This is an amalgam of three lengthy comments I have posted in the past 24 hours plus new thoughts about the wiretap issue. I think what we have here is a GEN-yew-wine Constitutional Crisis. I haven't researched it down to the nub independently because I figure there's about a million lawyers--like me--and another twenty million non-lawyers doing that right now. But there are some things that I just know by experience and I'd like it acid-tested by the Kommunity.
Let's keep it real, real simple, mainly for me: we have what appears to be a clear violation of a federal statute. Not only that, we have what appears to be a clear admission of that violation by the Chief of State and a rather clear evidentiary trail. The statute itself provides this defense:
It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
http://www.law.cornell.edu/...
Of course, that lack of a warrant is the pervasive, and self-admitted, bugaboo of the White House and rather kills off this defense. In these circumstances, prima facie criminal liability seems obvious and "innocent until proven guilty" does not apply any longer. There's a bit more to do, however, as the question of criminal liability pivots to whether the conduct was either justified or excused.
Those, my Kossackian friends, are affirmative defenses outside of the statute, meaning the burden is on the accused to persuade the trier of fact and/or a jury of peers that in spite of everything in front of them, there is no criminal liability. This is much easier said than done.
Let's look at justification. A violation of law could be justified if a true emergency existed, but we've learned over the past 48 hours (see Talking Points Memo) that the warrants required by FISA are absurdly easy to obtain and can even be obtained retroactively. So, unless the Bush Administration can point to a definitive, honest-to-goodness emergency, like an imminent attack or something, "justification" does not apply.
As the announcement says, "Had there been an actual emergency" Bush could have just closed the loop with a retroactive warrant. We also know that his politics dictate trumpeting every single supposed heinous act prevented or barbarous Islamic assassin his bloodhounds track down. But since this story broke for the first time mere days ago, these wiretaps did not come up as being helpful to law enforcement in any of the very, very few terrorism trials we've had, nor has there been any pronouncement of an attack foiled by this method.
So, I'm going out on a short and sturdy limb by saying, no justification. If justification existed, it would have to have been based on an emergency or a victory over terror, and either would have been publicly announced. To dredge one up now would be highly suspect; this is not the kind of thing that can be made up out of whole cloth and so far after-the-fact.
If no justification applies, let's look at whether the violation can be excused for another reason. In this circumstance, it must be shown that there is a legal rationale that overcomes what appears to be a host of offenses, but I see only legal problems upon legal problems in excusing the statutory violation. The only way to excuse what the President did is to do what we see happening now: reach, scramble, dissemble and find very complicated rationales. Invariably, tortured (dark pun intended) legal analysis is also wrong legal analysis.
The defense that Bush is already mounting publicly is reliance on counsel. How the administration's having these wiretaps reviewed by "the highest legal whatchamacallits in the administration" possibly salvages the legality of this conduct has me rather curious, since it is still a completely unchecked use of power, but it's a legitimate defense to advance. Let's take a look, shall we?
Reliance on opinion of counsel is the kind of defense where you have to be pretty damn careful as a judge on when and how to allow it or how much weight it should be given. Common sense tells us reliance on counsel can only be carefully and restrictively applied or you'd never be able to prosecute, say, under RICO because Joey "The Clown" Lombardo would just go "HEY, I AKSED my LAWYER and he said 'youse guys are OK on dis' so we DID IT."
There are some serious flaws in this Bush defense. First, reliance on counsel should be more freely available as a defense in civil cases where taking an action in a murky situation when you relied in good faith--another major potential Bush problem in this defense--on counsel's advice and it got you into a lawsuit. Otherwise there is no point to having any criminal law. When lawyers can provide just enough of a rationale to break a law, any law, American criminal justice as we have known it for over 200 years is over.
The risks of allowing this defense or, at least, its lack of credibility are especially prevalent where bad advice from counsel seems so extremely unlikely. The words and intent of any criminal statute are by necessity as clear and direct as possible in order to meet the Due Process requirement of the Constitution. The words of this statute are abundantly clear:
(a) Prohibited activities
A person is guilty of an offense if he intentionally--
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.
So there should be no misunderstanding here.
Second, as far as I know at this time, Bush relied on counsel who essentially are his employees. FISA, however, and laws like it are set up to avoid just that circumstance. This advice also should be viewed in the context of what is blatantly intended to be a federal governmental system of checks and balances, which makes this defense very problematic, and extremely non-credible.
Finally, it's a breach of an attorney's obligation to avoid a conflict of interest or appearance of impropriety to give his governmental employer advice on how to avoid the judicial review that is a clear part of the statute. So, I say it's got to be an independent counsel, at the very least, for the defense to even be allowed in this case.
One wrinkle here is, the place Bush seems to be going for his "reliance" argument is in his lawyers' understandings (or misunderstandings) of the grant of authority Congress conferred upon him post-9/11 to deal with Al Qaida. A major problem here is, since this was Bush's personal charter, he's damn sure the one obligated to make sure he gets it right especially in light of violating another statute that is so abundantly clear.
Maybe he is citing his briefings with congressional leaders as his "due diligence" but that fails him also. The words of Congress that make it into law are subject to judicial review, but changed only by Congress itself, and both of those exercises are absent here. It really doesn't even matter, however, because if Bush had a bad reading of his own grant of authority, making Congress aware that he was going to break the law does not retroactively make his actions legal--though I must admit, if someone like Nancy Pelosi was "up to speed" it makes me wonder what she's doing with her time. Of course, these White House "briefings" and "shared intelligence" are not always what they are cracked up to be. Still, the authority Congress granted Bush cannot possibly be interpreted as a grant of legal authority to break other laws that Congress passed and presidents have signed.
