by Robert Emmett Murphy, Jr.
Part Four–The National Black Republicans Association files Articles of Impeachment against President Barack Obama–Concerning the NSA Monitoring, Spying on Journalists, Unconstitutional Recess Appointments, “DREAM act” Executive Order, Failing to execute laws enacted by Congress, and Persecuting Whistleblowers.
This is the rest of the alleged Articles of Impeachment with analysis.
“(1) authorized and permitted the National Security Agency to conduct or continue electronic surveillance of over 300 million average Americans”
This is actually two scandals. One concerns phone records, the other the internet. They are very different. In both cases the programs began under Bush Jr’s Administration, and though secret, for a decade there was public debate on these issues because there were ways to guess some of the secrets, but it was not until during the Obama administration that NSA Analyst Edward Snowden illegally released secret documents detailing these programs that they became public scandals. Snowden is now alternately called a hero or a traitor, and is definitely a fugitive from justice.
Regarding the phone records, the word surveillance is wrong. The NSA collected massive amount of phone records, legally defined as “transactional information,” for the purposes of data-mining. I have never heard a review of “transactional information” called surveillance before, as that word is generally reserved for active, real-time observation, like a stake-out or wire-tapping. Wire-tapping is legally defined as “communication” and therefore law enforcement is held to a much higher standard than gathering phone records. Monitoring “communication” generally requires a warrant signed off by a judge, while “transactional information” generally only requires a lowly subpoena.
But the reality has recently become more complicated than this neat binary. Police agencies enjoyed a lower standard to access to “transactional information” because the courts deemed it less intrusive than “communication,” but the changing technology and sheer volume of data being maintained by the NSA has completely transformed the implications, making a lot of the old rules obsolete.
Conspiracies pre-exist the allegations that spark the opening of investigations. The history of the evolution of the conspiracy is generally the most vital and frustrating unknown when a case is first opened because most of that valuable intelligence is now lost with the passage of time. Investigators grope to establish how many players there are, where they are, what is the pecking order, what businesses are they’re using as fronts, how far reaching is the implications of a given crime, and how does the network operate. When dealing with terrorism and a compartmentalized cell structure, these unknowns are also the most dangerous things.
One legitimate business front that’s good for a terrorist organization is a travel agency in an immigrant neighborhood. It facilitates so many wholly innocent telephone calls to so many foreign countries they can easily hide the illicit ones among them. Under this NSA program an investigator can now instantly recall and organize every phone call to or from that business; plus the time, date and durations of those calls; plus the locations of anyone who called or received a call based on land-line addresses and cell phone tower information; plus the location of every person called or calling the person who either called or was calling the travel agency, and so on, and so on–just like the old shampoo commercial. And very important, they can go back several years, perhaps as far back as 2007, perhaps farther. Moreover, there are several tricks that can be applied to identify a person even when they use one of those allegedly anonymous pre-paid cell phones. And because of records retention, the tricks can be applied even if that person stopped using that prepaid cell phone years ago. And as most users make a number of cell phone calls at different times of the day from different locations, this data can be used to make a map on the typical movements of a person’s life, and how those typical movements differed a year ago from what they are now. All without listening in on a single conversation.
This is a window into your world more intimate and revealing than any single conversation could be. It’s somewhat similar to an old, primitive tool called Mudds and Ludds, except now on steroids. This is a dream come true for Law Enforcement Agencies.
No, “on steroids” just isn’t strong enough. Think of the monitoring and analytical possibilities of Mudds and Ludds as Dr. Bruce Banner. After a spectacular event in the lab, Banner is blasted with gamma-rays. The monitoring and analytical possibilities within the NSA are now “Strong like Hulk.”
The dream is also a nightmare, because this “Hulk will Smash” all illusions of privacy. Though by itself, it lacks many of the essentials to make the data meaningful, it still has your history recorded in greater detail than even you remember it. It is a registry of all your relationships.
