Elizabeth Holtzman

Impunity For The Bush Administration Won't Last

2012-02-08T17:41:11-05:00

In his State of the Union address, President Obama announced a new special unit to investigate abusive lending and packaging of mortgage risk that led to the housing and financial crisis. These abuses began years ago, under the Bush administration and possibly before. Yet since it's widely felt that impunity for banks and financial institutions hurts our economy and undermines our rule of law, the president's proposal was well received.

In the same way, treating Bush administration officials with impunity for their criminal actions undermines the Constitution and the rule of law, which is why we need a special prosecutor to investigate them. Impunity for the powerful doesn't just breed cynicism and anger in the public; it helps ensure that misconduct, criminal or otherwise, will be repeated. It creates a dual system of justice, corroding democracy itself. The longer we wait, the greater the damage and the higher the price we pay.

Take the Iraq War. The Bush team falsely told Congress that Iraqi weapons of mass destruction threatened us with a "mushroom cloud" and that Saddam Hussein and al Qaeda were in cahoots. They said a military effort would be a "cakewalk," lasting five months and costing $50 billion. In fact it lasted over eight years, cost more than $1 trillion, killed more than four thousand Americans and hundreds of thousands of Iraqis, and injured tens of thousands of our troops.

If it seems as though there should be a law against this, there is; it just hasn't been enforced.

Conspiracy to defraud Congress is a federal crime; a proper inquiry into whether the Bush administration violated the law is required. So is a comprehensive investigation into the origins of the war, whether or not criminal activity was involved. So far, the U.S. has refused to undertake a full-scale inquiry to ascertain "what the president knew and when he knew it."

Doing so wouldn't be quixotic or backward-looking. Other democracies have acted. Britain and the Netherlands undertook investigations of their involvement in the Iraq War, so why can't we? Britain conducted extensive hearings, calling former Prime Minister Tony Blair, among others, to testify. While the British inquiry panel has not yet issued its conclusions, the Netherlands inquiry found Parliament was deceived and that the Iraq war was contrary to international law.

Lying to Congress and the American people to sell a war is an especially dangerous thing to treat with impunity. Presidents need to know that they will suffer serious consequences if they try it -- that they could realistically be found guilty of a federal crime, or, if the misconduct doesn't rise to that level, that official inquiries and disclosures could shame them forever, damaging their standing and legacy.

Other misdeeds of President Bush and Vice President Cheney also require review: Torture and mistreatment of prisoners violate the anti-torture statue and possibly the watered-down War Crimes Act. Authorizing illegal wiretapping violates the federal anti-wiretapping law. Both would carry a criminal penalty and both must be investigated.

Refusing to review possible criminal misconduct by the Bush administration also cripples American power. It makes it harder for the U.S. to condemn impunity abroad. How effectively can we argue for the rule of law in Syria or Iraq or anywhere else if we don't apply it fully here at home?

And it leaves Americans open to foreign prosecution. If we refuse to act, other countries will investigate and prosecute U.S. officials who may have violated criminal or international law. If their citizens were mistreated in Guantanamo, or torture took place on their soil, they can claim jurisdiction. Right now, Spain is launching an inquiry into top Bush administration lawyers who greenlighted torture.

In the long run, no matter how much the U.S. tries to duck accountability, there will be no impunity. Chilean dictator Augusto Pinochet was finally prosecuted for torture and murder, despite 27 years of evading it.

In the U.S., there is no statute of limitations for certain cases of torture, including when death results. One day, there will be prosecutions for the misdeeds of the Bush administration. Then the whole story of torturing and mistreating detainees will be spread out on the table of history for all to see. The question is, how long will we have to live with impunity and how much more damage to American democracy and power will we suffer until that day comes?

Civil Rights Movement Celebrates 50th Anniversary

2011-06-02T12:51:04-04:00

I am attending the 50th Anniversary of the Southwest Georgia Civil Rights Movement here in Albany, Georgia. As a first year law student, in the summer of 1963, not quite half a century ago, I worked during the summer as a law clerk for C. B. King, a noted black civil rights attorney in Albany. I had no idea how dangerous and bad the place was ― if I had I would never have gone. But once there, I knew I had to help.

I am excited about becoming re-acquainted with the people who were in the Movement, as it was called. Albany was a SNCC town and those of us who came from outside Albany were derisively called "outside agitators." The response to the Movement was brutal. Dr. Martin Luther King was arrested here, and C. B. King was smashed in the head for his civil rights advocacy.

This morning, as the plane banked left in its descent over Albany, I saw the dark green, lush trees tops and remembered how closely linked beautiful and dangerous were for me down here. I recall a trip with C. B. King and Donald Hollowell, a noted civil rights attorney from Atlanta, into big, bad Baker County, a rural area not too far from Albany. The two lawyers were going to defend a black man accused of attempted murder.

The case echoed events that occurred decades earlier in which a sheriff, Claude Screws, tied a black man to the back of his car and drove him around the Baker County courthouse until he was dead. Years later, Screws' deputy, huge and hulking, had arrested and handcuffed Charlie Ware, a short, slim man about a third of his size. Claiming that the handcuffed Ware was coming at him with a knife, he shot Ware in the neck. Ware survived, only to be charged with attempted murder of the sheriff. King and Hollowell were defending Ware and drove to the courthouse made infamous in the Screws case to do so. They took me along in the back seat.

The scenery on our drive in 1963 was breathtaking ― huge stately dark green trees lined the road, sometimes giving way to lighter green pastures. But I couldn't enjoy the view; in the front seat, the two attorneys were gasping whenever the sun glinted off a leaf, making it shine like the barrel of a gun. When I walked from the edge of the tiny town of Newton to the courthouse, blacks were obliged to get off the sidewalk. The courthouse itself was out of a movie set: the judge sat next to a spittoon into which he spat from time to time, as he read his newspaper; farmers in overalls chewed on grass as they peered through the large open windows, and the ceiling fan turned slowly, barely moving the stifling hot air. Black witnesses and observers were relegated to the balcony, and no blacks were permitted to serve on the jury ― which is why the guilty verdict against Ware was ultimately thrown out.

As these memories flooded through my mind, I heard my taxi driver mention he was from Baker County; I was jolted out of my reverie. "What is it like today for black people?" I asked. "Still dangerous and bad?" "No," he answered, "it is much different."

