Bush's domestic spying: constitutional? impeachable?

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I have two legal questions about President Bush's authorization to let the NSA eavesdrop inside America without a warrant. First, is there anything in the constitution that would in fact authorise him to do so? The pertinent part of the constitution would seem to be article 2 sections 2 and 3:

Quote:

Section 2 - Civilian Power over Military, Cabinet, Pardon Power, Appointments

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; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section 3 - State of the Union, Convening Congress

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Simply from reading these sections through, I see no "there" there -- except if the president chose a very peculiar interpretation of the word "execute".

That leads to the second question: Is there any caselaw stating that domestic snooping implied by one of the enumerated powers of the president? If not, that would lead us right to section 4.

Quote:

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.

If the president's constitutional powers do not imply power to spy on US residents and citizens, he would seem to have committed a serious offense. Does present caselaw tell us whether it would be serious enough to be a ground for impeachment?

Personally, I have no strong legal views about this, though I do have very strong political views opposed to it. I would be very satisfied indeed if this qualified as a reason to impeach president Bush.

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Bookmark. I'm not well versed enough to contribute much here, but have the same questions so I'll be reading along.

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Yes, same here.

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I won't delve into the issue, and certainly won't stick around for the sneering outrage of the usual suspects.

I will make an observation on pragmatic politics. Impeachment simply means being indicted. The House of Representatives would have to bring a bill of impeachment. The Republicans control the House of Representatives.

It ain'ta gonna happen . . .

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I don't think it's a Constitutional issue. There isn't anything that allows the President to direct foreign intelligence in the Constitution either but no one has questioned their authority to do so over the decades.

The issue is that the 1978 Foreign Intelligence Surveillance Act and the law that authorized the creation of the NSA specifically prohibited the use of the agency for domestic intelligence collections. Depending on the exact wording of the directive and what may have been done it is very possible that this specific law was broken.

That, if proven to be the case, could be adequate grounds for impeachment. That isn't likely to happen though, IMO.

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As far as I recall answers in the other thread as well as what is posted on various law sites, some can have this and others the different opinion.

Bush signed the order in 2002 that allowed domestic spying without The order authorized the National Security Agency to conduct surveillance on Americans in the United States without court order.

However: since the reforms of the late 1970's, the N.S.A. has generally been permitted to target the communications of people on American soil only if they are believed to be "agents of a foreign power" - a foreign nation or international terrorist group - and a warrant is obtained from the Foreign Intelligence Surveillance Court.

Obviously and admitted, all this runs for three years now, known by some dozen persons according to the president, who all have high official offices.

I wonder, what's about them? Just following orders?

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This might help: See pages 7-10

From what I am reading (HERE) it appears a new definition of 'foreign power" was implimented a few years back, but that did not include American citizens, nor did it eleviate the need for a warrant.

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Quote:

Defiant in the face of criticism, the Bush administration has portrayed each surveillance initiative as a defense of American freedom. Bush said Saturday that his NSA eavesdropping directives were ''critical to saving American lives'' and ''consistent with U.S. law and the Constitution.''

Unrivaled war-making power? Bush's constitutional argument, in the eyes of some legal scholars and previous White House advisers, relies on extraordinary claims of presidential war-making power. Bush said Saturday that the lawfulness of his directives was affirmed by the attorney general and White House counsel, a list that omitted the legislative and judicial branches of government. On occasion the Bush administration has explicitly rejected the authority of courts and Congress to impose boundaries on the power of the commander in chief, describing the president's war-making powers in legal briefs as ''plenary'' - a term defined as ''full,'' ''complete,'' and ''absolute.''

This may be his reading of the Constitution, but the enactment of FISA would appear to override such a definition. Note that he relied on the AG and White House counsel, and avoiding going to Congress.

Is he stretching the definition of "war" and if so doesn't he have to have approval from Congress to declare "war"?

Excellent article here that appears to make it clear that Bush has been overreaching his authority for some time now. This isn't the only secret data collecting going on concerning American citizens.

Salt Lake Tribune

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Thanks, fishin', Walter, and Squinney.

I read the thread in the political forum, but didn't come around to reading the CIS report yet. The Salt Lake Tribune article is an interesting outline of how the president's commander-in-chief power clashes with Congress's power to protect Americans against espionage by their own government. Again, interesting reads, thanks!

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Quote:

Stumped: Condi Unable to Explain What Gave Bush Authority to Eavesdrop Without Warrant
This morning on Meet the Press, Tim Russert asked Condoleezza Rice a simple question: what is the specific statute that gives President Bush the authority to eavesdrop on Americans without a warrant?

She had no answer:

RUSSERT: What Democrats and Republicans in Congress are asking, what is the authority that you keep citing? What law? What statute? Where in the Constitution does it say that the President can eavesdrop, wiretap American citizens without a court order?

RICE: Tim, the President has authorities under FISA which we are using and using actively. He also has authorities that derive from his role as Commander in Chief and his need to protect the country. He has acted within his constitutional authority and within statutory authority. Now, I am not a lawyer and I am quite certain that the Attorney General will address a lot of these questions.