Not too long ago, the Director of the FBI habitually used such information to extort concessions out of Judges, politicians, and even Presidents. He took it one step further, armed with the same type of information about his victims rival’s, sold that information to those he already victimized to obtain more concessions still. He employed an army of undercover agents, informers, and used wire-taps and other electronic surveillance that were legitimate, of questionable legitimacy, or bluntly illegal. Yet he rarely achieved a fraction of the intimacy that this monitoring allows, and never achieved near the same level of verifiablity.
Even before 2001’s Patriot Act dramatically expanded the Government’s power to monitor you, our laws were falling behind these emerging technological capacities. In other words, no matter how much we might hate this, at this juncture, it’s completely legal, and therefore, not Impeachable.
The Internet side of this Scandal is somewhat murkier, but it is clearly involving what is legally defined as “communication” and how its protections, allegedly of higher standards, have eroded.
According to a formerly secret slide-show from an employee training session, PRISM describes itself as an “extensive, in-depth surveillance on live communications and stored information” on the internet including email, video and voice chat, videos, photos, voice-over-IP chats (such as Skype), file transfers, and social networking details. It is much larger than the mind-boggling data-mining described above. It is “the number one source of raw intelligence used for NSA analytic reports, accounting for 91% of the NSA’s Internet traffic acquired under FISA section 702 authority.” Data obtained from this program can now be found in 1 of 7 of White House Intelligence briefings.
Intelligence analysts assigned to the PRISM program are trying to identify suspicious communications. This involves both instantaneous access to real time communications and the record of communications stored in histories preserved on the internet “Collection directly from the servers of these U.S. Service Providers: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, Apple.”
How PRISM came to be has everything to do with how scary it is, and the legitimacy of the Impeachment charge.
Back in 2007, Bush Jr’s Administration took an incredible hit on it’s intelligence gathering capacity. It had a secret program of warrantless domestic surveillance. The Fourth Amendment violations were explicit, so it had to be abandoned, creating the need to replace it with something that could provide for the War On Terror’s broad-based surveillance needs within a more legal frame work. This was PRISM, and without doubt, it was already in the works, and partly already existed, before the scandal struck.
The legal frame work was based on decisions reached by the Judges sitting on the US Foreign Intelligence Surveillance Court. Its decisions establish the limits of the powers of and breath of legitimate conduct of American Law Enforcement and Intelligence Agencies when engaged in surveillance against suspected agents of Foreign Intelligence Agencies in the US.
FISC’s decisions are kept secret, leading Jameel Jaffer of the ACLU to complain, “I would just push back on the idea that the court has signed off on it, so why worry? This is a court that meets in secret, allows only the government to appear before it, and publishes almost none of its opinions. It has never been an effective check on government.”
This secret court was not the only legal legitimacy that PRISM required and obtained. Though NSA had always relied of cooperative relationships with private communications companies, PRISM would expand those relationships as never before, meaning that Bush Jr’s Administration needed to provide legal cover, not just for the NSA, but to the private companies. He got it when Congress passed the Protect America Act in 2007 and the FISA Amendments Act of 2008, which expanded the Federal Government’s surveillance powers and immunized private companies that cooperated from civil law suits by offended customers.
This was only a modestly big news story when it happened, and only a few journalists recognized the implications; though several 2007 & 2008 op eds proved remarkably prophetic, they didn’t create a public outcry. Some people seemed to have been paying attention though–China banned Facebook in 2009 after it had been utilized by activists in the lead-up to the demonstrations that sparked the Ürümqi riots; as this was but a year after the FISA Amendment Acts suggests to me that the riots were not the only thing on China’s leaders’ minds.
