The criminal prosecution FISA argument

The FISA argument continues this week with a new twist. There have been rumbles that the real reason Obama changed his mind about supporting FISA was about possible criminal prosecution for individuals who broke the law in wiretapping without warrants. The FISA legislation, so the argument goes, only provides immunity from civil lawsuits, not criminal lawsuits.  So while the corporations’ bottom lines may be safe, the individuals who made the wiretapping decisions, including Bush administration officials, can still be prosecuted for criminal activity. Making the argument are MSNBC’s Keith Olberman and former counsel to the Nixon White House John Dean, writing today in Laidlaw.

While noting that Obama has not made any formal comment about impeachment proceedings surrounding warrantless wiretapping, Dean emphasizes that he has taken a stand against torture, indicating that he might be willing to have his justice department, in the event that he was elected, investigate any impeachable offenses in that area.

During the primaries, Senator Obama stated that, as President, he would not give his predecessors a pass for their crimes, which has recently become the informal custom. Obama was asked about this matter by a seasoned political reporter for the Philadelphia Daily News, Will Bunch.

Bunch wanted to know Obama whether his administration’s Justice Department “would aggressively go after and investigate whether crimes have been committed” by the Bush Administration. The discussion arose in the context of the uses of torture and other illegal means to fight terrorism, but Obama’s response was general and unequivocal. Bunch reported that Obama said:

What I would want to do is to have my Justice Department and my Attorney General immediately review the information that’s already there and to find out are there inquiries that need to be pursued. I can’t prejudge that because we don’t have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You’re also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we’ve got too many problems we’ve got to solve.

So this is an area where I would want to exercise judgment — I would want to find out directly from my Attorney General — having pursued, having looked at what’s out there right now — are there possibilities of genuine crimes as opposed to really bad policies. And I think it’s important– one of the things we’ve got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity.

You know, I often get questions about impeachment at town hall meetings and I’ve said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in cover-ups of those crimes with knowledge [aforethought], then I think a basic principle of our Constitution is nobody[’s] above the law — and I think that’s roughly how I would look at it. (Emphasis added.)

Gosh, the Republicans must suddenly be all scared-like about that impeachment stuff, thinking how the Democratic congress might be willing to go after them. I mean, look at all the attention the Kucinich impeachment stuff got.

And how IS that Kucinich impeachment bill doing these days?

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