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Presented at George Mason University on April 14, 2008
Dedicated to Betty Hall and the New Hampshire State Legislature.
John Adams, who was later the second president of the United States, wrote some words in the Constitution of Massachusetts that have been quoted approvingly by the U.S. Supreme Court and every state supreme court in the United States. He described a separation of powers among three branches of government and said that this would be done
"to the end it may be a government of laws and not of men."
Thomas Paine in his "Common Sense" pamphlets that helped launch the American war for independence, wrote that
"so far as we approve of monarchy, ... in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law OUGHT to be King; and there ought to be no other."
I raise this point in order to suggest that the question of whether the US Constitution requires impeaching Bush and Cheney is not an academic one and is very closely tied to the straightforward question of whether we should impeach Bush and Cheney. The Constitution is the highest law of this land. If it requires that something be done, then a failure to do it amounts to moving the country in the direction of lawlessness, and possibly in the direction of the rule of men and women, not of laws.
This is the case unless, of course, we amend the Constitution to fit our chosen behavior. The Constitution is not infallible. There are sections of the original text that I'm pleased have been removed through the amendment process. There are other sections that I think should be changed, things that should be added that are not there, etc. But there is a great danger in sidestepping the democratic process of amending the law and proceeding to simply violate it.
There are cases in which we do that. For example, for over 50 years the United States has fought wars without Congress ever declaring war, as required by the Constitution. But these are policies that should, in fact, be reversed and be brought back under the rule of law. If you believe a president should have the power to declare wars, then you should work to amend the Constitution to provide that power. Otherwise some president you disapprove of may decide to grant him or herself the power to do something else not found in the Constitution, and it may be something you don't like, but there won't be much you can say about it.
The Constitution, of course, gives the three branches of the national government different powers, and provides each with checks on abuses of power by the others.
The president is to execute the laws created by Congress. He, or she, serves as commander in chief of the military. He can pardon crimes (but not impeachments). If he consults with and gets the support of the Senate, the president can negotiate treaties and appoint officials, ambassadors, and judges. That's about it. There is no constitutional presidential power to write or alter or violate laws, to act in secret, to abridge the judicial system, to violate the Bill of Rights, to violate existing treaties, to build an empire, or to launch a war. Oh, and the Vice President under the Constitution has no particular powers at all, other than serving as the president of the Senate, where he or she only gets to vote if there's a tie.
In contrast, the legislative branch of our government, historically and even today in the version students are still taught in schools, has much greater power. The Congress, to which the first half of the entire Constitution is devoted, has the exclusive power to enact laws. Congress also has the sole power to raise and spend money. It has the power to declare war and to fund and oversee the military. It has the power to regulate international and interstate trade. Congress handles immigration, bankruptcies, the printing and valuing of money, the post offices, copyrights. Congress has the power to "constitute tribunals inferior to the supreme court," and "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." But the first power that the Constitution grants the House of Representatives is the power of impeachment. The first power it grants the Senate is the power to try all impeachments.
In school we learn about the "Separation of Powers" and about something called "Checks and Balances." Our three branches of government are supposed to be separately elected, none of them created by any other. The Supreme Court is constituted by both the executive and legislative branches, not one alone. And the power to run the nation is supposed to be divided. Congress has certain powers. The courts have other powers. The president has others. Congress, as the most powerful branch, is further divided into two houses with somewhat separate powers. It's important to understand that Congress is more powerful than the other branches, which is one reason the phrases "balance of power" and "checks and balances" can be misleading. There is not supposed to be anything evenly balanced about it.
Under the U.S. system, the executive branch is understood to have the following checks on legislative power, and it still has them, plus some:
1. The veto. Bush does still have this power, but it is overshadowed by his newly created signing-statement power. No longer must he choose between signing a bill and vetoing it. Now, he can choose to sign it and rewrite it. While signing statements are not new, this use of them is, and twice studies by the GAO have found that in a significant percentage of cases the laws Bush announces the power to violate he has proceeded to violate.
2. Commanding the military. Bush does still have this power, but he has added to it the power to declare war in violation of Article I of the Constitution and in violation of the UN Charter which under Article VI is the law of the land, plus the power to misappropriate funds for wars that were not approved for them, and the power to take state militias (also known as the National Guard) away from the states to join the US military in fighting foreign wars.
3. The vice president's vote in the Senate. He does still have this power.
4. Recess appointments. Bush makes use of this power.
5. Calling Congress into session in emergencies and determining adjournments when the two houses cannot agree. This is less relevant now that Congress hardly ever goes home.
