[Mb-civic] Impeachment protocols
Linda Hassler
lindahassler at sbcglobal.net
Sat Jan 14 15:27:59 PST 2006
From Linda Hassler
Begin forwarded message:
Date: January 14, 2006 4:31:26 PM CST
The Impeachment of George W. Bush
By Elizabeth Holtzman
The Nation
30 January 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 Watergate.
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 days.
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
resolution.
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 security.
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 contrary.
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
misconduct.
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 Iraq.
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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