To explain what this all means, lets go back in time. Lev Sergeyevich Termen, an Russian immigrant to the USA, was a brilliant inventor; he is most famous for creating the fascinating Theremin, an electronic musical instrument which one played without touching it with either body or breath. He was also a Russian spy. In 1938 he returned to the USSR (it is unclear if he went voluntarily or was kidnapped by Soviet Agents) and was promptly jailed in a Gulag. While he was in prison the NKVD (fore-runner of the KGB) put him in charge of top secret laboratory. Among his technological break-throughs was an electronic listening device nicknamed “The Thing.” It transmitted reliably without replacement of its power source and resisted all forms of detection then available. In 1945 the Soviets embedded “The Thing” in a replica of the Great Seal of the United States that was carved in wood by Soviet school children, and presented it to the US Ambassador as a “gesture of friendship.” After US security cleared the item, it was proudly hung in the Ambassador’s residential office in Moscow. It intercepted confidential conversations there for the next seven years. For this accomplishment, Termen was awarded the Stalin prize in 1947, though he wasn’t actually released from jail until 1956.
All the above listed companies (and perhaps a few others unlisted) were co-operating with the NSA. All provide communication services world-wide. As a result, virtually the whole of the internet became “The Thing,” and the Ambassador’s office, combined, potentially making virtually every internet user the Ambassador himself, despite the fact that the vast majority of us shouldn’t legitimately be considered a priority to any intelligence agency.
Given that the decisions of the FISC are secret, is there any yardstick for getting some sense of how much, how many, and how casually the NSA can now legally spy on people?
Yes…and no. The “Yes” part is easy.
You remember the opening scenes of the movie “True Lies”? Arnold Schwarzenegger breaks into the Swiss chateau and steals information about a terrorist organization Crimson Jihad. Now let’s say that instead of Switzerland, the scene was set in the US, and that chateau was a split-level ranch house in Ohio owned by a US citizen–Arnie would now need a warrant. All the phone lines in said house would require warrants as well. But in the movie, this chateau was in a foreign country, occupied and owned by a foreign national, as were all the phone lines in it. Arnie didn’t have to go to the FISC to get a warrant, he was doing what we call espionage.
Though it is not completely clear from the articles in the Washington Post and the Guardian (the two papers who have done the most important reporting on this issue) it seems that when it comes to internet surveillance , there are no Fourth Amendment protections existing for foreigners, apparently even if that foreigner is a legal resident of this country. This is born out by the numbers. In 2012, the FISC issued only 1,789 warrants permitting electronic surveillance, and this number would include wire taps and planting bugs in offices (ie. not PRISM). Had warrants been needed for surveillance of foreigners through PRISM, that number should be larger by several decimal points. FISC clearly has interpreted the PATRIOT, Protect America, and FISA Amendments Acts as legally authorizing a whole host of warrantless searches against non-citizens.
So only Americans are entitled to the Fourth Amendment, and though the government’s power to monitor Americans have been greatly expanded, the Fourth Amendment still exists, and with it there are restraints put on the government, as demonstrated by what we know of the procedures PRISM goes through to assure your rights are protected.
Except this is exactly where we run head-first into the “No” part in understanding the true nature of public’s understanding of their current privacy rights as citizens of the United States of America.
Probably the biggest explosion in monitoring concerns what is called a “Three-hop query.” A three-hop query means that the NSA can look at data not only from a suspected terrorist, but from everyone that suspect communicated with, and then from everyone those people communicated with, and so on, and so on…again, like the old shampoo commercial.
Each new person who gets ensnared in the seemingly infinitely expanding web represents an unknown quantity. Are they American citizens or not? Answering that can be time consuming, and the value of much of this intelligence rests in the fact that some of it is coming in real time. According to the Washington Post, analysts who use a program that has allows them to “key in ‘selectors,’ or search terms, that are designed to produce at least 51 percent confidence in a target’s ‘foreignness.’ That is not a very stringent test.”
Looking at this cynically, you can be illegally surveiled, in total secret, and if the person doing it is ever called on their actions by any authority, all they need say is, “Whoopsie!” – and they might not even be b.s.ing, because that’s they way they were taught to do their jobs.
And it goes beyond that, because that limited restraint only applies to your communications that are separate from your exchanges with the person who connected you to the web. As all communications are supposed to be, at the very least, two-way, so many American citizens are warrantlessly surveilled when they are part of conversations with a certain people, because they are warrantlessly surveilled.
