Unimpeachably
Impeachable
Don’t Make It Harder Than It Has To Be
By Ray McGovern
07/04/07 "ICH"
-- - -Last week’s four-part Washington Post feature on
Vice President Dick Cheney removed any doubt in my mind as
to whether he and President George W. Bush have committed
the kinds of high crimes and misdemeanors that warrant
impeachment. While President Bush bears the ultimate
responsibility, the nature of the evidence against the vice
president and his closest associates is so specific and the
accumulation so overwhelming that it makes sense to impeach
and bring Cheney to trial first.
Subpoenas from the Hill are flying downtown into executive
office buildings like paper airplanes, but the potential for
obfuscation and delay is immense, and the danger to the
Republic speaks for a more urgent, simpler approach. As
hundreds are killed each day in the misbegotten war in Iraq
with no end in sight, the same officials who brought us
Iraq—with the vice president in the lead—are salivating for
war on Iran.
There is a blizzard of possible charges warranting
impeachment, and that is part of the problem. It’s not only
outrage fatigue, it is sorting through what Mr. Jefferson
called “a long train of abuses and usurpations” to select
the most heinous, when it is difficult to discern which of
them most offends our Constitution and the rule of law.
Suggestion: From the most heinous, let’s select one for
which there is ready proof—one not susceptible of the kind
of diddling that has been so prevalent in Washington these
past several years. Why not focus on a high crime that the
Bush administration has already admitted to, with claims it
is above the law and the Constitution? How about electronic
eavesdropping on Americans without the court warrant
required by law.
This offence has the additional advantage of precedent. It
was included in the second (of three) Articles of
Impeachment voted against President Richard Nixon by a 28 to
10 vote in the House Committee on the Judiciary on July 27,
1974. The charge was “electronic surveillance of private
citizens” in violation of the law (in addition to other
illegalities). Impeachment Article 2 stated that in these
abuses:
“Richard M. Nixon has acted in a manner contrary to his
trust as President and subversive of constitutional
government, to the great prejudice of the cause of law and
justice and to the manifest injury of the people of the
United States. Wherefore Richard M. Nixon, by such conduct,
warrants impeachment and trial, and removal from office.”
Similarly, as William Goodman, former legal director of the
Center for Constitutional Rights, has suggested, pride of
place among the charges against officials of the George W.
Bush administration should be given to the crime of unlawful
electronic surveillance; namely, failing to take care that
the laws are faithfully executed, by directing or
authorizing the National Security Agency and various other
agencies within the intelligence community to conduct
electronic surveillance outside the statutes Congress has
prescribed as the exclusive means for such surveillance.
What makes this a no-brainer is that the administration has
proudly admitted to sponsoring an electronic surveillance
program that violates the Foreign Intelligence Surveillance
Act (FISA) of 1978. On December 17, 2005, a day after the
New York Times front-paged an article on the administration
practice of eavesdropping on Americans without the required
court warrant, administration front man George W. Bush
bragged about authorizing the National Security Agency to
eavesdrop on U.S. citizens without the court order required
by FISA. The president stated defiantly, “I have
reauthorized this program more than 30 times since the
September 11th attacks, and I intend to do so for as long as
our nation faces a continuing threat from al-Qaeda and
related groups.”
By what authority did Bush ignore the FISA requirement for a
court order for such eavesdropping? Bush cited “the
authority vested in me by Congress, including the Joint
Authorization for Use of Military Force [and] constitutional
authority vested in me as commander-in-chief.” That these
arguments are quite a stretch is clear from the adjectives
used by respected jurists to describe them. “Ludicrous” is
the one most often applied. “The program appears on its face
to violate existing law,” wrote a group of distinguished
lawyers, several of whom worked in senior positions in
Republican as well as Democratic administrations.
Anatomy of a Crime: Who is Responsible?
While the buck still stops in the Oval Office, it lingers
for an inordinately long time with the vice president. And,
clearly, that is the way Bush prefers it. Former Sen. Bob
Graham (D-Florida) recalls that when he became chair of the
Senate Intelligence Committee, the president told him, “The
vice president should be your point of contact in the White
House [and] has the portfolio for intelligence activities.”
