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The Impeachment of George W. Bush

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  • Robert Sterling
    Please send as far and wide as possible. Thanks, Robert Sterling Editor, The Konformist http://www.konformist.com http://www.thenation.com The Impeachment of
    Message 1 of 1 , Jan 15, 2006
      Please send as far and wide as possible.

      Robert Sterling
      Editor, The Konformist


      The Impeachment of George W. Bush
      [from the January 30, 2006 issue]

      Finally, it has started. People have begun to speak of impeaching
      President George W. Bush--not in hushed whispers but openly, in
      newspapers, on the Internet, in ordinary conversations and even in
      Congress. As a former member of Congress who sat on the House
      Judiciary Committee during the impeachment proceedings against
      President Richard Nixon, I believe they are right to do so.

      I can still remember the sinking feeling in the pit of my stomach
      during those proceedings, when it became clear that the President
      had so systematically abused the powers of the presidency and so
      threatened the rule of law that he had to be removed from office. As
      a Democrat who opposed many of President Nixon's policies, I still
      found voting for his impeachment to be one of the most sobering and
      unpleasant tasks I ever had to undertake. None of the members of the
      committee took pleasure in voting for impeachment; after all,
      Democrat or Republican, Nixon was still our President.

      At the time, I hoped that our committee's work would send a strong
      signal to future Presidents that they had to obey the rule of law. I
      was wrong.

      Like many others, I have been deeply troubled by Bush's breathtaking
      scorn for our international treaty obligations under the United
      Nations Charter and the Geneva Conventions. I have also been
      disturbed by the torture scandals and the violations of US criminal
      laws at the highest levels of our government they may entail,
      something I have written about in these pages [see
      Holtzman, "Torture and Accountability," July 18/25, 2005]. These
      concerns have been compounded by growing evidence that the President
      deliberately misled the country into the war in Iraq. But it wasn't
      until the most recent revelations that President Bush directed the
      wiretapping of hundreds, possibly thousands, of Americans, in
      violation of the Foreign Intelligence Surveillance Act (FISA)--and
      argued that, as Commander in Chief, he had the right in the
      interests of national security to override our country's laws--that
      I felt the same sinking feeling in my stomach as I did during

      As a matter of constitutional law, these and other misdeeds
      constitute grounds for the impeachment of President Bush. A
      President, any President, who maintains that he is above the law--
      and repeatedly violates the law--thereby commits high crimes and
      misdemeanors, the constitutional standard for impeachment and
      removal from office. A high crime or misdemeanor is an archaic term
      that means a serious abuse of power, whether or not it is also a
      crime, that endangers our constitutional system of government.

      The framers of our Constitution feared executive power run amok and
      provided the remedy of impeachment to protect against it. While
      impeachment is a last resort, and must never be lightly undertaken
      (a principle ignored during the proceedings against President Bill
      Clinton), neither can Congress shirk its responsibility to use that
      tool to safeguard our democracy. No President can be permitted to
      commit high crimes and misdemeanors with impunity.

      But impeachment and removal from office will not happen unless the
      American people are convinced of its necessity after a full and fair
      inquiry into the facts and law is conducted. That inquiry must
      commence now.

      Warrantless Wiretaps

      On December 17 President Bush acknowledged that he repeatedly
      authorized wiretaps, without obtaining a warrant, of American
      citizens engaged in international calls. On the face of it, these
      warrantless wiretaps violate FISA, which requires court approval for
      national security wiretaps and sets up a special procedure for
      obtaining it. Violation of the law is a felony.

      While many facts about these wiretaps are unknown, it now appears
      that thousands of calls were monitored and that the information
      obtained may have been widely circulated among federal agencies. It
      also appears that a number of government officials considered the
      warrantless wiretaps of dubious legality. Reportedly, several people
      in the National Security Agency refused to participate in them, and
      a deputy attorney general even declined to sign off on some aspects
      of these wiretaps. The special FISA court has raised concerns as
      well, and a judge on that court has resigned, apparently in protest.

