Senator Russ Feingold (D-WI) has proposed a resolution in the Senate to censure President Bush for authorizing warrantless wiretaps made illegal by the 4th Amendment to the Constitution and the Foreign Intelligence Surveillance Act..
Whereas I am not a Senator or a standard bearer for either political party, and I do not need to worry about political strategy, I can talk about what ought to be done on a purely moral basis in order to help create and preserve a just legal system.
There is a problem with censure. President Bush has admitted to the wiretapping (though he asserts that it is legal) and says that it will continue. If Feingold’s resolution passes, we will have a rather bizarre situation where the Senate condemns Bush for performing activities that it continues to allow Bush to perform.
It would be like a parent yelling at a child for eating sweets while giving him money that the child asks for so that she can go buy some candy.
What Ought to Be Done
The proper way to deal with Bush’s illegal operations is first with a law that denies funding for all wiretaps that stand in violation of the 4th Amendment to the Constitution (spying on Americans for more than 72 hours without a warrant from the FISA court). These are the actions under contentions, and if Congress cuts the purse strings, the actions would have to stop.
Then, at the same time, either censure or impeach President Bush for those activities.
Proper and Improper Impeachment
Every President who takes the oath of office has individuals calling for his impeachment before the inauguration ceremony even begins. I have long thought that this is stupid. Impeachment is a significant event, and like all such events should not be used for light or transient causes. The impeachment of Clinton was a violation of this principle. It was a politically motivated disruption in the government for petty reasons.
However, a President’s announcement that he has and will continue to act in violation of the 4th Amendment to the Constitution is not a light or transient reason. The President’s sworn duty is to uphold and defend the Constitution of the United States of America. The discovery that he has signed secret orders suspending parts of the Constitution he is bound by oath to defend is exactly the type of activity that the powers of impeachment and removal from office were precisely meant to deal with a President who sought to destroy rather than defend the Constitution.
Retired (Republican-appointed) Supreme Court justice Sandra Day O’Connor gave a speech at Georgetown University explaining how strong-arming of the judiciary is a step on the road to dictatorship. Within the list of actions she condemned, she included depriving judges of authority to hear cases because the partisan leader does not like their decisions. The 4th Amendment to the Constitution provides Americans with a right to judicial review of government decisions to spy on them, to make sure that the government has probable cause to believe that national security would actually be served. Bush’s secret order denying the FISA court authority to review its decisions when it comes to spying on Americans fit this description.
Of course, President Bush and his administration claim that his actions are legal. Impeachment proceedings and a trial before the Senate would give him the opportunity to defend his claim. His defenders will be allowed to stand before the Senate and present the legal arguments – the claim that the President has unlimited power, including the power to suspend the Constitution, as long as his spin doctors can put the case in terms of national security – and Senators will be able to cast their vote on whether they agree or disagree with that statement.
At which point the voters will have the opportunity to decide if they want to vote for or against a Senator who would vote to establish an executive branch with absolute dictatorial powers.
Freedom and Democracy
As I said at the start, this is an essay that explains what should be done in the absence of any consideration of political strategy. Congress has made no move to suspend funding for these illegal wiretaps. In doing so, they have implicitly endorsed the thesis that the Executive Branch can sign away our Constitutional rights at will. This means that the question of whether we are going to vote for or against representatives who refuse to protect and defend the Constitution from those who would suspend its operation at will is already upon us.
If, after the November elections, we have a government that continues to spy on us without judicial review in violation of the 4th Amendment, it will ultimately be because we have decided to vote for repeal of the Bill of Rights by executive order. Ultimately, the defense of our freedom does not rest with the Executive Branch, or the Legislature, or the Judiciary, but with us as voters.
This is truly an election in which the American voter needs to ask, “Will I vote for the Bill of Rights and the Constitution of the United States, or would I vote against it?” This is an election in which each voter gets to decide if they are in favor of an Executive Branch claiming that it has the authority to suspend all or part of the Constitution at will, or against it.
My prediction is that the people will vote against the Constitution in this election. Yet, the moral argument says that they ought to vote for it, and for a Congress that will deny the President’s claim that he has an obligation to obey the Constitution only if and insofar as it pleases him to do so.
As recent elections in Egypt, Iraq, and among the Palestinians tells us, democracy is no guarantee of freedom. Democracy guarantees freedom only if freedom is something that the voters value, and something that they will look at in casting their votes. This election, we get to discover if the American voters are people who value freedom, or are among those who would vote against their own freedom.