Senate Joint Memorial 8016
Before the Government Operations and Elections Committee
of the Washington State Legislature
Impeachment of President George W. Bush
At the request of State Senator Eric Oemig, I respectfully submit this testimony in support of Senate Joint Memorial 8016 calling on the US Congress to determine whether there is sufficient evidence for and if so to commence the constitutional process of impeachment with respect to President George W. Bush and Vice President Richard B. Cheney.
As a member of the House Judiciary Committee that voted to impeach President Richard M. Nixon, a process that has withstood the test of history, I developed a niche expertise on the subject of presidential impeachment.
It is from that perspective, that I have reached the sad conclusion that the systematic and grave abuses of power of President George W. Bush warrant his impeachment and removal from office.
No one can take any pleasure in reaching this conclusion. When the House Judiciary Committee voted its first article of impeachment against Richard Nixon, the chair of the committee, Representative Peter Rodino, went back to his office and cried. He needn't have done so. The impeachment vote, which prompted the resignation of President Nixon, vindicated the deepest values that guide our republic--commitment to the constitution and the rule of law. Impeachment did not divide our country but strengthened it: we recognized that as Americans more important than party, more important than any single president was the rule of law.
That is what is at stake again. Once again, we are confronted with a president who has put himself above the rule of law to the grave detriment of the people of the United States.
The impeachment power was placed in our constitution to preserve our democracy. The framers understood human nature. They knew that even though they had created powerful checks on the presidency, a president could still, during his term of office, create such a threat to our democracy that he would have to be removed. In other words, the framers anticipated Richard M. Nixon--and they anticipated George W. Bush. And, they gave us the remedy to address their abuses.
Impeachment was designed to remove a president who committed treason, bribery or other high crimes and misdemeanors. High crimes and misdemeanors, we know from the constitutional debates, are "great and dangerous offenses that subvert the constitution."
Let me briefly describe the impeachable offenses that I believe President George W. Bush has committed. (More details are contained in my book, The Impeachment of George W. Bush, co-authored with Cynthia Cooper, and in two articles published in the Nation. )
First, President Bush repeatedly and systematically violated the laws of the United States, in particular the Foreign Intelligence Surveillance Act, by refusing over a period of several years to seek court approval for an extensive wiretapping program of telephone calls or other electronic communications involving Americans in the United States. FISA, the violation of which is a federal crime, was enacted in the wake of revelations of illegal wiretapping by President Richard Nixon. That wiretapping constituted one of the grounds for the impeachment of President Nixon. Seeing what unchecked presidential wiretapping produced, Congress enacted FISA which requires court approval for all foreign intelligence wiretaps. No president was going to be permitted to conduct wiretaps on his own say so ever again. Nonetheless, President Bush has admitted to ordering repeated wiretapping without the FISA court's approval.
Court approval, the President and his team said, could not accommodate the exigent circumstances in the war against Al Qaeda. Yet, once the Democrats took control of Congress in the November 2006 elections and asked for an explanation of the wiretaps, the Administration announced that it was going to abandon its past practice and obtain court approval for all wiretaps. What was "impossible" was now possible, creating grave questions about the bona fides of the President's claim that that seeking FISA court approval would hinder intelligence gathering.
In any case, no president can be permitted to violate the law or take the law into his own hands, whether in the interests of national security or anything else. Otherwise, we go down the long road to tyranny. The plain language of the constitution mandates that the president obey the law. Moreover, there is a Supreme Court case directly in point, involving President Truman's effort to seize steel mills to keep them running during the Korean War in the face of a possible strike. The Court told the President hands off. The President, the court noted, was only the commander in chief of the army and navy, not the commander in chief of the country.
If President Bush thought FISA was unwieldy or hampered him in his intelligence gathering efforts, he needed to ask Congress to amend the statute or else he had to obey it. He never sought to amend FISA to permit his wiretapping program to go forward.
Second, President Bush drove us into the war in Iraq--a war now acknowledged by most Americans to be a disastrous mistake--by lies, deception and exaggerations. This, too, is a great and dangerous offense that subverts the constitution. The framers placed the power to go to war in the hands of the Congress, as well as the president. They did so not only because going to war, the gravest decision a nation can make, should be made only after the most careful and thorough consideration, but also because they believed that Congress would be a brake on the historical tendency of executives to engage in needless war making.
