WILL THE CENSURE MOVEMENT GAIN MOMENTUM?

"When the President does it, that means that it is not illegal." -- President Nixon during the Watergate scandal.


It's been said that Sept. 11 changed everything.

In 2002 President Bush issued a secret Executive Order allowing the NSA to eavesdrop without a warrant on phone conversations, e-mail and other electronic communications, even if one of the parties was in the U.S.

The program was so secretive that a legal review panel -- comprised of fewer than half a dozen government attorneys that review top-secret intelligence programs for the National Security Council -- was bypassed. Instead, the legal vetting was done by just one person - then White House counsel Alberto Gonzales.

The problem is that the 1978 Foreign Intelligence Surveillance Act (FISA), forbids the NSA to conduct surveillance inside the U.S. without a warrant. Despite this, the White House chose to ignore the law, which has lead to a firestorm of controversy.

The President says that he had to ignore an act of Congress to prevent another terrorist attack. He also argues that the NSA is only spying on the communications of people who have known links to al-Qaeda.

Most Americans seem to favor the President taking aggressive steps to root out terrorists and thwart their murderous plans, but many seem to worry about the President making up, or ignoring, the law as he goes along.

The FISA court has an 11-member secret panel that hears NSA warrant requests. In the event of circumstances that require immediate action by the NSA, the law permits the agency to eavesdrop without a warrant so long as it applies for one within 72 hours.

And the court has essentially acted as a rubber stamp. According to the Justice Department, from 1979 to 2004 the court approved 18,724 wiretaps and denied only three - all in 2003. The government almost always gets what it wants.

But the Administration argues that technological advances have made FISA outdated. They claim that the law hamstrings the NSA from being able to adequately handle the immense flood of electronic communications that presently pass in and out of the U.S., which the agency says it can now capture and analyze more effectively. And Justice Department officials complain that a FISA surveillance request can take up to a week to prepare - even for some seasoned department lawyers. The warrant requests are said to be too long and complex, and officials protest that they are required for each individual number recovered from a terrorist's cell phone. Intelligence officials also complain of having to stop surveillance in order to get approval.

The NSA performs data mining, in which computers sort through billions of phone calls and Internet messages looking for patterns that may indicate terrorist activity. That requires sifting through massive numbers of individual communications to get a hit. Under FISA, the NSA is supposed to obtain a warrant for each suspect phone number it gathers. Authorities argue that the FISA process is too slow to cover a situation in which a known terrorist calls a number in the U.S. not already covered by a FISA warrant.

Such is the conundrum that lawmakers now find themselves in. They may not want the President ignoring, or breaking, the law, but they don't want to hinder intelligence efforts or be seen as "soft on terrorism" either.

Into this breach leapt Democratic Senator Russ Feingold of Wisconsin, who has proposed a resolution to censure President Bush for breaking the law - specifically, illegally wiretapping Americans.

According to the latest NEWSWEEK poll, four in ten (42 percent) of the adults in the general public say they would support Congressional censure of the president, while half (50 percent) say they would not. Censure wins majority support from Democrats (60 percent) and one in five Republicans (20 percent) say they'd support it.

Meanwhile, twenty-nine of 201 Democrats in the House have signed onto a bill that calls for a bipartisan investigation of the president's actions to determine if there are grounds for impeachment. The bill was introduced in December by Representative John Conyers Jr., a Michigan Democrat.

One in four American adults (26 percent) say they think Congress should actually impeach President Bush and consider removing him from office.

By comparison, the level of public support for impeachment today is below the 32 percent support for President Clinton's removal in October 1998, before he was impeached by the U.S. House of Representatives. Support for the impeachment of President Nixon had reached 52 percent in a June 1974 Harris poll shortly before he left office.

The NEWSWEEK poll also gives President Bush just a 36 percent approval rating, matching the low point in his presidency recorded last November.

What's surprising is that no Democrat has moved to censure the President for lying about his prior knowledge that the levees in New Orleans could be breached during Hurricane Katrina. That effort would seem much less fraught with political peril, and certainly far less controversial.

Earlier this month, the Associated Press released secret transcripts and video footage showing President Bush being personally briefed the day before Hurricane Katrina reached land. The predictions he heard were quite accurate — including the failure of the levees. He was clearly warned of exactly what was coming.

The video and transcripts show that federal and local officials discussed threats clearly, reviewed long-made plans and understood Katrina would wreak devastation of historic proportions. "I'm sure it will be the top 10 or 15 when all is said and done," National Hurricane Center's Max Mayfield warned the day Katrina lashed the Gulf Coast.

Michael Brown told the president that if New Orleans flooded the Superdome emergency shelter would likely be under water and short on supplies, creating a "catastrophe within a catastrophe."

Experts and officials implored the President to prepare for, "devastation of historic proportions."

The chief scientist of the National Hurricane Center warned that a major levee breach was "obviously a very, very grave concern."

Yet four days after the storm Bush declared, "I don't think anybody anticipated the breach of the levees" that resulted in the historic flooding of New Orleans. But the transcripts and video show there was plenty of talk about that possibility.

And President Bush didn't ask a single question during the briefing.

Ultimately, Katrina ended up being the worst natural disaster in American history, killing over 1,300 people and displacing hundreds of thousands.

And yet, much like Katrina, that storm of controversy quickly blew over and passed. Absent was the outrage that seems to have taken root in the illegal wiretaps issue. Perhaps the illegal wiretap issue can be debated, as well as whether or not the President deserves to be censured. But one thing is certain; the president lied to the public regarding his prior knowledge of the potential consequences of Katrina. For that, if not for dereliction of duty, he certainly deserves to be censured.

Copyright © 2006 Sean M. Kennedy. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed without the author's consent.