I am very anxious to go there myself. It is hard to believe that a place so soaked in blood can have changed that much. I am hoping that it has. It will be a touchstone for me as to how far Georgia and the country has come.

I also had some short conversations that I wanted to be explored further. A grown woman was explaining to me how as a nine year old girl she got involved in the Movement when she and a few other junior high school students did a "lie in" at a white store in the black section of Albany. I want to understand what got her started and what was it about the store that prompted the lie in.

Then I met a former SNCC student who had spent a year here trying to register black voters. He was recounting the violence in Terrell County, near Albany. So many different people were moved by something so much larger than themselves and risked so much to make a difference.

I hope the country understands what a debt it owes to these young people who tried to reshape the world against impossible odds.

Tonight we have a meet and greet, where the process of finding old friends and acquaintances will be going on in earnest. Tomorrow, we will hear from each other in more formal ways, in panels and discussions.

Commemorating International Women's Day

2011-03-08T19:38:43-05:00

As we commemorate this day, we can take note of much progress, although we need to reflect on how much more there still is to do. In the US, we have had two women serve as Secretary of State (including one who was the first woman to be taken seriously as a presidential candidate), three women on the Supreme Court, the first woman Speaker of the House of Representatives -- and now more than ninety-five women serve in both houses of Congress. Women hold posts as presidents of major universities and some major corporations.

But there are dark clouds. There are simply not enough women serving in elected positions. Indeed, the US is only 71st in the world in the number of women representatives. Perhaps this is why the US ranks so badly on indexes that measure life expectancy, infant mortality and educational achievement. Yes, our country has the military might to wipe any nation off the face of the globe, but why aren't we number one in the quality of life we afford to all Americans here at home? To achieve that, I believe we need more women's voices at the table.

It is distressing that the fight over the budget deficit is being used as an excuse to eliminate funding for women's reproductive health. Even though Roe v. Wade had been the law of the land for almost four decades, too many Americans still do not believe that women have a right to make their own decisions about their bodies. The victims are mostly poor women, and they pay a heavy price. Violence against women hasn't been eradicated. In fact recent reports suggest that women who chose to wear the country's military uniform face rampant harassment and sexual assault in the service. The pay gap is still present, as is the glass ceiling. And women are repeatedly degraded in our media and treated as mere sex objects. To top things off, a Supreme Court justice announced not long ago that women weren't protected from sex discrimination under the 14th Amendment to the Constitution -- which on its face covers all persons -- another attack on our basic humanity coming from one of the highest places in the country.

This means that we need to continue the fight for full equality. This is not a struggle for women only, but is one that can liberate all people from stereotypes that shackle and limit. It is a struggle for human dignity for more than half our population. It is a struggle we dare not lose.

Damn Wrong: Bush Admission on Torture Should Draw Special Prosecutor

2010-11-15T15:26:07-05:00

In his recently published book, former President George W. Bush admits that when asked to approve waterboarding, long considered torture under US and international precedents, his response was, "Damn right." This admission has created a difficult dilemma for President Obama and Attorney General Eric Holder.

Torture is a federal crime punishable by up to twenty years in prison. When President Nixon was forced to release a White House tape recording showing that he had orchestrated the cover up of the Watergate burglary, he immediately exposed himself to criminal prosecution and likely conviction for obstruction of justice. His successor, President Gerald Ford, quickly pardoned Nixon, who had resigned, to avoid that result. The pardon cost Mr. Ford his election.

President Obama has the power to pardon Mr. Bush. As with the Ford pardon, it would generate outrage among many Americans, and, in my opinion, would be wrong.

The other options facing President Obama and Attorney General are to do nothing or to enforce the anti-torture law by commencing a full and fair investigation of the facts by an independent prosecutor to determine whether criminal charges are warranted.

Under the US Constitution, the president is required to "faithfully execute the laws." It is hard to think of a more blatant confession of a crime than the one made by George W. Bush. To leave it unexamined is to reject the constitutional obligation and to create a corrosive sense that the law applies, when it does, only to lesser mortals, but not to higher-ups and certainly not to presidents. A dual standard of justice is intolerable in a democracy. Doing nothing, then, is not a constitutionally acceptable response.

There is another reason to investigate. The Convention Against Torture, ratified under Ronald Reagan, obliges our government to ensure "a prompt and impartial investigation" when there are "reasonable grounds to believe" torture has occurred (Article 12). To ignore former President Bush's admission is to disrespect our solemn treaty obligation.

It is not a sufficient justification for inaction to claim, as Attorney General Holder has in the past, that anyone acting on a basis of the notorious Torture Memos written by the former President's Justice Department (and later withdrawn) is free from prosecution. Those Memos purported to allow torture by contending -- incorrectly -- that a US president had the right to violate US criminal laws. They also concocted an absurd definition of torture. Torture, said the Memos, required a pain equivalent to the pain of death. But no one knows what the pain of death is, and the author of the Memos admitted that he didn't know either. Clearly, the definition was a sham and the Memos were a sham.

To suggest that these sham Memos -- a Justice Department official characterized them as "insane" on their face -- constitute a defense runs into big obstacles. The Convention against Torture permits "no exceptional circumstances whatsoever" to its absolute ban. That should mean there is no exception for torture committed on advice of counsel -- particularly the obviously faux advice of the Torture Memos. Reading an exception into the anti-torture statute, which is intended to carry out the treaty, would seriously derogate from our government's obligations to carry out the treaty.

More important, the Torture Memos were written under the auspices of the Bush White House itself, as part of a scheme to create immunity from criminal prosecution. To the extent that George W. Bush was part of that effort, he cannot claim protection from it--he cannot have relied on the Memos in good faith.

The Attorney General should not be the one to judge whether the Justice Department's discredited Torture Memos provide a complete defense to former President Bush. Because Mr. Holder has the reputation and clout of the Justice Department to uphold, he has a conflict of interest in determining what weight, if any, to give those Memos.

That is why he needs promptly to name a special prosecutor to decide whether the anti-torture act, or any other federal laws, were broken by former President Bush in authorizing the water boarding and torture.