The lesson here is, don’t communicate with Canadians, they are bad for you.
The picture emerging from this seems very much like a Wild-West internet surveillance free-for-all. And what Snowden described is worse still, because even the almost-less-than-nominal rules hinted at above seemed to have no application in the actual conduct of the analysts. He said even low-level analysts were allowed to “listen to whatever emails they want, whatever telephone calls, browsing histories, Microsoft Word documents. And it’s all done with no need to go to a court, with no need to even get supervisor approval on the part of the analyst.”
That’s Snowden’s version, as reported in the Guardian and Washington Post. The U.S. government have disputed some of it and insisted it cannot use PRISM on domestic targets without a warrant. As stated by the Director of National Intelligence, “In addition, Section 702 cannot be used to intentionally target any U.S. citizen, or any other U.S. person, or to intentionally target any person known to be in the United States. Likewise, Section 702 cannot be used to target a person outside the United States if the purpose is to acquire information from a person inside the United States.”
The reason I spent so much time on PRISM is to demonstrate that this program evolved creating its legal framework as it went, and that framework was fully in place before Obama’s election. Unlike the secret “torture memos” of Bush Jr’s Adminstration, much of this legal frame work was created in the public view (ie. through Congress) and that part which was secret, was also consciously negotiating restrictions placed by the public Court System. The most shocking of Snowden’s revelations, that low-level analysts “listen to whatever…they want,” is the kind of catastrophic management failure that can damage an Administration, but its hard to see how it can be translated into criminal charges for anyone outside that particular office in that particular agency. In other words, no matter how much we might hate this, at this juncture, it’s almost completely legal, and therefore, not Impeachable.
“(2) given access to National Security Agency surveillance data to other intelligence units within the Drug Enforcement Administration, the Secret Service, the Department of Defense and the Department of Homeland Security in violation of the law;”
The Department of Homeland Security was created specifically to deal with legal obstacles on interagency intelligence sharing that were blamed, in part, for our lack of preparedness for 9/11. Subsection 203(b) of the PATRIOT Act permits investigative and Law Enforcement officers and Government attorneys to share information “acquired under or derived from the interception of a wire, oral, or electronic communication under Title III with any other federal law enforcement, intelligence, protective, immigration, national defense or national security official for use in his or her official duties to the extent that the contents of that communication include foreign intelligence or counterintelligence information.”
And not only is it legal, it isn’t even a bad thing.
As for Obama’s access to it, how about the daily White House Intelligence briefings? Since when are they criminal acts?
“(3) conducted the surveillance of average Americans unconstrained by Congress, the United Supreme Court or the US Foreign Intelligence Surveillance Court which has, to this date, functioned as a rubber stamp, having approved every request made of it in 2012 and rejecting only two of the 8,591 requests submitted between 2008 and 2012.”
This might be a legitimate expression of rage at the situation, but as a charge, it is not only false, it contradicts itself. As I explained above, the Obama Administration was granted the legal frame work that it operates under by all of the above authorities, and that frame work pre-existed his election. FISC specifically is the mechanism of legal constraint on federal Law Enforcement and Intelligence Agencies in National Security cases. To call the FISC a “rubber stamp” is probably a righteous criticism, but is also an acknowledgment of what their role is, and that they were not circumvented by the Administration, and therefore the use of the word “unconstrained” here is as wrong as the word choice as “surveillance” was in Article 6 (2).
The Watergate scandal that brought down Nixon has some bearing here. One of the charges against Nixon involved launching official investigations that were not in the public interest, but to serve his own political goals. So when FISC was created in 1978 the decision was made that its Justices are appointed by the Chief Justice of the US Supreme Court without any input of the President or Congress. This was done in an attempt to keep the Court independent of any political goals of any Administration. The current Chief Justice is John Roberts, appointed by Bush Jr in 2005. The appointed judges can serve only one term, to be no longer than seven years, meaning that currently FISC is 100% a Robert’s Court, so if you don’t like how FISC does things, blame Roberts, not Obama.
