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George W. Bush: Legal Arguments for Impeachment
By Marcus Raskin and Joseph A. Vuckovich
This statement outlines the legal arguments for impeaching President Bush. The public policy grounds for impeachment (including the long- term effects of failure to hold the executive accountable for constitutional violations) are of equal significance, and we will discuss them in a separate statement.
Abuse of War Powers
In the invasion of Iraq, President Bush ordered the United States armed services into combat without an explicit declaration of war or other constitutionally appropriate authorization from Congress. The Constitution is very clear on the point that only Congress may initiate military hostilities. Article, I, Section 8 gives Congress the power to declare war, and the deliberations of the Framers and of the state ratifying conventions establish that this provision was understood to give Congress sole authority to choose between war and peace. (1)
The decision to vest the war power exclusively in Congress was not an accident, but a conscious decision by the Framers to break with contemporary practice in Great Britain and elsewhere in Europe, where all war powers had traditionally inhered in a monarch or other executive. (2) To the extent that the legislature is "first among equals" in our constitutional design, it makes sense to entrust only to it what amounts to the power of life and death over the American people.
The notion that the Constitution vests Congress alone with the power to initiate military conflict was affirmed by a number of early judicial decisions. In United States v. Smith (1806), for example, Supreme Court Justice William Paterson wrote that, when it is necessary for the US to go to war with a nation with which it is at peace (as was the case with Iraq), "it is the exclusive province of Congress to change a state of peace into a state of war." John Marshall, in Talbot v. Seeman (1801), held that the "whole powers of war are, by the Constitution of the United States, vested in Congress." In Bas v. Tingy (1800), the Supreme Court held that only Congress could authorize an "imperfect" (limited) war. The language of these opinions ("whole," "exclusive,") and the refusal to make an exception for small-scale or otherwise limited wars, suggests that the Constitution's grant of war powers to Congress was seen as absolute. It is a qualitative rather than a quantitative distinction, and it admits no exceptions.
Again, the Constitution says that it is never up to the president to choose between war and peace, and no exceptions to this rule have ever been allowed. Both the Framers and Justice Paterson acknowledged that the president does not need congressional approval to repel an invasion of US territory, but in this case, a state of war would already exist. The choice between war and peace would already have been made – by a hostile foreign power, not by the president.
There is thus no loophole available to justify President Bush's Iraq adventure. The plain fact of the matter is that Iraq's armed forces had not attacked US territory. That they might conceivably have done so at some point in the future is, from a constitutional perspective, irrelevant. The administration's doctrine of pre- emption does not exempt the president from the requirement to obtain a declaration of war from Congress.
Nor can President Bush argue that present counterinsurgency nature of the Iraq war makes it a "limited war" or "police action" that does not require congressional approval. First, whatever the character of current military operations in Iraq, they obviously would not be taking place if the president had not carried out what was unambiguously a conventional military campaign against the armed forces of a sovereign state. Second, and more fundamentally, Congress's war power was understood by the Framers and by the early Supreme Court to extend to all military deployments, including those necessary for limited or "imperfect" wars.
Furthermore, the president cannot cite the war resolution passed on October 10, 2002 as providing him with the authority to invade Iraq. This resolution did not keep the fundamental choice between war and peace in the hands of Congress. As legal scholar Louis Fisher has written, "Did Congress actually decide to go to war? Not really. Members of Congress transferred that choice to Bush. They decided that he should decide." (3) The fact that Congress chose to abdicate its constitutional responsibility to decide between war and peace has no bearing on the legality of President Bush's actions. The decision by one branch to abandon its constitutional prerogatives does not legitimate usurpations by the other branch. In all cases, Congress must either forbid military action or command the president to carry it out. Both the Framers' writings and early judicial decisions support the idea that the Constitution simply does not leave room for executive discretion in this matter.
Any argument that President Bush had the authority to invade Iraq in order to enforce compliance with UN Security Council resolutions similarly fails to pass constitutional muster. Such an argument simply does not bear on the basic fact of exclusive congressional war power. Second, Article I, Section 8 confers on Congress the power to punish "Offences against the Law of Nations." There is simply no basis for the claim that the Iraq War could have been ordered by the president in order to enforce international law. Finally, there is the matter of Bush's repeated implicit linking of the Hussein regime to the attacks of September 11, 2001. Quite apart from the issue of whether or not this misleading suggestion amounted to a violation of the public trust that itself warranted impeachment, it is important to consider the rationale for the Iraq War that the Hussein-al Qaeda link was supposed to provide. The notion, presumably, is that retaliation for the 9/11 attacks was necessary for either policy or emotional reasons, and that the Iraq War was part of this retaliation. In short, the Iraq War was implicitly presented to the public as a reprisal. Unfortunately for the president, Article I, Section 8 specifies that only Congress can "grant letters of marque and reprisal." The decision to use military means to punish other nations for harm done to the United States rests entirely with Congress.
