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Impeachment, all down the line
Thursday, 12 April 2007 15:40
by Robert Jensen

Whether one believes the impeachment of George W. Bush is a realistic possibility or is simply a vehicle for expressing outrage and educating the public about the crimes of the powerful, any such talk starts with the U.S. Constitution and Article II, Section 4, which speaks of “treason, bribery, or other high crimes and misdemeanors.”

Few suggest that Bush is guilty of treason, nor is there evidence of bribery — unless we’re speaking of the routine way in which campaign contributions are a kind of bribery, but that’s hardly unique to Bush. That leaves us to ponder the phrase “high crimes and misdemeanors,” which somehow seems inadequate to describe this administration. “High crimes,” yes, but these are not “misdemeanors.” We’re talking about repeat felony offenders.

Scholars debate what the category of “high crimes” might include, but it certainly must include the violation of one of the central tenets of international law — that no nation-state can attack another unless in self-defense or with authorization from the U.N. Security Council. Bush is guilty of this — a “crime against peace” in the language of the Nuremberg Principles — not once but twice, first in Afghanistan and next in Iraq.

That seems simple enough, but it also seems a bit unfair to pick on Bush alone. After all, no single person — not even the president of the United States — can undertake such massive crimes alone. Remember that the constitution also includes in the category of impeachable persons the “Vice President and all civil officers of the United States.” How deep into the bench of the Bush administration might we go? Cheney and Rice seem like obvious choices; Rumsfeld, Wolfowitz, Powell, and Armitage would have been on the list before they left their posts. You all may have specific favorites you would want to add.

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But I suggest we not stop with Bush and his cronies. If we want to truly change the direction of this country, we should widen the discussion. Who else might deserve to be impeached?

Let’s start with the elected leadership of the Democratic Party, which aided and abetted the high crimes of Bush by jumping on the “war on terror” bandwagon and authorizing those illegal invasions of Afghanistan and Iraq. That makes the Democratic Party leadership complicit not only in the clear violations of international law but also morally responsible for the death and destruction that has followed. Now, even with a congressional majority, the Democratic Party leadership refuses to take responsibility for its part in this debacle and is timid in proposing meaningful solutions.

The complicity of the so-called opposition party brings to mind the last Democratic administration; it’s hard to talk about impeachment without mentioning Bill Clinton, who was impeached by the House of Representatives on two charges — grand jury perjury and obstruction of justice — but acquitted by the Senate. Whether Clinton’s abuse of power and invocation of male privilege in exploiting a younger female employee, along with his subsequent attempt to cover it up, warrant impeachment is a judgment call.

But there is no doubt that Clinton’s missile strikes on Afghanistan and the Sudan in August 1998, allegedly in retaliation for the bombings of U.S. embassies in Kenya and Tanzania, were unlawful. There is no doubt that Clinton’s air strikes on Iraq in December 1998, allegedly in reaction to Iraqi defiance of UN resolutions on weapons, were unlawful. There is no doubt that Clinton’s bombing of Serbia in the spring of 1999, allegedly to prevent ethnic cleansing of Kosovars, was unlawful.

Finally, let us not forget that for the eight long years of our last Democratic administration, Clinton insisted on the imposition of the harshest economic embargo in modern history, again allegedly to force Saddam Hussein to comply with UN resolutions. The 5,000 Iraqi children who died each month due to a lack of adequate nutrition, medical care, and clean water could have testified to the high crimes of Clinton — if they had survived. The deaths of hundreds of thousands of innocent Iraqis, sacrificed by Bill Clinton to deepen and extend U.S. dominance of the Middle East, will have to provide silent testimony.

“High crimes” seems like the appropriate phrase here. Could there be some kind of retroactive impeachment?

It appears that if we were to get serious about this impeachment thing, there could be a whole lot of impeaching going on.

As along as we have moved outside the strict constitutional framework, let’s imagine who else we might put on the list. Perhaps we shouldn’t stop with government officials. I’m a former journalist and a journalism professor, and it seems to me that maybe it’s time that we started impeachment proceedings against the corporate commercial news media. We may recall that journalists were an integral part of the creation of public support for the unlawful invasions of Afghanistan and Iraq. These weren’t idiosyncratic failures of a few rogue journalists, but rather reflections of a systemic subordination to power.

