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George W. Bush's Impeachable
Offenses
Independent.org
Ivan Eland
December 19, 2005
Several recent presidents could have been impeached for selected
unconstitutional or illegal actions during their presidencies. But the sitting
president, George W. Bush, may win the prize for committing the most
impeachable offenses of any recent president.
Yet when one thinks of bad behavior leading down the road to possible
impeachment, Bill Clinton and Richard Nixon come to mind first. Although Bill
Clinton was impeached for having sex with an intern and then lying about it to
a grand jury, a better case could have been made to impeach him for conducting
an unconstitutional war over Kosovo without approval by Congress. The articles
of Nixon's impeachment centered on his use of illegal surveillance methods
against political opponents and obstruction of justice and contempt of Congress
in covering it up. His launching of an unconstitutional war in Cambodia without
congressional approval was equally serious, but was left out of the articles.
Curiously, Lyndon Johnson, Nixon's predecessor, also used illegal surveillance
activities against political rivals, but was not impeached.
Ronald Reagan, who is now a celebrated past president and icon of
conservatives, justifiably feared impeachment for the Iran-Contra affair. He
knowingly violated the Arms Export Control Act, a criminal statute, and sold
arms to radical supporters of terrorists. His administration also
unconstitutionally violated a congressional prohibition on providing money and
support to the Nicaraguan Contra fighters. The Reagan administration's
violation of the Boland Amendment stuck a knife in the heart of the checks and
balances system in the U.S. Constitution by circumventing Congress's most
important power—the appropriation of public monies.
George W. Bush is following in the footsteps of his predecessors, but may
have left more tracks. For starters, invading another country on false
pretenses is grounds for impeachment. Also, the Fourth Amendment to the U.S.
Constitution essentially says that the people have the right to be secure
against unreasonable government searches and seizures and that no search
warrants shall be issued without probable cause that a crime has been
committed. And the Foreign Intelligence Surveillance Act (FISA) requires that
warrants for national security wiretaps be authorized by the secret FISA court.
The law says that it is a crime for government officials to conduct electronic
surveillance outside the exclusive purviews of that law or the criminal wiretap
statute. President Bush's authorization of the monitoring of Americans' e-mails
and phone calls by the National Security Agency (NSA) without even the minimal
protection of FISA court warrants is clearly unconstitutional and illegal.
Executive searches without judicial review violate the unique checks and
balances that the nation's founders created in the U.S. government and are a
considerable threat to American liberty. Furthermore, surveillance of Americans
by the NSA, an intelligence service rather than a law enforcement agency, is a
regression to the practices of the Vietnam-era, when intelligence agencies were
misused to spy on anti-war protesters—another impeachable violation of
peoples' constitutional rights by LBJ and Nixon.
President Bush defiantly admits initiating such flagrant domestic spying but
contends that the Congress implicitly authorized such activities when it
approved the use of force against al Qaeda and that such actions fit within his
constitutional powers as commander-in-chief. But the founders never intended
core principles of the Constitution to be suspended during wartime. In fact,
they realized that it was in times of war and crisis that constitutional
protections of the people were most at risk of usurpation by politicians, who
purport to defend American freedom while actually undermining it.
The Bush administration's FBI has also expanded its use of national security
letters to examine the personal records of tens of thousands of Americans who
are not suspected of being involved in terrorism or even illegal acts.
Apparently the president is also taking us back to the Vietnam era by
monitoring anti-war protesters. Information on peaceful anti-war demonstrations
has apparently found its way into Pentagon databases on possible threats to
U.S. security.
Finally, the president's policies on detainees in the "war on terror"
probably qualify as impeachable offenses. The Bush administration decided that
the "war on terror" exempted it from an unambiguous criminal law and
international conventions (which are also the law of the land) preventing
torture and inhumane treatment of prisoners. An American president permitting
torture is both disgraceful and ineffective in getting good information from
those held. Furthermore, the administration concocted the fictitious category
of "enemy combatants" to deprive detainees of the legal protections of either
the U.S. courts or "prisoner-of-war" status. The administration then tried to
detain these enemy combatants, some of them American citizens, indefinitely
without trial, access to counsel, or the right to have courts to review their
cases.
All of these actions are part of President Bush's attempt to expand the
power of presidency during wartime—as if the imperial presidency hadn't
been expanded enough by his recent predecessors. President Bush usually gets
the Attorney General or the White House Counsel to agree with his usurpation of
congressional and judicial powers, but, of course, who in the executive is
going to disagree with their boss? According to the Washington Post, the Bush
administration describes the president's war making power under the
Constitution as "plenary"—meaning absolute. The founders would roll over
in their graves at this interpretation of a document that was actually designed
to limit the presidential war power, resulting from their revulsion at the way
European monarchs easily took their countries to war and foisted the
costs—in blood and treasure—on their people. Conservative Bob Barr,
a former Congressman from Georgia who was quoted in the Post, said it best:
"The American people are going to have to say, "Enough of this business of
justifying everything as necessary for the war on terror.' Either the
Constitution and the laws of this country mean something or they don't. It is
truly frightening what is going on in this country."
Ivan Eland is a Senior Fellow at The Independent Institute, Director of the
Institute's Center on Peace & Liberty, and author of the books The Empire
Has No Clothes, and Putting "Defense" Back into U.S. Defense Policy.
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