http://www.thenation.com/doc/20060130/holtzman
[Minor edits were done by Paul
Andrew Mitchell, B.A., M.S.,
Private Attorney General, to conform
to American Standard English.]
article |
posted January 11, 2006 (January 30, 2006 issue)
The Impeachment of George W. Bush
By
Elizabeth Holtzman
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 U.S. 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 U.S.
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 war-making -- 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 U.S. citizens in a way that
violates U.S. 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 war-making
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 war-making 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 U.S. 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 war-making
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 U.S. 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 U.S. 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 U.S. 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 U.S.
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.