      FISA was enacted in 1978, against the backdrop of Watergate, to
      prevent the widespread abuses in domestic surveillance that were
      disclosed in Congressional hearings. Among his other abuses of
      power, President Nixon ordered the FBI to conduct warrantless
      wiretaps of seventeen journalists and White House staffers. Although
      Nixon claimed the wiretaps were done for national security purposes,
      they were undertaken for political purposes and were illegal. Just
      as Bush's warrantless wiretaps grew out of the 9/11 attacks, Nixon's
      illegal wiretaps grew out of the Vietnam War and the opposition to
      it. In fact, the first illegal Nixon wiretap was of a reporter who,
      in 1969, revealed the secret bombing of Cambodia, a program that
      President Nixon wanted to hide from the American people and
      Congress. Nixon's illegal wiretaps formed one of the many grounds
      for the articles of impeachment voted against him by a bipartisan
      majority of the House Judiciary Committee.

      Congress explicitly intended FISA to strike a balance between the
      legitimate requirements of national security on the one hand and the
      need both to protect against presidential abuses and to safeguard
      personal privacy on the other. From Watergate, Congress knew that a
      President was fully capable of wiretapping under a false claim of
      national security. That is why the law requires court review of
      national security wiretaps. Congress understood that because of the
      huge invasion of privacy involved in wiretaps, there should be
      checks in place on the executive branch to protect against
      overzealous and unnecessary wiretapping. At the same time, Congress
      created special procedures to facilitate obtaining these warrants
      when justified. Congress also recognized the need for emergency
      action: The President was given the power to start a wiretap without
      a warrant as long as court permission was obtained within three

      FISA can scarcely be claimed to create any obstacle to justified
      national security wiretaps. Since 1978, when the law was enacted,
      more than 10,000 national security warrants have been approved by
      the FISA court; only four have been turned down.

      Two legal arguments have been offered for the President's right to
      violate the law, both of which have been seriously questioned by
      members of Congress of both parties and by the nonpartisan
      Congressional Research Service in a recent analysis. The first--
      highly dangerous in its sweep and implications--is that the
      President has the constitutional right as Commander in Chief to
      break any US law on the grounds of national security. As the CRS
      analysis points out, the Supreme Court has never upheld the
      President's right to do this in the area of wiretapping, nor has it
      ever granted the President a "monopoly over war-powers" or
      recognized him as "Commander in Chief of the country" as opposed to
      Commander in Chief of the Army and Navy. If the President is
      permitted to break the law on wiretapping on his own say-so, then a
      President can break any other law on his own say-so--a formula for
      dictatorship. This is not a theoretical danger: President Bush has
      recently claimed the right as Commander in Chief to violate the
      McCain amendment banning torture and degrading treatment of
      detainees. Nor is the requirement that national security be at stake
      any safeguard. We saw in Watergate how President Nixon falsely and
      cynically used that argument to cover up ordinary crimes and
      political misdeeds.

      Ours is a government of limited power. We learn in elementary school
      the concept of checks and balances. Those checks do not vanish in
      wartime; the President's role as Commander in Chief does not swallow
      up Congress's powers or the Bill of Rights. Given the framers'
      skepticism about executive power and warmaking--there was no
      functional standing army at the beginning of the nation, so the
      President's powers as Commander in Chief depended on Congress's
      willingness to create and expand an army--it is impossible to find
      in the Constitution unilateral presidential authority to act against
      US citizens in a way that violates US laws, even in wartime. As
      Justice Sandra Day O'Connor recently wrote, "A state of war is not a
      blank check for the President when it comes to the rights of the
      nation's citizens."

      The second legal argument in defense of Bush's warrantless wiretaps
      rests on an erroneous statutory interpretation. According to this
      argument, Congress authorized the Administration to place wiretaps
      without court approval when it adopted the 2001 resolution
      authorizing military force against the Taliban and Al Qaeda for the
      9/11 attacks. In the first place, the force resolution doesn't
      mention wiretaps. And given that Congress has traditionally placed
      so many restrictions on wiretapping because of its extremely
      intrusive qualities, there would undoubtedly have been vigorous
      debate if anyone thought the force resolution would roll back FISA.
      In fact, the legislative history of the force resolution shows that
      Congress had no intention of broadening the scope of presidential
      warmaking powers to cover activity in the United States. According
      to Senator Tom Daschle, the former Senate majority leader who
      negotiated the resolution with the White House, the Administration
      wanted to include language explicitly enlarging the President's
      warmaking powers to include domestic activity. That language was
      rejected. Obviously, if the Administration felt it already had the
      power, it would not have tried to insert the language into the