Violations of International Law
Article VI of the Constitution specifies that "all Treaties made, under the Authority of the United States, shall be the supreme Law of the Land," equivalent in authority to the Constitution itself and to federal statutes. In violating treaties duly ratified by the Senate, President Bush committed an offense comparable to direct violation of the Constitution or of federal law. Moreover, in doing so, he subverted the Constitution by failing to show proper regard for its equation of its own provisions with those of international treaties. The Iraq War violated both the United Nations Charter (1945) and the Charter of the International Military Tribunal (1945) and its associated judgments.
President Bush has waged a war of aggression in violation of the UN Charter. Aggression, as defined by UN General Assembly Resolution 3314, is "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations." (4) The United Nations Charter, signed by the United States and ratified by the Senate, permits armed combat against another state only when the Security Council approves it or when it is necessary for self-defense. (5) All other wars are aggressive wars, hence forbidden. The Security Council did not sanction the war in Iraq in 2003, and Iraq had not invaded or threatened another country. It posed no imminent threat to the United States, hence there is no case for self-defense as a justification for invasion. The argument that Iraq's alleged WMD programs and history of aggression against its neighbors made aggressive war necessary simply does not meet the standard given in the UN Charter, which holds that there is an "inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations" (emphasis added). (6) Iraq never actually staged an armed attack on the US, and there were serious doubts in the US intelligence community that it was capable of doing so. Had President Bush sought proper Security Council authorization for the attack on Iraq, UN weapons inspectors stationed in the country at the time of invasion would have had a chance to complete their work, potentially showing that a war to "disarm" Hussein was unnecessary. Alternatively, had inspectors uncovered evidence of an advanced WMD program, the Security Council could have decided what steps to take to stop it. In either case, obeying international law would have saved lives and imparted legitimacy to whatever measures against Iraq were truly necessary. Asserting a unilateral prerogative to wage aggressive war undermined international law and produced a catastrophic policy failure.
President Bush also violated the UN Charter by bribing, intimidating, and otherwise coercing other nations into supporting his Iraq adventure. Such tactics violate the sovereignty of the coerced nation since they prevent its government from making the best decision, in the interests of its own people, about whether or not to go to war. Such a violation of another nation's sovereignty is contrary to the UN Charter, which is "based on the principle of sovereign equality of its members." (7)
According to Article VI of the Constitution, Bush's breach of the UN Charter is equivalent to a violation of the Constitution and of U.S. federal law. This would seem to qualify as a "high crime" or "misdemeanor" (as provided by Article 2, Section 4) and thus merit impeachment.
One of the most fundamental precedents for dealing with aggressive war comes from the Charter of the International Military Tribunal and its associated verdicts, stemming from the Nuremberg Trials after World War II. Article 6 of this Charter explicitly states individuals may be held responsible for "Crimes against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties." (8) As prosecutor (and U.S. Supreme Court Justice) Robert H. Jackson said in his opening address at the Nuremberg Tribunals:
Let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment. (9)
President Bush's actions can thus be interpreted as a crime against peace, and one for which he can be held individually responsible on the basis of the Nuremberg judgment, as well as the UN Charter. Furthermore, given the large number of lives disrupted or destroyed by a crime against peace, it is entirely reasonable to classify such an offense as a "high crime" or, at the very least, a "misdemeanor."
Marcus Raskin founded the Institute for Policy Studies in 1963 after serving on the staff of the National Security Council in President Kennedy's administration. He is a distinguished fellow at the Institute and professor of policy studies at George Washington University. Joseph A. Vuckovich is a first-year student at the NYU School of Law. We wish to thank Andy Bowen, Sara Duvisac, and Jesse Feinberg for their assistance.
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1. See David Gray Adler, "Clinton, the Constitution, and the War Power." In The Presidency and the Law: The Clinton Legacy, Ed. Adler and Genovese. Lawrence, Kansas: 2002; Louis Fisher and David . Gray Adler, "The War Powers Resolution: Time to Say Goodbye," Political Science Quarterly, 113(1), 1998; Louis Fisher, "The Way We Go to War: The Iraq Resolution," In Considering the Bush Presidency, Oxford, 2004.
