‘I’ Is for ‘Impeachment’

The disastrous reality TV style bungle in which the White House led the nation to the brink of war without the consent of the legislature and the American people should be and is raising questions about the competency of the president of the United States. Bombing a country with which the United States is not at war in a situation in which no treaties either with the United Nations or NATO provide even a minimal fig leaf of legal cover has been described by the administration as a critical humanitarian mission even though it would not change facts on the ground in Syria and would only succeed in killing more civilians. But proceeding beyond that prodigious logical disconnect, there should also be some questions about the general deportment of the White House in terms of how its foreign policy enhances the liberties and broader interests of the American people. Has this administration made the world a safer place for American travelers and businessmen while upholding the rule of law and supporting and defending the Constitution of the United States? Or, does Barack Obama, eulogized by his admirers as a constitutional lawyer of some distinction, adhere to the sentiments of his predecessor in office, who believed in absolute executive authority and described the Constitution as just a piece of paper?

The "piece of paper" is deliberately vague regarding impeachment. Article II section 4 of the Constitution states "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." President Obama has not been accused of taking bribes unless one considers the modalities of modern campaign finance to be a form of bribery. But Article III section 3 of the Constitution includes "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving the Aid and Comfort." By that standard and based on the 2013 Authorization for the Use of Military Force (AUMF), which defines al-Qaeda and associated groups as the enemies of the United States, the president’s both facilitating the transfer of and giving arms to rebel groups in Syria that include al-Qaeda affiliates might reasonably be considered treasonous.

And there is also the flexible question of high crimes and misdemeanors, which has historically been interpreted as being anything that the House of Representatives believes to be serious enough to fall in that category. To impeach the House must first pass by simple majority articles of impeachment, which constitute the formal allegations of malfeasance. Upon passage, the defendant is considered to be “impeached”. Next, the Senate tries the accused with the Chief Justice of the United States presiding. To convict a two-thirds majority of senators is required, a measure designed to avoid frivolous impeachment actions motivated by political divisions. Conviction removes the defendant from office but there are no additional penalties.

Two presidents have been impeached and a third president, Richard Nixon, resigned before he could be charged. Andrew Johnson was tried in 1868 after he replaced his Secretary of War Edwin Stanton. Stanton’s position had been guaranteed by Congressional passage of the Tenure of Office Act of 1867, which was engineered by radical republicans to keep the hard liner Stanton in place to resist reconstruction policies being introduced by the more moderate Johnson. Johnson survived the process by one vote.

Nixon’s illegal activity in 1972 has been referred to as the Watergate scandal. He used government tax, law enforcement, and intelligence agencies to dig up "dirt" on his political opponents, culminating in an attempted break-in at the Democratic Party Headquarters at the Watergate complex carried out by a number of former government officials.

Bill Clinton was impeached in 1998-9 over perjury and obstruction of justice, both relating to his false testimony to an independent counsel regarding his relationship with intern Monica Lewinsky. His trial in the senate did not result in the necessary two thirds majority to convict.

Avoiding the broader issue of whether any use of American armed forces without a constitutionally mandated declaration of war should be permitted at all, is going to war against a country that does not imminently threaten the United States without any congressional approval grounds for impeachment? Particularly if the intelligence to justify such an action might well be deliberately misleading or even fabricated? Well, current Vice President Joe Biden seems to think so. In 2007 he threatened impeachment if George W. Bush attacked Iran without going to congress. But Biden is now silent on the subject and current Secretary of State John Kerry has said that President Obama can attack Syria with or without congressional approval. Fifteen congressmen are now on record as agreeing with Biden-before-he-became Vice President and have stated their belief that impeachment would be warranted if Obama were to attack Syria without asking congress, considering such an action a "high crime and misdemeanor" under Article II.

Beyond what is legal or illegal in the United States, the Nuremberg Trials of 1946, which convicted a number of Nazi leaders, clearly defined the starting of a war of aggression as the "supreme international crime," a view that was endorsed by the court’s American prosecutor Robert Jackson and which was also accepted by the administration of President Harry Truman. So by that standard bombing Syria would be a war crime and President Obama would be a war criminal.

