The Impeachment of George W.
Bush
The Nation
Elizabeth Holtzma
January 11, 2006 (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 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.
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.
Introducing Progressive Films
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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