Several recent presidents could have been impeached for selected unconstitutional or illegal actions during their presidencies. But the sitting president, George W. Bush, may win the prize for committing the most impeachable offenses of any recent president.
Yet when one thinks of bad behavior leading down the road to possible impeachment, Bill Clinton and Richard Nixon come to mind first. Although Bill Clinton was impeached for having sex with an intern and then lying about it to a grand jury, a better case could have been made to impeach him for conducting an unconstitutional war over Kosovo without approval by Congress. The articles of Nixons impeachment centered on his use of illegal surveillance methods against political opponents and obstruction of justice and contempt of Congress in covering it up. His launching of an unconstitutional war in Cambodia without congressional approval was equally serious, but was left out of the articles. Curiously, Lyndon Johnson, Nixons predecessor, also used illegal surveillance activities against political rivals, but was not impeached.
Ronald Reagan, who is now a celebrated past president and icon of conservatives, justifiably feared impeachment for the Iran-Contra affair. He knowingly violated the Arms Export Control Act, a criminal statute, and sold arms to radical supporters of terrorists. His administration also unconstitutionally violated a congressional prohibition on providing money and support to the Nicaraguan Contra fighters. The Reagan administrations violation of the Boland Amendment stuck a knife in the heart of the checks and balances system in the U.S. Constitution by circumventing Congresss most important powerthe appropriation of public monies.
George W. Bush is following in the footsteps of his predecessors, but may have left more tracks. For starters, invading another country on false pretenses is grounds for impeachment. Also, the Fourth Amendment to the U.S. Constitution essentially says that the people have the right to be secure against unreasonable government searches and seizures and that no search warrants shall be issued without probable cause that a crime has been committed. And the Foreign Intelligence Surveillance Act (FISA) requires that warrants for national security wiretaps be authorized by the secret FISA court. The law says that it is a crime for government officials to conduct electronic surveillance outside the exclusive purviews of that law or the criminal wiretap statute. President Bushs authorization of the monitoring of Americans e-mails and phone calls by the National Security Agency (NSA) without even the minimal protection of FISA court warrants is clearly unconstitutional and illegal. Executive searches without judicial review violate the unique checks and balances that the nations founders created in the U.S. government and are a considerable threat to American liberty. Furthermore, surveillance of Americans by the NSA, an intelligence service rather than a law enforcement agency, is a regression to the practices of the Vietnam-era, when intelligence agencies were misused to spy on anti-war protestersanother impeachable violation of peoples constitutional rights by LBJ and Nixon.
President Bush defiantly admits initiating such flagrant domestic spying but contends that the Congress implicitly authorized such activities when it approved the use of force against al Qaeda and that such actions fit within his constitutional powers as commander-in-chief. But the founders never intended core principles of the Constitution to be suspended during wartime. In fact, they realized that it was in times of war and crisis that constitutional protections of the people were most at risk of usurpation by politicians, who purport to defend American freedom while actually undermining it.
The Bush administrations FBI has also expanded its use of national security letters to examine the personal records of tens of thousands of Americans who are not suspected of being involved in terrorism or even illegal acts.
Apparently the president is also taking us back to the Vietnam era by monitoring anti-war protesters. Information on peaceful anti-war demonstrations has apparently found its way into Pentagon databases on possible threats to U.S. security.
Finally, the presidents policies on detainees in the war on terror probably qualify as impeachable offenses. The Bush administration decided that the war on terror exempted it from an unambiguous criminal law and international conventions (which are also the law of the land) preventing torture and inhumane treatment of prisoners. An American president permitting torture is both disgraceful and ineffective in getting good information from those held. Furthermore, the administration concocted the fictitious category of enemy combatants to deprive detainees of the legal protections of either the U.S. courts or prisoner-of-war status. The administration then tried to detain these enemy combatants, some of them American citizens, indefinitely without trial, access to counsel, or the right to have courts to review their cases.
All of these actions are part of President Bushs attempt to expand the power of presidency during wartimeas if the imperial presidency hadnt been expanded enough by his recent predecessors. President Bush usually gets the Attorney General or the White House Counsel to agree with his usurpation of congressional and judicial powers, but, of course, who in the executive is going to disagree with their boss? According to the Washington Post, the Bush administration describes the presidents war making power under the Constitution as plenarymeaning absolute. The founders would roll over in their graves at this interpretation of a document that was actually designed to limit the presidential war power, resulting from their revulsion at the way European monarchs easily took their countries to war and foisted the costsin blood and treasureon their people. Conservative Bob Barr, a former Congressman from Georgia who was quoted in the Post, said it best: The American people are going to have to say, Enough of this business of justifying everything as necessary for the war on terror. Either the Constitution and the laws of this country mean something or they dont. It is truly frightening what is going on in this country.
Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He has been Director of Defense Policy Studies at the Cato Institute, and he spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. He is author of the books Partitioning for Peace: An Exit Strategy for Iraq, and Recarving Rushmore.
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