And the President is understood to have these checks on the judicial branch, which he indeed still has:
1. Appointing judges. Bush still has this power.
2. Pardoning convicts. Bush still has this power. He has even commuted the sentence of a White House staffer convicted of obstructing justice in a case Bush himself is involved in (an act that James Madison and George Mason deemed an impeachable offense). Bush also has taken unto himself the power to order former staffers to obstruct justice, the power to refuse subpoenas, and the power to refuse to testify under oath or without the vice president at his side.
The executive branch also has a check on itself. The vice president and cabinet can vote that the president is unable to discharge his duties.
The judicial branch has an important check on Congress and the president in that it can rule laws to be unconstitutional. The chief justice of the supreme court also serves as president of the Senate during a presidential impeachment. But that power depends on the House of Representatives first impeaching.
The legislative branch is supposed to have an array of checks on the president and vice president, including various minor powers of oversight. Congress can override a presidential veto, but that power is rendered meaningless by the new presidential power of the signing statement. The Senate has the power to approve or reject appointments and treaties. Both houses of Congress can approve or reject a new vice president, but that power depends on removing the current one.
Congress has the power to put a halt to any activity of the executive branch by defunding it, but the current president has misappropriated funds to engage in activities never approved by Congress, such as the secret initial steps in the invasion of Iraq or the secret warrantless spying programs, as well as activities for which Congress has banned the use of funds, such as the construction of permanent military bases in Iraq. (In the president's defense he says the bases are not permanent, but only enduring, but no one has successfully explained what that means or how it gets around the language in the various congressional bans signed into law by Bush.) The Democrats in Congress claim to oppose continuing the occupation of Iraq, but they're about to throw another $102 billion at it. They will do so, (unless the public rises up and stops them), in part out of fear of the media calling them silly names, but in part out of fear of Bush misappropriating funds and continuing the occupation anyway. In that situation, they would be obliged to impeach the president or look even more foolish than usual. Last September during General David Petraeus's first round of testimony, Congressman Brad Sherman asked him what he would do if Congress stopped funding the occupation and Bush ordered him to continue it anyway. Petraeus said he could not answer without checking with his lawyer.
Congress has the power to request or subpoena witnesses or documents, to file Freedom of Information Act requests, and to issue contempt citations to desired witnesses who fail to comply with subpoenas. But those are all powers that evaporate if the power of impeachment is removed. In the current Congress, the Speaker of the House has promised never to impeach. As a result, the executive branch simply ignores FOIA requests, subpoenas, and contempt citations. Condoleezza Rice gave the most straightforward explanation of this practice when she refused to comply with a subpoena last year. She said that she would not comply because she was "not inclined to do so."
Impeachment is not just the power on which all the other intra-governmental powers of the legislative branch depend. It is the central power through which the framers of the Constitution expected the legislative branch to be able to hold the other two branches in check. Impeachment was given to the House as the part of our government closest to the people. Unlike almost anything else, impeachment is mentioned in six separate places in the Constitution. The Constitution is considerably shorter than this paper I'm reading you today. It is a very concise document that tells us nothing about how to run elections, that makes no mention of political parties or primaries, that has not one word about corporations, that describes the process of impeachment in some detail and gives it prominence and central importance in every way. The initial discussion of the House of Representatives in Article I Section 2 is one-sentence:
"The House of Representatives shall chuse their Speaker and other Officers and shall have the sole Power of Impeachment."
In Article I, Section 3, the role of the Senate is discussed purely in terms of impeachment trials, and six sentences are devoted to explaining the process.
Article II, which covers the executive branch, has four sections, and the fourth consists of this one sentence:
"The President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
George Mason remarked that: "No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice?"
That is to say, if we are going to give anyone leeway to act above the law, the last person it should be is the person to whom we have entrusted the greatest power.
To the extent that I've looked at the discussions of impeachment at the Constitutional Convention and the states' ratifying conventions and in later remarks of the founders, one thing becomes clear:
They considered impeachment of the utmost importance. They had risked their lives in a bloody struggle to overthrow a king. The last thing they wanted was a new one. And the fact that any new king might be voted out after four years did not alter their insistence that what they called "an elected despot" be subject to premature removal. Jefferson in particular, but others as well, expected and hoped that impeachment would be used at least once a generation. They did not believe that the threat of it would be sufficient to hold presidents or justices in check without its routine use.
To the extent that I've looked at the history of impeachment in this country (and I rely above all on John Nichol's book "The Genius of Impeachment"), a few things become clear:
1. Impeachments and movements in Congress toward impeachment have in fact been much more common than many people realize.
2. Impeachments tend to be very popular with the public, and congress members who impeach tend to be viewed as standing up for the Constitution.
3. Impeachment movements that fall short of actual impeachment in the House or of removal from office following a trial in the Senate have served nonetheless to substantially restore the rule of law.
