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Censure: Time to Do the Right Thing

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Patrick Fitzgerald revealed a very damning bit of information regarding the President today and it seems to be having a profound effect in both the political sphere and the media.  It happened on the same day that Alberto Gonzales went up to Capitol Hill and suggested that the President believes he has the legal authority to ignore FISA and tap domestic-only calls.

Says mcjoan:

He has unapologetically admitted to flouting FISA. He has penned signing statements to legislation stating that he won’t comply with it if he doesn’t want to. He has authorized leaking of classified information for purely political purposes. And now he sends his toady to the Hill to tell Congress he’ll happily violate the Constitution.

Who in their right mind is making the argument that this President is not deserving of censure?

Apparently a lot of people, many of whom have "D"s next to their name.  Nancy Pelosi is but one of them, but she did it this morning over at Kos:

I am deeply concerned by the President’s justification for his domestic wire tapping program and the Administration’s unwillingness to provide details of the program to members of the intelligence committee.  Senator Feingold’s complaints served to highlight some critical issues about the program and the lack of accountability in the Bush Administration. This is a serious matter and all of the facts about the surveillance program must be fully investigated before we start talking about punitive action.

I took issue with this over at Kos because I do not think the reality of the situation is getting through to our political leaders.  Leaving aside for a minute that no serious investigation in a GOP-dominated congress is possible, and that most of the Democrats on the Judiciary Committee boycotted the investigative hearings into this matter only last week.  It’s beside the point.  As Glenn Greenwald has stated over and over, there is no question that the President of the United States broke the law:

MYTH/EXCUSE NUMBER ONE: An investigation is needed before it can be known whether the President broke the law.

This has become the favored weapon of evasion for most Democratic Senators. Most who have refused to take a position on the Feingold Resolution have used the excuse that there has to be a full investigation before they can know if censure is appropriate. We have heard this excuse from, among many others, Senators Salazar, Stabenow, Bingaman, Levin and Dodd. That is just a small sampling of the list of Democrats who have claimed not to be able to take a position on the Feingold Resolution until an "investigation" is conducted.

Bush supporters have also been peddling this same myth. In his angry and rather uncontrolled rant this weekend on Chris Wallace’s show, Brit Hume proclaimed that it was somehow outrageous for Senators such as Feingold and Tom Harkin to attack the illegality of Bush’s warrantless eavesdropping when they "have not even been briefed on the program" — as though we do not yet know enough about the program in order to determine whether it is illegal.

This excuse for not taking a position on censure is not only false, but also outright illogical on its face. There are two distinct and independent issues raised by the NSA scandal:

ISSUE 1: Did the President break the law when he ordered warrantless eavesdropping on Americans?

ISSUE 2: What was the scope and extent of the President’s secret eavesdropping? Did the warrantless eavesdropping include only international calls, as he claims, or purely domestic calls as well? Were only suspected Al Qaeda members eavesdropped, on as he claims, or did the eavesdropping extend beyond that? How was it determined who would be eavesdropped on? And what was done with the information?

These issues are separate and distinct. Issue 1 is what Feingold’s Censure Resolution concerns. It is the "Illegality Question," i.e., whether the President broke the law when ordering warrantless eavesdropping on Americans. Issue 2 is the "Abuse Question," i.e., whether the President abused the eavesdropping powers he secretly exercised in violation of the law by, for instance, eavesdropping on Americans who have nothing to do with Al Qaeda or eavesdropping beyond the scope what he has claimed.

It is unquestionably true that an investigation is needed – urgently needed – in order to learn the answers to the questions relating to Issue 2. We do not know the scope and extent of the President’s warrantless eavesdropping precisely because he eavesdropped in secret in violation of the law, rather than with judicial oversight. That is why it is so inexcusable that all of the Republicans on the Senate Intelligence Committee voted against Sen. Rockefeller’s motion to conduct an investigation to find out the answers to these questions.

But in stark contrast to Issue 2, all the facts necessary to know the answer to Issue 1 are already disclosed, are publicly available, and have been admitted by the Administration. Therefore, while an investigation into Issue 2 is imperative, all of the facts relevant to the question of whether the President broke the law (the only issue raised by the Feingold Resolution) are already known, and for that reason it is illogical to claim that an investigation is needed before that question can be answered. Put simply, we don’t know the scope and extent of the President’s illegal eavesdropping, but we do know that the eavesdropping he ordered was illegal.

Under FISA, it is a criminal offense to eavesdrop on Americans without the oversight and approval of the FISA court. Section 1809 of FISA expressly provides that "[a] person is guilty of an offense if he intentionally – (1) engages in electronic surveillance under color of law except as authorized by statute. . . ." And Section 2511(2)(f) provides that FISA "shall be the exclusive means by which electronic surveillance . . . may be conducted." Thus, a person has broken the law if — as the President admits he did — he orders eavesdropping on Americans without complying with the warrant requirements of the statute. Period.

The Administration admits that it did just that — that the President ordered exactly the warrantless eavesdropping which FISA makes it a criminal offense to engage in. The Administration does not deny this fact. They admit that the eavesdropping they engaged in is exactly the eavesdropping for which FISA requires judicial approval, but defend themselves only by claiming that they had the legal right to engage in this eavesdropping without complying with the law. Here is Alberto Gonzales making this precise admission at his December 19, 2005 press briefing with Gen. Hayden:

Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides — requires a court order before engaging in this kind of surveillance that I’ve just discussed and the President announced on Saturday, unless there is somehow — there is — unless otherwise authorized by statute or by Congress. That’s what the law requires.

That is Gonzales admitting that the warrantless eavesdropping they engaged in is the type for which FISA requires judicial approval. By definition, there is no investigation needed to determine whether the Administration engaged in warrantless eavesdropping prohibited by FISA because that fact is not in dispute.

In defending itself, the Administration is offering only legal arguments — not factual disputes — as to why it had the right to eavesdrop without complying with the law (namely, that the President has inherent authority to eavesdrop even if the law prohibits it, and that Congress gave him implicit permission to eavesdropping outside of FISA when it enacted the AUMF). But the Administration is not denying — and has never denied — the fact that it engaged in the very warrantless eavesdropping covered by FISA.

Thus, no investigation could even conceivably shed further light on the question of whether the President broke the law. We know he did that. The sole question which Senators have to answer is what they think the consequences ought to be, if any, for a President to order eavesdropping on Americans citizens which Americans, through their Congress, prohibited by law.

An investigation cannot answer the question as to whether U.S. Senators ought to take a stand against deliberate and ongoing lawbreaking by a President. Only U.S. Senators can answer that question, and they already have all the facts that are relevant to that question already before them. Claiming that they need further "investigation" before taking a position is nothing short of an abdication of their responsibilities, an obvious tactic for avoiding the question of whether they oppose lawbreaking by the President.

I do not know what language we are going to have to begin speaking before this gets heard.  The President broke the law.  It’s not open for debate.  They’ve admitted it.  Today we learn that the President authorized the leaking of classified information for nothing more than political gain while the American public could not be told about serious intelligence community doubts as to the existence of WMDs contained in that same information.

What the hell is it going to take before politicians stop cynically playing the percentages game and take a stand, like Russ Feingold, Barbara Boxer, Tom Harkin and Pat Leahy to do the right thing?   

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Jane Hamsher

Jane Hamsher

Jane is the founder of Her work has also appeared on the Huffington Post, Alternet and The American Prospect. She’s the author of the best selling book Killer Instinct and has produced such films Natural Born Killers and Permanent Midnight. She lives in Washington DC.
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