by Elizabeth Holtzman
The Nation, 1/30 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.