Let me give you a few examples to illustrate each of those three statements.
How common is impeachment?
The U.S. House of Representatives has initiated impeachments 62 times and impeached 17 people, including 13 federal judges, one supreme court justice, one secretary of war, one U.S. senator, and two presidents. Of the 17, seven were convicted in the Senate. Articles of Impeachment have been filed against 10 presidents: Tyler, Johnson, Cleveland, Hoover, Truman, Nixon, Reagan, Bush, Clinton, and Bush. Two were impeached and acquitted. One resigned, as did the secretary of war. If the Elliot Spitzer scandal on top of the Bill Clinton impeachment gave you the idea that threats of impeachment are only for Democrats and only for sex, you were not completely off. More impeachments have been filed by Republicans and Whigs than by Democrats.
Republicans moved to impeach Republican Herbert Hoover and Democrat Harry Truman. Truman's abuses of power were very quickly reined in by the Supreme Court, and the impeachment was dropped, but the Republicans looked good and won the next elections. Democrats led the effort to impeach Richard Nixon, but Republicans joined in, backed impeachment, and persuaded Nixon to resign. Gerald Ford stepped in and ran as an incumbent but lost, and the Democrats in Congress won the biggest victories in Congress anyone remembers.
How popular is impeachment?
In contrast to the post-Nixon elections, when the Democratic leadership chose not to impeach Ronald Reagan, arguing that it was more important to win elections, they proceeded to lose the elections. When the Republicans impeached and tried Bill Clinton against the will of a huge majority of the public, they held both houses of Congress and took the White House, losing a few seats in the Senate which had acquitted. Some of the impeachment leaders won with bigger margins than they had before, and Al Gore was put on the defensive to such an extent that he chose impeachment-advocate Joe Lieberman as a running mate and pretended he'd never met Bill Clinton.
After the Whigs attempted to impeach Tyler, they picked up seven seats, and Tyler left politics.
Weeks after he lobbied for Johnson's impeachment, Grant was nominated for President.
After pushing toward impeachment for Polk, Lincoln was elected president.
Keith Ellison, who introduced a resolution to impeach Bush and Cheney into the Minnesota state legislature in 2006, was subsequently elected to Congress.
With Bush and Cheney in office we've seen polling companies refuse to poll on impeachment because it's not in the news or expected to happen, at the same time that other polling companies find a majority in support of impeachment. Bush and Cheney have broken Nixon's and Truman's unpopularity records, and the Congress that refuses to impeach them is even more unpopular.
Is a failed impeachment necessarily a failure?
Not always. Nixon's resignation was a success for the rule of law. The effort to impeach Truman led to a reigning in of his abuses. Impeachment hearings even short of an impeachment vote in the House have a tremendous educational and political value.
I'd like to get a gauge of who I'm talking to. Can you please raise your hand if you consider yourself more than any other designation including independent, to be a Democrat? A Republican? A Green? A Libertarian? An Independent?
I suspect the show of hands from Independents would give hope to the founders of this nation if they could see us. They tended to fear greatly the acquisition of power by political parties, which they called factions. They did not write political parties into the Constitution, and they did not expect impeachment to be understood as in any way partisan. We've come so far now, however, in the direction of the rise of Factions, that Congressman Jerrold Nadler, a Democrat from New York who chairs the Constitution Subcommittee of the House Judiciary Committee, says that impeachments are no longer possible because of party loyalties. In other words, unless the Senate suddenly becomes two-thirds Democratic in order to make possible a conviction without a single Republican vote, Nadler won't bother to support even an impeachment inquiry in the House, although he did so in 2006. And nonprofit organizations routinely and mistakenly tell their members that they cannot advocate for impeachment because their tax status won't allow them to do partisan work. Of course we saw Republicans support the impeachment of Nixon, and Democrats support the impeachment or conviction of Clinton, but partisan madness today does not get distracted by mere facts. Neither the Democratic Party nor the Republican Party supports impeachment, but the first thing an impeachment advocate is called is partisan.
The founders of the country may be partly to blame for the rise of partisanship. They gave us a system modeled on the old British system, not the new one. They replaced a king with a president, but did not make the president the leader of the majority in the legislature. Instead the president is elected independently, and the election is winner-take-all. As more power shifts from the Congress to the president, this fact takes on greater importance, third parties are seen more than ever as spoilers, and two major parties begin to demand the loyalties that properly ought to belong to a branch of government. Most congress members today have almost no concern for what powers the Congress maintains as against the White House, but have extreme concern for whether the next president will be a Democrat or a Republican. This mindset facilitates the transferring of still more power from the legislature to the now misnamed executive, with the danger of dictatorship on the horizon.