And, sure enough, when the chairmen and ranking members of
the intelligence committees were invited to the White House
for their first briefing on electronic eavesdropping, they
were ushered into the vice president’s office where Cheney
chaired the discussion.
One of the authors of the FISA law, longtime NSA director
Admiral Bobby Ray Inman (ret.), expressed serious
reservations at the flouting of FISA, during a New York
Public Library panel discussion on May 8, 2006. “There
clearly was a line in the FISA statutes which says you
couldn’t do this,” said Inman. He went on to call specific
attention to an “extra sentence put in the bill that said,
‘You can’t do anything that is not authorized by this
bill.’”
Inman spoke proudly of the earlier ethos at NSA, where “it
was deeply ingrained that you operate within the law and you
get the law changed if you need to.” As for now, Inman
insisted, “What you want is to get away from this idea that
they can continue doing it.” He placed the blame squarely on
Vice President Dick Cheney, whose attitude he said was: “We
don’t need law. The president has authorized these in the
past and can authorize them now.” Inman added that this
explains why there was no attempt to change the law. Whether
Bush eventually decides to change course and work with
Congress on this issue will depend on “whether the president
walks away from the vice president,” said Inman.
John Dean, no stranger to White House intrigue, also sees
Cheney’s hand behind the defiance of inconvenient laws like
FISA. Dean’s sources tell him that there is serious doubt
that the president and his staff is well informed as to what
Cheney is doing, why he is doing it, or how he is doing it.
Bush may be the “decider,” says Dean, “but by shaping the
debate and controlling the paper flow, Cheney decides what
the decider will decide.”
Eminence Grise Behind Eminence Grise
Please welcome David Addington, Cheney’s kemosabe, his main
man, his legal adviser of many years, a strong advocate of
the “unitary executive” concept invented by the Bush
administration to amass power under, well, one executive.
Addington worked closely with Dick Cheney on Iran-Contra
affair, and played a strong supporting role in ensuring that
no one would be held accountable. Addington came in with the
vice president as his chief counsel, and became his chief of
staff after Lewis Libby left.
Addington is the author of the so-called “torture memo” of
Jan. 25, 2002—the one signed by then-White House counsel,
Alberto Gonzales, calling provisions of the Geneva treaties
on prisoners of war “quaint” and “obsolete.” Assigning a
“new paradigm” to the post-9/11 world, that memo advised
Bush that he could authorize torture by simply saying that
the U.S. would treat prisoners “humanely, as appropriate,
and as consistent with military necessity.” This the
president did in an executive memorandum on Feb. 7, 2002.
(You can download both signed memos in their original form.)
Addington’s legal legerdemain was applied liberally to the
issue of warrantless eavesdropping, as well. Most are
unaware that Addington earned his spurs from 1981 to 1984
while working in the CIA’s Office of General Counsel (OGC)
under Director William Casey, certainly a kindred soul in
his disdain for the law—national or international.
Family Jewels
The so-called “family-jewels” documents released by the CIA
last week provide insight into the corrosive effect of folks
like Casey and Addington on the professionalism and
integrity of those working in the Office of General Counsel.
To be sure, there were liberties taken with law and
regulation before Casey and Addington, but there was also
considerable sensitivity to the need to observe the law
regarding surveillance of Americans. One sees in the
internal Agency correspondence reflections of the ethos of
integrity that generally prevailed among the lawyers I
encountered during my 27-year Agency career.
There were abuses like illegal wiretaps, despite admonitions
from directors like William Colby against monitoring
American citizens. But the correspondence is replete with
examples of operations abruptly shut down after OGC
determined they violated CIA statutory responsibilities and
guidelines. The documents show, for example, OGC putting the
kibosh on radio intercepts that, while carried out abroad,
had one terminal in the U.S. Well before the FISA law,
senior Agency officials were particularly uncomfortable with
widespread electronic surveillance of American citizens. As
national security blogger Noah Shachtman has noted, it is
clear from the “family jewels” material that most leaders of
the Nixon-era intelligence community were able to avoid
becoming drawn into the kind of comprehensive, intrusive
electronic eavesdropping that would later become a hallmark
of the George W. Bush-era intelligence community.
