Impeach! v. 2.0

After driving in to work the other day listening to Bush admit to having authorized wiretaps of people in the U.S. without obtaining warrants over 30 times - and promising to keep doing it, I suggested he should be impeached. I have since had some time to cool down, reflect, and do some research. Bush claims what he did was legal under the Constitution and under Congress's authorization of use of force in Afghanistan. So I re-read Articles 1 and 2 of the Constitution regarding the President's powers (Article 2) and Congress's powers (Article 1). I read the authorization of the use of force. I also read the Foreign Intelligence Surveillance Act (FISA) found at 50 U.S.C. 1801-11.

Now that I've had a chance to think about it, I'm even more frustrated and disgusted. Bush has to be impeached.

I've already discussed the "Commander-in-Chief" clause of Article 2 and the use-of-force authorization, and explained why they do not give the president the legal right to wiretap people in the U.S. without a warrant. (Even if they did, they would be superceded by the 4th Amendment, which prohibits warrantless searches.) So the next question is, did Bush commit a crime when he exceeeded his authority?

FISA is the federal law enacted in 1978 to help address abuses of the NSA. FISA prohibits wiretapping without a warrant when at least one of the parties is in the U.S. FISA specifically applies to terrorist suspects. FISA allows wiretaps to be placed before a warrant is obtained in emergencies. That way, there is no fear that the process of getting a warrant will take too long. But warrants have to be obtained eventually. FISA even sets up secret "FISA Courts" with judges selected by the Chief Justice of the United States who will handle these warrant requests so that national security is protected. In other words, FISA is designed to handle EXACTLY the situation that is going on now. And most importantly for any discussion of impeachment, FISA makes it a crime punishable by up to 5 years in prison for anyone to intentionally authorize wiretaps in violation of the procedures established by FISA. The president admits to intentionally authorizing wiretaps in violation of the FISA requirements. He admits he committed a felony.

There is one more part of FISA that doesn't apply here, but that speaks volumes about what Bush did: FISA has a special section dedicated exclusively to the issue of the the president authorizing wiretaps without a warrant. 50 U.S.C. 1811 specificly allows the president to authorize wiretaps in the U.S. without obtaining a warrant - but only for 15 days after a declaration of war by congress. Just to be 100% clear, Bush has been doing it for more than 2 years and congress has not declared war.

When Clinton was impeached, Republicans claimed they were not doing it for political reasons. They claimed to be doing it to vindicate the rule of law - to show that no one is above the law. We are about to get our proof positive that Republicans in the House and Senate are liars and hypocrites with no dignity, morality, or shame. Because they will not impeach Bush. They will show us that they care nothing about the law, the citizens of the U.S., or anything else besides power.

I have never been so ashamed of my country.

Impeach!

Why is our president not currently being impeached? That is a rhetorical question, but the answer is simple: politics. A Republican House of Representatives will never vote articles of impeachment against a Republican president.

Bush gave a speech yesterday and this morning in which he admitted to personally authorizing the NSA to intercept telephone conversations in the U.S. The president's own Attorney General just this morning admitted that this violates the Foreign Intelligence Surveillance Act of 1978 ("FISA"). Congress debated in 1978 what the process should be for intercepting foreign conversations and made it clear - the NSA is free to spy on foreigners overseas, but if any of the people involved in the conversation are in the U.S, the government must get a warrant.

Bush clearly violated the law. He claims he is justified to do so by the Constitution and Congress's authorization for him to use force against Afghanistan.

Let's look at the Constitution. I have a framed copy on my wall. Article 2 says, Section 2 says, "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." Being Commander in Chief does not mean having free rein to conduct war in any manner conceivable. Article 2 makes the president the person who will act as Commander in Chief - but it does not allow him to ignore the rule of law. Article 2 is not the most powerful portion of the Constitution. We know it is limited by any amendments that were enacted after it. The 4th Amendment in our Bill of Rights says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Next, it almost goes without saying, but when Congress authorized use of foce against Afghanistan after 9/11, it never said anything about intercepting telephone conversations in the U.S. Congress never gave the president this power. Even if it had, such an act would be unconstitutional as a violation of the 4th Amendment. In fact, FISA makes pretty clear that Congress expressly chose not to give the president this power. YOU NEED A WARRANT TO LISTEN TO PEOPLE'S PRIVATE CONVERSATIONS IN THE U.S.!