Failing to act will cast a long shadow over the rule of law in America and our commitment to justice and accountability. No country should tolerate criminal impunity in its top officials, least of all the United States. President Obama himself has attacked the idea of impunity when talking about foreign governments.

Naming a special prosecutor to investigate whether there are grounds to charge former President Bush is the constitutionally, and morally, correct action to take. The ACLU and others are calling for this to happen. As long as the process is fair, lawful and professional, it is one that the country will accept whatever the results.

Shirley Sherrod and the Dark History of Baker County

2010-07-22T16:30:57-04:00

Shirley Sherrod's journey to self-awareness and an understanding of the hardships faced by both poor blacks and poor whites started in Baker County, a beautiful but dangerous place in rural southwest Georgia. In 1965, her father was murdered by a white man, who was never even indicted. Rather than becoming embittered, she resolved to work for change.

That any black person could emerge from Baker County at that time with a spirit of charity and good will toward whites is remarkable. I know because I found myself in Baker County in the summer of 1963, as a young law student working for a black civil rights lawyer, helping out in another case of racial shooting. To put Shirley Sherrod's life story -- including current events -- in context, it is crucial to understand clearly what life was like there, and what an extraordinary effort of spirit was needed to emerge as Ms. Sherrod did.

Baker County had a notorious history. In 1943, the local sheriff, Claude Screws tied a black man, Bobbie Hall, to the back of his car and dragged him through the courthouse square after beating him mercilessly. The US government prosecuted and a federal jury convicted Screws, but the Supreme Court overturned the conviction.

Screws' deputy, L. Warren Johnson, carried the tradition forward when he became sheriff. In 1961, Johnson, a huge, hulking, 300-pound man, came to the home of Charlie Ware, a small, slight black man, and arrested and handcuffed him for reasons that were unclear then, as now. Forcing Ware into his car, Johnson picked up the radio microphone and announced that Ware was coming at him with a knife and that he was going to shoot him. The sheriff thereupon shot the small, handcuffed man three times in the neck, but Ware miraculously survived. Although the sheriff should have been prosecuted, it was Ware who was charged with attempted murder, a charge that carried the death penalty.

The attorney for whom I was working was Ware's defense counsel. The case was so serious that a more senior attorney came from Atlanta to assist. The three of us drove every day for a week to the Baker County courthouse, the very same courthouse that Sheriff Screws dragged Bobby Hall around. The civil rights attorneys thought they would be shot for going into Baker County to defend Ware and sought help and protection from federal authorities. But in those days, which preceded the Mississippi murder of civil rights workers Schwerner, Goodman and Chaney, no federal help was forthcoming.

As we drove to Baker County, the beautiful lush green countryside took my breath away. The two lawyers gasped at something else -- mistakenly, as it turned out -- when the sunlight, reflecting off the dark glossy leaves, approximated sunlight glinting off the barrel of a gun. I traveled in the back seat -- in those days, a white woman could not safely sit next to a black man in a car -- and was let out at the edge of the tiny town to walk to the courthouse. Gripping my briefcase hard, I tried to look nonchalant. Every black person had to get off the sidewalk as I approached. In Baker County, black people couldn't even be on the same sidewalk as a white person. It was stifling, and there was menace in the air.

The courthouse itself was right out of To Kill a Mockingbird. Huge fans turned slowly overhead hanging from the high ceilings. There was a tiny balcony for black observers and witnesses. White farmers in overalls peered in through the open windows, chewing on stalks of grass. And on a platform, the judge in his black robes spat into a brass spittoon. There were no blacks on the jury that heard the charges against Charlie Ware, of course, and that was the ground on which Ware's inevitable conviction was ultimately overturned on appeal.

I didn't know Ms. Sherrod then, but I did know her husband Charles Sherrod, who was the leader of the Student Non-Violent Coordinating Committee in southwest Georgia that brought both blacks and whites there to work for civil rights. He was a courageous man and one of this country's heroes. It is now clear that his wife is one of its heroines.

It was cowardly and wrong for the U.S. government to force Ms. Sherrod to resign without hearing her side, without understanding the whole story, without showing the slightest interest in fairness or due process. Here was Baker County rearing its ugly history all over again, 70 years later. It was bad enough for high government officials show such weakness in the face of racist right wing charges against an innocent black woman. It was particularly unconscionable given what Ms. Sherrod lived through in her childhood. That this happened in the administration of the first black president is incomprehensible. Did we come this far for nothing?

The bad news is that the forces of racism and those who cower before it are alive and well. The good news is that both the Spooners, the poor white farmers that Ms. Sherrod helped, and Ms. Sherrod were able to reject that racism to find what connected them. The best news would be if the country would decisively cast off the legacy of Sheriff Screws, Sheriff Johnson, and all the racist evil they represent.

The Phony Debate About Torture

2009-05-20T16:45:00-04:00

Former Vice President Dick Cheney has triggered a roaring debate by his recent and repeated claim that torture "worked." Last week, Senator Lindsay Graham echoed the claim that torture "works" and added that is has for five hundred years (a timescale which connects us to the Spanish Inquisition).

Recent polls show a slim majority of Americans opposing any investigation or prosecution of torture under the Bush Administration, even though a majority acknowledges that torture took place. Cheney's claims may have had a major impact on public opinion.

The reliability and truthfulness of information obtained under torture is in serious doubt. But even if it weren't, the whole argument over the claim that torture works is grotesquely beside the point. The issue is not whether torture works, but whether there are other methods of obtaining equivalent or better information that don't incur the enormous moral, legal and security hazards torture entails.

Torture advocates want us to think that there is no other way to obtain this critical information in the "war on terror," but it's simply not so. Standard interrogation procedures, both in the criminal justice system and in the military, routinely produce valuable intelligence. Highly skilled and trained professional interrogators regularly get people to talk about and confess to serious crimes like murder, without using coercive techniques.

As a former Brooklyn District Attorney, I know that non-coercive interrogation works. My office was one of the nation's largest, handling prosecutions of tens of thousands of serious crimes annually, with no coercion whatsoever. Yet we videotaped thousands of voluntary confessions.

Across America, police and prosecutors handle dangerous crimes every day without resorting to waterboarding, stress positions, sleep deprivation, food deprivation, nudity, exposure to extremes of temperatures, slamming people into walls, or the like. Whether it involves homegrown terrorists such as the Oklahoma bombers, organized crime or "ordinary" murderers and rapists, the criminal justice system solves crimes, learns who else is involved and brings the culprits to justice -- without torturing them.

