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Let's Draft Articles of Impeachment!

Nothing I've read since I last touched on the subject suggests to me that the present NSA scandal will have much in the way of legs, and indeed references to it have largely been overshadowed by the Alito hearings. While there are some interesting constitutional and legal questions, NSAGate lacks one key ingredient necessary to create a proper political scandal: evidence of malicious intent.

Put it this way: unless one already hates G.W. Bush (in which case the evidence is irrelevant), the most the NSA program can be accused of is excess in the protection of American citizens against terrorism. Unless one can some up with a story of the NSA not only stumbling across an innocent conversation, but then somehow using it to a non-terrorist's detriment, there is simply no story here.

Bush's opponents know this, which is why every effort is made to drum corruption up out of thin air. As one critic put it, "One of the parties to an intercepted communication is not (or need not be) in any way affiliated with, or part of, Al Qaeda, nor in any way connected to the attacks of 9/11. It could be you, or me, or our grandparents." (emp. mine) This is a statement that's technically true, but for there really to be outrage, one needs evidence that Mr. Lederman's grandparents have been spied upon.

Among the radical left, the desperation to find such a hook is shifting from the funny to the slightly pathetic. Take this piece from The Raw Story, "National Security Agency mounted massive spy op on Baltimore peace group, documents show". (Hat tip, as you might expect, to Prof. Leiter, who takes it seriously.) Sounds horrible, doesn't it? And you can expect to see noises like "Well, Bush's NSA is even monitoring Quaker peace groups" from your favorite lefty websites, talking heads and politicians.

But credit to the Raw Story: though they try to bury the reality in the lower paragraphs, they do actually publish copies of the NSA documents that are supposed to get our blood boiling. It turns out that the "spying" done by the NSA consisted of little more than increased security at an NSA facility when this group decided to stage a protest without permission. They monitored the movements of this group on their way to the facility, while there, and shortly after, in a manner that might be slightly overexuberant, but still more policework than espionage. Now I know that among a certain set, the idea that one does not have the right to protest at any place or time of their choosing, including the visitor's entrance of a secure facility, is a sign of creeping fascism. Nevertheless, crying, "Help! Help! We're being oppressed!" at this juncture is not likely to make a mass movement.

Maybe the Republicans should take a hint from the Democratic playbook. Before the 2004 elections, Charles Rangel introduced a bill to bring back a live draft, which prompted enough posts about a hidden administration conspiracy that Republicans eventually had to bring the bill to the floor just to vote it down. It was a cunning bit of PR, and Karl Rove should take the hint: find a couple of moderate or dissenting Republicans and ask them to file articles of impeachment.

If the Democrats tried to impeach, Bush can pretty much expect polls in the high sixties as Republicans paint themselves as strong on security and Democrats seek vainly for a reason Joe Sixpack should concern himself with Fourth Amendment fetishists. [1] At the moment, John Kerry can "joke" about articles of impeachment if the Dems take the House in '06. This fires up the base nicely. So give the Democrats a chance before the election to show where they really stand. If enough Republicans announce an intention to "go along with their colleagues," then Democrats will find themselves having to either vote against the articles (and disappoint their base) or vote for them (and alienate the center).

Ah, one can dream. In the meantime, expect a lot more smoke and mirrors from the far left, a great many more flip-flopping editorials from the NYT, and not much in the way of political impact two weeks from now.

[1]: Yes, the Fourth Amendment is necessary, and we should pay attention to our Constitution, etc. etc. I'm not making an argument here that Con Law is irrelevant, merely that lawyers make the "defense" of the Constitution into a greater issue than it warrants politically. Look at it this way: suppose arguendo that Bush's authorization to the NSA violates an obscure section of FISA, but that he has done so out of a reasonable concern for national security and that FISA really isn't appropriate for handling vast packet-sniffing operations. Failing to punish Bush for this can be looked at as an act of prosecutorial discretion on the part of the American people.

