GADFLY: He Should Have 'Taken Five' 

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When the New York Times revealed that the President had personally authorized wiretaps in violation of the law which requires a court order to do so, the President, wisely, refused to comment on the accuracy of the story.  In his interview with Jim Lehrer of PBS‛ “News Hour,” the day the story broke December 16th), he said:

Jim, I know that people are anxious to know the details of operations, they-- people want me to comment about the veracity of the story. It's the policy of this government, just not going to do it, and the reason why is that because it would compromise our ability to protect the people.

Less than 24 hours later, the President came out swinging, in his live radio/TV address from the White House, announcing to all the world that not only was the Times‛ story accurate in announcing that he had authorized such surveillance,

In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations...

but that he intended to do it again.

I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups.

In other words, the president’s version of  “I don’t care what FISA (the law governing electronic surveillance) don’t allow...”

Relying, apparently, on the advice of his attorneys, including the Attorney General, the President has asserted that he has the authority to order such surveillance even without complying with the black letter of the law which governs such activities, the Foreign Intelligence Surveillance Act of 1978 (“FISA”), which requires that any surveillance, without exception,  be pursuant to a court order.  The law requires either that a court order be obtained prior to the initiation of the surveillance, or within 72 hours of that initiation, in special, “emergency,” circumstances. 

The law does not authorize warrantless surveillance, under any circumstances, and the president’s assertion (in an apparent exercise of activism he would criticize if it were a judge doing it) that his authority to violate this law inheres in the Constitution, or in the resolution authorizing the use of force in Iraq has already been thoroughly and completely debunked by several legal experts, including prominent conservative (and Reagan Justice Department official), Bruce Fein, who has said: “President Bush presents a clear and present danger to the rule of law,” and Jonathan Turley, a Georgetown law professor, who opined, on the December 19th edition of Fox News‛ “The O‛Reilly Factor,” that "it is a crime to order surveillance or conduct surveillance unless you've gone to a judge. Federal crimes can rise to impeachable offenses."

The law (FISA) provides that it is a crime to “engage in electronic surveillance under color of law except as authorized by statute,” and that such a crime is punishable by a fine of not more than $10,000 or imprisonment for not more than five years.  As in the case of all criminal laws, every act in violation of the law constitutes a separate offense, and each offense subjects the violator to the prescribed punishment.  So, if the President authorized (as he has admitted) 30 instances of surveillance “except as authorized” by the statute, he has admitted to conduct which, were he an ordinary citizen, would subject him to $300,000 in fines or imprisonment for 150 years.  That’s even longer than Scooter Libby may be looking at for five counts of perjury and obstruction of justice.

The astonishing thing about the President’s admission is that he didn’t need to make it.  Indeed, any competent criminal attorney would have advised the President not to admit he had violated a federal criminal statute.  If he were an ordinary citizen, and had been accused of committing a criminal act of this sort, he would have the absolute right to assert his right against self-incrimination under the Fifth Amendment to the U.S. Constitution.  As any criminal attorney will tell you, though, the wisdom of asserting the privilege against self-incrimination must be weighed against the inevitable (if impermissible---at least in court proceedings) inference that only guilty people make such an assertion.  The President, however, doesn’t suffer that risk, since he wouldn’t have had to “take the Fifth;” he could have continued to hide behind “national security,” as he did when he was first asked about it by Jim Lehrer.

Of course, the President also could have, as did all his predecessors, denied his conduct.  It worked, at least for a while, for Nixon, Reagan, Bush 41 and Clinton, in all their scandals.  The fact that this president chose to confront his critics by flaunting his disregard of the legal restrictions on his conduct will undoubtedly contribute to his downfall.  It is almost inevitable, given the outcry from politicians, pundits, and legal scholars about this latest episode of presidential hubris, that impeachment is on the horizon. Indeed, several members of Congress have already floated the idea.  Let’s not forget, the illegal use of electronic surveillance was one of the charges leveled against Nixon in his articles of impeachment.  And history, as we know, has a funny way of repeating itself.

If, and when, the accountability moment comes for this President, I suspect he will be sorry he didn’t “take Five.” 



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