      What then was the reason for avoiding the FISA court? President Bush
      suggested that there was no time to get the warrants. But this
      cannot be true, because FISA permits wiretaps without warrants in
      emergencies as long as court approval is obtained within three days.
      Moreover, there is evidence that the President knew the warrantless
      wiretapping was illegal. In 2004, when the violations had been going
      on for some time, President Bush told a Buffalo, New York, audience
      that "a wiretap requires a court order." He went on to say
      that "when we're talking about chasing down terrorists, we're
      talking about getting a court order before we do so."

      Indeed, the claim that to protect Americans the President needs to
      be able to avoid court review of his wiretap applications rings
      hollow. It is unclear why or in what way the existing law, requiring
      court approval, is not satisfactory. And, if the law is too
      cumbersome or inapplicable to modern technology, then it is unclear
      why the President did not seek to revise it instead of disregarding
      it and thus jeopardizing many otherwise legitimate anti-terrorism
      prosecutions. His defenders' claim that changing the law would have
      given away secrets is unacceptable. There are procedures for
      considering classified information in Congress. Since no good reason
      has been given for avoiding the FISA court, it is reasonable to
      suspect that the real reason may have been that the wiretaps, like
      those President Nixon ordered in Watergate, involved journalists or
      anti-Bush activists or were improper in other ways and would not
      have been approved.

      It is also curious that President Bush seems so concerned with the
      imaginary dangers to Americans posed by US courts but remains so
      apparently unconcerned about fixing some of the real holes in our
      security. For example, FBI computers--which were unable to search
      two words at once, like "flight schools," a defect that impaired the
      Bureau's ability to identify the 9/11 attackers beforehand--still
      haven't been brought into the twenty-first century. Given Vice
      President Cheney's longstanding ambition to throw off the
      constraints on executive power imposed in response to Watergate and
      the Vietnam War, it may well be that the warrantless wiretap program
      has had much more to do with restoring the trappings of the Nixon
      imperial presidency than it ever had to do with protecting national

      Subverting Our Democracy

      A President can commit no more serious crime against our democracy
      than lying to Congress and the American people to get them to
      support a military action or war. It is not just that it is cowardly
      and abhorrent to trick others into giving their lives for a
      nonexistent threat, or even that making false statements might in
      some circumstances be a crime. It is that the decision to go to war
      is the gravest decision a nation can make, and in a democracy the
      people and their elected representatives, when there is no imminent
      attack on the United States to repel, have the right to make it.
      Given that the consequences can be death for hundreds, thousands or
      tens of thousands of people--as well as the diversion of vast sums
      of money to the war effort--the fraud cannot be tolerated. That both
      Lyndon Johnson and Richard Nixon were guilty of misleading the
      nation into military action and neither was impeached for it makes
      it more, not less, important to hold Bush accountable.

      Once it was clear that no weapons of mass destruction would be found
      in Iraq, President Bush tried to blame "bad intelligence" for the
      decision to go to war, apparently to show that the WMD claim was not
      a deliberate deception. But bad intelligence had little or nothing
      to do with the main arguments used to win popular support for the
      invasion of Iraq.

      First, there was no serious intelligence--good or bad--to support
      the Administration's suggestion that Saddam Hussein and Al Qaeda
      were in cahoots. Nonetheless, the Administration repeatedly tried to
      claim the connection to show that the invasion was a justified
      response to 9/11 (like the declaration of war against Japan for
      Pearl Harbor). The claim was a sheer fabrication.

      Second, there was no reliable intelligence to support the
      Administration's claim that Saddam was about to acquire nuclear
      weapons capability. The specter of the "mushroom cloud," which
      frightened many Americans into believing that the invasion of Iraq
      was necessary for our self-defense, was made up out of whole cloth.
      As for the biological and chemical weapons, even if, as reported,
      the CIA director told the President that these existed in Iraq, the
      Administration still had plenty of information suggesting the

      The deliberateness of the deception has also been confirmed by a
      British source: the Downing Street memo, the official record of
      Prime Minister Tony Blair's July 2002 meeting with his top Cabinet
      officials. At the meeting the chief of British intelligence, who had
      just returned from the United States, reported that "Bush wanted to
      remove Saddam, through military action, justified by the conjunction
      of terrorism and WMD. But the intelligence and facts were being
      fixed around the policy." In other words, the Bush Administration
      was reported to be in the process of cooking up fake intelligence
      and facts to justify going to war in Iraq.