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Ed Koch is no liberal, and he thinks the Administration is wrong on the surveillance issue: http://realclearpolitics.com/Commentary/com-12_21_05_EK.html As for "flip-flopping New York Times editorials," the piece you linked is incredibly shoddy. You might want to check out my fisking here: http://cathyyoung.blogspot.com/2006/01/playing-gotcha-with-grey-lady.html
Cathy: First, my apologies for the delay in your comment posting: I have no idea why MT put it in the moderation queue. Second, your fisking of the William Tate piece is quite strong on factual research, but misses the main reason I linked to it. You yourself do a little bit of creative revisionism. For instance, the difference you try to draw between the Clinton-era ECHELON defenses and the Bush-era NSA wiretapping is a bit ridiculous: it basically boils down to "Bush is openly admitting doing it, while we've got some pretty strong evidence that Clinton did as well, but he wasn't too up front." Further, you critique an Insight magazine piece as being based upon anonymous intelligence sources... but the NYT piece is based on nothing further than anonymous sources. The only difference is--as you highlight--that it wasn't followed up. Now, this might be because the accusation was baseless (though it certainly caused a ruckus in the parliaments of mainland Europe). It could also be because the NYT was not particularly interested in such a scandal at the time. Of course, this may not be bias so much as attentiveness. If G.W. Bush were giving the New York Times a huge sex scandal featuring interns, they might not be concentrating on the NSA either. My main point in the last paragraph was just to indicate that the NSA thing isn't particularly new: on a functional basis, there's been no real evidence that the program is much more expansive than ECHELON. If anything, it merely seems a bit more straightforward, in that the NSA wasn't necessarily redacting information before giving it to the FBI, and wasn't using foreign agencies as duck blinds. (One rumoured ECHELON-era FISA compliance method was simply using foreign agencies not bound by our protocols, and then "sharing" the information.) If that's the upshot of the scandal, I can't see it having much legs. As for Koch, I'd have two replies: anyone who can be mayor of NYC probably isn't THAT conservative, and second, his response echoes some of the technical mistakes frequently made in this scandal. A system of the type we're hypothesizing about--and remember, the NYT isn't really releasing the necessary details--wouldn't be workable if one had to go to the FISA courts. If it's a packet-sniffing operation (which seems the best guess going at the moment), then FISA warrants don't seem to cover the necessary ground. I may be wrong there, but again, it would be impossible to tell without a bit more technical detail.
Why are you adding an erroneous element of "malicious intent"? - there is no such element in the FISA statute in describing the penalties for violations. Maybe you're merely speaking to the *public outrage* factor (the "was grandma spied upon" analogy.) But the Evidenciary point is exactly the issue. Without the ability to have ANY oversight and a judicially approved rationale for the legally required warrant - and IF the Government is allowed to Plead National Secirity interests in both refusing to meet this criteria and provide list of WHO and WHY this was *necessary* -- How can one KNOW or ever Find out (1) that you were the subject of a wiretap; (2) prove your legal standing to object to this wiretap and (3) that the wiretap was *unwarranted* (pun intended). You put some metaphysical cart-before-the-horse in arguing unsubstantiated alterations in the laws requirements to meet some current Administration rationale for this activity - but NOT arguing within the Laws and limits as they are codified. This won't wash. (Legally speaking of course.)
Karen: You are, of course, correct in saying that, were I arguing before a court according to a FISA statute, the argument above would not wash. Looking about me, I don't see a court, I don't see an attempt at a legal argument here, and looking at the final paragraph of the blog entry I wrote, one finds that I'm talking not of FISA violations but political scandals. In other words, you have provided an utterly correct counterargument to an argument that was never made. I have no idea what your penultimate statement is supposed to mean, to be honest, but the "evidentiary" problem is pretty neatly solved. We know about this program (as we know about ECHELON) because of leaks. One would suspect that the same individuals leaking about the NSA program in total would be only too happy to leak information about the NSA spying upon domestic political opponents. So whilst not definitive proof, the fact that the NYT's stories have been as non-specific as they have is somewhat indicative. Finally, as to your comment on the law as it is and isn't, it would be interesting to know exactly what kind of wiretapping you think was being done here? The fact remains that FISA (and its requirements) aren't particularly well-designed for working with interception of packet-level data on (for instance) the internet. Certain types of spying that the public is likely to find unobjectionable would be very difficult to do within the FISA framework, which is why not only under Bush but Clinton, various dodges have been employed to allow ECHELON and other systems that deal with signal interception. Now, perhaps you wanted to read a piece on the law and FISA. Looking at what you've recently posted on Peripetia, I'd advise looking at Orin Kerr's work at Volokh so you could get a better grasp on the legal and technological issues. However, that wasn't my attempt. As your comment hamfistedly half-acknowledges, I was speaking to the politics of the matter: "was grandmother spied upon" was not an analogy to anything, but rather the point of the post. I suppose I should apologize to you for having the audacity to write a piece on the components of effective political scandal rather than the elements of FISA, but (a) I'm not particularly qualified to deal with that in detail, and (b) I didn't really feel like writing that piece, especially since Prof. Kerr's already done it. In any event, you're not the first to be disappointed that I wrote on the subject I wanted instead of a rather dry statutory argument, so I suppose I should just get used to it.