The weakness of our system of government is winner-take-all presidential elections. The strength of it is the checks that each branch can impose on the others. But without impeachment, that all falls apart. So, the question arises: Can impeachment be taken out of the Constitution temporarily and be restored to it?
Please raise your hand again if you are a Republican or a Libertarian or a right-leaning independent.
Now please keep your hand up if you would like Hillary Clinton or Barack Obama to have the power to spy without warrants, to detain without charges, to torture, to murder, to mislead Congress and the nation into wars, to rewrite laws, and to violate laws with no consequences?
Now please put your hand back up if you oppose impeaching Cheney and Bush.
You guys want to have your cake and eat it too, and I don't think you can.
Here's another question: Can the impeachment process be abused and then be restored to its proper role?
Please raise your hand if you are a Democrat or a Green or a left-leaning Independent.
Now please keep it up if you think that the Bill Clinton impeachment was appropriate and that digging into a president's sex life is what the founders intended Congress to work on.
Now please put your hand back up if you oppose impeaching Cheney and Bush.
You guys seem to me to be allowing one misuse of a vital tool to compel you to never use it correctly. But you should keep one thing in mind, President Obama, if there is a President Obama, will not last six months without Republicans pushing for his impeachment aggressively and unapologetically. Think about that. Think about the likelihood that a Democrat could be caught approving torture and not end up in jail. You Democrats claim to oppose the Republicans' agenda, yet you grant them a license to kill.
Sometimes being a Republican means never having to say you were wrong. President Bush is on film being warned about Hurricane Katrina and on film swearing he wasn't warned and could not possibly have been expected to imagine such a thing was coming. Bush was warned by the CIA of possible al Qaeda attacks a month before 9-11, took no steps to prevent them, and now says he had no earthly way of imagining what was coming. We know that top Iraqis, including Saddam Hussein's son-in-law filled the United States in on the truth, but Bush tells us he had no way of possibly imagining that all those mythical stockpiles of weapons of mass destruction didn't really exist. Generals warned that hundreds of thousands of troops would be needed to occupy Iraq, and economists warned that it would cost hundreds of billions of dollars. They lost their jobs, and Bush now tells us he had no humanly possible way of imagining that such things were true. So, somebody ought to have told Bill Clinton. You don't go out there and say "I did not have sex with that woman" and get yourself impeached. You go out there and say "I had no way of imagining what might happen when she crawled under my desk."
What exactly is an impeachable offense? Essentially it is an abuse of power. A crime can be an impeachable offense and cannot be. And an action can be an impeachable offense without being a crime. If the president cheats on his taxes, that may not be impeachable. You or I could do that. It's not an abuse of his power. But if he lies to the public about serious national policy matters, that may be impeachable, without being a crime. Shooting your hunting buddy in the face: not impeachable. Outing an undercover agent: impeachable. Lying about sex is arguably not a proper impeachable offense. Anyone can do THAT. Firing U.S. Attorneys because they won't pervert the justice system to serve your partisan electoral interests is probably impeachable. In the end, of course, what's impeachable is simply whatever the House of Representatives decides is impeachable. The founders discussed more than anything else, I think, the need to have the power of impeachment in case a president took the nation into an unnecessary war.
When President Polk misled the nation into an aggressive war on Mexico with the intention of stealing Mexican land, a young Republican congressman named Abraham Lincoln challenged him. Last year, Republican Alaska Congressman Don Young attempted on the floor of the House to quote Abraham Lincoln's opinion on opposition to presidents' war plans. Young failed rather dramatically. Here's his misquote of Lincoln:
"Congressmen who willfully take actions during wartime that damage morale and undermine the military are saboteurs and should be arrested, exiled, or hanged."
That was close. You can see how Young could have made the mistake. Here's what Lincoln actually said:
"Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose – and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose. If, today, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, 'I see no probability of the British invading us' but he will say to you 'be silent; I see it, if you don't.' The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons: Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us."
Lincoln wrote these words while America was at war with Mexico, under the presidency of James Polk, and while Lincoln was a member of Congress. But Lincoln did more than talk about the fraud that had been used to launch that illegal and imperialistic war. He introduced a resolution demanding that Polk provide proof. Polk claimed to have launched that war only after American blood had been shed on American soil. Lincoln's resolution required Polk to identify the spot where that blood had been shed.
"Let him answer fully, fairly, and candidly," Lincoln said of the wartime President. "Let him answer with facts and not with arguments. Let him attempt no evasion, no equivocation."