Professional interrogators might not get confessions every time they ask questions. But no one knows how often torture produces truthful confessions, if ever. What we do know is that our regular criminal justice system, with its due process and noncoercion, produces convictions where torture doesn't.

The criminal justice system identified and convicted some of those involved in the 1993 World Trade Center attacks. By contrast, not one person has been prosecuted for the 9/11 attacks, although seven and a half years have gone by. Even Khalid Sheik Mohammed, one of the masterminds of 9/11, is unlikely ever to be convicted in US courts because he was repeatedly subjected to torture. Significantly, the cruel and torturous methods used on detainees never yielded enough information to capture Osama Bin Laden or his chief deputy. So much for the claims of torture's efficacy.

But beyond that, in America, torture can never be used because our Constitution bans it. There are no exceptions -- not for heinous crimes or ticking bombs. The use of torture against a criminal defendant would only constitute another crime and immunize the defendant from conviction. Similarly, the Geneva Conventions prohibit the cruel and degrading treatment of detainees even in wartime.

Military interrogations in wartime are critically important. They might reveal, for example, where the enemy is going to strike next, and affect the lives of thousands of American troops. Yet until the Bush Administration took office, the US did not adopt torture as an official tool to extract such information. It's good to recall why.

After horrific mistreatment of detainees during World War II, including the torture of American POW's by the Japanese, President Dwight D. Eisenhower, the supreme commander of Allied forces, urged the US to ratify the Geneva Conventions. General Douglas McArthur voluntarily instituted the Conventions for American troops in the Korean War, even before they were ratified.

These commanders supported the Geneva Conventions, not because they thought it acceptable to "tie our hands" during combat and expose American troops to unnecessary risk, but because they realized the real danger to our country lay in using torture, not in abstaining from it. They saw professional interrogations produced important information without torture. They knew torture only weakens our reputation and our ability to project "soft power" -- to command respect and persuade abroad. They perceived inhumane treatment of the enemy would only further endanger the lives of American troops.

They were right. In our own time, US use of torture at Abu Ghraib and elsewhere has become a major recruiting tool for Al Qaeda, and led to the loss of hundreds, possibly thousands, of American lives. The FBI, no friend to terrorists, rejected the CIA's torture program because it understood the untenable consequences. The FBI began the interrogation of terrorist detainees, but once the CIA began to use torture it stopped participating and walked away. It refused to engage in what it believed were war crimes that would only undermine the effort to get the information we needed and endanger Americans. What vital intelligence have we lost because the FBI had to withdraw its expertise?

The FBI rejected torture, our Constitution bans it, and we have ratified the Geneva Conventions as the law of our land, not because we are nation of wimps or bleeding hearts. Unlike former Vice President Cheney, who ran from the Vietnam War, and former President George Bush, who never saw a day of combat in his life, those who wrote the Bill of Rights fought a bloody revolution to win their independence from Britain. They weren't afraid to fight hard to create and keep this country. They rejected torture not out of weakness, but out of strength.

They weren't interested in any specious claim of torture's efficacy; they knew that torture produced unreliable information. They also knew that forcing people to incriminate themselves was a slippery slope. Once torture was condoned in one case, it would become irresistible in other cases, particularly involving political opponents, religious dissidents and the like. Above all, they knew torture was inimical to the conception of human dignity that underlay our constitutional framework, so they adopted a granite opposition to it.

Now as then, Americans should reject specious arguments justifying torture. They should not be misled by former Vice President Cheney's unverified claims that torture worked, and recognize that even though the CIA's Inspector General long recommended a thorough, expert analysis of the question of torture's "efficacy," it was never conducted because the Bush Administration didn't want to know the truth.

Now it is important for Americans of all political persuasions to reaffirm the truth, as drafters of the Bill of Rights believed so deeply and etched so indelibly into our constitution, that torture is a moral and human atrocity that never makes us safer, and in the end only causes our nation incalculable harm.

It follows from this that we must hold government officials who ordered or engaged in torture accountable under our laws. Applicable US statutes make torture and other cruel and abusive treatment of detainees a federal crime. It's time we commenced investigations to determine if criminal charges should be brought under those laws. That's the vital question that the phony debate over torture's "efficacy" serves to obscure.

An Analysis of Kucinich's Impeachment Case Against Bush

2008-06-11T22:22:13-04:00

Some will want to dismiss Rep. Dennis Kucinich's introduction of
articles of impeachment against President Bush as quixotic, but it's
not. Twenty House Republicans joined nearly all House Democrats in
voting to send the articles to the Judiciary Committee. This comes on
the heels of the Senate Intelligence Committee's 107-page report
confirming, with the vote of two Republican Senators, that President
Bush abused his office by deceiving Congress and the American people
into the Iraq war. Although Kucinich's articles included other
impeachment grounds as well, deception about the war is arguably the
most serious one.

We have long known that the reasons President Bush and his team gave
for going to war in Iraq were false. Many have contended that the
president deliberately misled the nation into war. Scott McClellan,
for example, with his insider's perspective, says in his new book that
the president used exaggerations and misleading statements to win
public and Congressional support for going to war in Iraq. Now we
have important corroboration of such claims: the Senate Intelligence
Report has made it official in a way that Congress will find hard to
ignore.

The report describes a drum roll of groundless statements by the
president, the vice president and other top officials. While it does
not use the word "lie," it offers plenty of evidence that we were "led
to war based on false pretences," to quote Committee chair Senator
Rockefeller. The report shows there was no intelligence to back up
the President's contention that Al Qaeda and Saddam Hussein were in
cahoots, or his claim that Saddam would give WMD to terrorists, much
less the Vice President's fantasy that American soldiers would be
welcomed as liberators.

Now that these are official findings of the Senate Intelligence
Committee, the question is, what do we do about it? Just wring our
hands? Simply hope for change in the November elections? Or does the
Constitution now require something more of us?