Some questions have popped into my head while reading this post. Are there any other laws your government can ignore without notifying anyone? How can we spot them? Which laws would cause a scandal were the government to ignore them? Or is it all in the manner in which you ignore them? eg. "Dumping all that waste has poisoned the whole town, but there's no evidence of malicious intent so it's not a scandal. They weren't to know the safeguards were there for a reason..." and finally, should the scandalworthyness or otherwise of breaking a law be a consideration either when choosing whether or not to abide by it or how to punish the offender?
Martin, Overly simplistic on two counts. First of all, there are colorable arguments to be made that no law was broken. FISA isn't as simple as--for instance--the Guardian is making out. Even aside from that, the dumping analogy misses an important part of the equation. Did dumping the waste poison the whole town? Well, why was it dumped. If a government vehicle dumped waste in your hypothetical town in order to avoid Haliburton paying landfill duties, it's a scandal. If the government vehicle dumped the waste because it was on the run from hijackers who the driver knew were going to steal the truck, ride it into NYC, and explode it, thus poisoning Manhattan, it might be less of a scandal. (Your "they weren't to know the safeguards were there for a reason" is a pretty ridiculous analogy.) And to answer your last question: I don't know about the idealist world of wave-the-red-flag socialists, but as a practical matter, the answer is obviously "yes." First, an action that if uncovered would be scandalous is more likely to be one we want strongly discouraged, so it would be good for an actor to keep that in mind. Conversely, actions taken with the best of intentions (safety), particularly if technical violations, might be justifiable if there is a strong positive reason. Secondly, one would hope that the scandalworthiness of an action is taken into account when the remedies involved are mostly political. Impeachment, as Bill Clinton will tell you, is as much about how the world sees your crime as the value of the crime itself.
A. Rickey - I’ve looked back over your comments – and my real issue with this piece both legally and on the scandal having *legs* side of the equation is that both are being argued *backwards*. The /scandal/political one (which you suggest I missed) is about some misplaced *assumption* concerning the public over “domestic spying on political opponents” to give this story *Legs.* You are assuming folks are NOT upset over what they *don’t know* regardless of how this would be IF they Knew what they ought to know to form an opinion. The basis for your argument here appears to assume that all possible information concerning potential domestic spying of political opponents would somehow have been revealed by those whistleblowers who originally broke the story to the NY Times – IF they KNEW it? So - you reason- since such a revelation of names (of who’s been spied upon) hasn’t yet been revealed - therefore it must not exist to contain names of political opponents. (I guess you *assume* no further info will be forthcoming to provide the *real story* ?) And from this *assumption* you reason backwards that there is no story and this non-story will not become the political firestorm and legs you say is currently missing. But that is a faulty assumption in the first instance - that what people don’t know (and are being prevent from learning) constitutes the full picture of the story and entire *story*. Absent this fuller picture – concluding that no legs exists and no public outrage will stand is faulty. Likewise over this matter of “grandma” - This argument runs: That having grandma spied upon without a warrant is not cause for any political concern and is probably folks are OKAY about that cause grandma has nothing to hide (except maybe the secret family recipe for those Family Favorite cookie she bakes). But spying on grandma (without a warrant) is in itself that IS exactly that which is Abhorrent to the Social Contract intended by the Founding Fathers and understood by a great many Americans. Your argument also relies on the false notion that no one will be outraged unless they gain the *knowledge* that grandma was actually spied upon (for no reason) without a warrant. But the program is specifically designed to hide that very information from ever becoming publicly known. Again, it’s a backward to reason and assume folks are NOT upset over what they *don’t know* regardless of how this would be IF they Knew what they ought to know to form an opinion. Plus, as I mentioned before I took issue with this newly minted “malicious intent” element you added to the statutes here: “…NSA Gate lacks one key ingredient necessary to create a proper political scandal: evidence of malicious intent.”) But it also goes to this part with this statement: “…Unless one can some up with a story of the NSA not only stumbling across an innocent conversation, but then somehow using it to a non-terrorist's detriment, there is simply no story here.” So, on that legal side this is a backwards argument too -- It’s not a matter of a citizen’s proving that the information obtained without a warrant (in violation of the Constitution and FISA and the Electronic Surveillance laws prohibition on same) must be used in manner to the “usingnon-terrorist detriment” and the