Gadfly is Marty Aussenberg, a columnist for the weekly Memphis Flyer. Marty is a former SEC enforcement official, currently in private law practice in Memphis, Tennessee. (A full bio is below the fold.) Cross-posted at The Memphis Flyer.

When the New York Times
revealed that the President had personally authorized wiretaps in violation of

the law which requires a court order to do so
, the President, wisely,
refused to comment on the accuracy of the story.  In his interview with Jim
Lehrer of PBS‛ “”News Hour,” the day the story broke December 16th),

he said

Jim, I
know that people are anxious to know the details of operations, they– people
want me to comment about the veracity of the story. It’s the policy of this
government, just not going to do it, and the reason why is that because it would
compromise our ability to protect the people.

Less than 24 hours later,
the President came out swinging, in his live radio/TV address from the White
House, announcing to all the world that not only was the Times‛ story accurate
in announcing that he had authorized such surveillance,

In the
weeks following the terrorist attacks on our nation, I authorized the National
Security Agency, consistent with U.S. law and the Constitution, to intercept the
international communications of people with known links to al Qaeda and related
terrorist organizations…

but that he intended to do
it again.

I have
reauthorized this program more than 30 times since the September the 11th
attacks, and I intend to do so for as long as our nation faces a continuing
threat from al Qaeda and related groups.

In other words
, the president”s version of  “I don’t care what FISA (the law
governing electronic surveillance) don’t allow…”

Relying, apparently, on the
advice of his attorneys,

including the Attorney General
, the President has asserted that he has the
authority to order such surveillance even without complying with the black
letter of the law which governs such activities, the

Foreign Intelligence Surveillance Act of 1978
(“FISA”), which requires that
any surveillance, without exception,  be pursuant to a court order.  The law
requires either that a court order be obtained prior to the initiation of the
surveillance, or within 72 hours of that initiation, in special, “emergency,”

The law does not authorize
warrantless surveillance, under any circumstances, and the president”s assertion
(in an apparent exercise of activism he would criticize if it were a judge doing
it) that his authority to violate this law inheres in the Constitution, or in
the resolution authorizing the use of force in Iraq has already been thoroughly
and completely debunked by several legal experts, including prominent
conservative (and Reagan Justice Department official), Bruce Fein, who has said:
Bush presents a clear and present danger to the rule of law
,” and Jonathan
Turley, a Georgetown law professor, who opined, on the December 19th edition of
Fox News‛ “The O‛Reilly Factor,” that "it
is a crime to order surveillance or conduct surveillance unless you’ve gone to a
judge. Federal crimes can rise to impeachable offenses

The law (FISA) provides that
it is a crime to ?engage in electronic surveillance under color of law except as
authorized by statute,”” and that such a crime is punishable by a fine of not
more than $10,000 or imprisonment for not more than five years.  As in the case
of all criminal laws, every act in violation of the law constitutes a separate
offense, and each offense subjects the violator to the prescribed punishment. 
So, if the President authorized (as he has admitted) 30 instances of
surveillance “except as authorized” by the statute, he has admitted to conduct
which, were he an ordinary citizen, would subject him to $300,000 in fines or
imprisonment for 150 years.  That’s even longer than

Scooter Libby may be looking at for five counts of perjury and obstruction of

The astonishing thing about
the President’s admission is that he didn’t need to make it.  Indeed, any
competent criminal attorney would have advised the President not to admit he had
violated a federal criminal statute.  If he were an ordinary citizen, and had
been accused of committing a criminal act of this sort, he would have the
absolute right to assert his right against self-incrimination under the Fifth
Amendment to the U.S. Constitution.  As any criminal attorney will tell you,
though, the wisdom of asserting the privilege against self-incrimination must be
weighed against the inevitable (if impermissible—at least in court
proceedings) inference that only guilty people make such an assertion.  The
President, however, doesn’t suffer that risk, since he wouldn’t have had to
“take the Fifth;” he could have continued to hide behind “national security,” as
he did when he was first asked about it by Jim Lehrer.