But there’s more, NBRA complains about FISC “rejecting only two of the 8,591 requests submitted between 2008 and 2012,” is somewhat erroneous as Obama didn’t take office till January 2009 (since then, only one request has been rejected). If one goes back farther in time, even before Robert’s appointment, the pattern in the numbers is more revealing:
Between 1978 and 1999 FISC denied zero requests.
Between 2000 and 2001 FISC denied only two.
As 9/11 happened near the end of 2001, you would not expect to see a radical upswing in the number of requests until 2002 and later, and that’s exactly what you get.
Between 2002 and 2007 FISC denied nine requests, but it was nine of a much larger pool.
As 2007 and 2008 featured legislation that increased the surveillance powers of Law Enforcement and Intelligence Agencies, and the legislation guides FISC’s decisions, you’d expect to see a drop off of denials even with the number of requests still increasing, and that’s exactly what you get.
Between 2008 and 2012 FISC denied only two even as the pool of requests grew and grew.
So if you don’t like how FISC does things, blame Congress, not Obama or Roberts.
“He has authorized and permitted the Department of Justice to wiretap and secretly obtain two months of telephone and e-mail records of Fox News Reporter James Rosen and over one hundred Associated Press journalists.”
First, James Rosen, which is really about Stephen Jin-Woo Kim.
Kim was a Senior Analyst at the Office of National Security, who in August 2010 was indicted by a grand jury on two charges:
- Unauthorized disclosure of national defense information in violation of 18 U.S.C. § 793(d) (the Espionage Act)
- Making false statements in violation of 18 U.S.C. § 1001(a)(2)
Kim has admitted he revealed National Defense/Security related information on North Korea’s planned nuclear test to Rosen and then lied about it to the FBI. The information Kim leaked to Rosen was of limited news value, but very scary considering that Kim knew the information, but most likely not its source. He may very well may have unwittingly informed the North Koreans that the United States had managed to develop an intelligence source in their government. That leak was valueless to our Democratic society, but potentially deadly to some unknown American asset inside North Korea. (I don’t know this for a fact, but my speculation is a valid reflection of how monstrously irresponsible Kim’s crime was.)
Kim was the one who committed the crime here, not Rosen. Rosen reporting the information Kim gave him is protected under the First Amendment. But that’s not the same as saying Rosen’s being a journalist places him above the law. You may remember the scandal during Bush Jr’s Administration wherein I. Lewis “Scooter” Libby started shopping around the name of CIA operative Valerie Plame to friendly journalists. Publicly exposing Plame’s position in the CIA was an attempt to discredit her husband Joe Wilson, who was one of the more highly qualified critics of Bush Jr’s Administration’s false claims that Saddam Hussain was developing Weapons of Mass Destruction, the cornerstone of the US pretense for invading Iraq. Libby committed a felony by revealing Plame’s name, but the journalists who published it did not. Their biggest risk was that they did not have any kind of immunity when it came to protecting their source, meaning Libby. Journalist Judith Miller served a extended jail term for Contempt of Court because she refused to disclose Libby’s identity (ironically, she wasn’t even the journalist who outed Plame).
As part of the investigation of Kim, Attorney General Eric Holder personally signed off on the orders empowering investigators to access Rosen’s phone records (the above described “transactional information”) and emails (“communication”). The reason this scandal broke at all was that this was not done through PRISM or FISC, but the more conventional Criminal Court system. That is an indication that though things have gotten pretty Wild Westy in the surveillance world; there seems to be some stuff that NSA is not permitted to do in total secrecy and without a warrant, though this may reflect the technological limitations more than recognition of Constitutional limitations.
Even so, this is highly controversial, especially because it required Holder to describe Rosen as a “criminal co-conspirator” though Rosen is not mentioned in the later indictment of Kim, nor has DoJ attempted to make the case that Rosen was doing anything except being a reporter. Scandal maybe, but completely legal, and therefore it is not grounds for impeachment.