CIA Director Michael Hayden’s timing in releasing the
“family jewels” begs interpretation. Without any sense of
irony, Hayden told CIA staffers that internal reforms and
increased oversight have given the CIA “a far stronger place
in our democratic system.” Right. The post-9/11 warrantless
electronic surveillance program he devised as head of NSA,
at the direction of Cheney and the president tears that
claim to shreds. Is it conceivable that Hayden thought he
could distract attention from the current lawlessness by
highlighting the abuses of the past?
Martinet
Hayden’s followed illegal orders to create an aggressive NSA
program skirting strict 30-year old legal restrictions on
eavesdropping on American citizens. As NSA director from
1999 to 2005, he did the White House’s bidding in devising
and implementing that program without adequately informing
Congress—as required by law. When news of the program
appeared in the press, Hayden agreed to play point man with
smoke and mirrors. Small wonder that the White House later
deemed him the perfect man to head the CIA.
Hayden, of course, evidences no outward embarrassment. A
whiff of conscience showed through his nomination hearing,
though, when he flubbed a soft pitch from administration
loyalist, Sen. Kit Bond (R-Missouri):
“Did you believe that your primary responsibility as
director of NSA was to execute a program that your NSA
lawyers, the Justice Department lawyers, and White House
officials all told you was legal and that you were ordered
to carry it out by the president of the United States?”
Instead of the simple “Yes” that was anticipated, Hayden
paused and spoke rather poignantly—and revealingly:
“I had to make this personal decision in early October 2001,
and it was a personal decision...I could not not do this.”
Why should it be such an enormous personal decision whether
or not to obey a White House order? No one asked Hayden, but
no particular acuity is required to figure it out. This is a
military officer who had indoctrinated NSA employees with
what used to be known as NSA’s “First Commandment”—Thou
Shalt Not Eavesdrop on US Citizens; an officer who, like the
rest of us, had sworn to defend the Constitution of the
United States against all enemies, foreign and domestic; a
military man well aware that one is never required to obey
an unlawful order.
That, it seems clear, is why Hayden found it a difficult
personal decision. Did the new, post-9/11 “paradigm” created
by then-White House counsel Alberto Gonzales and David
Addington trump the Constitution? President George W. Bush
assured us on Jan. 23, 2006, “I had all kinds of lawyers
review the process.” Seems so. The same ones who were
concurrently devising ways to “legalize” torture and
indefinite detention without due process.
No American, save perhaps Admiral Inman who was present at
the creation of FISA, knew the FISA law better than Hayden.
Nonetheless, at his nomination hearing General Hayden
conceded that he did not even require a written legal
opinion to satisfy himself that the new, post-9/11
comprehensive surveillance program, to be implemented
without warrant and without adequate consultation in
Congress, could pass the smell test. If Addington and Cheney
said it was okay, it must be okay. When one of his NSA
director predecessors learned what Hayden had agreed to do,
he said angrily, “He ought to be court-martialed.” I agree.
Addington’s tenure with CIA lawyers left a residue of
malleability that the George W. Bush administration has
found very helpful. Intercepting Americans’ communications?
Torture? Kidnapping? Extraordinary Rendition? You name it;
we cook justification to order. All this makes things a lot
easier for Cheney and Addington to work their will on the
bureaucracy.
Bill Casey’s heritage is a gift that keeps giving. Not only
did he corrupt analysis on the substantive side of the
Agency; not only did he de-professionalize the operational
side, promoting yes-people, such that we end up with a bunch
of amateurs caught kidnapping and “rendering” suspected
“terrorist” in western Europe. After Casey and Addington,
the corruption included the Office of General Counsel
itself.
Who is Stepping Up to the Plate
An African American judge, Anna Diggs Taylor of the U.S.
District Court in Detroit ruled on August 17, 2006 that the
surveillance program was unconstitutional (against the
Fourth Amendment prohibition on “unreasonable searches and
seizures”) as well as illegal (violating FISA). She
emphasized that “the Office of the Chief Executive has
itself been created, with its powers, by the Constitution.
