Thanks to packbat who found this on YouTube, if you have not done so yet, please take 20 minutes some time soon to watch James Comey's sworn testimony to Congress. Even if you've read the transcript, it doesn't have the impact that hearing it in his own words:
George Washington University constitutional law professor Jonathan Turley was on last night's Countdown with Keith Olbermann. Keith has been trying for years now to egg him on to say that some part of the Bush administration's conduct was impeachable, but Turley has a reputation as a legal scholar to protect, so the closest he has ever come (unless I missed an episode) up to this point has been that on some of Keith's points, a case could be made, but it was far from certain. The gloves have now come off. Because while the human scandal is that Gonzalez and Card tried to abuse a man on heavy narcotics on day 6 of his intensive care hospitalization for one of the most painful medical conditions known to modern science in order to trick him into signing a document that he didn't even have current legal authority to sign, there is a rather more legally troubling revelation at the end there that I didn't pick up on right away.
For those of you who need a refresher, presidents all the way back to Lincoln have asserted their right to eavesdrop on wired communications between Americans and foreigners who are or might be allied to the enemy. Several decades ago, when one such case became something of a national scandal and for the first time the American people had their noses rubbed in the fact that this was going on, a lot of people had very serious Fourth Amendment concerns about this, arguing that war or no war, that was a warrantless invasion of an American's legally protected privacy. To split the difference, Congress set up a system wherein America's spy agencies could maintain their own captive court, cleared for the highest level secrets and sworn to absolute secrecy, to review any communications intercepts involving enemy agents where one or both ends of the call terminated inside the US, the Foreign Intelligence Supervisory Agency. There is no meaningful reason to doubt that every President since the FISA law took effect has allowed his spy services to break that law occasionally, but with two understandings: keep it to a bare minimum, to absolute emergencies where you are absolutely 100% sure of what you're doing so we don't get caught, and if you do get caught, we will deny all knowledge of what you did and throw you to the wolves.
Bush got caught having authorized something called the Terrorism Surveillance Program which violated several of even those basically illegal rules of thumb. He put it in writing, like any other presidential order, rather than maintaining the fig leaf of deniability. He encouraged them to run a literal drift net, listening to or intercepting thousands of such calls. He let them stop even pretending to use the FISA court, stopped submitting applications for any part of this program, after the second time they got turned down (out of many hundreds approved). And worst of all, when he got caught at it (because it's flatly impossible to keep a secret this big), he loudly, publicly, and very angrily stood up for it. And what the legal argument has been all the way back to day one was that his own lawyers, and everybody in the US Department of Justice, had reviewed the program and repeatedly verified to him that he had every legal right to order this program, under his wartime authority as Commander in Chief under the War Powers authorization for the war on terror.
What Comey is tip-toeing around saying here is that what happened early in 2004 was that for the first time, the US Department of Justice (then under Deacon Ashcroft) only first learned that the program wasn't operating anywhere nearly the way they'd been told it had been operating the previous times that Ashcroft had signed off on it. Once Aschroft found out what they were actually doing, as opposed to what they'd told him up until then they were doing, he had a long discussion with his senior legal staff, including Comey, and they came to the absolutely unanimous conclusion that there was no way at all that any rational person could conclude that this program was legal. And so, on the very day that his pancreas blew out, he and his staff notified the White House that the program was not legal, that they were not going to sign a statement agreeing that this was a perfectly constitutional use of the President's wartime authority, and that the program flatly had to stop.
And here's the sentence that Turley picked up on the significance of that blew right by me: on the day after the previous authorization expired, after numerous consultations in which every legal authority inside the government except Alberto Gonzalez told the President that the warrantless wiretapping "terrorist surveillance" program was flatly illegal, the President signed an order authorizing it to continue anyway. Comey goes on to say that over the next several weeks Ashcroft's Justice Department negotiated an agreement with the White House to bring the program into compliance with the law, presumably by going back to the FISA court, and when the program was revised to require warrants the Justice Department certified it. But it is that intervening time that blows an irreparable hole in the Bush administration's legal defense: they knew it was illegal, and they did it anyway.
At this point there is no reason left other than political cowardice why Speaker Pelosi doesn't open impeachment hearings on Monday.
If she doesn't, and gods help us I'm not hopeful enough that she will, then we can give up altogether on any pretense that we are a nation of laws. We can stop calling it the Bush administration, and call it with no irony or exaggeration the Bush junta, because that turns this into nothing less than a coup d'etat against the constitution that Bush took an oath to defend. Because if George Bush and his closest friends like Carl Rove and Alberto Gonzalez are above all law from now until they step down on January 20th, 2009, well, first of all, what kind of a country are we living in? And secondly, if they're actually above all law, why should we have any confidence that they will, in fact, step down on that date? After all, the only place it says that they have to is in the Constitution of the United States of America, and we now know that they feel no obligation to obey it.