The Constitution's framers envisioned the possibility that presidents
and their minions might seriously abuse the power of their office, and
"subvert the constitution." Their remedy was impeachment: the removal
of the offending official to protect our democracy. They understood
that Executives historically wanted to take countries into unnecessary
wars, so they empowered Congress act as a real check on unwarranted
presidential warmaking. Since lying to Congress obstructs that
function, it is a grave abuse of power that "subverts the
Constitution" and meets the standard for impeachment.

The House should commence an impeachment inquiry forthwith. In fact,
in a sense, it is already beginning. Rep. Kucinich introduced the
articles, the House has referred them to the Judiciary Committee and
the Senate Intelligence Report goes a long way toward furnishing the
investigative work Congress needs to do in the course of impeachment,
at least as regards the run-up to the war (Congress should also look
at other serious abuses of power, including President Bush's refusal
to obey duly enacted laws, as evidenced by hundreds of signing
statements, his violations of the laws on wiretapping and mistreatment
of detainees).

The next step is to start asking, what did the president actually know
and when did he know it? Former Treasury Secretary Paul O'Neill has
stated that President Bush seemed determined to overthrow Saddam
Hussein at the beginning of his administration, well before 9/11.
There was also the British "Downing Street" memo written in the summer
of 2002 stating that President Bush was going to "fix" the
intelligence to fit the policy of overthrow. It's now incumbent on
Congress to take these matters up in impeachment hearings.

Yes, even at the end of their terms, President Bush and Vice President
Cheney can still be impeached and removed from office. There might
just be sufficient time to finish impeachment before they leave
office, and technically they could be impeached even after that. This
administration can still be held accountable for the consequences of
the unnecessary Iraq War and other grave abuses. The American people
still have a chance to witness the Constitution in action as it
appropriately limits the powers of this president, preventing further
abuses by him (such as bombing Iran without approval of Congress) or
by his successors.

This would be an important lesson in democracy. We last learned it 34
years ago during the Nixon impeachment process, which reminded
Americans how the Constitution works. But our collective memory of
those far-off events may have faded, especially after the past eight
years of President Bush asserting extreme claims for presidential
power, coupled with the failure of Congress to respond forcefully. As
a result, as a nation we may have a diminished level of constitutional
literacy compared to 1974. It's time to reinvigorate that literacy.
We need to understand once again that acquiescing in this president
seriously deceiving us into war means ignoring what the Constitution
says, and jeopardizing our democracy.

Crimes in High Places

2008-02-27T21:26:00-05:00

Despite President Bush's frequent claim that "we don't do torture," top officials of the US government this month admitted that waterboarding was used on at least three detainees. The White House reaction was to announce that, if needed, waterboarding would be used again.

Since crimes in high places have now been admitted, those responsible must be held accountable. There are only two ways to do this: prosecution or impeachment.

Most experts agree that waterboarding, which was used at least as early as the Spanish Inquisition, is torture. As such, it violates the US anti-torture law 18 USC Section 2340 (a) as well as US treaties. Although it bars torture overseas, it covers any US national who order, directs, or conspires with those who engage in it abroad, including, for example, a president or vice-president. Thus, all administration officials involved in the waterboarding, including President Bush, could be guilty of violating that law.

Given the recent admissions and the White House's refusal to condemn the practice, it is most likely that the president, the vice president and other high level officials authorized the waterboarding. At the very least this was not -- and is still not -- viewed by them as a "rogue" activity.

Notwithstanding those who deny that waterboarding is torture, no one can seriously dispute that waterboarding constitutes cruel and degrading treatment of detainees, a practice that was outlawed by the War Crimes Act of 1996. That act was designed to carry out US obligations under the Geneva Conventions and makes it a federal crime to violate certain provisions of the War Crimes Act.

It is indisputable that the president and then Attorney General Gonzales, as well as other members of the Bush administration, understood that "enhanced interrogation techniques," including waterboarding, could violate the Geneva Conventions and the War Crimes Act.

It was the fear of criminal prosecution that motivated at least in part the president's rejection of Geneva Convention applicability to Al Qaeda and Taliban detainees. The thinking was that if the Geneva Conventions didn't apply, then the War Crimes Act did not apply. But administration officials were still haunted by the possibility of criminal liability under the War Crimes Act for waterboarding and other mistreatment of detainees, so in the fall of 2006, just as it became clear that the Democrats were going to win control of the House, the Bush administration snuck through legislation retroactively nullifying the War Crimes Act.

That nullification can fortunately be overturned in the next administration, thereby making anyone who violated the original War Crimes Act, including, if the facts warrant it, the president and his team liable to prosecution.

But the fact that the administration approved and engaged in water boarding -- a practice that top officials knew at the time could violate US law -- calls for a response by Congress now.

There are two approaches. One is to ensure that the criminal law is enforced. But Mr. Mukasey, the new Attorney General, has refused to do this. His position is that the Justice Department cannot prosecute anyone if it advised that person that the conduct was legal. This position smacks of the Nuremberg defense -- "I was just following orders" -- and is untenable.

The February 2002 memo to the president from Mr. Gonzales shows that the rejection of Geneva was a ruse to allow mistreatment of detainees, and suggests that the president knew what he was doing, violated the Geneva Conventions and US criminal law, but was determined to proceed no matter what, trying the best he could to provide legal cover for his actions.

The president's objective was to circumvent the law. That is clear from the effort to nullify it retroactively, in essence giving himself and others pardons.

Congress should not sit by. The attorney general must be requested by Congress to commence an investigation of the president and the top team, picking a special prosecutor to do so. I doubt that this will happen. What these events show is that the special prosecutor law must be reenacted by Congress, to avoid a repetition of this spectacle.

Criminal investigation and prosecution must commence under the next administration.

Impeachment must commence. This is the second approach. For too long the Congress has taken impeachment off the table, but the time has come to put it back on. Since impeachment doesn't require violation of federal criminal law, it will not matter that the War Crimes Act has been retroactively nullified. Congress can impeach for the abuse of power inherent in the president's knowing and deliberate effort to violate the War Crimes Act. Similarly, Congress can determine that water boarding is torture and impeach the president for holding himself above the law with respect to the anti-torture act.

Failure to act creates a culture of impunity around presidential misconduct of the most repugnant kind. It is imperative that those like President Bush who put themselves above the law be held accountable. That is the essence of what a democracy, in the end, is all about: the rule of law.