When President Polk did not answer, Lincoln and John Quincy Adams sought a formal investigation of the president's pre-war intelligence claims, and of his use of secret funds to launch his fraudulent and illegal war. Under this pressure, Polk announced that he would not seek reelection. Lincoln, Adams, and their allies in Congress then passed a resolution honoring the service of Major General Zachary Taylor "in a war unnecessarily and unconstitutionally begun by the President of the United States."
Which brings us to the question of exactly what Bush's and Cheney's impeachable offenses are. An exhaustive list would take us all day, so I'll give you my top 12 for the president and my top 12 for his boss.
And by the way, the founders intentionally chose a single executive, not a pair, not a triumvirate, not a council, in order to hold that one person responsible for the executive branch. The Cheney co-presidency and groups like the secret energy task force deny us the ability to know who the decider is, but under our Constitution it really is Bush, regardless of what you may think of his mental abilities.
BUSH:
1. Refusal to comply with subpoenas (not disputable, and passed by the Judiciary Committee against Nixon)
2. Routine violation of numerous laws, preceded by announcement of intention to do so in signing statements (White House website and GAO studies)
3. Violating U.S. law and the Constitution through widespread wiretapping of the phone calls and emails of Americans without a warrant. (Confessed to.)
4. Commuting the sentence of I Lewis Scooter Libby.
5. Violating the United Nations Charter by launching an illegal "War of Aggression" against Iraq without cause, using fraud to sell the war to Congress and the public, and misusing government funds to begin bombing without Congressional authorization.
6. Violating U.S. and international law by authorizing the torture of thousands of captives, resulting in dozens of deaths, and keeping prisoners hidden from the International Committee of the Red Cross.
7. Violating the Constitution by arbitrarily detaining Americans, legal residents, and non-Americans, without due process, without charge, and without access to counsel.
8. Violating the Geneva Conventions by targeting civilians, journalists, hospitals, and ambulances, and using illegal weapons, including white phosphorous, depleted uranium, and a new type of napalm.
9. Violating U.S. law by using paid propaganda and disinformation, selectively and misleadingly leaking classified information, and exposing for political retribution the identity of a covert CIA operative working on sensitive WMD proliferation.
10. Violating U.S. and state law by obstructing honest elections in 2000, 2002, 2004, and 2006.
11. Gross negligence in failing to assist New Orleans residents after Hurricane Katrina.
12. (This one is happening right now.) Negotiating with the president of Iraq an agreement of a sort that heretofore has always been called a treaty, but doing so without the constitutionally required advice and consent of the US Senate, or for that matter the Iraqi Parliament. The power to negotiate such treaties would logically include the power to negotiate the same sort of treaty in reverse: that is to say, an agreement to station Iraqi troops in the United States with the license to kill Americans with impunity.
CHENEY:
1. Refusal to comply with subpoenas.
2. Creating and advocating the "Unitary Executive Theory" which is used by the White House to defy laws duly enacted by Congress and thereby justify dictatorial action. Cheney's office has drafted many if not all of the signing statements.
3. Cheney played a key role in setting up illegal spying programs.
4. Coordinating campaign to obstruct the investigation conducted by Patrick Fitzgerald.
5. Coordinating a campaign of retribution against whistleblower Joseph Wilson, including the outing of a covert CIA operative.
6. Leading efforts to institute routine use of torture.
7. Leading campaign to manipulate pre-war intelligence.
8. Creating a secret Energy Task Force which operated in defiance of open-government laws.
9. Directing massive no-bid contracts to his company, Halliburton, and profiting from the same illegal war he defrauded the American public to launch.
10-12. The charges found in H Res 333, also known as H Res 799.
For some of these impeachable offenses, the evidence is not even disputable. They simply have refused to comply with subpoenas, for example. The subpoena that Nixon refused to comply with was part of an impeachment investigation, but the equivalent could be generated in a week by simply opening an impeachment hearing and subpoenaing testimony or evidence from Bush or Cheney.
The signing statements, for example, are completely public. And while Congress should impeach regardless of its own level of complicity in the offenses being addressed, there are plenty of offenses like refusing subpoenas and releasing signing statements that Congress is not complicit in at all.
Violations of FISA and the 4th Amendment are not in dispute. Bush is on videotape lying about the warrantless spying programs for years. He's also on videotape openly confessing to violating FISA. John Dean, Nixon's lawyer, calls Bush the first president to confess to an impeachable offense.
Have Bush and Cheney threatened an aggressive war on Iran? They're both on videotape doing so. Cheney has done so from a ship off the coast of Iran. Remember that in the 1950s our CIA overthrew Iran's democracy and installed a dictator. We have labeled Iran evil and criminal. We have invaded and occupied the nations to its east and west (Afghanistan and Iraq). So threats to Iran are taken seriously by the Iranians. If anything could drive Iran further toward dictatorship it would be an attack by the United States.