As Obama has not yet started bombing Syria, the constitutional and legal issues are somewhat moot, though I would point out that there are a number of other policies that might be examined to make a case against the president. It is now known that the Obama Administration has maintained a "kill list" for assassinating US citizens who are considered to be a threat. The only due process the targets on the list receive is a review of their status by the White House based on secret evidence and they can be killed even if they are not in flagrante engaged in an act of terror directed against the United States. Anwar al-Awlaki was assassinated while traveling in a car in Yemen together with another American citizen and his sixteen year old son was executed two weeks later together with a number of friends while eating in a restaurant. He was allegedly not targeted by the White House but was killed due to poor intelligence. There are reportedly four more names of Americans on the list. Executing citizens without a trial and allowing no opportunity to mount a defense, an act characteristic of a police state, violates the Fifth Amendment to the Constitution which says that no one can be "deprived of life, liberty, or property without due process of law…" and the Sixth Amendment which guarantees the right to a "speedy and public trial by an impartial jury" with the right to confront the "witness against him."

The clandestine use of drones to attack and kill suspected militants in countries with which the United States is not at war has been justified by the Authorization to Use Military Force provisions of the Defense Appropriation Act. The AUMF permits the government to go after and kill members of al-Qaeda and "associated groups." Taken together with the criminalization of "material support of terrorism," nearly everyone who objects to administration counter-terror policies might well be considered a target. The AUMF also implicitly identifies the entire world, including the United States and U.S. citizens, as the part of the potential battlefield. This is a violation of Article II of the Constitution, which delegates to Congress the authority to declare war and also of the Fifth and Sixth Amendments regarding due process.

The National Security Agency’s illegal spying on American citizens has been a reality since 9/11 but it has increased dramatically under President Obama. Reviews of procedures and court cases have determined that the collection of information deviates considerably from the actual targeting of potential terrorists and exceeds the existing legal authorities that have been granted to NSA. An Edward Snowden leaked document has also recently revealed that Obama approved that the information being collected by NSA on American citizens be shared with Israel, which presumably is using the intelligence for its own purposes, possibly to target Americans, making the NSA and White House accomplices of Israeli intelligence. Spying on American citizens when there is no probable cause to do so is a violation of the Fourth Amendment, which says "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated." That the United States government is sharing such information with an untrustworthy foreign government is not only illegal, it is unconscionable.

The United States under President Obama continues to operate offshore prisons, most notably at Guantanamo Bay, without any due process to permit detainees to confront the evidence against them and prove their innocence. This is a serious breach of international law normally within the purview of the International Criminal Court in The Hague, but the United States has characteristically refused to participate or endorse the actions of that body. The forced feeding of prisoners at Guantanamo is, moreover, generally considered to be torture. The United States has signed the United Nations Convention against Torture, which requires signatories to take legal action against both torturers and the government officials who order the torture to be carried out. But no one in the federal government has been punished for torture, either at Guantanamo or in the secret CIA prisons under George W. Bush, and Attorney General Eric Holder has stated his intention to take no further action, making the United States an enabler of and participant in what most of the world regards as war crimes.

Finally, if you wish to challenge any of the above through the judicial system, you might run into a sympathetic judge, but normally you will be stonewalled. The Obama use of the state secrets privilege to have cases dismissed before going to trial far exceeds in frequency similar interference in the judicial process by George W. Bush. The privilege was created to prevent the exposure of highly sensitive information but in practice it is used to derail any challenges to malfeasance by the government. When invoking the privilege, government lawyers only have to assert that sensitive information will be revealed. The judge normally agrees and dismisses the case. Article III Section 2 of the Constitution states that "The Trial of all Crimes…shall be by jury…" It does not allow for the dismissal of criminal charges through the state secrets privilege.

So are the Obama accomplishments worth impeachment? They go far beyond the precedents of a president firing a government minister or even lying about a sexual affair and some might even consider that they exceed the Nixon gold standard of using government resources against the political opposition. Arming terrorists while asserting the right to go to war without constitutional process; targeting and killing citizens; declaring a state of war worldwide using robot death machines; spying on citizens and sharing the information with foreign governments; running secret prisons where suspects are tortured, never tried, and never can get out; and using the judiciary to block challenges to whatever is going on is quite a record. Not exactly something to be proud of, is it?

Author: Philip Giraldi

Philip Giraldi, a former CIA officer, is a contributing editor to The American Conservative and executive director of the Council for the National Interest.