Judith Miller, the former New York Times reporter who served as a willing conduit for some of the most fraudulent claims the Bush administration used to build support for the Iraq war, offered this pathetic defense of her failures: “My job was not to collect information and analyze it independently as an intelligence agency. My job was to tell readers of the New York Times as best as I could figure out, what people inside the governments who had very high security clearances, who were not supposed to talk to me, were saying to one another about what they thought Iraq had and did not have in the area of weapons of mass destruction.”

Karen DeYoung, senior diplomatic correspondent and associate editor of the Washington Post, and also author of Soldier: The Life of Colin Powell, was unusually honest in describing this process: “We are inevitably the mouthpiece for whatever administration is in power. If the president stands up and says something, we report what the president said.” She explained that if contrary arguments are put “in the eighth paragraph, where they’re not on the front page, a lot of people don’t read that far.”

When reporters from two of the most authoritative newspapers in the United States concede that in the course of doing their jobs — playing by the commonly understood rules of the game — they will be little more than delivery systems for the propaganda of the powerful, it seems that contemporary corporate commercial journalism should be impeached for its failure to fulfill its role as a check on concentrated power.

From corporate journalism we might look at the corporate sector more broadly — the corporations that profit from building the weapons of war, the corporations that profit from the contracts to rebuild after a war, those that provide private security, and those that win the right to exploit the resources of the subordinated societies. Lockheed Martin, Haliburton, Blackwater, ExxonMobil. Perhaps there should be corporate impeachment hearings proceedings.

Follow the logic and it’s clear that no matter how much this president might deserve impeachment, he is only one person in a system that is fundamentally indefensible and unsustainable. People at many levels are culpable and complicit; there is plenty of responsibility to go around, assessed with an eye toward people’s power and place in the decision-making structure, of course.

But we all have some role in this. That extends not only to the powerful but to all of us who are citizens of the United States, citizens of the empire. Many of us work hard in progressive political groups to try to make the world a more just place. But the reality is that those of us living in the empire do — at least in the short term — get some material benefits from that empire, from that system that gives to the First World (especially the United States) a disproportionate share of the world’s resources. No matter how much we struggle, the fact is that the vast majority of people in the United States live at a level of consumption that is unsustainable. We indulge too often in our lust for the cheap toys of empire.

Have we done enough, as citizens who live in a relatively open democratic system, to change that? Have we struggled enough? Have we been self-critical enough?

I won’t make a judgment about that for anyone else. But I know that, for myself, the answer is no. I have not done enough.

So, should I be impeached as a citizen of the United States who is not living up to the moral and political responsibilities that come with the unearned privilege I have by virtue of living in this society?

It’s easy to target the most manifestly evil among us, those whose moral and political judgments cannot be justified by any theological or philosophical system. We should critique those people in power and hold them accountable. We should use the political tools available to us to try to create a better world.

But we also might pause and hold ourselves to the rigorous standards that are going to be necessary if we are to create a world that is consistent with our principles of justice, a world consistent with nature’s demands for sustainability, a world beyond empire.

[A speech delivered to the “Impeachment: Our Right, Our Duty” rally in Houston, TX, April 9, 2007.]

Robert Jensen is a journalism professor at the University of Texas at Austin and board member of the Third Coast Activist Resource Center http://thirdcoastactivist.org . His latest book is Getting Off: Pornography and the End of Masculinity (South End Press, 2007). Jensen is also the author of The Heart of Whiteness: Race, Racism, and White Privilege and Citizens of the Empire: The Struggle to Claim Our Humanity (both from City Lights Books); and Writing Dissent: Taking Radical Ideas from the Margins to the Mainstream (Peter Lang). He can be reached at rjensen@uts.cc.utexas.edu and his articles can be found online at http://uts.cc.utexas.edu/~rjensen/index.html.
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a guest said:

Getting serious
As a speech for a rally, or as a journalism professor's discourse on perhaps fanciful uses of impeachment almost as in a stream of consciousness exercise, this is a fine, revealing, and thought provoking diatribe.

But let's get serious for a moment. There are a lot of serious people - whole communities of them in Vermont for instance - urging John Conyers and other Congressional figures to actually start a formal impeachment effort against Bush and Cheney as a last resort or as a first resort tactic to force an end to the occupation of Iraq. Add to the rhetoric a peek at the law.

