[Mb-civic] Impeachment protocols

[Linda Hassler]

 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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