Rice said several times this morning that she's "not a lawyer." That is irrelevant. Rice was the National Security Advisor when President Bush authorized the NSA program, and said today that she was aware of Bush's decision at the time. Shouldn't she know why it was legal?

LINK

All I'm hearing is that he acted within his powers as president, within his constitutional authority, and within statutory authority.

But, no one seems to know (or say) from what/ where specifically that statutory or constitutional authority derives.
(

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Gonzales says that Congress expanded Bush's constitutional powers -- something I didn't know they could do -- after Sept. 11. But then says that he had to explain those powers to Sen. Arlen Specter. How confusing. No citing of what legislation was passed so no way to verify. I'm going to search anyway.

http://msnbc.msn.com/id/10530046/

Quote:

The president, as commander-in-chief, has certain authorities under the constitution, Gonzales said, and those were expanded by Congress to include electronic surveillance a few days after the attacks on Sept. 11, 2001.

The president's use of that authority is "consistent with law in my judgment," he said, adding that he had met Sunday night with Sen. Arlen Specter, R-Penn., and other senior lawmakers to explain the authority.

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squinney, quoting Condoleeza Rice wrote:

RICE: Tim, the President has authorities under FISA which we are using and using actively. He also has authorities that derive from his role as Commander in Chief and his need to protect the country. He has acted within his constitutional authority and within statutory authority. Now, I am not a lawyer and I am quite certain that the Attorney General will address a lot of these questions.

It does sound a lot like administrationese for "the dog ate my homework". And I don't remember ever getting away with that one in school. Life is just not fair....

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Sorry Duck, I didn't see you posting when I wrote.

FreeDuck wrote:

Gonzales says that Congress expanded Bush's constitutional powers -- something I didn't know they could do -- after Sept. 11.

Indeed he does. I wonder when he thinks this extension was ratified by the legislatures of three fourths of the several states. Without that ratification, constitutional powers are not Congress's to give. More dogs, more homework eaten?

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Still searching for what legislation he could be talking about. So far all I've seen is an extension to 72 hours for judicial review of emergency surveillance under FISA. Not quite what Gonzales was talking about, I think.

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FreeDuck wrote:

Gonzales says that Congress expanded Bush's constitutional powers -- something I didn't know they could do -- after Sept. 11.

To put it politely, Horsie Poop ! ! !

Congress has no such authority--and i note the shameless bastards are trying to trot out September 11th once again.

You can always tell when they are getting desparate, they start talking about protecting the nation from terrorists and then start loudly chanting 9/11, 9/11, 9/11 . . .

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See the video HERE at MSNBC

1. Inherent authority as Commander in Chief.

2. The Congressional authority Gonzales is referring to is the Congressionally approved authority to use military force shortly after 9/11.

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Oh, now I see. They are claiming war powers include domestic espionage. Nice.

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Thomas wrote:

Sorry Duck, I didn't see you posting when I wrote.

FreeDuck wrote:
Gonzales says that Congress expanded Bush's constitutional powers -- something I didn't know they could do -- after Sept. 11.

Indeed he does. I wonder when he thinks this extension was ratified by the legislatures of three fourths of the several states. Without that ratification, constitutional powers are not Congress's to give. More dogs, more homework eaten?

I think that more a matter of poor wording on either Gonzalezs' part or the reporters. The President, as Commander-in-Chief, has the Constitutional authority to direct the military. The Congress has the Constitutional authority to make rules on what the military can and can't be used to do (Article I, Section 8: "To make rules for the government and regulation of the land and naval forces")

The Congress, through statutory measures, had exercised it's authority when it passed the FISA legislation. The Congress can amend FISA without the need for a Constitutional amendment.

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I think they really are arguing war powers. Here it appears that the admin and congress don't see eye to eye on what was actually authorized. They seem to be saying that even FISA doesn't bind the president because of the fact that we were at war.

Quote:

Gonzales said he had begun meeting with members of Congress on the Bush administration's view that Congress' authorization of the use of military force after the Sept. 11, 2001 attacks was ample authorization for the surveillance.

"Our position is that the authorization to use military force which was passed by the Congress shortly after Sept. 11 constitutes that authority,'' Gonzales said.

It was the most detailed legal explanation given by an administration officials since the New York Times reported Thursday that since October 2001 Bush had authorized the NSA to conduct the surveillance.

Gonzales said Congress' action after Sept. 11 essentially "does give permission for the president of the United States to engage in this kind of very limited, targeted electronic surveillance against our enemy.''

The domestic spying revelations has created an uproar in Congress, with Democrats and Republicans calling for an investigation.

"This is just an outrageous power grab,'' said Sen. Russ Feingold, D-Wis. on NBC's "Today'' show. "Nobody, nobody thought when we passed a resolution to invade Afghanistan and to fight the war on terror ... that this was an authorization to allow a wiretapping against the law of the United States.''

http://www.startribune.com/stories/587/5790250.html

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But, that doesn't give the President the right to amend FISA through executive order.

Okay, I think I'm getting it.

Here's Yoo's paper explaining the current administrations interpretation of plenary authority of the president:

http://repositories.cdlib.org/boaltwp/4/

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Bush's domestic spying: constitutional? impeachable?

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