But lying, deception and exaggeration subvert the constitution by depriving Congress and the American people of the true facts on which to make a decision to go to war and thwarting their ability play the role the constitution requires of them.
As we know now, many of the President's claims about the reasons for going to war were untrue. In some cases, it is clear that the President personally knew that his claims were untrue.
The President falsely claimed that Saddam Hussein and Al Qaeda were in cahoots, thus justifying any attack on Saddam as retaliation for 9/11. The connections were so frequently suggested by the President and his team that by the time of the invasion, most Americans thought Saddam was responsible for 9/11 and US soldiers were saying their presence in Baghdad was "payback" for 9/11. But, the President knew that Saddam had nothing to do with 9/11. He was personally told this by Richard Clarke, one of the top counterterrorism figures in the US government, right after 9/11.
Similarly, the President said in his January 2003 State of the Union address that the British government had found that Saddam was trying to buy uranium in the African country of Niger. This was proof, supposedly, that Saddam was reconstituting his nuclear weapons capacity. But US intelligence knew that the claim was phony and based on forged documents. So, President Bush could not cite US intelligence to make the Saddam/uranium argument in his speech. On the other hand, he was on notice that something was wrong, since as President, he was asking the American people to go to war based on British information. If he had asked what US intelligence had to say about the British claim, then he was simply lying to the American people about the uranium; if he didn't ask, he was reckless in taking us to war without satisfying himself about what US intelligence had to say on the subject. Full investigation will show exactly what the President knew and when he knew it about the reasons for going to war and the extent to which he deliberately deceived the Congress and the American people. The same holds true for Vice President Cheney whose repeatedly false statements about the war are legion.
Third, the President facilitated the mistreatment of detainees in violation of the Geneva Conventions and US statutes (including the War Crimes Act of 1996) by in effect removing the protections of the Conventions from Al Qaeda and Taliban detainees. Further, after abuses at Abu Ghraib became public, the President, in violation of his obligations under the Geneva Conventions and under the constitution to faithfully execute the laws, failed to ensure that thorough investigations were conducted into the highest echelons of the chain of command and that those responsible, including higher ups, were brought to justice.
Finally, the President failed to take care that the laws were faithfully executed in connection with his gross disregard for human life that occurred in the wake of Katrina. In a video conference, the President was personally warned that a catastrophe was about to engulf New Orleans and that the impending hurricane could breach the levees. Despite the fact that under the structure of laws governing disaster relief, the president is the only one who can mobilize all government resources, President Bush asked no questions at the briefing as to what preparations had been made and what else could be done by the federal government to help. Instead, he called for prayers and went back to his vacation. When thousands of lives, the future of one of the world's great cities and billions of dollars of property are at stake, and when the president is given unique powers to act to ameliorate the disaster, President Bush's failure to lift a finger is not just morally reprehensible, it is a failure to execute his oath of office and a failure to take care that the laws are faithfully executed--it is an impeachable offense.
Failure to hold the President accountable for his actions is to condone them and to signal to future Presidents that lying to drive us into wars or refusing to obey the laws of this country are acceptable modes of conduct.
But these are not acceptable. We cannot, we dare not turn over to future generations a shriveled and shrunken constitution. Some say impeachment is a distraction from a more important policy agenda. But that argument insults Americans. As important as better health care, education and job creation are, Americans understand that these objectives become possible only in the context of a vibrant democracy. There is nothing more important that we can do to for the achievement of a policy agenda than to make sure that our constitution is intact and the rule of law governs.
During the Nixon impeachment effort, it was not the Congress that put impeachment on the table. It was the American people who said enough is enough when President Nixon fired the special prosecutor investigating him. Americans did not want to see the rule of law destroyed; they did not want to see this great country become a banana republic. Congress commenced impeachment proceedings only in response to the firestorm of public anger.
That is why passage of the Senate Joint Memorial 1816 by the legislature of the State of Washington is so important. It is a way of telling Congress that the American people all over this great land want to see constitutional sanity restored and the rule of law prevail, which can happen only after full investigations of the actions of the President and Vice President are conducted and they are held accountable, if warranted, under the impeachment provisions of the US constitution.
Thank you for your consideration of my views.