Former Congresswoman Elizabeth Holtzman served on the House Judiciary Committee during Nixon's impeachment. She co-authored the 1973 special prosecutor statute, and co-wrote (with Cynthia L. Cooper) the 2006 book The Impeachment of George W. Bush.

Cheney Impeachment: Courageous, But Not Surprising

2008-02-22T16:34:00-05:00

For the first time since the Bush administration took office, three members of the House Judiciary Committee, Robert Wexler (D-FL), Luis Gutierrez (D-IL), and Tammy Baldwin (D-WI), are calling for hearings on the impeachment of Vice President Richard Cheney.

Their position, while courageous, is not surprising. What is surprising is that it took this long for members of Congress to invoke impeachment, and that even now, they do so against enormous political resistance and cyncial indifference from the media.

No serious student of the Constitution would question that sufficient grounds exist to impeach both President Bush and Vice President Cheney. The Constitution provides that an Executive who puts himself above the law and abuses the powers of his office may be impeached, a point confirmed in the impeachment proceedings against President Nixon, for abuses such as illegal wiretapping.

There is little serious debate about whether Bush administration actions -- wiretapping without court approval (violating the Foreign Surveillance Intelligence Act), authorizing and facilitating mistreatment of detainees (violating US treaties and criminal laws), starting the Iraq war on a basis of lies, exaggerations and misstatements (an abuse of power) -- meet the constitutional standard.

So why hasn't a majority of Congress supported it? Twenty members co-sponsored Rep. Dennis Kucinich's resolution calling for the impeachment of Cheney, but bucked their leadership to do so. Democratic leaders took impeachment "off the table," apparently fearing it could hurt their chances in 2008.

Does the leadership defend the administration, contend that its actions are unimpeachable, or argue they don't rise to the level of abuse for which Nixon was impeached? Remarkably, no. They publicly say there is no time, and that impeachment proceedings would distract the Congress from other work and divide the country.

These arguments are laughable compared to the imperative to uphold the constitution. And even on their own terms, they are specious. Let's take them one at a time:

Insufficient Time

In the case of Nixon, the House officially instructed the Judiciary Committee to act in early February, 1974; the Committee finished voting on Articles of Impeachment on July 29, less than six months later. No presidential impeachment proceeding had taken place for almost 100 years, so the Committee had to start from scratch, analyzing the constitution and developing procedures for the impeachment inquiry. Now the relevant legal spade work is done and a road map for proper impeachment proceedings exists, Congress could probably conduct them even faster than in 1974.

Distracting Congress

During Watergate, the House Judiciary Committee conducted the impeachment inquiry. It didn't deter the rest of the House and the entire Senate from getting their work done, even with a war on. Even the Judiciary Committee also worked on other matters during impeachment, just as the Senate did during its trial of President Clinton.

Dividing the Country

Nixon's impeachment united the American people. The process was bi-partisan, demonstrating this wasn't just a Democratic ploy to undo an election. The fairness of the process, the seriousness of purpose, the substantial evidence all gave the public a strong sense that justice had been done. This reinvigorated the shared value that the rule of law and preservation of democracy are more important than any president or party.

Currently, this value is expressing itself in grass roots impeachment movements across America. The Vermont Senate, several state Democratic parties and many municipal governments have adopted resolutions supporting impeachment -- more state legislatures would have acted except for pressure not to from Democrats in Washington. Multiple polls show a majority of Americans supporting the impeachment of Cheney (a November 13 American Research Group poll says 70% of Americans believe Vice President Cheney abused his office), and slightly less then a majority supporting the impeachment of Bush.

The Democratic leadership tactic of stonewalling this widespread public sentiment is itself divisive, leading at least half the country to frustration, disaffection and shaken faith in our democracy. Only a sober, serious airing of evidence in hearings would heal the split.

When Nixon's impeachment process began, he had recently been re-elected with one of the largest landslides in history. No one made the calculation about whether impeachment was a political winner for Congress. Public opinion simply forced Congress's hand after Nixon fired Special Prosecutor Archibald Cox. After the House Judiciary conducted impartial hearings and voted on impeachment, Congress's approval soared. Republicans were swamped in the November 1974 elections.

Whether or not they bring electoral rewards in 2008, impeachment proceedings are the right thing to do. Regardless of outcome, they will help to curb the serious abuses of this administration, and send a strong message to future administration: the Constitution means what it says -- no president or vice president is above the law.

Former Congresswoman Elizabeth Holtzman served on the House Judiciary Committee during Nixon's impeachment. She co-authored the 1973 special prosecutor statute, and co-wrote (with Cynthia L. Cooper) the 2006 book, The Impeachment of George W. Bush.

No Vice President is Above the Law

2007-12-18T21:17:00-05:00

For the first time since the Bush administration took office, three members of the House Judiciary Committee, Robert Wexler (D-FL), Luis Gutierrez (D-IL), and Tammy Baldwin (D-WI), are calling for hearings on the impeachment of Vice President Richard Cheney.

Their position, while courageous, is not surprising. What is surprising is that it took this long for members of Congress to invoke impeachment, and that even now, they do so against enormous political resistance and cynical indifference from the media.

No serious student of the Constitution would question that sufficient grounds exist to impeach both President Bush and Vice President Cheney. The Constitution provides that an Executive who puts himself above the law and abuses the powers of his office may be impeached, a point confirmed in the impeachment proceedings against President Nixon, for abuses such as illegal wiretapping.

There is little serious debate about whether Bush administration actions -- wiretapping without court approval (violating the Foreign Surveillance Intelligence Act), authorizing and facilitating mistreatment of detainees (violating U.S. treaties and criminal laws), starting the Iraq war on a basis of lies, exaggerations and misstatements (an abuse of power) -- meet the Constitutional standard.

So why hasn't a majority of Congress supported it? Twenty members co-sponsored Rep. Dennis Kucinich's resolution calling for the impeachment of Cheney, but bucked their leadership to do so. Democratic leaders took impeachment "off the table," apparently fearing it could hurt their chances in 2008.

Does the leadership defend the administration, contend that its actions are unimpeachable, or argue they don't rise to the level of abuse for which Nixon was impeached? Remarkably, no. They publicly say there is no time, and that impeachment proceedings would distract the Congress from other work and divide the country.

