As an attorney I often get asked if I think President Bush has committed any impeachable "high crimes or misdemeanors." The Constitution gives the power to remove the President to the Congress, not the judiciary, so the question is more political than legal. The legalistic language about "high crimes and misdemeanors" and a "trial" in the Senate reminds Congress that ours is not a parliamentary system; Congress cannot remove a president with a mere "no confidence" vote. In terms of whether President Bush has committed any offenses that could justify impeachment, consider the following:
U.S. Supreme Court Justice Robert Jackson, who served as the chief prosecutor of the major Nazi war criminals, called starting a war without cause the "supreme war crime" because all other war crimes flow from it. Under the United Nations Charter, which is a binding international treaty ratified by the United States, it is illegal to attack another nation except: 1) when authorized by the Security Council; or 2) when necessary for self-defense and then only for as long as necessary to get the matter to the Security Council.
The Security Council unanimously passed Resolution 1441 that found Iraq in material breach of prior resolutions and warned of "severe consequences" if Iraq didn't conform. But that resolution also explicitly stated that the Security Council remained seized of the issue and the United States assured the other members that Resolution 1441 did not authorize it to attack Iraq; the U.S. would have to return to the Security Council for another resolution before it could attack Iraq. In early 2003, the United States did return to the Security Council with a resolution authorizing an attack on Iraq. When it became clear that the proposed resolution could not muster a majority, the United States withdrew the resolution and attacked Iraq anyway. There is no crime more serious than illegally starting a war.
In garnering support for his invasion of Iraq, President Bush selectively cherry-picked the advice and intelligence that supported the end result he wanted to achieve. Many career officers at the CIA and the Pentagon quit when their reservations about the war were ignored. President Bush misled Congress when he pretended he had solid intelligence that Iraq had the ability and desire to attack America.
President Bush has shown a consistent hostility to civil rights. Tens of thousands were swept up in immigration raids after the Bush administration announced it intended to use immigration laws against suspect populations not for immigration purposes but as part of its "War on Terror." It claimed a right to seize U.S. citizens on U.S. soil and to hold them indefinitely without charges, a trial, an attorney or even the right to remain silent. It not only supported the USA PATRIOT Act but, according to the inspector general, systematically abused it after it became law.
In the late 1970s, Congress established a secret court to issue search warrants in foreign intelligence cases. Congress diluted the definition of "probable cause" in foreign intelligence cases to make these warrants easy to get. President Bush, however, authorized the National Security Agency to seize telephone records without getting warrants from the foreign intelligence court. The NSA had the technology to monitor all phones calls and did not want to identify the particular records to be seized as is done in search warrants. The idea was to seize all phone records and then "data mine" them to see if any of them contained foreign intelligence information. This invasion of privacy not only circumvented the statute establishing the foreign intelligence court but the particularity requirement of the Fourth Amendment as well. The Fourth Amendment was designed to prohibit the British type of "general warrant" that authorized a particular person to search or seize anything he wants.
Although the Bush administration uses the language of war, such as "War on Terrorism," it insisted that the prisoners captured in Afghanistan were not entitled to the protections of the Geneva Conventions because they did not wear uniforms. President Bush's attorney called the Geneva Conventions "quaint." However, the same administration claimed a right to detain these prisoners indefinitely without any kind of hearing on the grounds that prisoners of war can be detained without hearing until the war ends. President Bush uses the international law of warfare selectively, saying it applies when it suits his purposes but does not apply when it does not suit his purposes.
Both international and U.S. law condemn torture. President Bush's administration has redefined torture to only include serious physical injury that can lead to death and then used that narrowed definition to authorize "water boarding," sensory deprivation, sleep denial, and other aggressive interrogation techniques commonly understood to be torture. In response, Congress passed a statute outlawing inhumane treatment of prisoners. When he signed that statute into law, President Bush issued a separate "signing statement," saying that he reserved the right to use torture if he thought it was necessary for national security.
President Bush has authorized the use of depleted uranium shells in Iraq, which will create health hazards there for decades to come. He authorized the use of phosphorus bombs against Fallujah, a civilian target. While it's true that phosphorus bombs burn people, their primary purpose is to suck oxygen out of the air so people hiding in buildings suffocate. "Daisy cutter" bombs create a concussion that makes the eye balls and ear drums of people hiding in bunkers explode.
My conclusion: It is the political will to impeach, not the legal grounds, that we lack.
Phil Worden lives in Tremont, Maine. E-mail: firstname.lastname@example.org, or write PO Box 1009, Northeast Harbor, ME 04662
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