, this is the critical period because the Senate Intelligence Committee meets again on Tuesday and that appears to be the deadline for an agreement. If no agreement has been reached by then, Hagel and Snowe have said they will vote in favor of Rockefeller's broad investigation.

Post-Partisan Progressivism

I am a great admirer of Glenn Greenwald. I think he is constructively trying to direct the power of the internet into public affairs and politics. Further, having just endured the Sunday talk shows, I am affirmed in my opinion that the quality of debate is significantly higher in this blog than that offered by the TV news outfits. Putting those two things together, I think Glenn has embarked on a worthy undertaking in trying to enlist grass-roots internet support to impact politics and political changes. I applaud those efforts and will suppport them to the extent they are non-partisan.

I am non-partisan and, frankly, sadly, I think neither of the two main American political parties is deserving of admiration. I have thoughts on why that is, but for the moment I'll put that issue aside.

My question is this: Do others wonder, as I do, whether progressive bloggers of all political affiliations should attempt to coalesce around specific politicians and political candidates who demonstrate the qualities needed in political leaders in these dangerous times (again, regardless of their political affiliation)? Here, I am referring to basic qualities like integrity, intelligence and courage. I think that if we had a significantly higher percentage of political leaders who possessed those qualities, this country would be a lot better off, regardless of the specific policy positions held by those politicians. After all, the fundamental tenet of democracy is that honorable citizens can resolve their policy disagreements. I do believe, however, that the core qualities of integrity, intelligence and courage are essential and should be considered prerequisites for serious political candidates, and certainly must be present to receive the support I discuss here. On the other hand, policy positions do matter, of course, and this reality might well engender a splintering of follow-through support for particular candidates.

I know this is something of a radical concept and may be met with derision, but I really question whether it is time to move beyond partisan attacks and counter-attacks. Maybe it is time to consider each candidate on his or her own merits, regardless of which political party sponsors them.

To those who agree with me so far, I have a couple of other questions. First, should the progressive internet support be directed towards a single national figure or an array of political leaders? I have always liked Senator McCain and strongly supported him against Bush in 2000. Also, there have been several posts on this blog mentioning Senator Russ Feingold as deserving of the kind of support I am discussing; I have done some research and I tend to agree. Do people have opinions on Feingold or McCain? Finally, what other political leaders have exhibited the qualities this country needs?

Anyway, I'm just thinking out loud here. I've heard many progressive voices on this blog and wanted to get input.

Thanks.

The Offense of the President's Defense

I wrote this in April of 1998


Independent Counsel Kenneth Starr is presently investigating, among other matters, allegations that President Clinton committed perjury, suborned perjury, intimidated witnesses and obstructed justice in the course of a civil lawsuit. The President’s defenders have declared in response that the president is not beneath the law and has the same rights as all other American citizens. Using this premise as a springboard the Clinton team has maligned the investigation, impugned the integrity of the investigators, and trivialized the offenses being investigated. The view of the President's defenders is that President Clinton has the right to defend himself in the same manner as any other American citizen who might be the target of a criminal investigation.

This premise has superficial appeal and has gone unchallenged, but it is wrong. Although citizen Bill Clinton has precisely the same rights and duties as every other American citizen, President Bill Clinton does not. As president he has special rights and duties, including unique limits on the manner in which he may legitimately defend his personal interests.

One of the special rights afforded the president is executive privilege, which provides protection against disclosure of communications between the president and his senior aides in matters of national significance. As the head of the executive branch of government only the president can assert executive privilege. This privilege is not available to any other American citizen.

Another presidential right is temporary criminal immunity. All citizens except the president are subject to criminal prosecution. Even if there is overwhelming evidence that President Clinton committed crimes he cannot be prosecuted because he is shielded by his office. Only when President Clinton loses his presidential status, through impeachment or otherwise, can he be prosecuted. At that point Mr. Clinton would be the same under the law as everyone else, but as president he is afforded unique legal rights.

With rights come duties, and one of the primary duties of the president is to honor our system of justice. But despite this constraint, the major thrust of President Clinton's defense strategy has been an effort to de-legitimize Mr. Starr’s grand jury inquiry so that the public will lose confidence in the legal process and the results of the investigation. This effort is wrong because Mr. Starr is functioning under the authority of law, a law signed by President Clinton. If President Clinton actually believes that Mr. Starr is acting improperly there is a removal process provided in the law which the President is duty-bound to follow. It is not an acceptable substitute to denigrate the investigation and the investigators.