Was Bush criminally negligent during Hurricane Katrina? He's on videotape being warned of the danger. He's on videotape claiming he was never warned.
Have Bush and Cheney used unlawful detentions and torture? The Supreme Court in Rosul v. George W. Bush ruled detainees were being wrongfully imprisoned at Guantanamo Bay Detention Center in Cuba. The Bush Administration’s detainment policies and actions were ruled unconstitutional and illegal - in violation of Amendments V, VI &VII. The use of torture, legally justified by Attorney General Alberto Gonzales and thus condoned by President Bush and Vice President Cheney is an additional violation to the 8th Amendment. The Supreme Court again in Hamdan v. Donald Rumsfeld, George W. Bush, et al. ruled that the Military Commissions instituted by the Bush Administration violate the Universal Code of Military Justice and the Geneva Conventions to which we are bound by American law. Again, the Bush Administration’s actions were found by the highest court of the land to be illegal and unconstitutional - violating Amendments V, VI, VII . Bush and Cheney and their staffs have defended these policies on video and in writing. The practice of detaining without charge and the numerous victims of it are undisputed public knowledge. Evidence of torture is voluminous and indisputable and includes public photographs. Bush's signature is on a February 2002 authorization to torture.
Bush openly admits it, but claims that certain torture techniques are not torture, techniques like waterboarding for which Americans have gone to prison, for which Americans have prosecuted Japanese as war criminals, techniques our founders hoped to leave behind in England through the Eighth Amendment.
Did Bush and Cheney intentionally mislead the Congress and the public into the invasion and occupation of Iraq? They are on videotape doing so, and the evidence that they knew exactly what they were doing is overwhelming and has been collected on my website at http://afterdowningstreet.org/keydocuments
Impeachment hearings could be dragged out for as long as desired, or could be over and done with in an hour. No new information is needed.
Ah, but isn't it too late for impeachment?
It is never too late to establish that future presidents and vice presidents will be required to obey laws and the Constitution.
It is far from too late to try to prevent the damage Bush and Cheney can still do in the next 9.5 months, which DO exist.
There is nothing else for Congress to do that impeachment could distract from. All good bills are vetoed and all partially good bills are signing statemented.
Impeachment in this case could be very quick because of the overwhelming evidence.
If your preference is to focus on the next election, think about how that election would look were John McCain forced to choose between the Constitution and Dick Cheney.
Most impeachments happen late. The movements to impeach Truman and Hoover, and the impeachment of Johnson, happened later than where we are now.
Most impeachment movements achieve useful results in restoring the rule of law without getting all the way to impeachment, much less removal from office.
If there is time for endless hours of grilling steroid-popping baseball players, there is time for impeachment.
If Congress is sincere about wanting Bush and Cheney to obey its laws and comply with its subpoenas it will impeach. If it does not impeach, it is not sincere, and no non-impeachment investigations will get anywhere.
But isn't this all beside the point when we should not dare to impeach a president during a time of war? No, I side with the last great Republican president on this one: Abraham Lincoln. When a president takes us into an unnecessary war, and people are dying for no good reason, that is the most important time to challenge the president. And this current so-called war, we are told, will last for decades or forever. If announcing eternal war provides immunity from impeachment, can you guess what percentage of presidents will make that announcement? James Madison saw war as the tool through which a president might seize inappropriate powers. "War," he said, "is the true wet-nurse of executive aggrandizement."
Remember, we are borrowing from China to spend our grandchildren's hard-earned pay to fund an illegal occupation of a distant land, an operation that our own intelligence agencies say is boosting terrorist recruitment, an operation opposed by about 80 percent of Americans, 90 percent of Iraqis, and 70 percent of active-duty US troops. If we can't challenge THAT, what can we challenge?
Well then, you might ask, isn't it more important to end the occupation, the so-called war?
Ending the war is a task that could best be accomplished by inaction, by Congress refusing to provide any more funding. Or it could be accomplished by a bill created by one committee. It is not a full-time task for the entire Congress.
However, this Congress has already demonstrated that it has no intention of ending the war. Pelosi has sworn that cutting off the funding is "off the table."
What could help move Congress would be the same thing that helped a previous Congress find the nerve to finally cut off the funding for the Vietnam War (once the troops were already home) and convinced Nixon not to veto the cut-off in funding: impeachment. In this case, even more so than Nixon's, impeachment would drive the war debate in the right direction, because impeachment would be for offenses either directly connected to the war or offenses that have been justified by "war on terror" propaganda.
In addition, should Congress actually cut off the funding and end the war, it is very likely that Bush and Cheney would misappropriate funds from the Pentagon to keep the occupation going. They did so in order to secretly begin the war, and they have never been held accountable for it. So, removing them from office is not only needed in order to give Congress the nerve to end the war, but is also needed if the war is to actually end.
