03/02/2006 12:56 am ET Updated May 25, 2011

On Spying and Impeachment - From an Attorney Bringing CCR v. Bush

After President Bush admitted that he authorized warrantless domestic spying in December, we sued him. As one of the lead attorneys in the case, Center for Constitutional Rights v. Bush, I've been arguing that the NSA program clearly violates the Foreign Intelligence Surveillance Act (FISA). So if we prove the President broke the law, is that grounds for impeachment?

That's a question I often hear when telling people about our case. The answer is complicated, but the main ideas are outlined in Articles of Impeachment Against George W. Bush, a new book by attorneys with the Center for Constitutional Rights. We argue that Bush can be impeached for domestic spying, torture, the Iraq War and violations of the Constitutional principle of separation of powers.

In the chapter on our domestic spying case, I examine why the NSA spy program is illegal and how it might be remedied, including impeachment. Congress provided comprehensive procedures for electronic surveillance in FISA, and it explicitly declared the executive had no other implied powers to conduct surveillance without FISA. Simply put, the NSA Program is illegal because it violates FISA.

President Bush broke the law by authorizing surveillance outside of FISA, but that is not automatically grounds for impeachment. The most sensible theories of impeachment say that for presidential misconduct to be impeachable, it must be either a genuine threat to the democratic system of government or an egregious abuse of power. The cases against Richard Nixon and Andrew Johnson are the most relevant precedents. (Bill Clinton's impeachment is irrelevant for this discussion because it involved a personal affair with no implications for the democratic system of government.) In the articles of impeachment against Nixon, the House Judiciary Committee stated his actions were "subversive of constitutional government," causing "manifest injury [to] the people of the United States."

So the central question in considering whether the illegal domestic spy program warrants impeachment is: Did the president break the law in pursuit of the country's best interests, or for more sinister or political ends?

To take the Nixon standard, did President Bush damage our democratic system of government and our constitutional separation of powers by authorizing the NSA Program? We can only speculate; there is little formal evidence available about President Bush's motivations. But several significant possibilities demand further investigation.

First, the program may betray a willful attempt by the executive branch to usurp power that rightly belongs to the two other branches of government.

Second, the program may have involved data mining of such broad scope -- for example, using voice recognition technology and computers to scan every international phone call and email for certain words -- that essentially everyone in the country would have been targeted. Such a program would be a long step on the way to a total surveillance society like East Germany, where the government kept files on every citizen. It would chill untold amounts of political activity, and of course it would be so broad that it could never be approved by a court under the Fourth Amendment.

Third, it may be the case that the administration is engaging in surveillance that even conservative FISA judges would never approve of: conversations of attorneys with their clients, or of journalists with their sources. This kind of surveillance would help silence two indispensable voices of dissent, both essential to a working democracy: civil rights attorneys and the press. If any of these motivations can be proven to be at the heart of the program, then impeachment could be warranted.

After studying this issue and battling the Bush Administration in court, I've concluded there are only two ways to address the problem from here, given how little information the Administration is providing.

One is for Bush to appoint a special prosecutor. So far, the Administration has shown no interest in appointing one.

The other is for Congress to launch a serious, non-partisan investigation into the illegal spying and potential remedies including impeachment. A toothless inquiry that does not include serious remedies will not get serious answers. (The Administration's secretive stonewalling of the 9/11 Commission and the Senate's pre-war intelligence investigations are prime examples.) We need a real investigation, as Rep. John Conyers has proposed, that gets past the trivial defenses the administration has offered. Those who implemented the NSA Program are clearly guilty of felonies under FISA; the fact that the President ordered his subordinates to commit felonies at least deserves a public investigation. After all, even Nixon believed the American people had to know whether or not their president was a crook.

Articles of Impeachment Against George W. Bush
makes this case in detail, showing how an impeachment investigation could rein in the Presidency and protect our Constitution. Americans now have an opportunity to call on Congress to hold hearings on impeachment, before it's too late.