These arguments are laughable compared to the imperative to uphold the constitution. And even on their own terms, they are specious. Let's take them one at a time:

Insufficient Time

In the case of Nixon, the House officially instructed the Judiciary Committee to act in early February, 1974; the Committee finished voting on Articles of Impeachment on July 29, less than six months later. No presidential impeachment proceeding had taken place for almost 100 years, so the Committee had to start from scratch, analyzing the constitution and developing procedures for the impeachment inquiry. Now the relevant legal spade work is done and a road map for proper impeachment proceedings exists, Congress could probably conduct them even faster than in 1974.

Distracting Congress

During Watergate, the House Judiciary Committee conducted the impeachment inquiry. It didn't deter the rest of the House and the entire Senate from getting their work done, even with a war on. Even the Judiciary Committee also worked on other matters during impeachment, just as the Senate did during its trial of President Clinton.

Dividing the Country

Nixon's impeachment united the American people. The process was bi-partisan, demonstrating this wasn't just a Democratic ploy to undo an election. The fairness of the process, the seriousness of purpose, the substantial evidence all gave the public a strong sense that justice had been done. This reinvigorated the shared value that the rule of law and preservation of democracy are more important than any president or party.

Currently, this value is expressing itself in grass roots impeachment movements across America. The Vermont Senate, several state Democratic parties and many municipal governments have adopted resolutions supporting impeachment -- more state legislatures would have acted except for pressure not to from Democrats in Washington. Multiple polls show a majority of Americans supporting the impeachment of Cheney (a November 13 American Research Group poll says 70 percent of Americans believe Vice President Cheney abused his office), and slightly less then a majority supporting the impeachment of Bush.

The Democratic leadership tactic of stonewalling this widespread public sentiment is itself divisive, leading at least half the country to frustration, disaffection and shaken faith in our democracy. Only a sober, serious airing of evidence in hearings would heal the split.

When Nixon's impeachment process began, he had recently been re-elected with one of the largest landslides in history. No one made the calculation about whether impeachment was a political winner for Congress. Public opinion simply forced Congress's hand after Nixon fired Special Prosecutor Archibald Cox. After the House Judiciary conducted impartial hearings and voted on impeachment, Congress's approval soared. Republicans were swamped in the November 1974 elections.

Whether or not they bring electoral rewards in 2008, impeachment proceedings are the right thing to do. Regardless of outcome, they will help to curb the serious abuses of this administration, and send a strong message to future administration: the Constitution means what it says - no president or vice president is above the law.

Former Congresswoman Elizabeth Holtzman served on the House Judiciary Committee during Nixon's impeachment. She co-authored the 1973 special prosecutor statute, and co-wrote (with Cynthia L. Cooper) the 2006 book, The Impeachment of George W. Bush.

Beyond Mukasey's Confirmation, White House Liability Issues Loom Large

2007-11-13T12:26:37-05:00

Though it failed to send his nomination the way of Robert Bork, Attorney General nominee Michael Mukasey's evasiveness on the definition of torture has done something historic. It has made it unmistakably clear to mainstream observers that the President may be criminally liable for violating anti-torture laws. Criminal liability of this White House will have wider repercussions than Mr. Mukasey's confirmation. It will reverberate through his tenure as Attorney General, and beyond the end of the Bush administration.

We now know the reason why Mr. Mukasey refused to acknowledge that waterboarding meets the legal definition of torture, or at the very least cruel, degrading and inhuman treatment clearly had nothing to do with not being briefed about the procedure. If he didn't know at the time of the Senate committee hearing, he certainly learned afterwards that the US considered waterboarding criminal and prosecuted it for at least a century. The real reason, as to mainstream news analysts now acknowledge, was that publicly admitting waterboarding is torture or cruel and inhuman would have put the President in jeopardy of criminal charges.

The War Crimes Act of 1996 makes cruel, inhuman and degrading treatment of detainees a violation of the Geneva Conventions and a federal crime. In addition, a 1994 law, 18 USC Section 2340 (a), makes it a federal crime to engage in torture outside the US, it also applies to those who conspire with (or aid and abet or order) torture outside the US. Both statutes apply to any US national, including the President, the Vice President and other top officials, as well as subordinates, such as CIA officers or other US personnel. If the President ordered, directed or authorized waterboarding or other forms of torture or mistreatment, he may have violated these laws. They carry the death penalty in cases where victim dies. In such cases there is no statute of limitations, so the President could be subject to prosecution for the rest of his life.

Some contend that imposing criminal liability for acts performed in the heat of combat is wrong and that we can't hold the administration to 20/20 hindsight. But we know these acts were not spontaneous, but part of a premeditated pattern of legal manipulation dating back years. At least since 2002, President Bush, Attorney General Gonzales and possibly others including the Vice President knew that torture and detainee mistreatment entailed criminal liability, which they sought to defuse with novel legal theories and retroactive suspensions of established law.

In a February 2002 memo, then White House counsel Alberto Gonzales warned President Bush about exposure to criminal liability under the War Crimes Act, mentioning the danger that future independent counsels or prosecutors might seek to enforce the law (they generally prosecute top government officials, including presidents). He therefore recommended opting out of the Geneva Conventions, famously calling them "obsolete." His theory was that if the Conventions didn't apply, then the War Crimes Act wouldn't apply, so no prosecutions could be brought. The President accepted Gonzales' theory and suspended the Conventions 's protections for suspected Al Qaeda detainees.

But in June 2006 the Supreme Court rejected this theory and held the Geneva Conventions applicable to the treatment of all detainees, leaving the President open to liability for violating the War Crimes Act. So in October 2006 the White House effectively pardoned itself by slipping a little-noticed provision into the Military Tribunals Act, conferring effective immunity from the War Crimes Act on high-level officials by making it retroactively inoperative, from 1996 to 2006. Public attention was focused on habeas corpus and other controversial provisions in the bill, so it passed more or less unscrutinized.

Still, holes remain in the legal barricades the Bush administration has tried to erect around itself. Even if immunity from prosecution under the War Crimes Act stands, it only applies through 2006, not for mistreatment of detainees after that. And the 1994 anti-torture law applies throughout.

