When George W. Bush ordered spying on Americans
via the National Security Agency without a court order, he violated U.S. law. The Department of Justice and the White House has claimed that the President has "Constitutional and Statutory" authority to conduct warrantless wiretaps of Americans on American soil. That is a lie, and they know it full well. Bush, in his press conference, was practically yelling in anger at the official who disclosed this secret program to the media (whose identity has not been released). Why? Because Bush is genuinely angry. But not because of national security being compromised, like he claimed. He was mad because he was violating the law and he got caught.
But let's explore the Constitutional and Statutory authority Bush claims. The Constitution
is not a complicated document. The arguments on the president's constitutional authority have been based on two principle points: the 'granting' clause, and the president's Commander in Chief powers. The 'granting' clause is the clause that grants the president executive powers of the United States. Nothing more. The Constitution is clear as daylight that executive power is checked by legislative and judicial oversight. Executive power is the power to execute the laws of the United States, NOT
the power to break the laws of the United States.
The president cannot simply choose to ignore the laws by his position as the executive. He is not a monarch. And the President is the commander in chief of the US Armed forces. That means he has the power to conduct military operations in emergencies, by law, or when authorized by Congress (Congress has the power to declare war). That position as the Commander in Chief has absolutely nothing
to do with his audacity to break the law and spy on Americans. The president's war-making power is not a blank check for him to become a dictator, not even in war time. So the Constitutional argument is thinner than any piece of paper it might be written on. In fact, in doing this, Bush may well be violating the 4th Amendment to the US Constitution, which protects persons in the US against unreasonable searches and seizures, since "presidential whim" is not a qualified reason for search or seizure.
Now, the statutory authority. There are two exclusive ways, provided in the law, that people on American soil can be wiretapped or searched. One, the usual way of going to a criminal court in an open proceeding and obtaining a warrant. Second, in cases where confidentiality is required for national security purposes, the Foreign Intelligence Surveillance Act created a secret FISA court to approve wiretaps expediently for intelligence collection purposes. This court routinely acts within hours of a request being filed, and these requests are rarely denied. It is in place to strike a delicate balance between national security and our essential Constitutional liberties. If there is an emergency, FISA authorizes the president to start surveillance immediately without first notifying the court, so long as the Administration obtains consent from the court within 72 hours
of starting the surveillance. Some shrills from the administration claim that they have to wait
for 72 hours before the FISA court acts, which is a bold faced lie
. It is, rather, the president could wiretap for 72 hours without the court, so long he goes back after the wiretap starts and gets that consent. And as I said, the court acts within hours of a request on a regular basis. Barring these two, there are no other provisions in the law
providing any president any authority to spy on people within the United States. The Administration claims that the Afghan war authorization, in granting all necessary force to defeat the enemies who attacked us on 9/11, granted the president unchecked spying authority. That is also a bold faced lie. Nowhere in that authorization does it say a word about domestic spying. And those powers specifically applied to states and groups not inside the US. In fact Bush sought broad powers within the US, and Congress specifically refused
, only granting the power against those who "planned, authorized, committed or aided" in the 9/11 attacks. It did not grant any powers of domestic spying. For literal interpreters of laws and the Constitution, this claim of broad powers where none existed in the law would be hilarious, if it weren't so serious. Bush did not go to any court before he used the NSA to spy on Americans. He had no statutory authority.
Ergo, George W. Bush violated the law. It could not be clearer. Spying on Americans in violation of US law, violating Americans' 4th Amendment rights, and trampling on the Constitutional and statutory check of his executive power are individually and together qualify him of committing "high crimes and misdemeanors", the Constitutional justification for impeachment. It is high time Congress acted to protect Americans and the Constitution by invoking the Articles of Impeachment against George W. Bush.