Won't impeachment take up too much time and distract from other goals?
Nixon's impeachment took three months. Clinton's impeachment and trial combined took four months. The current Congress has wasted more than that amount of time already in avoiding impeachment, and has almost nothing to show for it (a minimal partial and gradual correction to the plummeting minimum wage). Congress has taken no serious steps toward ending the occupation of Iraq, and has in fact provided major new funding for it. During Nixon's impeachment and the lead up to it, in contrast, the threat of impeachment allowed Congress to raise the minimum wage, create the Endangered Species Act, and end a war.
Important as stem cell research and immigration policy may be, when did the Bill of Rights become a distraction? What is more important than restoring the right to not be spied on, to not be picked up without charge and locked away to be tortured with no access to a lawyer, a trial, or your family, not to be sent into an aggressive war for greed and power? Of course, there are many pressing areas in which we need to pass legislation. But all good bills and vetoed, all mixed bills are signing-statemented, and all horrendous bills become law. There is nothing for impeachment to distract from. Impeachment is the one action that cannot be vetoed.
Why not just wait for the next election?
The authors of our Constitution established the schedule for elections, but devoted a lot more attention to the mechanism of impeachment as a check on elected despotism in between elections. They had recently thrown off a king and had no interest in electing temporary kings every four years. Neither should we.
Bush and Cheney can still do a great deal of damage before the end of their term. People are dying every day as a result of their policies. There is an urgent need to remove them from office in order to end the brutal occupation of Iraq and prevent an attack on Iran.
But we would need to impeach them were this January 2009 or had they already left office. The purpose of impeachment is to set standards for future administrations. We cannot give the powers assumed by this administration (to mislead the Congress and the public into wars, spy in violation of the law, detain without charge, torture, operate in secrecy, and rewrite laws with signing statements) to future presidents and vice presidents without expecting similar or worse abuses.
In a December 31, 2007, editorial, the New York Times faulted the current president and vice president of the United States for kidnapping innocent people, denying justice to prisoners, torturing, murdering, circumventing U.S. and international law, spying in violation of the Fourth Amendment, and basing their actions on "imperial fantasies."
Um, thanks for finally noticing. What would you suggest we do about it?
"We can only hope," concludes the New York Times, quite disempoweringly, "that this time, unlike 2004, American voters will have the wisdom to grant the awesome powers of the presidency to someone who has the integrity, principle, and decency to use them honorably. Then when we look in the mirror as a nation, we will see, once again, the reflection of the United States of America."
But here's the problem (other than the pretended certainty that Bush won the 2004 election):
The United States of America, as established by its Constitution, simply does not have a presidency with awesome powers. And the powers that Bush and Cheney have newly bestowed on the presidency, unchallenged by Congress or the media, are not powers that any human being can be expected to use with decency.
Now, it is possible to make a serious argument that impeachment is difficult and the election is almost certain, so we ought to put our energies into getting the best possible new president and then insisting on reforms and reversals of policy. But, remember, this strategy failed when the Democrats used it in letting Reagan off the hook. And, imagine the landslide Obama could win if the House Judiciary Committee were holding impeachment hearings on all the worst topics for John McCain, starting with torture and signing statements! Personally, I'm far more concerned with imposing the rule of law on the next president than on who that president is, but most Democrats think differently. They think about John McCain all the time, but they don't seem to think about how to put him on the defensive.
Why would we want a President Cheney? Or why would we want a new Republican who could run as an incumbent? Or why would we want a President Pelosi?
I propose impeaching Cheney first or together with Bush. The first Articles of Impeachment to be introduced (H Res 333) (not counting Rep. Cynthia McKinney's articles introduced the last day of the previous Congress) are addressed only to Cheney. Impeaching Cheney first ought to put the fear of a President Cheney to rest. But there remains the possibility of fearing his replacement or even of not wanting Nancy Pelosi to be president or not wanting her to become president in this way. She won't. We will never succeed in removing Bush and Cheney from office simultaneously and by surprise. We will remove them, but they will be replaced by a new President Ford, who will operate within the rule of law and lose the next election.
But this whole discussion misses the point. The question of who holds which office for the next year or six months, as well as the question of who wins the next election, is of very minor importance in comparison with the question of whether future administrations will be compelled to operate within the limitations of the law. If we do not impeach Cheney and Bush, we will establish that it is permitted for future presidents and vice presidents to mislead the Congress and the public into wars, spy in violation of the law, detain without charge, torture, operate in secrecy, and rewrite laws with signing statements. Those powers in the wrong hands could do far more serious damage than Bush and Cheney have done.
