On Bush: It's Time to Say 'Enough'

Published on Monday, December 26, 2005 by the Ithaca Journal (New York)

by Marty Luster

As if the lies that took us to Iraq were not enough. As if the knowing use of bad intelligence wasn't enough. As if the ever- shifting justifications for this war were not enough. As if the use of torture by and at the behest of the United States was not enough. As if the disclosure of classified information to retaliate against a critic of the war policy was not enough. As if the shroud of secrecy that binds this administration was not enough. As if the squandering of hundreds of billions of dollars in support of this war at a time when we can't find the money to rebuild one of our great cities, when millions of us go without health care and when the federal government has reneged on its commitment to public education was not enough. Now, after all that, now we have the disclosure that the president personally ordered and continues to order the interception of telephone and e-mail communications of thousands of U.S. citizens and residents on U.S. soil without search warrants, without court authorization of any sort and without any basis in the constitution or laws of this land. Now we have had enough. ( That is for Damn sure! We have had more than enough. Impeach, Convict and Hang!) The president has defended his action in signing repeated executive orders directing the spying upon U.S. citizens by his National Security Agency on the ground that such activities are only used in cases were the subject has a “known link” to terrorist organizations abroad. However, he is silent when it comes to identifying the process for determining if a subject of eavesdropping is part of such link and he is infuriatingly vague when challenged on the legal and constitutional authority for those actions. He has assured us that his actions are both legal and protective of our civil liberties, but somehow many Americans, of all political parties, take little comfort in those assurances. That discomfort is not only warranted by this president's history of deception, distortion and manipulation, it is compounded by the outright obfuscation of his fast-talking secretary of state. When asked on “Meet the Press” on Dec. 18 for the legal basis for the president's actions, Ms. Rice offered, in her usual glib and slick manner, the Foreign Intelligence Surveillance Act (FISA). Based upon that response, one might expect to find in that legislation some clear directive that permits the president to spy upon U.S. citizens in the United States. Surely Attorney General Gonzales, and before him, Attorney General Ashcroft, as well as ace presidential counsel, former Supreme Court nominee Harriet Myers, studied FISA, or at least looked at it, before advising the president that he was free to look at our e-mails and listen to our telephone conversations without the inconvenience of applying for a court order permitting such intrusions. Sadly, it appears that that was not the case. FISA was enacted in 1978 in reaction to the over-reaching of the federal government in spying on Americans during the Vietnam War. Its purpose was to erect a “wall' between criminal prosecution, on the one hand, and the collection of ‘foreign intelligence” on the other. The asserted reason for this distinction is that in criminal prosecutions the Fourth Amendment's prohibition against a search or seizure without a court ordered warrant controls, whereas, in non-criminal intelligence operations, the bounds of the Fourth Amendment are less clear. Instead of a warrant executed by the usual court having jurisdiction, FISA established a secret court to review the Attorney General's applications for authorization of electronic surveillance targeted at foreign intelligence information. These applications come nowhere close to the detailed and well-established standards for the issuance of search warrants (e.g., there is no requirement for a finding of “probable cause”), they are processed secretly and are sealed from public view. As bad as FISA might be from a civil liberties perspective and as dubious as its constitutionality may be in particular cases, nowhere does FISA permit the interception of any telephonic or electronic communication within the United States without, at the very least, a FISA court authorization. This president has, at worst, ordered the circumvention of our constitutional protection against unreasonable searches and seizures and its insistence that no warrants be issued except upon probable cause, and at best, directed, by executive order, the clear violation of the minimal protections of FISA in intelligence gathering cases. In doing so he has violated his oath of office by failing to “preserve, protect and defend” our Constitution and has violated the law of this land by ignoring the strictures and limits of FISA. The House of Representatives and the Senate have both begun to show in recent weeks an ability to look beyond partisan struggles when confronted by an arrogant, messianic and dishonest president. They have refused to extend the USA Patriot Act without significant changes. They have, despite the president's veto threat, insisted upon a clear prohibition of the use of torture by our government. They have resisted his cuts in basic governmental services to finance the president's tax cuts for the wealthy. They have (so far) refused the president's demand to savage the Arctic National Wildlife Refuge. And, most significantly, leaders of both parties have expressed their shock and outrage at George Bush's orders to his agencies to spy upon fellow Americans. This presidency has three more years to run. We cannot afford to wait that long for a change in leadership. We can no longer risk our values, our history and our liberty. We have, finally, had enough. It's time for Congress to begin proceedings under Article II, Section 4 of the Constitution to impeach and remove George W. Bush and his Vice President from office. Marty Luster is a former state assemblyman and retiring Ithaca city attorney. He lives in Trumansburg. © 2005 Ithaca Journal