Finally, while "national security," "executive privilege" and "attorney-client privilege" will be invoked against the seeking of background information, no sane judge should allow those theories to prevent disclosure of the names of persons injured by the Administration's misconduct. The individuals most harmed can be shown to have no connections whatsoever to Al Qaida or terrorist activity so neither national security nor executive privilege should be in play. Neither will the attorney-client privilege fly when it is the nature of the representation itself, lapsed ethics and all, that would be put forward as a defense. As Jack McCoy says on "Law and Order" "The defense opened the door, your honor!"
Since I'm just an Unfrozen Caveman Lawyer, someone needs to tell me how in the absence of justification, excuse or a valid defense of relying on counsel's advice these wiretaps are not a violation of the FISA law; not a violation of the Fourth Amendment; not a violation of Separation of Powers; not a violation of whatever Congressional grant of authority was extended, post-9/11, to the President; and, finally, not a violation of the President's Oath to uphold and defend the Constitution. Then, someone needs to tell me how the underlings who cabbaged this ridiculous scheme together have not committed a boatload of crimes that are punishable without waiting around for impeachments.
Beyond this, I'm just too dumb to come up with any more arguments for the defense, and in the absence of the statute's own defense, justification or excuse, there are some very serious penalties for violations: Fines of $10,000 and up to four years' imprisonment. At a very minimum, I'd say each of the 30 or so times Bush authorized, you've got an offense but more likely I'd guess every single incident of listening is an offense.
Bottom line, Bush is screwed, and his staff is screwed, blued and tattooed. I'd be telling them to consider making their best possible deal right now.
Of course, the criminal penalty is not all. There are civil penalties associated with this one, too. Anyone found to violate the statute has this going for them:
An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover--
(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
(b) punitive damages; and
(c) reasonable attorney's fees and other investigation and litigation costs reasonably incurred.
I say, given the watery standards for identifying the "suspect" calls and callers, the ACLU, applicable anti-Arab defense leagues, and maybe even Al Jazeera are in court before year's end trying to get the names of everyone surveilled or at least those never connected with a crime or potentially suspicious activity. Just watch for the executive privilege and national security defenses here especially--giving all the more reason to filibuster Samuel Alito and keep the palpably sane Sandra Day O'Connor on the Supreme Court a while longer.
Ultimately, we could be looking at either hundreds of individual suits or a federal class action that will actually survive Bush's earlier law largely limiting other types of class actions. It would be a carnival of liability and, I'm guessing the liability would be both that of the federal government and of a more personal nature. Pardons don't make a difference in the civil trials and if Bush starts handing around pardons like moist towelettes at Red Lobster, I'd say you could put a fork in the Republican Party for a long, long time.
As for Bush himself, I have a hard time seeing how he should not possibly be impeached, convicted and removed from office. There's been a lot of "Internet chatter" on whether, for strategic reasons, the time is right for an impeachment. If the time is not right when the House comes back in January, it will never be right.
If Bush truly believes in himself and in his Presidency, let him put it to the test and raise his defenses in the only public forum provided for this purpose. No one contested Clinton's culpability; the issue there was whether his conduct amounted to a "high crime" or "misdemeanor." Well, the dumbass Republicans answered that one, and if our involvement in Iraq is a "judgment call" there are no subtleties here; a serious law with serious penalties was broken.
There must be an impeachment resolution now. It is viable beyond question. It would be the framework upon which to add everything else with which Bush should and could be charged. Assuming we have only seen the tip of the iceberg, the resolution and its debate would help to protect the "truth-tellers" in the Administration possibly even encouraging more disclosure with some assurance of immunity.
Also, strategically it's the right time for Brinkmanship. Waiting beyond the minimum time necessary to research, draft and submit the resolution is a sign of acquiescence. An impeachment resolution keeps the White House on the defensive. It is the ultimate test of Republican cohesion on Capitol Hill and it will destroy the Bush legislative agenda, what little is left of it. And I don't want to hear a single word about Cheney or Hastert--either would be an eviscerated Caretaker of State if elevated to the office, assuming we don't get President Pelosi, considering what a prolonged debate would do to the 2006 elections (and assuming she did not screw herself out of a job with those aforementioned wiretap "briefings").
An impeachment resolution would also recapture the media by force, stolen long ago. Any so-called conservative commentators would have to put their money where their piehole is--America: rule of law or rule of men?
Whether it gets an affirmative vote is utterly beside the point. Anyone voting against it--given the pathetic Clinton standard--will have violated their oath of office and placed politics above the law. Think about that--Newt Gingrich sewing the seeds of Bush's demise, not that I gather he's much of a Bush fan anyway.
I could well be over-reacting, or this could be just about the dumbest, most extremist, obvious, convictable, punishable exercise in illegality undertaken by any Presidential Administration in U.S. history. Bush laid the groundwork for his complete disgrace years ago.
To the extent this matter involves lesser officers than the President these actions are garden-variety crimes that can be taken up not only without impeachment but by routine law enforcement mechanisms rather than a special prosecutor.
The civil suits should start rolling in any day now, beginning with seeking the names of Americans whose rights were blatantly, illegally violated by the most bumbling Presidency in well over 100 years.
