Kicking the lame duck out

Today, Lomonaco and York evaluate calls for removing Bush from office. Previously, they Bush’s relationship with Congress and his remaining agenda. They’ll conclude their debate tomorrow with an exchange on the president’s legacy.

Dems don’t have the desire
By Byron York

Jeff,

Today’s topic, as requested by our editors, is, “Legally, do those agitating for impeachment have a case? Politically, would pursuing impeachment be wise at this point?”

All I have to say is, Hurry! Eleven months from today will be President Bush’s first full day out of office. If they want to impeach him before that, Democrats are going to have to act fast.

As far as the first question is concerned: There’s no requirement for there to be a legal case for impeachment. Many years ago, Gerald Ford was ridiculed for saying that grounds for impeachment were anything the House of Representatives said were grounds for impeachment. He was right.

The House can do what it wants, and if, in their collective wisdom, members of the House want to impeach Bush for cycling without a helmet (although, to my knowledge, the president always wears appropriate safety gear when he goes on his brutal all-terrain bike rides), they can.

In November 1983, Rep. John Conyers (D-Mich.), who today is chairman of the House Judiciary Committee and would play a key role in any impeachment action, introduced a resolution to impeach President Reagan for invading Grenada. According to a United Press International report from the time, the resolution written by Conyers and six other Democrats argued that the invasion was unconstitutional because it “usurped Congress’s power to declare war, ignored treaty obligations, and violated First Amendment rights of the public and press in preventing reporters from covering the invasion in its first few days.” So there.

These days, you would think that Conyers, 25 years older, would be a bit more circumspect about the issue. But he and his staff have spent a long time carefully putting together a case to impeach Bush. In August 2006, before Democrats won the House, Conyers released a 350-page report entitled, “The Constitution in Crisis: The Downing Street Minutes and Deception, Manipulation, Torture, Retribution, and Coverups in the Iraq War, and Illegal Domestic Surveillance.” On the day it was released, Conyers wrote on the DailyKos and Huffington Post websites, “Approximately 26 laws and regulations may have been violated by this administration’s misconduct. The report compiles the accumulated evidence that the Bush administration has thumbed its nose at our nation’s laws, and the Constitution itself.”

Now, Conyers didn’t use the word “impeachment.” But his talk of broken laws as well as the entire organization of his report made clear that he was working on a road map for impeachment. The only problem is that most of his fellow Democrats thought it was a terrible idea. In late 2006, just before the elections that brought Democrats to power, Nancy Pelosi pooh-poohed the whole impeachment idea. “Impeachment is off the table,” she told CBS back then.

“And that’s a pledge?” she was asked.

“Well, it’s a pledge in the — yes, I mean, it’s a pledge,” Pelosi said. “Of course it is. It is a waste of time.”

So politically, I think it’s clear Democrats believe that pursuing impeachment proceedings would not be wise at this point. And the fact that they have been in power for a year and haven’t done anything about proves the point. Smart decision.

Best,
Byron

Byron York is the White House correspondent for National Review.

No impeachment doesn’t spare Bush his legacy of torture
By Jeff Lomonaco

Byron,

I’ve never given a whole lot of thought to impeachment because, it always seemed to me, the Republicans’ impeachment of President Clinton made the process almost insurmountably illegitimate in the eyes of the public. Without a highly skilled manager, such as Rep. Henry A. Waxman (D-Beverly Hills) — chairman of the House Committee on Oversight and Government Reform — in charge, impeachment has always seemed destined for failure. So I’ve never really considered the merits of it.

But I can certainly understand the impulse motivating those agitating for impeachment: It is the desire to know what the government is doing and to hold it accountable for its conduct. I am surprised that even as you seem to recognize some of the Bush administration’s worst breaches — illegal warrantless surveillance, torture as policy — you don’t seem that troubled by them.

You say, perhaps rightly, that the administration could have gotten much of what it wanted on warrantless electronic surveillance in 2001 and 2002 if it had consulted with Congress, and I tend to agree. But the fact is that it did not go to Congress seeking those changes in the law, choosing instead to unilaterally and secretly break the law — certainly before the modification of the Terrorist Surveillance Program in 2004, and almost certainly after that as well — with the expectation that it would not get caught. That is an odd way for Vice President Dick Cheney (and the rest of the administration) to go about correcting what you suggest they sincerely believed was a constitutional imbalance dating from the 1970s.

Your laconic tone is even more surprising with respect to the Bush administration’s policy of torture, a subject on which it seems you and I have similar overall positions. Torture is immoral and unconstitutional. (I would add that I think no case has ever been made yet that it is a prudent strategic choice either; but that’s a different matter.) If necessity genuinely compels immoral and unconstitutional conduct, then the relevant actors have a corresponding responsibility to go to the public (and Congress) as quickly as possible, explain themselves and throw themselves on the justice of the country.

But you seem remarkably unbothered by the fact that the Bush administration took a quite different approach, making torture a policy, and one moreover that it took elaborate steps to rationalize as legal and constitutional on the basis of outlandish theories of executive power. I would guess that you keep your tone laconic in deliberate defiance of the moralizing one often hears on this topic. But one need not be self-righteous and moralizing to be deeply troubled by the administration’s breach of the prohibition on torture as a matter of policy.

I should mention too that I think you get some of your facts wrong and mischaracterize others in such a way as to play down what happened. It is true that CIA Director Michael V. Hayden has said that waterboarding — the most discussed form of torture used by the CIA — was used on three detainees. But you seem to be wrong it was “all within a year of Sept. 11, 2001,” as Khalid Sheikh Mohammed was not captured until March 2003; Abd al Rahim al Nashiri was captured November 2002. (Also of note is that John Yoo’s infamous torture memo was not even issued until August 1, 2002.)

The reason this matters is because it tends to undermine your assertion — echoing what Cheney and Hayden, among others, have said — that officials at the time were frantically trying to prevent the next big attack that we all thought was coming. Again, you and I share a sense that preventing the next attack is an enduring and immensely difficult undertaking. But unless you are prepared to extend the notion of imminence — and its suggestion of a ticking time bomb-like scenario — into a permanent emergency where anything goes, which I certainly am not, the facts that considerable time had passed since Sept. 11, 2001, and that there was no ticking time bomb undermines your explanation for the use of waterboarding. Also, while waterboarding is the most discussed form of torture, the CIA’s so-called enhanced interrogation techniques, which include other forms of torture, were used, according to Hayden, on approximately 30 or so prisoners. So it would appear that the torture policy authorized by Bush went beyond what you imply were merely three isolated cases. It really was systematic, authorized use of torture in the absence of a ticking time bomb.

As you suggest, now the Bush administration is simply running out the clock. That’s yet another reason impeachment is off the table. But I think there is a decent chance that Bush’s historical legacy will be defined by these breaches; and historical legacy is an important form of accountability too. Bush may be the first “Terror President,” but with some effort and a little luck, he will be the last “Torture President.”

Best,
Jeff

Jeff Lomonaco is an assistant professor of political science at the University of Minnesota and co-editor, with Murray Waas, of “The United States v. I. Lewis Libby.” He current work focuses on the tension between national security and civil liberties in the post- 9/11 period.