non-terrorist must demonstrate some *malicious intent* on the part of the government" in this activity. [And by *non-terrorist* I do assume you mean a “CITIZEN of the U. S.” (?) ] This is crafting the argument backwards from that point of view. This not the way the Constitution is written to be understood. The actual USE or NON-USE of it any information is a faux and obfuscating point – it’s the mere COLLECTION of it without a warrant which constitutes the *issue* for these purposes. The conducting of the search itself without a warrant as required is the cause for finding offense here. It conflicts with the existing laws in place governing these issues and the reason for the Constitutional Protections crafted into these laws to conform to the 4th Amendment. While I don’t pretend to be any deep Constitutional historical scholar by any means, the purpose of the 4th Amendment was to protect Citizens from arbitrary and warrantless searches of all types. This was the Social Contract Purpose of the Constitution intending to protect this particular concept of personal “Freedom and Liberty” under the 4th Amendment. This is hardly an obscure point in the creation of the 4th Amendment or understanding its purpose. (And thanks for the offer to read Kerr, but I'll rely on my own reading and legal education and analysis here.) Arguing this point backwards not only flies in the face of the Constitution’s founding rationale, but is actually anti-Constitutional in its very sentiment. The purpose of the Founders was clear - to protect people from any intrusions (with or without their knowledge) without a reasonable basis that could constitute a judicially competent warrant to even do the *looking* or *listening.* So, I have a problem with these backwards premises and *assumption* arguments being made here...what ever the venue for making them (legal or scandal or political.)
Ooops I messed up the tags in one paragraph - it should read as follows: So, on that legal side this is a backwards argument too: It’s not a matter of a citizen’s proving that the information obtained without a warrant (in violation of the Constitution and FISA and the Electronic Surveillance laws prohibition on same) must be used in manner to the “ non-terrorist detriment” and that they must demonstrate a “malicious intent” to misuse the information. And crafting the argument backwards from that point of view. [And by *non-terrorist* I do assume you mean a “CITIZEN of the U. S.” (?) ]
Karen: First, let me emphasize again: I have not added a "malicious intent" element to anything legal, and your insistence that I have done so is dishonest enough to be insulting. If you wish to talk about the legal standards of FISA, you are welcome to do so, but I have not. Secondly, there is no reason that a political scandal must be analyzed in the same way that a legal argument is. Indeed, political scandals are often most usefully analyzed backwards. Your analysis above makes a number of assumptions about how people will respond to revelations of domestic spying, but they're no more intrinsically correct than mine. You say, essentially, that people will worry over the phantom that Bush might spy upon Grandma because they cannot know for sure that he didn't; I say that, in the face of a terror threat, they'll be more willing to wait to see if actual harm exists. These are not analytical questions, but empirical ones: how do people react? My take on events is that, pace the 'dramatic' revelations of the NYT, the issue isn't having much political impact. Those who despise Bush (among which I'd suspect you number) give him no benefit of the doubt, but oddly, Bush is never going to get those points for his approval rating. The question isn't whether you or I are likely to change our respective positions--statistically unlikely--but what happens much closer to the middle. You seem perpetually frustrated that I don't want to engage in a legal argument. Suffice it to say that Prof. Kerr seems to disagree with your 4th Amendment argument, and that you can't really make a FISA argument without the details of the program--which, incidentally, you have no more than I have a list of people Bush spied on. But notwithstanding that, you make comments like this: This not the way the Constitution is written to be understood. The actual USE or NON-USE of it any information is a faux and obfuscating point – it’s the mere COLLECTION of it without a warrant which constitutes the *issue* for these purposes. One might equally say that perjury is considered to be one of the most serious crimes that can committed before a court. It is functionally irrelevant to the issue of whether Clinton would be convicted in the Senate, whether or not he should have been. My guess is that the core of the Democratic Party, red-meat liberals all, will continue to harp on this. We have an election coming up, and of course if it turns out that the NSA wiretapping issue is sufficient to weaken a number of Republican races, you'll be right. If this is a largely forgotten issue in November (or indeed, a few weeks from now, and one notes that new "revelations" are getting less media play each time), then your legal protestations notwithstanding, my "assumptions" (which are actually predictions) will prove quite realistic. As I've said, impeachment would be the greatest gift the Republican Party could be given at this point. In short, maybe you have a "problem" with my reasoning, but it's mostly because you wish to deal with what you wish I'd said, not what I'm talking about. I'm making an empirical argument, which you could counter by mentioning, say, falling opinion polls that show deep damage to the Republican Party on this issue. But you can't beat an empirical argument by deriving theory from first principles. Maybe all right-thinking people should be as outraged as you are. I really couldn't care.
And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat?

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