So, if we keep this in perspective, the fear of Cheney appears trivial. It appears even more so when we consider that impeachment and removal from office are two separate steps and that we're only working on the first one so far, and when we recognize the extent to which Cheney has been running the country already for years. Were Cheney officially president, most policies would remain unchanged, but the public face of the White House and of the Republican party would be that of a man whose approval rating has been unable to top 20 percent. The Republicans will never allow this, so it would be rather foolish for the Democrats to retreat out of fear of it.
Whoever is president next will have to operate under fear of being impeached next. That is the point of impeachment. In the case of Cheney, he would be operating under the high probability of being impeached. No serious discussion of the evidence can incriminate Bush or Cheney but not the other. And, in any event, we will be impeaching Cheney first.
Wouldn't impeachment split the Democrats? That's a question that some find important.
Impeachment is splitting Democrats now, but wouldn't if they united behind it. At least 80 percent of Democrats outside Capitol Hill want impeachment. If 80 percent of Democratic elected representatives were pushing for impeachment, the Bush presidency would be over quite quickly. The Democrats in Congress tried to avoid the topic of the war, for fear it would split them. Iraq went unmentioned in Pelosi's plan for her first 100 hours. But the majority of the country wants to see the issues it cares about dealt with, and there are some Democrats who will stand with the people. The Democratic Party could unite by supporting peace and impeachment.
Why not do investigations and see where they lead?
They have led to the Bush administration refusing to comply with a growing list of subpoenas: http://democrats.com/subpoenas . The House Judiciary Committee passed three articles of impeachment against Nixon. Article 3 was for refusal to comply with subpoenas.
And they've led to Bush ordering a former staffer not to comply with subpoenas, and to Bush announcing that the Justice Department will not enforce congressional contempt citations. Where do you go from there, other than impeachment?
Impeachment is an investigation, leading to an indictment. A preliminary investigation is not possible when subpoenas are ignored, and is not needed when indisputable evidence is already public knowledge.
Isn't impeachment an extreme remedy? Doesn't there have to be an actual crime committed? Doesn't there have to be perjury?
There's nothing extreme about it. One of the better lists of the specific criminal violations is found in Congressman John Conyers' report:
This report is also a book. Yes, the chairman of the House Judiciary Committee is selling books on Bush and Cheney's impeachable offenses while refusing to impeach them.
Impeachment is the penalty for treason, bribery, or other high crimes and misdemeanors. The Constitution says nothing about perjury as a ground for impeachment. And it is a crime to mislead or to defraud Congress, whether or not you do so under oath.
When Diane Sawyer asked Bush on television why he had made the claims he had about Iraq's supposed weapons of mass destruction, he replied:
"What's the difference? The possibility that [Saddam] could acquire weapons, if he were to acquire weapons, he would be the danger."
What's the difference? The difference is that had the President merely said that Saddam Hussein could conceivably acquire weapons someday, many people would have opposed his war who supported it. They supported it because Bush said that Saddam had nuclear, chemical, and biological weapons and was behind the attacks of 9-11. Bush and his subordinates (for whom he is legally responsible) made these claims in the clearest language. In every such case, fraud was committed. And instances of implying and omitting are legally fraud as much as lying is.
When Bush lies, he is well aware of what he is doing. The day after the 2004 elections, he told reporters that he had lied to them about keeping Rumsfeld on as Secretary of Defense so that they wouldn't write anything about it.
It is illegal to spy in violation of the Foreign Intelligence Surveillance Act. It is illegal to detain without charge and to torture. It is illegal to take funds from other projects to begin a war before it has been authorized. It is illegal to target civilians and hospitals and journalists, and to use white phosphorous and napalm as weapons. It is a fundamental violation of the U.S. Constitution to alter laws with signing statements. Congressman John Conyers' report lists numerous other laws violated by Bush.
Isn't impeachment divisive and unpleasant and traumatic and catastrophic and unsettling and partisan?
No. Impeachment is a remedy for trauma, and one that the majority of Americans long for. Here are the polls:
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DAVID SWANSON is a co-founder of After Downing Street, a writer and activist, and the Washington Director of Democrats.com. He is a board member of Progressive Democrats of America, and serves on the Executive Council of the Washington-Baltimore Newspaper Guild, TNG-CWA. He has worked as a newspaper reporter and as a communications director, with jobs including Press Secretary for Dennis Kucinich's 2004 presidential campaign, Media Coordinator for the International Labor Communications Association, and three years as Communications Coordinator for ACORN, the Association of Community Organizations for Reform Now. Swanson obtained a Master's degree in philosophy from the University of Virginia in 1997.
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