Also, NBRA mentions wiretaps. But DoJ issued a statement, supported by Court documents, “We did not wiretap the phones of any reporter or news organization. Nor did we monitor or track the phone calls of any reporter’s parents.”
Second, Associated Press.
In May 2013, AP found that the telephone records for 20 of their reporters during a two-month period in 2012 had been subpoenaed by DoJ. This is “transactional information.” DoJ would not say why it sought the records, but Holder publicly stated the situation was extremely serious. Most news agencies have speculated that this is related to a May 2012 AP story about the CIA preventing a terrorist attack, which is said to have contained information that couldn’t legally be shared with AP by members of the US government.
Is this really so scandalous if the leak to AP put a CIA operative or asset’s life at risk or spoiled an ongoing anti-terrorism investigation?
Also, you will notice that nowhere have I mentioned an allegation of wiretapping or emails (“communication”), just phone records (“transactional information”), because there wasn’t any. Again, those are just things NBRA threw in groundlessly.
There’s no ground for impeachment here, because in each and every case, no matter how egregious you might think DoJ’s actions were, they were enforcing the law, not breaking it, and had the full support of our independent Judiciary behind them.
“ (1) failing to enforce all or parts of laws duly enacted by Congress, including the Defense of Marriage Act, the No Child Left Behind Act, and the Affordable Care Act”
All three of these are false charges.
The Defense of Marriage Act–even though the Obama administration determined that Clause 3 was unconstitutional (“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”) they continued to enforce it (for example, denying same-sex partners federal benefits). Yes, Obama did refuse to defend it when it came before the Supreme Court, but he had every right not to. Then the Supreme Court itself deemed it unconstitutional, and the law is no more.
No Child Left Behind Act–Obama is enforcing it. He did grant waivers wherein States that agree to adopt things like the Common Core standards are relieved of some of NCLBA’s more onerous provisions that are based on the Mandated Yearly Progress Goals. But this was all done through the reauthorizing process, and therefore, through Congress.
Affordable Care Act–This charge is clearly based on the statements of Rand Paul, and basing anything on Paul is always a bad idea.
When Paul said, “The way our country works is that legislation is written by Congress, passed by your representatives, the president doesn’t get to write legislation, and it’s illegal and unconstitutional for him to change legislation himself,” he was trying to build the case that it is illegal for President Obama to delay parts of the ACA. But really, all he succeeded in doing was demonstrate his ignorance of the Constitution and that this Presidential wannabee doesn’t know what the Executive Branch actually does.
Executive Branch is constitutionally empowered to implement the law. These sorts of delays in implementation are common because they are often unavoidable. Both Democratic and Republican administrations have used them. That doesn’t mean the Executive can do whatever it pleases though, the Federal Administrative Procedure Act authorizes federal courts to compel agencies to initiate statutorily required actions that have been “unreasonably delayed.” But the courts have rarely found this or that delay to be unreasonable. When they have it is in cases, unlike this one, wherein the inaction had lasted for several years, and the recalcitrant agency couldn’t offer a credible excuse for, nor a time-line till the end of, the dithering. Heckler v. Chaney, whose opinion was written by arch-Conservative William Chief Justice Rehnquist, set the standard as the “agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.”
The Obama Administration has not done this. Obama wants the ACA.
Doesn’t NBRA get it? They can’t impeach him for delaying the execution of the law we all know NBRA doesn’t want, they can only challenge him in court to force him to implement of the law they don’t want.
This is also a good place to point out that not all misconduct is Impeachable. Let’s say Obama was pulling a fast one here (and he’s not); as both Congress and the Courts have remedies, the case that the Administration was usurping their authority simply can’t be made, and with that, there’s no crime. Not liking a President isn’t grounds for Impeachment.
“(2) after Congress refused to pass his Dream Act, unilaterally issuing an executive order directing immigration officers to no longer deport an entire class of illegal immigrants who came here as children, regardless of individual circumstances, and to give them work-authorization permits.”