The president's only two bases for claiming he acted within the law are completly inapplicable. He broke the law. He committed a high crime. He admits it. What does the Constitution say about the president committing high crimes? Article 2, Section 4: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Article 1, Section 2 gives the House "the sole Power of Impeachment," and Article 1, Section 3 gives the Senate "the sole Power to try all Impeachments." Notice it says "shall be removed." Not "may" or "should" or "if it is politically attractive."

What are we waiting for? Why is the House not voting articles of impeachment this very second? I have never been so angry with my own country. We impeach Clinton for perjury when he lied to an independent prosecutor about getting a blowjob, but we won't impeach Bush for illegally ordering wiretaps in the U.S. in clear violation of both FISA and the 4th Amendment.

Despite all the things Bush has done - despite how much I disagreed with him - I have never called for his impeachment until now. He has been stupid and wrong and evil throughout his presidency. Now he is also a criminal. Now, our Constiution requires that he be impeached.

Clemency and guilt and innocence

Stanley Tookie Williams is scheduled to be executed tonight and his bid for clemency was denied by Governor Schwarzenneger. Williams claims he founded the Crips, but he didn't. He was responsible for the Crips spreading to the westside of L.A. He was convicted of four murders - a convenience store clerk named Albert Owens, and a family of three, Tsai-Shai Yang, Yen-I Yang, and Yee Chen Lin a couple of weeks later. There was testimony of his accomplices that after he shot Owens, Williams made fun of the gurgling sound Owens made as he died.

Williams was convicted of these crimes. All his appeals were rejected. In the eyes of the law, he is guilty. Williams has always maintained his innocence. His defense counsel said that his clemency bid would go better if he admitted his guilt, but Williams insisted he was innocent and would not admit guilt.

A major reason cited by the governor in denying clemency was the fact that Williams refused to take responsibility for the murders. This is the same argument you hear from judge's all the time in sentencing hearings. Convicted persons are sentenced more harshly because they maintain their innocence.

Those who know me well know that my opposition to the death penalty is one of my most deeply-held beliefs. I mention this because I am sure my feelings about the death penalty are coloring my feelings regarding this case - I don't claim to be without bias. It sickens me that we - the people of the U.S., the people of the state of California, we, all of us, me - are going to kill someone tonight. I feel helpless in the face of this. If this were a movie, we would mount a daring rescue. We wouldn't let this happen. But if this were a movie, Williams would be innocent. And it's not a movie. And we don't know if he is innocent.

But the reason I am writing this is to address the issue that people who claim they are innocent are punished more harshly because of it. How can that be right? Is it just the religious principle of redemption being a necessary prerequisite for forgiveness? Can that be right? We judge you harshly - and we judge you even more harshly if you don't repent your wicked ways. Is that what this is about? How can it be? Have we not progressed at all from the Salem witch trials? We know for a fact we convict innocent people. We know for a fact we have executed more than a dozen innocent people since the death penalty was reinstated 30 years ago. DNA evidence has exonerated hundreds - including 14 people who were already executed. We know this. We know that the "truth" isn't always clear, even though it might appear so at the time. We know all this, but we justify increasing the punishment for those who claim, despite the evidence and despite the verdict, that they are innocent? Is our hubris that boundless? We know we are imperfect, but we act as if we were flawless.

I'm not god. I don't know the ultimate truth. And I want to live in a society that feels the same way. But I don't. I live in a country where the people like to pretend we are god. We pretend to know the truth, and we punish harshly those who dare contradict us. It's not Williams' murders that guarantee his lack of clemency. It's his refusal to acede to what we know in our infinite wisdom to be true.