The damage from presidential attacks on the integrity of a federal criminal probe is profound, and is not limited to Mr. Starr’s investigation. Despite protestations that the criticism is tailored to Mr. Starr’s inquiry, there is inevitable collateral damage to the overall Federal system of criminal justice. The President surely knows, for example, that many of the tactics his defenders vilify when used by the Independent Counsel are routine practices in the Justice Department. The President also likely knows that the charges against the investigators are untrue or otherwise irrelevant to his guilt. Yet in the pursuit of purely personal goals President Clinton is willing to sacrifice respect for the branch of government he heads.

The systemic damage from the President’s defense is not limited to the criminal justice system either. The President’s defenders argue that perjury in civil cases is misconduct unworthy of prosecution, or even investigation. This position strikes at the heart of the American justice system, which is wholly dependent upon the integrity of its witnesses. It is shocking that the head of the executive branch would trivialize an offense that subverts the essential mechanism of the legal machinery. In doing so President Clinton has proven himself willing to sacrifice the integrity of the judicial process for his own political and legal expediency.

The president has obligations to the American public and to the administration of justice that transcend his private interests. When his personal rights conflict with his official duties his personal rights must yield. These constraints on the president’s private rights do not render him defenseless, but deprive him of those defenses that might adversely affect the administration of justice. The president cannot, for example, attempt to undermine a Federal investigation by demonizing investigatory practices, attacking the integrity of the investigators, and belittling the charges.

When Bill Clinton is no longer president he can behave like an ordinary criminal defendant. While he is president he must honor his office.

Post-Partisanship

Post-partisanship. That's what I advocate. I think this country has evolved so that political parties are either altogether unnecessary or can be relegated to a distinctly minor role in the political process. The enormous talent, effort, and, most of all, energy that is wasted by desperately adhering to the commands of a political party -- any political party -- is one of, if not the main reason, that the political process in the United States is so corrupt. Think about it: Of our two most recent presidents, one was impeached and the other should be impeached. I simply don't see how anyone can argue that the increasingly rabid partisanship demonstrated across the political spectrum is beneficial in any way. Indeed, in my view, the ferocity that increasingly attends partisan organizations is precisely what allows for the political ascension of the morally compromised and the mediocre. Demagogues thrive on that kind of energy. If you think the American political system is working just fine, then, by all means, delve even deeper into partisanship. If, on the other hand, you believe, as I do, that partisanship and political parties are part of the problem, then post-partisanship may be the way to go. People should think for themselves; not think as they are instructed to do so by some political hack overseer. Tools like the internet can make post-partisanship possible.

Thinking Loud

I am a non-partisan United States citizen. I voted for Bill Clinton (the first time) and then advocated vociferously for his impeachment after he committed perjury and obstructed justice. I voted for George W. Bush the first time as well, largely because I was disgusted with the Democratic party post-Clinton, and I now think that President Bush has broken the law and should be impeached. This gives me no pleasure. I am horrified that I have come to believe that the two most recent presidents are unworthy of their office. I believe that there is something wrong with the political process in this great country.

You can find my comments at Glenn Greenwald's blog, Unclaimed Territory. Mr. Greenwald, in my opinion, runs the most respectful, thoughtful, and intelligent politico-legal blog in the whole dang blogosphere.

I will add this. I believe that blogs like Mr. Greenwald's demonstrate the awesome democratic potential of the internet. Such innovations are how we, as a united people, can proceed.

The Nixon Law

"If the president does it, that means it's not illegal." So said Richard Nixon. Well, we have progressed quite a bit since those dark days. Now our mantra is "And if it is illegal, if it is violation of the law, then we'll just change the law so that it conforms with the president's conduct." I read in the Washington Post today that Republican Senators -- namely, Olympia Snowe, Mike DeWine, and Chuck Hagel -- have announced that they no longer support an inquiry into whether the Bush Administration has violated (and continues to violate) FISA. Instead of an investigation into whether there have been crimes committed by the Bush Administration, these Republican senators now call for FISA to be amended so that whatever the Bush Administration is doing, it will become legal. This is the so-called Nixon Law.

