THE JUSTICE Department currently spends too muchtime acting as a subordinate to the Bush administration and not enough time truly dispensing justice. Earlier this week the Department of Justice began an internal investigation of the administration's warrantless wiretapping program. The oversight will not investigate the most pressing matter of the issue -- whether the administration overstepped its bounds by enacting an unconstitutional expansion of federal power, according to the Associated Press. In other words, the Department of Justice will be unable to deliver more than a slap on the wrist on an executive violation that requires more investigation and certainly more punishment to the administration.
This is a perfect time for the newly elected democratic Congress to demonstrate their power and act against the unitary executive theory, a controversial theory used in the Bush administration to justify expanded executive powers, effectively turning the president into an imperial figure above the other branches of government. The Senate Judiciary Committee, which will soon be led by Patrick Leahy, D-Vt., will be able to increase congressional oversight on a number of lawless executive actions and subsequently issue subpoenas on Bush administration follies. There are hundreds of issues for the committee to choose, from faulty pre-war intelligence to unlawful torture. Congress must issue their first subpoena to the administration regarding warrantless wiretaps above all else and be willing to take drastic action if the administration ignores Congress's demands to a hearing.
More than anything else, warrantless wiretaps are unnecessary because the warrant that the administration is required to comply with is retroactive. The 1978 Foreign Intelligence Surveillance Act is quite clear that the warrants must be submitted three days after the wiretap to a secret court, and most of the time the court acts as a rubber stamp as long as the wiretap is reasonable. The only realistic scenario why the administration would choose to ignore easily compliable judicial oversight would be if they are wiretapping citizens for reasons outside of terrorism, a plausible scenario considering Bush's shady parallels to the Nixon administration. Nixon used his presidential powers to cover up a break in at the Democratic National Committee headquarters in the Watergate hotel. While no one can prove that the Bush administration is doing something similar, the administration's opposition to the secret FISA court or any oversight for that matter, can only lead to a president with something bad to hide.
This is where the Democrats and the Judiciary Committee come in. A truly independent Senate investigation, detached from the administration unlike the Department of Justice, would be able to come up with a more forceful and detailed investigation on the Bush administration's policy violations independently and whether further legal action should be taken on Bush's violation of the law. Moreover, there are two main benefits from independent congressional oversight. First, any information presented to the committee can be confidential, thus assuaging any fears that in-depth knowledge of the program would hurt homeland security. Second, a request from the Senate Judiciary Committee would have more say in receiving the information through the threat of a subpoena, and therefore have a better chance of receiving the information the committee would need in an investigation.
Unfortunately, the Bush administration does not have a reputation for following the law, much less a critical congressional hearing. Congress must not be afraid to act on this issue with a resolution for censure or even impeachment if the president and his cabinet do not abide by their court date. Comparably, the only impeachment proceedings other than Nixon's hearings were in the late 1860s regarding Andrew Johnson's replacement of cabinet members, unabashedly violating laws enacted by Congress regarding the tenure of cabinet officials. In this instance, Congress impeached a president for much less than the laws the Bush administration presently violates, especially considering that Bush's disregard for warranted wiretapping affects every single citizen, while Johnson's violations affected only his cabinet. Additionally, a censure or impeachment motion following an administration's refusal to act would likely force the administration to wake up and abide to Congress's role as a check to the executive branch, finally destroying the foolish Unitary Executive Theory once and for all. There is little reason to believe that an impeachment would actually result in the removal of Bush from power, especially given the strong party split in Congress, but never since the chartering of the Magna Carta has such drastic action been needed to counter such a powerful figure.
Vice President Dick Cheney stated in 1987 that presidents have vast "inherent" powers not spelled out in the Constitution, according to the Boston Globe. Sadly, this type of thinking can justify every immoral presidential action from indefinitely detaining foreign nationals to lawlessly ignoring retroactive wiretaps. With this in mind, someone now must enforce the law for the benefit of those who do not want to follow it. But that someone is not the Department of Justice.
Adam Silverberg's column appears Thursdays in The Cavalier Daily. He can be reached at asilverberg@cavalierdaily.com.
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