Republicans in Congress blocked Obama’s DREAM Act (Development, Relief, and Education for Alien Minors) not by voting it down, but by filibuster so it could not be voted on in the Senate (it had already passed the House).
Obama’s tactic was extremely clever, and that cleverness is demonstrated most is the exact nature of the DREAM Act Executive Order which is the basis of this charge.
You see, it doesn’t exist. Despite frequent internet memes to the contray, Obama has actually signed fewer EOs than any President in about a century.
As Obama himself said, “With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed.”
Obama didn’t issue an EO, he merely asked the Department of Homeland Security to use its prosecutorial discretion to issue a procedural policy directing agents not to go after a specifically defined group of undocumented aliens. That type of discretion has been used by probably every President it history. It is not an absolute authority, it can be challenged by Congress through clarifying legislation, a law that says “We know you have broad discretion, but such-and-such action (or inaction) is beyond your discretion.” It can also be challenged in Court under the Federal Administrative Procedure Act. As both Congress and the Courts have remedies, NBRA can’t make a case that the administration was usurping their authority.
In approaching the issue this way, Obama was betting the even the Tea Party didn’t want to seen as picking on little kids.
And so far, he’s right.
“He has violated the Constitution when, on January 4, 2012, (1) he bypassed the U. S. Senate to appoint three members of the National Labor Relations Board, actions that were ruled unconstitutional by the United States Court of Appeals for the Fourth Circuit which affirmed previous decisions by the Court of Appeal for the D.C. Circuit and the Third Circuit; and (2) he bypassed the U. S. Senate to appoint Richard Cordray to head the Consumer Financial Protection Bureau.”
As pointed out regarding the ACA and the DREAM-Act-EO-that-wasn’t, the Courts ruling against a decision by the President cripples the decision, but doesn’t necessarily translate into grounds for Impeachment, wherein you must demonstrate that he willfully committed a crime. This is especially true here, as the decision was based on a purely technical issue–what is the definition of recess?
(Also, the Courts are just plain wrong here, and I am confident that will eventually be demonstrated.)
Federal Judgeships and top spots in Federal Agenices are filled by Presidential appointments. These appointments must be confirmed via Senate hearings. During those hearings the opposing party could demonstrate the candidate is unqualified, resulting in a vote that kills the appointment. On the Cabinet level, this has happened only nine times in American history, I don’t have numbers regarding the number of nominees rejected for the myriad of lower posts that were rejected via a vote.
Short of a vote, the opposing party could block the hearing itself. They might do this stop an Appointee they know they can’t stop muster enough votes against, or if they are trying to interfere with an Agency that they object to the very existence thereof, or they just want to give the President a hard time. All three of these come into play here. No one can deny that Republicans in Congress have been deliberately delaying the confirmation process of Obama’s intended appointees to the top spots in multiple agencies and judge ships.
Since the days of George Washington, recess appointments have been the President’s main mechanism of circumventing this recalcitrance.
Aware that Obama would take advantage of a Senate holiday break, Republicans conducted brief, pro-forma sessions every few days, little more than entering the room, striking the gavel, and then leaving. The Administration chose to make the appointments anyway, because the tactic was transparent, no business was being conducted during the alleged sessions, so in the eyes of the Administration, the holiday break was really a recess.
It’s important to understand that by circumventing recalcitrance, the President isn’t completely circumventing the Senate’s authority, but merely forcing the Senate to engage in the confirmation process that they were avoiding. The appointment can only remain in effect if approved by the Senate by the end of the next session of Congress, or the position becomes vacant again. Should the Senate again refuse to engage in the confirmation process, the President just exploits the next recess, which would by then be just arriving.
So what we have in this Article is a clear pattern on obstruction by Republican Congresspersons presenting compelling reason for the President’s course of action. And a completely technical issue over the definition of what constitutes “recess.” The intervention of the Courts which has resolved said issue (except that the Administration is apealling, but never mind that). And not-for-nothing, there is the precedent of Andrew Johnson that this is not an Impeachable offense (his 1868 Impeachment in the House was based on an far more explicitly unconstitutional appointment, and that Impeachment was overturned by the Senate.)
