But on what legal grounds could articles of impeachment be presented? Those advocating impeachment usually cite four arguments that form the legal basis of the pro-impeachment lobby:
- That Bush violated international and domestic law by invading Iraq;
- That Bush lied about prewar intelligence, and lied about a connection between Iraq and al Qaeda;
- That Bush violated international laws and treaties, as well as the US Constitution, by holding "enemy combatants" indefinitely without hearings;
- That Bush violated the Foreign Intelligence Surveillance Act (FISA) of 1978 with "warrantless" wiretapping of American citizens;
First, that Bush violated internation and domestic law by invading Iraq. This is the easiest one to debunk. The United Nations Security Council issued 17 resolutions on Iraq, virtually all of which were repeatedly violated by the former government of Iraq. Article 33 of UN Resolution 687 (April, 1991) states that only through Iraq's acceptance of the terms of UNR687 will a "formal cease-fire" exist. Iraq continually violated this and virtually all subsequent UN resolutions. Therefore, the cease-fire, by definition, and in accordance with UNR 687 ceased to exist when Iraq violated the terms of 687 and the subsequent resolutions.
Despite a decade of 'second chances', UNR 1441 (November, 2002) threatened further "serious consequences" should Iraq not comply with all UN resolutions. Debate ensued over whether further UN action specifically calling for war was legally required prior to any military action, but after ten years and 17 ineffective UN resolutions, and with France, Germany, and Russia virtually guaranteeing a veto over such a resolution, the US, Great Britain, Spain, Italy, Australia, and numerous other countries concluded that no further UN authorization was required to forcably disarm Iraq.
House Joint Resolution 114 (October, 2002), passing overwhelmingly by both the House and Senate, authorized the president to "...use the Armed Forces of the United States as he determines..." as the excerpt below makes clear: (emphasis added)
The Congress of the United States supports the efforts by the President to--There is simply no compelling argument that any laws were broken regarding the invasion of Iraq.
(a) strictly enforce through the United Nations Security Council all relevant Security Council resolutions applicable to Iraq and encourages him in those efforts; and
(b) obtain prompt and decisive action by the Security Council to ensure that Iraq abandons its strategy of delay, evasion and noncompliance and promptly and strictly complies with all relevant Security Council resolutions.
SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) AUTHORIZATION. The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.
Second, that Bush lied about prewar intelligence, and lied about a connection between prewar Iraq and al Qaeda. This one has been repeatedly debunked by many, including The Lost Tooth Society. Recently released and translated documents from prewar Iraqi Intelligence files show a clear link between Iraq and al Qaeda prior to 9-11. The veracity of these documents is still in question, and it will take years to translate and decipher all 55,000 boxes of seized documents, but based on what has been so far translated, the correctness of the prewar intelligence may well be vindcated.
Moreover, the Duelfer Report clearly shows that Saddam Hussein had a strategy to secretly maintain his WMD capabilities while working to use the Oil For Food UN program to bribe his way to the end of sanctions. Once the sanctions were lifted, he would be in an even stronger position to resume his WMD development programs.
Third, that the Bush administration violated international laws and treaties, and the US Constitution by holding indefinitely and without charges "enemy combatants. While the Lost-Tooth Society was initially very troubled by this action, digging into the facts showed that these actions are completely in compliance with all applicable legal standards. Note a key passage from the post above:
The Third Geneva Conventions clearly spell out how prisoners of war shall be treated, and Part 1, Article 4, paragraphs 1 and 2 of the III Geneva Conventions defines precisely who is a "prisoner of war":The Lost-Tooth Society continues to believe that the indefinite detention of many of these people is unwise, and we welcome the Supreme Court's ruling allowing challenges to detention, but the legality of the detentions is not in question, and is therefore not grounds for impeachment.
"(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.'
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[ (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war."
Given the specific conditions of part (2), it seems unlikely that many of those detained at Gitmo could be considered POW's under the Geneva Convention. In fact, the US Court of Appeals for the District of Columbia ruled in Hamdan v. Rumsfeld (July15, 2005) that the Geneva Conventions do not apply to al Qaeda, and that the Geneva Conventions themselves cannot be enforced in US courts.