2. See, e.g., William Blackstone's Commentaries on the Laws of England, which demonstrate that this was a settled principle of English law.
7. The argument in this paragraph is based on Article III of Prof. Francis Boyle's "Draft Impeachment Resolution Against President George W. Bush." Available at http://www.counterpunch.org/boyle01172003.html
9. Justice Robert H. Jackson, "Opening Statement to the International Military Tribunal in Case No. 1, The United States of America, et al. vs. Hermann Wilhelm Goering, et al. Available at http://www.roberthjackson.org/Man/theman2-7-8-1/Posts: 191 | Registered: Nov 2004
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Bush Is a man with zero integrity. He was born a rich elitist brat. He has no discipline of any sort. His entire life is nothing more than a series of hand outs and opened doors based on the fame and work of his family linage.
This is a man who has never had a fight in his life. He was a cheerleader, that’s the closest he ever came to rallying any sort of battle. This is a man who personifies the definition of a coward. He is the real deal chicken hawk. By his irresponsibility and puppet positioning, he has advanced the acceleration to a corporate state by leaps and bounds. But why should we care, We are comfortable.
This is a man who bolsters tough talk about sacrifice, freedom and the call of duty. Yet this is a man who went AWOL during peace time. This is a man who is an alcoholic. This is a man who is on medication for depression. This is the kind of man who will cower and be responsible for the deaths of yet thousands upon thousands of American lives when a real threat such as North Korea or China decides the time is right to attack. He and Mr. Brown couldn’t deal with a hurricane triage and clean up, what to speak of a credible offensive from a hostile nation.
This is a man who was raised with the likes of Henry Kissinger and Ronald Reagan sitting around having coffee with his parents and passing through his home. This is a man who has instilled in him a sense of privilege and entitlement. He really feels as though he and his are a royal order. This is what truly makes him the most deadly man on the planet today.
Party politics is for cowards. Democrat, Republican, two sides of the same coin. Lefty, Righty, Liberal,...Just words to pigeon hold people.
Its silly. Folks say I am liberal, well, I have some conservative views as well as some Liberal views, it just depends on the issue. So, anyone who needs to jump to the most convenient conclusions of Liberal, Righty, Lefty. Your a coward.
If you weren’t, you would question why there is not more than a two or three party system. The founding forefathers seem to agree that a state in the progress towards the better is always in diplomatic gridlock. Not these days though. The two party systems have got it all under control. That’s not how its supposed to be. But Hey, why should we care, were comfortable.
However, In spite of all this, I do realize, that I am in part to blame for the administration that is currently driving this country into a nose dive not different from the fall of Rome. That is not to say that Idiot got my vote. Certainly not. However, I do believe that the President we get as a people, is a direct reflection of we the people as a whole. Garbage in, Garbage out.
That’s to say, I see a dead even split amongst folks in this county. Many are buying the Bush Party Line to the letter, and the other half opposing it. Some republican cowards may even be against him, but claim to be behind him, simple because party politics deems you cannot turn against the higher ups in your own division. That would be betraying the party, and that’s a big "NO" This is because their only true loyalty is to the party itself, regardless of wither or not they support the higher ups. That’s what party politics is. A cowards den, not the every day person who says I am this or that, but the actually congress men and women I am referring to in this instant for being the cowards that they are.
Back to the split, I have taken extreme notice of the characteristics of the Bro Bush and Non Pro Bush folks alike, My guess is that most folks who voted for him are followers of blind religious denominations, apathetic drones, serial killers and other wise fat, lazy and contented humans who really only care about themselves and there own.
I have noticed that all those here in the southern California area who periodically gather to muster support for Bush and his war easily throw away any credit they may get by waving a rebel flag along side of their Bush rally banners. What’s that suppose to mean?
I noticed that most folks who are against it generally seem to be more educated. College professors, teachers, writers etc…
So the split I am observing that’s amongst these two groups is not necessarily the obvious Democrat and republican.
But a split of the educated and well read, Verses that of the mean spirited ignoramus who openly confess they don’t even no what a Halliburton is.
Their vocabularies are thick with words and concepts like “Us and Them” “These people” Republican, Democrat, Liberal. always objectifying, subjugating, demoralizing.
They say they back Bush for his war on terrorism, little do they know you cant declare a war on a tactic. Terrorism is a tactic, not an entity.
