Wednesday, December 21, 2005

The Law Bush Broke

There was a question in comments earlier about exactly what law Bush broke when he authorized warrantless wiretaps of US persons. You can read the text of the electronic surveillance portion of the statute at this Cornell webpage.

My favorite part is excerpted below:

(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.
(b) Defense
It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
(c) Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.

Federal prison for not more than five years. Sounds about right to me.


Herr Gokmop said...

Well, that does answer the question. Thanks for the specifics.

I for one can't believe the tack that Bush is taking. Essentially, he's arguing that his powers as president trump the law. He's also arguing that Congress authorized "force" and that would include wiretaps.

Inevitably, we'll get into wrangling over tiny legal rules now, since as you point out, the facts aren't really in dispute. So I'd like to say (A) most of Bush's arguments depend on the country being on a wartime footing. The US is not actually at war, because Congress didn't declare one. A rhetorical "War on Terror" does not a legal war make. (B) If you go back and read some of Alexander Hamilton's writing on how/why impeachment should operate, there's a strong sense that he was interested in impeachment precisely to answer the question of "what do you do when a president feels his authority is above the law?"

Bush's arguments about his authority simply scream slippery slope. If you take the principle "the president should be able to do what he feels is necessary, even if it's illegal, in times of war", it's not hard to extend that into some really absurd situations.

Adam P. Short said...

I see where you're coming from. I don't personally like slippery-slope arguments. Often where we are now is bad enough, without worrying about where it leads. This is one such case.

I think the tack Bush is taking is actually only temporary. He's waiting to see which Democrats are going to take the lead in denouncing him, and then he's going to try to turn the media coverage back on them, attacking them constantly and trying to drown the accusations against him out of the discourse.

He really has no other options. There is no factual defense; Bush admitted to the acts. There is no legal defense - the law unambiguously prohibits the acts Bush admitted to.

All that's left is the "I'm the president" defense. It didn't work for Nixon, but those were different times. We'll see if it works today.