Somewhat unintentionally I suspect, Prof. Jensen exposes the central problems facing real world use of the Constitution's impeachment remedy to rein in the rampant lawlessness of the Bush regime:

A. Which crime or combination of high crimes do you prosecute?

B. Which decision making authorities beyond George W. Bush do you name as codefendants and for what purpose?

C. How do you overcome the likely defense of reliance upon legal authority?

At the outset, we must ask whether a violation of international law is an impeachable offense as that term is used in Article II, Section 4 of the Constitution? "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."

There was of course no such thing as an international criminal offense at the time our Constitution was adopted, Justices Thomas, Scalia, Chief Justice Roberts and other strict constructionists will quickly remind us. It is conceptually impossible for "treason" to be anything except a violation of domestic law, specifically "levying war against [the United States], or in adhering to their enemies, giving them aid and comfort."
OK. So if we all agree with Prof. Jensen that the evils of the Bush/Cheney regime cannot be properly labeled treason or bribery except in the loosest, nonlegal sense of those terms, is a President's violation of international law a "high crime" as the drafters intended?

Elizabeth de la Vega, David Lindorf and others have framed a solid case for impeachment of Bush and Cheney based upon a theory of fraud - the fixing of the intelligence to fit the policy, the outright lies and fear mongering campaign that was deliberately orchestrated in the fall of 2002, resulting in an unlawful war of aggression against Iraq in the spring of 2003. Add in the major players alongside Bush and Cheney - Rumsfeld, Wolfowitz, Gonzales, Powell, Rice, and Rove let's say - and if convicted (by a required 2/3 vote of the Senate) the judgment "shall not extend further than to removal from Office, and disqualification to hold and enjoy any office of Honor, Trust or Profit of the United States....." unless later they were subjected to "Indictment, Trial, Judgment and Punishment, according to Law."

I hate to again sound like a Constitutional prig, but particularly when your country has rejected the whole International Criminal Court mechanism, there's a real conceptual problem at the outset predicating impeachment upon commission of an "international law crime."

Well, how about violation of the federal statutes making it a felony to torture or eavesdrop domestically using NSA technology without getting a warrant? Those are perfectly good impeachable offenses. There may be some evidentiary problems directly tying Cheney, Powell, Rice and Rove to the torture, and tying anybody but Bush and Gonzales to the illegal NSA wiretapping. However, the biggest hurdle is yet to come.

A majority of both the House and the Senate voted in favor of the 2002 Authorization for Use of Military Force in Iraq. How can it be a high crime for the President to execute a federal statute?

A majority of both the House and the Senate also voted in November 2006 to pass the Military Commissions Act, authorizing torture of detainees and granting the torturers retroactive immunity from prosecution. How can it be a high crime for the President to have executed that federal statute? Why can't Bush, Gonzales, Rumsfeld, Cambone, General Miller, General Abazaid and the others responsible for Abu Ghraib and Gitmo all invoke the immunity Congress has expressly given them as defense to an impeachment proceeding?

As to the illegal NSA wiretapping, we're told that the secret FISA court has issued a secret classified ruling that whatever the Bush administration may have done it wasn't clearly illegal (and they're not doing the same thing now anyway). And face it, compared to a half a million deaths in Iraq and the man-on-the-box-in-the-hood-with-the-electrodes-on-his-balls, bugging Sy Hersh's phone is a lesser high crime in the big picture of things.

Even the thoughtful analysis of Ms. De La Vega, Democrats.com and other pro-impeachment grassroot groups run into the problem of Congressional authorization of that which we now see as crime. Making things even more awkward, John Edwards is not alone in stating he knew the intelligence was cooked, he knew he was being lied to, but he went ahead and voted to authorize the Iraq invasion anyway (so sorry!).

The point of this rant is, I think for impeachment to work the necessary first order of business is for Congress to repeal the 2002 AUMF and repeal the Military Commissions Act. If Little George tries to blow it off and carry on waging war and running concentration camps as though Congress's repeal of legal authority can be ignored, then that's when you pick up the phone to Pelosi and Conyers, and your picket sign and/or pitchfork and head to Washington.
April 13, 2007 | url
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