“He has intimidated whistleblowers and brought twice as many prosecutions against whistleblowers as all prior presidents combined. Egregiously, while refusing to prosecute anyone for actual torture, he prosecuted former Central Intelligence Agency employee John Kiriakou for disclosing the torture program.”
Whistleblowers are in the eyes of the beholder, except that they are also defined by law. Obama boldly extended Federal Whistleblower Protections to members of the intelligence agencies, which at first seemed a bold reform, but there has also been the disturbing consequences that anyone acting as a whistleblower outside the law’s very narrow definition, notably those who talk to the press instead of the IG, are more easily defined as “whistleblower-not.”
There are arguments over how many whistleblowers Obama has prosecuted, because even those who condemn the rash of prosecutions, condemn at least some of those who claim the mantel. For example, the aforementioned Stephen Jin-Woo Kim, who to me doesn’t seem a whistleblower even by the farthest possible stretch of the word, is called a whistleblower by some. Several others of the often listed I also have dim views on.
The usual list: John Kiriakou, Bradley Manning, Edward Snowden, Shamai Leibowitz, Jeffrey Sterling, and Thomas Drake. This list constitutes the longest list of leakers, people who were not engaging in espionage for a foreign power, to the prosecuted by any Administration. Among these men, only the relatively unknown Jeffrey Sterling and Thomas Drake can make reasonable claims to have not broken the law. The others have only the defense that they broke the law to serve the public good, taking on the mantel of Nixon-era Pentagon Papers leakers Daniel Ellsberg and Anthony Russo.
Why so many all of a sudden? This clearly reflects a tougher policy regarding leaks, but it also reflects that the computerization of basically everything, because this has made proving these cases so much easier. It is all but impossible to erase one’s footprints when accessing restricted information to leak. Leaks to the press inevitably become public, so all investigators have to is walk the access of that information backwards and they have their man. Actual spies are probably safer from prosecution, given that investigators may not know there has been a breach of security, and a spy would be getting trade-craft advice from a sophisticated Foreign Intelligence Agency.
But here’s the thing, there’s no ground for impeachment here, because in each and every case, no matter how egregious (and I find both the Kiriakou and Drake cases pretty egregious) the DoJ was enforcing the law, not breaking it.
John Kiriakou, singled out by the NBRA, is worth lingering on for a moment.
He was a ranking and decorated former CIA agent who was the first official within the U.S. government to confirm to journalists the use of waterboarding torture on al-Qaeda suspects during Bush Jr’s Administration. That was one of the things he was prosecuted for, but those charges were dropped.
He also provided the name of an active CIA agent to a journalist who was attempting to get independent confirmation to Kiriakou’s charges. This was not entirely dissimilar to what I. Lewis “Scooter” Libby did to Valerie Plame, and it is an explicitly criminal act. But the differences between the two cases are significant. The journalist in question was only supposed to interview the agent, not to publicly disclose the name of the agent, and in fact did not. There was no venality of motive. No harm done to any person or American Intelligence operation (in the Plame case, her career was ruined and there are accusations that an intelligence operation she was running was at least partially disrupted). Never-the-less, Kiriakou was sentenced to 30 months in prison. Libby was also sentenced to 30 months in prison, but then President Bush Jr. commuted that part of his sentence so Libby never spent a night in jail.
Kiriakou’s arrest was in 2012. Two years earlier, DoJ overruled a recommendation by its Ethics Office to pursue criminal charges against the Bush Jr. era lawyers who sanctioned the use of torture, and not to charge CIA officials for destroying the evidence of the crimes (videotapes of the interrogations). So right now, Kiriakou languishes in jail, while the criminals he helped expose are shielded from prosecution.
Click here to view Parts One and Two of Robert Emmett Murphy, Jr.’s “Impeachment” series:
The President Cannot Be Impeached Without a Crime (Part Two)
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