Of course, the President
also could have, as did all his predecessors, denied his conduct.  It worked, at
least for a while, for Nixon, Reagan, Bush 41 and Clinton, in all their
scandals.  The fact that this president chose to confront his critics by
flaunting his disregard of the legal restrictions on his conduct will
undoubtedly contribute to his downfall.  It is almost inevitable, given the
outcry from politicians, pundits, and legal scholars about this latest episode
of presidential hubris, that

impeachment is on the horizon
. Indeed,

several members of Congress
have already

floated the idea
.  Let’s not forget, the illegal use of electronic
surveillance was

one of the charges leveled against Nixon
in his articles of impeachment. 
And history, as we know, has a funny way of repeating itself.

If, and when, the
accountability moment comes for this President, I suspect he will be sorry he
didn’t “take Five.”


Mr. Aussenberg is an attorney practicing in his own firm in Memphis, Tennessee. He began his career in the private practice of law in Memphis after relocating from Washington, D.C., where he spent five years at the Securities and Exchange Commission as a Special Counsel and Trial Attorney in its Enforcement Division, during which time he handled or supervised the investigation and litigation of several significant cases involving insider trading, market manipulation, and management fraud. Prior to his stint at the S.E.C., he was an Assistant Attorney General with the Pennsylvania Department of Banking in Philadelphia and was the Attorney-In-Charge of Litigation for the Pennsylvania Securities Commission, where, in addition to representing that agency in numerous state trial and appellate courts, he successfully prosecuted the first case of criminal securities fraud in the state’s history.

Mr. Aussenberg’s private practice has focused primarily on investment, financial, corporate and business counseling, litigation and arbitration and regulatory proceedings. He has represented individual, institutional and governmental investors, as well as brokerage firms and individual brokers, in securities and commodities-related matters, S.E.C., NASD and state securities regulatory proceedings, and has represented parties in shareholder derivative, class action and multi-district litigation, as well as defending parties in securities, commodities, and other “white-collar” criminal cases.

Mr. Aussenberg received his J.D. degree from the University of Pittsburgh School of Law, and his B.A. degree in Honors Political Science from the University of Pittsburgh. Immediately following law school, he served as a Reginald Heber Smith Community Lawyer Fellow with the Delaware County Legal Assistance Association in Chester, Pennsylvania.

He is admitted to practice in Tennessee, Pennsylvania and the District of Columbia, before the United States Supreme Court, the Third and Sixth Circuit Courts of Appeals, and the United States Tax Court, as well as federal district courts in Tennessee, Arkansas, Mississippi and Louisiana. He is an arbitrator for the NASD, New York Stock Exchange and American Arbitration Association, has published articles (“Stockbroker Fraud: This Kind of Churning Doesn’t Make Butter”, Journal of the Tennessee Society of C.P.A.’s,; Newsletter of the Arkansas Society of C.P.A.’s; Hoosier Banker (Indiana Bankers Association), and been a featured speaker on a variety of topics at seminars in the United States and Canada, including: Municipal Treasurers Association of the United States and Canada, Ottawa, Canada; Government Finance Officers Association; National Institute of Municipal Law Officers, Washington, D.C. ; Tennessee Society of Certified Public Accountants, Memphis, TN; Tennessee Association of Public Accountants, Memphis, TN (1993)

Mr. Aussenberg has two children, a daughter who is a graduate of Columbia University and holds a Masters in Public Health from Johns Hopkins University and is currently a student at the University of Pittsburgh School of Law, and a son who is a graduate of Brown University and is working with a conservation organization in Marin County, California while he decides what to do with the rest of his life.

Mr. Aussenberg is an avid golfer whose only handicap is his game, an occasional trap shooter whose best competitive score was a 92, and an even less frequent jazz drummer.

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