There are no hereditary Kings in America and no powers not
created by the Constitution.”
The government appealed Judge Taylor’s decision, and the
Sixth Circuit Court granted a stay. Meanwhile, the
surveillance program goes on.
In keeping with Thomas Jefferson’s warning that the only
remedy for the kind of situation in which we find ourselves
is removal of the high officials responsible, some
courageous members of the House of Representatives have
signed on as co-sponsors of Dennis Kucinich’s (D-Ohio) bill
to impeach Vice President Dick Cheney. I find it highly
instructive that seven of the eleven co-sponsors are African
American, with women leading the way. Seems that those
co-sponsors have a much more highly developed sense of the
implications of the oppression that comes of ignoring,
breaking, or bending the law.
And they have an excellent model in the late Barbara Jordan
(D-Texas), an African American congresswoman and educator
who made such a valuable contribution while sitting on the
House Committee on the Judiciary during the hearings on
impeaching President Richard Nixon. I will not soon forget
her stirring words on July 25, 1974:
“Earlier today, we heard the beginning of the Preamble to
the Constitution of the United States, ‘We, the people.’ It
is a very eloquent beginning. But when the document was
completed on the seventeenth of September 1787 I was not
included in that ‘We, the people.’ I felt somehow for many
years that George Washington and Alexander Hamilton just
left me out by mistake. But through the process of
amendment, interpretation and court decision, I have finally
been included in ‘We, the people.’
“My faith in the Constitution is whole, it is complete, it
is total. I am not going to sit here and be an idle
spectator to the diminution, the subversion, the destruction
of the Constitution.... [As was said at] the North Carolina
ratification convention: ‘No one need be afraid that
officers who commit oppression will pass with immunity.’
Jordan then added James Madison’s pointed reminder at the
constitutional convention that those who “subvert the
Constitution” are “impeachable.”
In Barbara Jordan’s Image...or Tamed?
Congressman John Conyers (D-Michigan), like Barbara Jordan a
member of the Committee on the Judiciary in 1974, heard her
words then but seems to have forgotten them. There are those
who say John Conyers is no Barbara Jordan, no Anna Diggs
Taylor—and no Barbara Lee, Maxine Waters, Yvette Clarke, Al
Wynn, William Lacy Clay, Hank Johnson, or Keith Ellison,
who—together with Kucinich, Jan Schakowsky, Lynn Woolsey,
and Jim McDermott—are calling for the impeachment of Cheney.
If true, this is a sad thing, for Conyers is now chair of
the House Committee on the Judiciary, with jurisdiction over
the impeachment process. Thus, he has real power but,
inexplicably, he has chosen to acquiesce in the ban on even
bringing impeachment up. That ban was imposed by Speaker
Nancy Pelosi (D-California), a person born to such privilege
she would not recognize oppression if she tripped over it.
Quick, someone, anyone! Wake John Conyers up. Tell him he
has a rendezvous with destiny. Tell him that history is less
likely to judge him on his past service, than on how he
stands up to oppression and defends the Constitution in this
moment...or doesn’t.
Ray McGovern works with Tell the Word, the publishing arm of
the ecumenical Church of the Saviour in Washington, DC. He
is a 27-year veteran analyst of the CIA and co-founder of
Veteran Intelligence Professionals for Sanity (VIPS).
This article appeared originally at Consortiumnews.com.
Click
on "comments" below to
read or post comments
Comment
Guidelines
Be succinct, constructive and
relevant to the story.
We
encourage engaging, diverse and
meaningful commentary. Do not
include personal information such
as names, addresses, phone
numbers and emails. Comments
falling outside our guidelines
– those including personal
attacks and profanity – are
not permitted.
See our complete
Comment
Policy and
use
this link to notify us if you
have concerns about a comment.
We’ll promptly review and
remove any inappropriate
postings.
Send Page To a Friend
In accordance
with Title 17 U.S.C. Section 107, this material
is distributed without profit to those who have
expressed a prior interest in receiving the
included information for research and educational
purposes. Information Clearing House has no
affiliation whatsoever with the originator of
this article nor is Information ClearingHouse
endorsed or sponsored by the originator.)
|