But ruling in the Rasul v. Bush case in June of 2004, the US Supreme Court held that Gitmo detainees are entitled to challenge their incarceration in federal court, arguing essentially that since the US government holds legal authority over Gitmo and its facilities, that federal courts also hold jurisdiction over the detainees, hence their right to habeas corpus.
Fourth, That Bush violated the Foreign Intelligence Surveillance Act (FISA) of 1978 with "warrantless" wiretapping of American citizens. This is no doubt the strongest card in the hand of the pro-impeachment lobby, but is it strong enough to warrant impeachment?
First, some background:
As part of the president's post-9/11 anti-terrorism efforts, he authorized the National Security Agency (NSA) to intercept certain electronic communications from persons outside the USA to persons within the USA, without warrants. FISA is the governing statute regarding this type of surveillance, and around its provisions lie the basis of the argument that the NSA program was was allegedly illegal.
There are very complex and technical legal questions involved here, and my opinions are based on the legal analyses I have read, since I am neither a legal scholar nor an attorney. The central issue revolves around the FISA statute and Separation of Powers issues. FISA is, of course, a statute passed by the Legislative branch of the federal government, not Constitutional provision. Therefore, the applicability of the statute by the legislature, inasmuch as it applys to the Executive branch of the federal government, must be examined in light of Constitutional authority delegated to the Executive branch.
In other words, the Congress cannot by statute constrain the authority of the President beyond those constraints already specified by the Constitution.
Unfortunately for the pro-impeachment crowd, FISA does just that.
There are several excellent authorities that illustrate this point:
John Hinderaker at Powerline writes:
The starting point, of course, is the Constitution. Article II of the Constitution sets out the powers and duties of the President. Some people do not seem to realize that the executive branch is coequal with the legislative and judicial branches. The President has certain powers under the Constitution, and they cannot be taken away or limited by Congressional legislation any more than the President can limit the powers of Congress by executive order.Powerline also writes of Attorney General Alberto Gonzales' comments in a debate in late January of this year.
Article II makes the President Commander in Chief of the armed forces. As such he is preeminent in foreign policy, and especially in military affairs. This was no accident; as Alexander Hamilton wrote in Federalist No. 74, "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." The federal courts have long recognized that when it comes to waging war, the President, not Congress or the courts, is the supreme authority. In Fleming v. Page, 9 How. 603, 615 (1850), the Supreme Court wrote that the President has the Constitutional power to "employ [the Nation's armed forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy."
Quoting from Powerline the words of the Attorney General:
[F]rom the outset, the Justice Department thoroughly examined this program against al Qaeda, and concluded that the President is acting within his power in authorizing it. These activities are lawful. The Justice Department is not alone in reaching that conclusion. Career lawyers at the NSA and the NSA’s Inspector General have been intimately involved in reviewing the program and ensuring its legality.
The terrorist surveillance program is firmly grounded in the President’s constitutional authorities. *** It has long been recognized that the President’s constitutional powers include the authority to conduct warrantless surveillance aimed at detecting and preventing armed attacks on the United States. Presidents have uniformly relied on their inherent power to gather foreign intelligence for reasons both diplomatic and military, and the federal courts have consistently upheld this longstanding practice.
If this is the case in ordinary times, it is even more so in the present circumstances of our armed conflict with al Qaeda and its allies.
There are other powerful arguments supporting the legality of the NSA program. Charles Krauthammer wrote recently in the Washington Post (registration required) about the legality of the program,
In 1972 the Supreme Court required the president to obtain warrants to eavesdrop on domestic groups but specifically declined to apply this requirement to snooping on foreign agents. Four appeals courts have since upheld presidential authority for such warrantless searches. Not surprisingly, the executive branch has agreed.Finally, a panel of five former judges of the secret FISA court recently testified before the Senate Intelligence Committee that the president:
True, Congress tried to restrict this presidential authority with the Foreign Intelligence Surveillance Act of 1978. It requires that warrants for wiretapping of enemy agents in the United States be obtained from a secret court. But as John Schmidt, associate attorney general in the Clinton administration, wrote: "Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms." Indeed, President Bill Clinton's own deputy attorney general testified to Congress that "the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes," then noted a few minutes later that "courts have made no distinction between electronic surveillances and physical searches."
"[D]id not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA)."
On the surface, the calls for impeachment of president Bush over these matters might be worrisome, but once one investigates the actual facts of the case, and the controlling legal authorities, the foundation justifying such action fizzles.