As Attorney General, Mr. Mukasey can try to plug these holes. He may shield President Bush and others from criminal liability; he may resist appointing an independent prosecutor to investigate White House actions. But he cannot, as the 2002 Gonzales memo recognized, tie the hands of future prosecutors. In lethal cases our anti-torture laws have no statute of limitations. Sooner or later, those who violated US law will be held accountable to them, if not by Mukasey, then by some future AG.

Former Congresswoman Elizabeth Holtzman served on the House Judiciary Committee during Nixon's impeachment. She co-authored the 1973 special prosecutor statute, and co-wrote (with Cynthia L. Cooper) the 2006 book The Impeachment of George W. Bush.

Testimony to the Washington Legislature

2007-03-12T21:15:29-04:00

Testimony

By

Elizabeth Holtzman

On

Senate Joint Memorial 8016

Before the Government Operations and Elections Committee

of the Washington State Legislature

regarding the

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.

President Bush's Grave Misconduct

2006-10-17T18:33:55-04:00

Recent events--the Foley scandal, the Woodward book, revelations about White House scorn for evangelical Christians, the Abramoff scandal, not to mention the increasingly dire situation in Iraq--have all converged in a kind of tsunami headed for the Republican majority in the House and Senate. Of course, it could change course.

But, Democratic control would make impeachment a serious reality.

As I have pointed out many times, impeachment is not only constitutionally warranted but necessary, given the serious abuses of power engaged in by President Bush. Impeachment will help restore the rule of law and repair the damage he has done to our democracy. If on the other hand there is no impeachment, President Bush's grave misconduct, including his refusal to obey the law with respect to wiretapping and his driving the country into war on a basis of deception, will become just the starting point for another President who wants to thumb his nose at our constitution.

The passage of the military tribunals' bill provides another important reason for impeachment. That bill contained a pardon buried deep within it of President Bush and his top team for possible violations of the War Crimes Act of 1996. That Act makes it a federal crime to mistreat detainees in violation of the Geneva Conventions, but the military tribunal bill guts the War Crimes Act and makes the changes retroactive to 1997.

In a remarkable example of the "modified limited hangout"--a Watergate term for covering up by exposing a bit of the truth--the Bush Administration admits that the bill will grant immunity to CIA interrogators for violations of the War Crimes Act. But it never so much as hints that immunity would also extend to those who were complicit with those interrogators. Since the War Crimes Act applies to all US nationals, immunity would also extend to anyone who directed, authorized or otherwise aided and abetted those interrogators in their abuse, including the President, the Vice President, the Secretary of Defense and the Director of the CIA.

President Bush has been concerned about criminal liability under the War Crimes Act since at least January 2002, when his then White House counsel urged that the Geneva Conventions protections be withdrawn from Al Qaeda detainees to reduce the possibility of such prosecutions. Accordingly, in February 2002, President Bush directed that Al Qaeda would not qualify for protections under the Geneva Conventions, a direction that the US Supreme Court nullified in the recent Hamden case. This nullification opened to criminal liability all government officials who ordered the abuse of Al Qaeda detainees in violation of the Geneva Conventions as well as those who actually abused the detainees. To avoid this, President Bush has called for weakening the War Crimes Act.

Although no full investigation has ever been conducted into the President's role in the abuse of detainees--and so we do not know what he ordered and what he knew--nonetheless there are strong indications that the President at a minimum condoned the mistreatment. He has consistently, including up to the present moment, tried to shield those who abused Al Qaeda detainees from criminal liability. Moreover, he wants the right in the military tribunal's bill to continue the practices that violate the Geneva Conventions and the original War Crimes Act, such as painful stress positions, subjecting detainees to extremes of heat and cold, food deprivation and acts of humiliation such as forcing detainees to remain naked.

No president should be able to violate the criminal law, including the War Crimes Act, and then in a stealth maneuver exonerate himself and his accomplices from liability. That makes a mockery of the rule of law.

If Congress cannot undo this immunization of higher ups and restore criminal liability and accountability on the part of higher ups for the mistreatment of detainees, then the only remedy for any role President Bush may have played in such mistreatment would be through impeachment.

A Case for Impeachment

2006-09-26T18:38:10-04:00

This is my first blog on the Huffington Post and there is so much to talk about it's hard to know where to begin.

I want to start with a point I made in my new book, The Impeachment of George W. Bush, about why the framers of the Constitution created the impeachment power. They were afraid that despite the system of checks and balances, a president could subvert the constitution and threaten our democracy.

In other words, the framers anticipated George W. Bush. They knew that sooner or later someone like him--someone who tramples on the rule of law--would appear on the scene. The framers told us what to do about such a president: Impeach him.

But neither the mainstream media nor most of the Democrats in Congress want to breathe the word "impeachment," even though there are substantial grounds. Still, the power is in the hands of the American people to change control of Congress, which has failed to hold President Bush accountable, and force the new one to act. That is what we must, and can, do this November.

Two recent events provide more support for impeachment. First is the recently released National Intelligence Estimate, which shows that the Iraq war has created more terrorism than there was before the war.

Iraq was not related to the terrorism of 9/11. President Bush personally knew this. Nonetheless, he repeatedly suggested that Saddam and 9/11 were connected and most Americans believed that. It was one of the deliberate falsehoods used by President Bush and his team to drive us into the Iraq war--and it is ground for impeachment.

Now, our intelligence agencies agree that instead of ending terrorism, the Iraq war has inflamed it. This confirms that Bush's justification for the war was flat-out wrong.

Parenthetically, the situation in Afghanistan--where Osama bin Laden actually operated--seems to be deteriorating drastically, a direct consequence of the President's diversion of troops and resources to invade Iraq. President Bush might become the first American president to lose two wars at once.

In addition, yesterday, several high level generals excoriated Secretary Rumsfeld for failing to provide our troops with proper equipment and for invading Iraq without a plan for the occupation. While they are correct, these failings are not Rumsfeld's alone. President Bush is ultimately responsible. As my book details, Bush, the "decider," should have insisted on a serious and thorough plan for the occupation. He didn't. He should also have ensured proper equipment for our troops. He didn't. The consequences for our troops, for Americans, and for Iraqis have been disastrous. Particularly because there was no urgency to the invasion, which had been in planning for more than a year, these failures violate Bush's constitutional duty to "take care" that the laws are faithfully executed.

Every day brings a new justification for impeachment.