The President's scheme for warrantless wiretapping outside the structure of FISA cannot be defended by pointing to the Congressional authorization to use force against Afghanistan. When he argues that the word "force" includes domestic surveillance he really is saying that laws composed of words no longer have meaning to him and his legal advisors. He feels free to make up or disregard the law at his whim.
The revelation of this scheme, by the way, cannot endanger our national security. That the United States is using every conceivable technology and technique to detect and monitor potential terrorists cannot be news to any such terrorist. Revelation that the NSA is monitoring telephone calls without warrants, when those calls could have been monitored by the FBI by following FISA, cannot make any difference to the activities of potential terrorists, and thus the revelation cannot endanger national security.
Our system of government is designed to maintain a rule of law. When the Executive operates outside the rule of law, it is the duty of the Congress to take steps to maintain checks and balances.
Assuming that we are not at a stage in which impeachment is warranted, then what are the tools that Congress has, and should use, to curtail abuses by the president?
Members of Congress must, at a minimum, express their rejection of lawless behavior by the Executive, even if the opportunity for sanctions through "the power of the purse" or oversight hearings and investigations are limited.
Obviously to introduce a resolution of impeachment is an extremely serious allegation. Unfortunately its importance was undermined by the frivolous misuse of this important congressional power by the Republican majority against President Clinton.
I fear that it is time for Members of Congress to begin to study the proper use of the Constitutional power of impeachment, and to sharpen their understanding of "high Crimes and Misdemeanors." (Article II, section 4).
If the President is insisting on highly expansive or creative interpretation of the meaning of words in a Congressional authorization of "force" to include "electronic surveillance," then it is time for Members of the House Judiciary Committee to begin to publicly clarify their understanding of the meaning of an important constitutional term, "high Crimes and Misdemeanors."
My recollection, having studied the literature of impeachment on several occasions, is that "high Crimes and misdemeanors" are not criminal offenses in the traditional sense, but are uniquely political offenses against the state, such as abuse of power. An example of such an abuse of power would be to authorize unlawful and unconstitutional activities that violate civil liberties. Another example would be misrepresenting national security intelligence for the purpose of tricking the Congress and the Nation into supporting a war.