Its seems clear to me that if the empire is going to fall, its going to be soon. all empirical evidence points in that direction. Then will a civil war begin?.
The fat apathetic Ford Excursion/Hummer driven cigarette smoking gun loving sportsman for Bush types –Vs- The well read, educated, compassionate and sentient strivers for peace. (I’m Ready)
That’s what its coming down to, The current regime in violation of so many international laws will fall. Not because of its bending of the rules or double standards with regards to international laws. This is not the first administration to do that, But because of the emotionally based actions, rantings and decisions of a first class coward and fool, and his three cowardly little corporate buddies. That what going to get every single one of us in dire trouble. That little red faced grimacing trolls Mouth.
And the nerve of that shriveled soul Rumsfeld to come out to the media in 2004 and when asked why the troops were ill equipped replied, “The army you got, Is the army you fight with” That fucking bastard. Our Brothers, sisters etc, are the ones dying and he comes out talking like that. Chicken Hawk! tough talk to the nations parents of those who serve regarding the safety of their loved ones during his acquisition, rapping and plundering of a nations natural resources. Fuck you Donald Rumsfeld. Get within an arms reach of me buddy! (Laugh out loud)
So, what I’m really saying is that, I am a patriot of the highest order, I love the country I live in. However, I am now an adult and not a child. It is my personal responsibility to look into my heart of hearts and use all the wisdom, spiritual guidance and experience I could draw from my limited time here on this planet to make mindful non emotionally based enquires into the nature of this machine called government, and the endeavors it sets out on in my name.
The time has come to realize that the Bush administration is as corrupt and non-moral as just about any other administration that has come before it. In some ways, More so.
All one needs to do and separate themselves from their emotions, quit waving their flags (Made In China) and get educated. The material is out.
But that’s a laugh, Most folks just wanna sit in burger king and chow down cheeseburgers all day. Preserving equality, human rights, and breaking the barriers of hatred doesn’t interest most Americans. Its not as cool as watching Britney Spears in Vegas I suppose.
Posts: 191 | Registered: Nov 2004
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*applauds* The most depressing thing I've heard in a long time is....
Bush is out in 2008. Late 2008. Thats 3 years from this November. Also find it funny how even after Katrina, gas prices still remain record highs? Guess the hurricane really messed up those oil rigs to the point that they cant work anymore? And I thought we imported 80% of our oil anyway? This is getting ridiculous...or has it always been this ridiculous? I cant even take that idiot seriously anymore. Hes a fucking clown staging as a President. It's like he's a puppet of the highest order. All this crap, oil, racism, the war...when was all this such a big problem when Clinton was in? It wasnt...
Go listen to a rap artist called Immortal Technique. He is very political and hates Bush to death. Sample lyrics:
"How could this be, the land of the free, home of the brave? Indigenous holocaust, and the home of the slaves Corporate America, dancin' offbeat to the rhythm You really think this country, never sponsored terrorism? Human rights violations, we continue the saga El Savador and the contras in Nicaragua And on top of that, you still wanna take me to prison Just cause I won't trade humanity for patriotism"
Posts: 779 | Registered: Dec 2003
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The democrats will win the house in what is it??? less than two years???
Because my friends....Absolute power,breeds absolute corruption... absolutley!!!Here in AMERICA we don't let that happen. Things will change like they always do..THATS DEMOCRACY!!!!
We are AMERICANS and we will have the final say!!!!
USE YOUR FRIGGIN HEADS PEOPLE!!
-------------------- Xoxoxo Sasha
essenceofsasha.com
You wanna play with my warm hosed feet. Don't you? Posts: 2077 | Registered: Apr 2004
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quote:Originally posted by Sasha: All I will add to this is......AMEN!!!!
The democrats will win the house in what is it??? less than two years???
Because my friends....Absolute power,breeds absolute corruption... absolutley!!!Here in AMERICA we don't let that happen. Things will change like they always do..THATS DEMOCRACY!!!!
Yes, but the democrats aren't any better. The two-party system is broken.
-------------------- WhiteMalesAnonymous.com - A survival guide for white males living in the U.S. Posts: 105 | Registered: Dec 2004
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I'll 4th that notion...this country isn't what it used to be.I have an idea though for those of you who are depressed about it,go rent some old movies like casablanca or miracle on 34th street or heck even gone with the wind..anything that brings back an American tradition to get your mind off the current situation.
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Join thousands of our fans on Twitter @Norcalfeetdotco Posts: 18314 | Registered: Apr 2003
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