Well, why stop there? Why stop with FISA? Why limit the Nixon Law to wiretapping? According to the Bush Administration, political dissent gives "aid and comfort to the enemy." Isn't political dissent as worrisome as what people may say to one another in private? Why not just go ahead and make it explicit? Pass a law that says: The President can do whatever he chooses so long as he does it under the color of fighting terrorism. First Amendment? Bah! FISA? Ridiculous. Fourth Amendment, due process, right to counsel . . . Who needs them? They just interfere with the president's work. Richard Nixon would be so pleased.

Executive Order 12949: But Bill Clinton Said We Can Do It!

Well, no he didn't. And neither did Jimmy Carter.

Executive Order 12949, signed by President Clinton in 1995, and Executive Order 12139, signed by President Carter in 1979, each outlined executive branch procedures promulgated in compliance with FISA. These executive orders were issued in the wake of the enactment of the FISA statute (Carter), and then the amendment of the FISA statute (Clinton) and their purpose was to ensure compliance with FISA. For instance, in Executive Order 12949, Clinton wrote that the order was intended "to provide for the authorization of physical searches for foreign intelligence purposes as set forth in the [FISA] Act." Likewise, in Order 12139, Carter said that the order was based upon, "the authority vested in me as President by Sections 102 and 104 of the Foreign Intelligence Surveillance Act of 1978." Interestingly, President Bush himself issued an order, Executive Order 13383, on July 15, 2005, that also modified the executive branch's FISA procedures. Each of these three presidential orders affirms the executive's obligation to comply with FISA. No president, until now, has asserted the power to ignore or violate FISA.

Courts? We Don't Need No Stinkin' Courts!

If the President can do whatever he thinks appropriate, regardless of FISA's requirements, then what is the point of FISA? If, for example, the Bush administration had a wiretap application rejected by the FISA court (admittedly an exceedingly rare occasion), the Bush administration, according to its arguments, can simply ignore the FISA court ruling and conduct the surveillance anyway.

When one considers that fact, as well as the FISA emergency provision permitting post-hac review, the reason for the Bush administration's actions becomes clear: President Bush has been conducting electronic searches in circumstances that the FISA would not approve. The Administration, rather than be told so by the FISA court and then being in the stark position of defying the FISA court, chose to by-pass the FISA court entirely. One suspects, then, that the non-FISA searches were based upon reeds of suspicion so flimsy that no court would ever give its approval. And that is precisely the problem: unchecked, unreviewed, power wielded by the executive branch. That is how monarchs and dictators operate, not American presidents. Moreover, the presidential oath to uphold the constitution is an inadequate substitute. Kings take oaths, too; tyrants make promises; the question is whether they can be held accountable.

The "inherent" authority of the President to conduct foreign surveillance does not, in my view, survive FISA in any other than a residual capacity, should FISA be repealed, for instance, or in circumstances not covered by FISA. To be clear, FISA clearly covers the precise circumstances in which the Bush administration has secretly conducted (and continue to conduct, presumably) its electronic eavesdropping. For exigent circumstances, one of the FISA provisions permits immediate wiretap subject to post hoc FISA-court review within 72 hours. Moreover, neither FISA nor the Constitution grant the executive authority to conduct wiretapping that is unreviewable by any co-equal branch of government.

In my view, FISA plainly circumscribes presidential authority, notwithstanding the "encroachment" dicta in the FISA Appeals Court 2002 decision. This legislation was signed into law by two presidents in 1978 and 1995. Indeed, the very purpose of FISA was for the two political branches, each with its own constitutional authority in this arena, to create a procedural structure for foreign surveillance. (By the way, Gorelick's 1994 statement acknowledges the authority of Congress to so legislate.)

However, even if the "inherent" authority of the President to conduct foreign surveillance is more than dormant post-FISA, "inherent" authority is not the authority claimed by the Bush administration: it is not absolute authority; it is not unchecked authority; and it is not unreviewable authority. And the presidential oath of office is hardly an adequate substitute: kings take oaths, too.

The so-called "inherent" authority of the President was subject to judicial review even before FISA was enacted, and, surely, FISA did not expand the power of the presidency. FISA did not make the executive the sole arbiter of foreign surveillance activities -- unchecked and unreviewed. That power was never vested in the United States presidency, either before or after FISA. Yet, that is precisely the power that the Bush administration arrogates to itself.