We are in the midst of a constitutional crisis. The President has admitted his repeated violations of a federal statute, the Foreign Intelligence Surveillance Act, and announced his intention to continue violating the statute. The issue can be framed as a threat to civil liberties, but the more fundamental and resonant issue is not about wiretaps and privacy. It is about the balance of powers, an issue that anyone who ever took high school civics knows casts the President in the wrong. In our system of checks and balances, the Executive may not ignore laws duly enacted by Congress, a co-equal branch. No President since Nixon has similarly thrown down the gauntlet, renouncing his constitutional duty to see that the laws of the United States are faithfully executed and thumbing his nose at Congress. This is a constitutional crisis, and talking points should frame the issue that way.
Congressional hearings, held next year, are not enough. Preferable options, at least worth considering, might include:
- Robert Byrd v. George Bush. Much as he did in the line item veto case, Senator Byrd could file suit, this time to enjoin the President from further violations of FISA, which the President has announced he intends to continue violating. Whether the suit ultimately succeeds, it would frame the President's actions, in an attention-grabbing way, as the challenge to our system of government that they are.
- There should be calls for a grand jury to investigate the roles of executive branch officials in aiding and abetting, committing, or conspiring to commit violations of FISA. Warrantless eavesdropping in violation of the Act is a criminal offense, "punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both." 50 U.S.C. § 1809.
- As others have argued, articles of impeachment!
A few facts about FISA: (1) In a quarter century, the FISA Court has rejected four government applications for warrants;
http://www.epic.org/... (2) FISA specifically authorizes the Attorney General (or his designee) to start a wiretap, without a warrant, as long as a retroactive application for one is made after the fact -- "as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance." 50 U.S.C. § 1805. Exigent circumstances and the need for instant decisionmaking with respect to eavesdropping are accommodated by the statute; they cannot provide a rationale for the President's violations of it.