Wednesday, March 5, 2008

Bushwhacked: The Prosecution Of A President

Voters in two Vermont towns – Brattleboro and Marlboro – voted, symbolically, to indict President George W. Bush and Vice-President Dick Cheney. The vote would authorize local police to arrest the two, or extradite them for prosecution elsewhere, if either ever visits the towns, should they not face impeachment first. There is just one problem, whether symbolic gesture or not:  while a sitting Vice-President, like all other federal civil officers, can face criminal prosecution, a sitting President cannot. Two famous examples are that of Vice-Presidents Aaron Burr and Spiro Agnew. The Department of Justice, in accordance with several court rulings, states that “…the indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”  Further, only the Congress has the authority to impeach a President while in office, and only later upon leaving can they be indicted and criminally prosecuted.

Impeachment is not a simple matter either, as a majority of the House of Representatives must agree to a resolution that alleges the President committed any of the offenses outlined in Article II of the Constitution – “treason, bribery, or other high crimes and misdemeanors.”  Ambiguity of the latter has perplexed legal analysts and scholars since inception. What exactly are “high crimes and misdemeanors”? With no explicit definition of what constitutes an impeachable offense, impeachment has been inherently more political ploy than a true legal process “ . . . regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” (Alexander Hamilton, The Federalist Papers, no. 65, 1788).

It is not a slight to say that the majority seeking the indictment/impeachment of President Bush and Vice-President Cheney are fringe leftists and politicians with an agenda. There have been many reasons offered for indicting/impeaching the President, but the two main arguments include the constitutionality of the 2003 invasion of Iraq and federal electronic surveillance programs. The invasion of Iraq is a moot point for several reasons, but mainly because the entire Congress – Republican and Democrat alike – overwhelmingly approved giving President Bush the right to prosecute the war. Manipulation or not of the intelligence, as proponents of impeachment contend – and who is to say who may have manipulated it, if at all – Washington would be emptied if the sole case for impeachment were lying to the American people. Is it criminal to protect this country against those who are a threat to it?

Incidentally, President Clinton faced impeachment for lying to a grand jury about his relationship with an intern. Yet, a better case could have been made for involving the U.S. in the war in Kosovo under false pretenses – the still dubious and undetermined claim of genocide – without Congressional approval and against the United Nations’ mandate of non-interference. Yet, no such proceedings ever occurred. Lest it be forgotten as well, Clinton signed into law the “Iraq Liberation Act” in October 1998, which stood as an official statement of policy calling for regime change in Iraq. Less than two months later, he authorized Operation Desert Fox, a four-day bombing campaign designed to weaken Saddam Hussein's grip on power – with the stated goal of hindering Iraq's ability to manufacture and use weapons of mass destruction. Five years later, the very same policy under the Bush Administration became an impeachable offense in conjunction with Democrats’ anti-war argument that Saddam Hussein never had WMDs.

The question of electronic surveillance is a thornier issue, but nonetheless duplicitous. Legislative reform of electronic surveillance by the federal government began as far back as the 1970s due to documented abuses, and continuing into the 1980s with the advancement of technology. It is not a new issue when it comes to constitutional legality and civil liberties. The Foreign Intelligence Surveillance Act (FISA), passed in 1978, authorizes the gathering of foreign intelligence information for the protection of the U.S. and its allies against potential and actual attack, sabotage or terrorism from a foreign power or entity. Incidentally, it does regulate the manner in which U.S. agencies conduct searches and surveillance, domestically and abroad. Nonetheless, Congress empowered the President following the September 11th attacks under the Authorization for Use of Military Force (AUMF) – seen as implicitly superseding FISA’s warrant requirements – to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Both acts raise all manner of legal questions. It does not matter. On multiple occasions, the Supreme Court has ruled that intelligence gathering is “incident to” the President's war powers outlined in Article II of the Constitution. Though it has not explicitly addressed the constitutionality of warrantless searches targeting foreign powers or their agents within the United States – other than in the case of convicted spy Aldrich Ames – a number of Circuit Court rulings have upheld their legality. In United States vs. Osama bin Laden, the Second Circuit stated in its decision that “no court, prior to FISA, that was faced with the choice, imposed a warrant requirement for foreign intelligence searches undertaken within the United States.” Administration officials have maintained that similar judicial decisions supports the argument that warrantless surveillance authority existed prior to FISA as an inherent Constitutional power of the Executive that cannot be encroached by statute – and therefore legal and unimpeachable.

Calls for the indictment/impeachment of President George W. Bush are nothing more than political folly seen repeatedly throughout the history of the republic. He is not the first to face accusations, and certainly will not be the last. The two charges against President Bush and his administration deemed most egregious have no substance, the lesser ones even more so, when put under the microscope. There is a lesson in the impeachment of President Andrew Johnson. Despite his critics – even in his own party – Johnson believed he was doing the right thing for the betterment of the United States. History eventually vindicated him. Will it be as kind to President Bush, who like all past Presidents swore an oath to defend and protect the United States by any and all means necessary as the Commander-in-Chief?

[1] DOJ Office of Legal Counsel, “A Sitting President's Amenability to Indictment and Criminal Prosecution,” 16 October 2000, <> (5 March 2008).

©2008 Steve Sagarra

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