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"treason, bribery, or other high crimes and misdemeanors."

Yesterday's speech by Sheldon Whitehouse (video here, thanks bumblebums) on the floor of the US Senate was the first salvo in the accounting of the criminality of the Bush Administration in Warrantless Wiretapping of US Citizens in contradiction of existing FISA law.

In his speech, Whitehouse focuses on the legal justification of the Warrantless Wiretapping Program.  James Comey and Jack Goldsmith told Congress where to look for illegality, and Sheldon Whitehouse has done so.

Along this path lays tangible evidence for demonstrating that George Bush and Dick Cheney should be impeached.  Whereas this outcome is a seeming impossibility, it is certain that along this path lays political fallout for the GOP and their Democratic enablers.  

On May 15, 2007, former acting US Attorney General James Comey revealed the details of the Hospital Signature Mission, in which George Bush or Dick Cheney sent then White House Counsel Alberto Gonzales to try to extract a signature from critically ill and delerious John Ashcroft to approve the Administration's Warrantless Wiretapping Program.

However, OLC head Jack Goldsmith and acting Attorney General James Comey had found the program to be without legal basis, and Ashcroft refused to sign off on the program.  The following day, the controversial program was authorized without the required Attorney General signature.  James Comey and several other top brass officials at the DOJ and FBI were prepared to resign.

In Comey's remarkable SJC testimony, Comey was asked on TEN separate occasions by Arlen Specter whether the Program was continued illegally.  Comey deferred answering directly, leaving the issue unresolved.

However, Sheldon Whitehouse obtained the classified OLC justification for the Program, and yesterday gave clues about the crisis over the Program Authorization.

The President Violated Existing FISA Law

In his speech yesterday, ostensibly concerning how to revise the FISA bill for the future, Whitehouse focused on one issue:  Warrantless Wiretapping of US Citizens.  Although he focuses on the Protect America Act (PAA) passed in August, 2007, consider that the authority granted in PAA almost certainly reflects what the administration was already doing:

Let's start with number one. Bear in mind that the so-called Protect America Act that was stampeded through this great body in August provides no - zero - statutory protections for Americans traveling abroad from government wiretapping. None if you're a businesswoman traveling on business overseas, none if you're a father taking the kids to the Caribbean, none if you're visiting uncles or aunts in Italy or Ireland, none even if you're a soldier in the uniform of the United States posted overseas. The Bush Administration provided in that hastily-passed law no statutory restrictions on their ability to wiretap you at will, to tap your cell phone, your e-mail, whatever.

The only restriction is an executive order called 12333, which limits executive branch surveillance to Americans who the Attorney General determines to be agents of a foreign power. That's what the executive order says.

Now lets think about how this paragraph applies to the Hospital Signature Mission.  Particularly, why does Whitehouse focus on EO 12333, rather than FISA law that existed in 2004 and should preclude ANY warrantless wiretapping of US Citizens?

Because the OLC had decided that by Article II of the US Constitution, the President was not bound by any law passed by Congress.  From Whitehouse's research on the secret OLC documents, we see the Administration's defense of why they violated FISA law:

The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President's authority under Article II.

Thus, from at least 9/11/01-August 2007, existing FISA law was moot in the eyes of the Bush Administration.  Thus the rules governing wiretapping of US Citizens was solely in the realm of the Executive Branch.  

The President Violated existing Executive Orders

So Sheldon Whitehouse, as a good prosecutor should, digs up the rules Governing Surveillance in the Executive Branch, EO12333:


The Attorney General hereby is delegated the power to approve the
use for intelligence purposes, within the United States or against
a United States person abroad, of any technique for which a warrant
would be required if undertaken for law enforcement purposes,
provided that such techniques shall not be undertaken unless the
Attorney General has determined in each case that there is probable
cause to believe that the technique is directed against a foreign
power or an agent of a foreign power.  Electronic surveillance, as
defined in the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.), shall be conducted in accordance with that
Act, as well as this Order.

So it appears that the pre-March 2004 Warrantless Wiretapping Program was proceeding forward in violation of a Presidential Executive Order.  And Whitehouse reveals the incredible justification for why the Adminstration violated their own Executive Orders:

An executive order cannot limit a President.  There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order.  Rather than violate an executive order, the President has instead modified or waived it.

And next Whitehouse reveals how the DOJ was placated into complying with the illegal Warrantless Wiretapping Program:

The Department of Justice is bound by the President’s legal determinations.

Not the OLC's Legal Determinations, but the President's.  As dictated by Dick Cheney and David Addington to Alberto Gonzales.  The buck stops in the President's Office.  OLC and the AG must obey the President's legal decisions.


Above you find Sheldon Whitehouse's analysis of the Administration's Warrantless Wiretapping Program, and the Administration's rationale for violating:

  1.  Existing FISA Law
  1.  Existing Executive Orders

To me, it seems evident that he will soon be asking Americans to decide whether the President's actions rise to the level of "High Crimes and Misdemeanors."

Now let's take a look at the Confirmation hearing of Michael Mukasey:
Mukasey was noncommittal when asked whether a President could violate existing law based upon Article II powers.  However, as noted by Emptywheel, in answers to written questions from Sheldon Whitehouse, Mukasey States that the President must issue a new order prior to violating an existing order.

Do you believe that the President may act contrary to a valid executive order? In the event he does, need he amend the executive order or provide any notice that he is acting contrary to the executive order?

ANSWER: Executive orders reflect the directives of the President. Should an executive order apply to the President and he determines that the order should be modified, the appropriate course would be for him to issue a new order or to amend the prior order.

Whitehouse notes that the ONLY executive order concerning Warrantless Wiretapping of US Citizens is EO12333, which President Bush's Program has almost certainly violated.

Thus, we now have a US Attorney General who is on record against the very activity Sheldon Whitehouse has documented our President has done.  If Mukasey does not initiate an investigation of the President's violation of US Law and Executive Orders, to preserve the truth of his testimony, Mukasey should not stand in the way of congressional or a special prosecutorial investigation of Presidential Crime.

Sheldon Whitehouse is a bright star in our Congress, and I believe that he is building a strong and actionable case for impeachment of George W. Bush, for violating our Constitution and eviscerating our Democracy.  At a minimum, as the tragically un-American details of Bush Administration actions in fighting the "War on Terror" continue to be revealed, there must be more political fallout for the criminal Administration and their congressional enablers.

Hey!!!!  Please Note:

Diary title changed.  I do not want this diary to be a flamefest between the pro/anti-impeachment crowds.
As I said, impeachment of Bush is an unlikely outcome, although he deserves impeachment for a multitude of sins.

But Whitehouse is clearly acting as a prosecutor, building a clear case for criminality.  I argue that a smart, well-documented and organized narrative of Administration criminality and misdeeds is crucial for Democrats to understand the failure of the past 7 years and prepare for defeating Republicans and marginalizing their "Democratic" enablers in the next year.  If Whitehouse's tack provokes DOJ investigations, Congressional investigations, or press reports, then the message of Bush Criminality is amplified, even if there is no impeachment.  But if it does lead to impeachment....

Originally posted to drational on Sat Dec 08, 2007 at 08:57 AM PST.

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