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Crime and Punishment: Who Defines and Decides Them?

How should a president be held accountable? The Framers of the Constitution made it possible to remove him or her from office through impeachment, but they said little else about penalties or punishments for the executive officer.

The Constitution allows Congress to discipline its members through an official statement that outlines and condemns the offender’s misdeeds - a censure resolution.

A short history of censure

Congress translated this penalty to the Oval Office in 1834, censuring then-President Andrew Jackson for withdrawing the nation’s money from a private bank, defying the Whig-controlled Senate. But no president has been censured since then. There have been attempts, of course, including a Republican push to censure President Bill Clinton when impeachment efforts failed.

Senator Russell D. Feingold (D-Wisconsin) is hoping to make President Bush the second president to be censured in U.S. history.

Feingold says that President Bush violated the law with his secret wiretapping program, which allows the National Security Agency to eavesdrop on international telephone calls and emails. The Bush administration and NSA claim that they only spied on people with al Qaeda ties, so no warrant should be needed.

The arguments

Many believe that Bush’s wiretapping program violates the 1978 Foreign Intelligence Surveillance Act (FISA), which was created in the wake of surveillance abuses during the cold war and Vietnam War. The law requires the National Security Agency and the Federal Bureau of Investigation to get a warrant from a special court before placing an electronic wiretap.

The proceedings of this court, called a FISA court, are not available to the public for security reasons. Although the court rarely denies a warrant, Congress passed the law to ensure that a second branch of government was there to check executive power and prevent wiretapping abuses.

The Attorney General for the Bush administration, Alberto Gonzales, has argued that this review process is cumbersome and can take valuable time essential to "fighting a stateless, faceless enemy."

As Gonzales points out, the contemporary qualities of war are a consideration. Since FISA passed, the threat of war has changed considerably. Possible enemies have gone from over there to over here, battle is sporadic and unpredictable, and victims are usually civilians instead of soldiers. Danger can no longer be attributed to a foreign government or nation. Danger could come from a stateless and mobile group, or groups, or even individuals. Anyone who refuses to negotiate or compromise according to traditional standards of war.

In defending the Bush administration surveillance program to the Judiciary Committee, Gonzales explained that "the enemy is listening" and counter-surveillance is an "early warning system."

However, many Judiciary Committee members contended that fear was not a reason to avoid the law. Gonzales argued that the administration was not so much avoiding the 1978 law as following a different one: the 2001 congressional resolution that gave President Bush the authority "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States."

Defenders of the Bush administration argue that the 2001 congressional directive gave President Bush the power to do as he saw fit in order to fight Al Qaeda, including issuing wiretaps without a warrant.

Presidential power

The debate over the wiretaps is a debate over presidential power - how much reach should belong to the executive branch in matters of national security?

The framers of the Constitution intended for the legislative branch to be the most powerful actor in the federal government with the president empowered to execute the laws, not create or deviate from them. Because the founders were clearly concerned about the idea of a king with elite powers, they did not grant them to the president. For more on this, listen to WomenMatter’s interview with Geoffrey Stone, Constitutional scholar from the University of Chicago.

However, over time, the role of the president has become larger and more powerful. A forceful executive branch certainly did not start with the W. Bush administration.

The application of the Constitution evolves over time, and most Americans alive today understand and are accustomed to the overwhelming power of the executive branch.

How would a censure resolution affect this situation?

Senator Feingold insists that Congress must take a stand because President Bush has blatantly disregarded the Constitution. Censuring President Bush, he says, will help to restore the system of government by providing accountability.

Senate Majority Leader Bill Frist strongly disagrees. He believes that Bush’s program is legal and that censuring a president during war is irresponsible because it could weaken America’s image. Frist also accuses Feingold of political maneuvering since he may run for President in 2008.

Feingold retorts that Bush violated the basic constitutional protection against unreasonable search and seizure and that Congress must speak up, regardless of the political timing. Feingold also charges Senate Republicans with hypocrisy since many of them tried to impeach and censure Bill Clinton for lying about his affair with Monica Lewinsky. From Feingold’s point of view, the wiretapping issue is much more important.

There is no question that censuring President Bush would affect the upcoming midterm elections. But assuming that there is no good time to punish a president, how should he or she be held accountable? Who should determine guilt or innocence? How can the people remain powerful?

Your input matters

Your representatives in Congress DO care what you think. Especially now -- 2006 is an election year and many representatives will be looking to reconnect with their constituents. Let your congressmen and women know what you think! Give your senators a piece of your mind! To find your reps, click here.

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Update Posted on: 3/17/2006