      During the Nixon impeachment proceedings, I drafted the resolution
      of impeachment to hold President Nixon accountable for concealing
      from Congress the bombing of Cambodia he initiated. But the
      committee did not approve it, probably because it might appear
      political--in other words, stemming from opposition to the war
      instead of to the President's abuse of his warmaking powers.

      With respect to President Bush and the Iraq War, there is not likely
      to be any such confusion. Most Americans know that his rationale for
      the war turned out to be untrue; for them the question is whether
      the President lied, and if so, what the remedies are for his

      The Failure to Take Care

      Upon assuming the presidency, Bush took an oath of office in which
      he swore to take care that the laws would be faithfully executed.
      Impeachment cannot be used to remove a President for
      maladministration, as the debates on ratifying the Constitution
      show. But President Bush has been guilty of such gross incompetence
      or reckless indifference to his obligation to execute the laws
      faithfully as to call into question whether he takes his oath
      seriously or is capable of doing so.

      The most egregious example is the conduct of the war in Iraq.
      Unconscionably and unaccountably, the Administration failed to
      provide US soldiers with bulletproof vests or appropriately armored
      vehicles. A recent Pentagon study disclosed that proper bulletproof
      vests would have saved hundreds of lives. Why wasn't the
      commencement of hostilities postponed until the troops were properly
      outfitted? There are numerous suggestions that the timing was
      prompted by political, not military, concerns. The United States was
      under no imminent threat of attack by Saddam Hussein, and the
      Administration knew it. They delayed the marketing of the war until
      Americans finished their summer vacations because "you don't
      introduce new products in August." As the Downing Street memo
      revealed, the timeline for the war was set to start thirty days
      before the 2002 Congressional elections.

      And there was no serious plan for the aftermath of the war, a fact
      also noted in the Downing Street memo. The President's failure as
      Commander in Chief to protect the troops by arming them properly,
      and his failure to plan for the occupation, cost dearly in lives and
      taxpayer dollars. This was not mere negligence or oversight--in
      other words, maladministration--but reflected a reckless and
      grotesque disregard for the welfare of the troops and an utter
      indifference to the need for proper governance of a country after
      occupation. As such, these failures violated the requirements of the
      President's oath of office. If they are proven to be the product of
      political objectives, they could constitute impeachable offenses on
      those grounds alone.

      Torture and Other Abuses of Power

      President Bush recently proclaimed, "We do not torture." In view of
      the revelations of the CIA's secret jails and practice of rendition,
      not to mention the Abu Ghraib scandal, the statement borders on the
      absurd, recalling Nixon's famous claim, "I am not a crook." It has
      been well documented that abuse (including torture) of detainees by
      US personnel in connection with the wars in Afghanistan and Iraq has
      been systemic and widespread. Under the War Crimes Act of 1996 it is
      a crime for any US national to order or engage in the murder,
      torture or inhuman treatment of a detainee. (When a detainee death
      results, the act imposes the death penalty.) In addition, anyone in
      the chain of command who condones the abuse rather than stopping it
      could also be in violation of the act. The act simply implements the
      Geneva Conventions, which are the law of the land.

      The evidence before us now suggests that the President himself may
      have authorized detainee abuse. In January 2002, after the
      Afghanistan war had begun, White House Counsel Alberto Gonzales
      advised President Bush in writing that US mistreatment of detainees
      might be criminally prosecutable under the War Crimes Act. Rather
      than order the possibly criminal behavior to stop, which under the
      Geneva Conventions and the War Crimes Act the President was
      obligated to do, Bush authorized an "opt-out" of the Geneva
      Conventions to try to shield the Americans who were abusing
      detainees from prosecution. In other words, the President's response
      to reports of detainee abuse was to prevent prosecution of the
      abusers, thereby implicitly condoning the abuse and authorizing its
      continuation. If torture or inhuman treatment of prisoners took
      place as a result of the President's conduct, then he himself may
      have violated the War Crimes Act, along with those who actually
      inflicted the abuse.

