The call to censure President Bush for spying on Americans without warrants has renewed scrutiny of the illegal NSA surveillance program. Such scrutiny is important, because a close reading of the facts indicates the Bush Administration knowingly and deliberately violated federal law. Censure is a rare and serious exercise (partially because of doubts about its constitutionality), so its mere mention in the Senate this week indicates a growing realization that President Bush is undermining the rule of law - even in a Congress that regularly capitulates to a President who blatantly disregards federal law, the U.S. Constitution and his oath of office.
Given these basic facts, the key question is not whether there are substantive grounds for censure, but whether censure is enough.
Censure is basically an official condemnation by Congress - a formal method for Congress to declare its disapproval. Some argue such a condemnation can create enough pressure to alter a President's conduct. But censure has no binding authority - it does not force the President to do anything, it does not criminalize any specific action and it does not deny funding to any part of the Executive Branch.
To put it another way, the President is breaking the law today by spying on Americans. If he were censured tomorrow, nothing would change in the NSA surveillance program. One of my fellow attorneys in the legal challenge to warrantless wiretapping (CCR v. Bush), emphasized this by noting "a censure resolution won't remove a single wiretap from Americans' phones." In the same vein, a censure resolution will not end the Iraq War, halt U.S. government torture or stop the President's other violations of the constitutional principle of the separation of powers.
Each of those offenses are actually grounds for impeachment, so Congress must go beyond censure to hold the President accountable. The impeachment process, unlike a censure, would include a thorough investigation and a trial for illegal conduct. (I make this case in detail in Articles of Impeachment Against George W. Bush, a new book from Melville House Publishing.)
Some people dismiss impeachment as "unlikely," but our argument is based on the legal merits. The investigation itself could reveal further misconduct, as occurred during Watergate. Depending on how the courts rule, the legal challenges to the NSA Program may also expose more incriminating information about the motives and targets of the Administration's domestic spying. Finally, this week's censure proposal is unlikely to pass, according to recent media coverage, but that has not precluded its discussion in Congress or the media. We need to start this discussion seriously -- before we will ever know where it ends.
It is past time for Congress to begin an impeachment investigation, as Rep. John Conyers has proposed. We should not recoil from the right remedy just because it is difficult.