      There are many other indications that the President has knowingly
      condoned detainee abuse. For example, he never removed Defense
      Secretary Rumsfeld from office or disciplined him, even though
      Rumsfeld accepted responsibility for the abuse scandal at Abu
      Ghraib, admitted hiding a detainee from the Red Cross--a violation
      of the Geneva Conventions and possibly the War Crimes Act, if the
      detainee was being abused--and issued orders (later withdrawn) for
      Guantánamo interrogations that violated the Geneva Conventions and
      possibly the War Crimes Act.

      More recently, the President opposed the McCain Amendment barring
      torture when it was first proposed, and he tacitly supported Vice
      President Cheney's efforts to get language into the bill that would
      allow the CIA to torture or degrade detainees. Now, in his signing
      statement, the President announced that he has the right to violate
      the new law, claiming once again the right as Commander in Chief to
      break laws when it suits him.

      Furthermore, despite the horrors of the Abu Ghraib scandal, no
      higher-ups have been held accountable. Only one officer of any
      significant rank has been punished. It is as though the Watergate
      inquiry stopped with the burglars, as the Nixon coverup tried and
      failed to accomplish. President Bush has made no serious effort to
      insure that the full scope of the scandal is uncovered or to hold
      any higher-ups responsible, perhaps because responsibility goes
      right to the White House.

      It is imperative that a full investigation be undertaken of Bush's
      role in the systemic torture and abuse of detainees. Violating his
      oath of office, the Geneva Conventions and the War Crimes Act would
      constitute impeachable offenses.

      Next Steps

      Mobilizing the nation and Congress in support of investigations and
      the impeachment of President Bush is a critical task that has
      already begun, but it must intensify and grow. The American people
      stopped the Vietnam War--against the wishes of the President--and
      forced a reluctant Congress to act on the impeachment of President
      Nixon. And they can do the same with President Bush. The task has
      three elements: building public and Congressional support, getting
      Congress to undertake investigations into various aspects of
      presidential misconduct and changing the party makeup of Congress in
      the 2006 elections.

      Drumming up public support means organizing rallies, spearheading
      letter-writing campaigns to newspapers, organizing petition drives,
      door-knocking in neighborhoods, handing out leaflets and deploying
      the full range of mobilizing tactics. Organizations like
      AfterDowningStreet.org and ImpeachPac.org, actively working on a
      campaign for impeachment, are able to draw on a remarkably solid
      base of public support. A Zogby poll taken in November--before the
      wiretap scandal--showed more than 50 percent of those questioned
      favored impeachment of President Bush if he lied about the war in

      An energized public must in turn bear down on Congress. Constituents
      should request meetings with their Senators and Representatives to
      educate them on impeachment. They can also make their case through e-
      mail, letters and phone calls. Representatives and Senators should
      be asked specifically to support hearings on and investigations into
      the deceptions that led to the Iraq War and President Bush's role in
      the torture scandals. Senators should also be asked to insure that
      the hearings already planned by the Senate Judiciary Committee into
      warrantless wiretaps are comprehensive. The hearings should evaluate
      whether the wiretaps were genuinely used for national security
      purposes and why the President chose to violate the law when it was
      so easy to comply with it. Representatives should specifically be
      asked to co-sponsor Congressman John Conyers's resolution calling
      for a full inquiry into presidential abuses.

      Finally, if this pressure fails to produce results, attention must
      be focused on changing the political composition of the House and
      Senate in the upcoming 2006 elections. If a Republican Congress is
      unwilling to investigate and take appropriate action against a
      Republican President, then a Democratic Congress should replace it.

      As awful as Watergate was, after the vote on impeachment and the
      resignation of President Nixon, the nation felt a huge sense of
      relief. Impeachment is a tortuous process, but now that President
      Bush has thrown down the gauntlet and virtually dared Congress to
      stop him from violating the law, nothing less is necessary to
      protect our constitutional system and preserve our democracy.
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