Saturday, July 07, 2007

But Is It Impeachable?

The Washington Post has described some decidedly outrageous conduct by Vice President Dick Cheney, but is any of it impeachable? I think it safe to say that Cheney's domestic initiatives, though sometimes distasteful, did not do anything illegal. His role in authorizing closed military commissions, not-quite-torture and the like were struck down after the fact by the Supreme Court, but Cheney can always offer as a defense that he believed in good faith his actions were lawful, and an "activist judiciary" is simply "criminalizing policy differences." I do not see how Cheney could have believed in good faith that not-quite-torture was lawful, or that disputes over its legality are legitimate "policy differences." But in cases like that it can be very hard to prove an intent to break the law.

Warrantless surveillance is a different matter. Anonymous Liberal has an excellent post on the subject, which points out something the authors of the WP series missed:
[B]etween September 25, 2001 (the date the [warrantless surveillance] program was first authorized) and October 25, 2001 (the date the first members of Congress were informed), something very important was happening up on Capitol Hill; the Patriot Act was being debated, amended, and eventually enacted by Congress. In fact, the Patriot Act was finally approved by the Senate on October 25 and sent to the President for his signature (it had passed the House the day before).This is important, of course, because the Patriot Act largely consisted of amendments to the Foreign Intelligence Surveillance Act (FISA), the very law that John Yoo had concluded--in a memo dated a full month prior to passage of the Patriot Act--could be disregarded at will by the president. . . .Moreover, though administration officials asked Congress for a number of significant amendments to FISA, they did not ask for any amendments that would have permitted the sort of surveillance that they had clearly already resolved to conduct (if not implemented). As Alberto Gonzales conceded in a rare moment of candor on December 19, 2005, the Bush Administration did not try to amend FISA to permit the NSA program because it knew that “it was not something we could likely get.”There is simply no way that Congress would have authorized warrantless surveillance, and there is no way it would have passed the amendments to FISA that it did pass had it known the Bush administration did not consider itself bound by that law.*

This is a mind-boggling display of pre-meditated law breaking. The Administration first sought passage of the AUFM, not telling Congress that they would interpret the law to allow warrantless surveillance. They then asked for modifications to FISA, with no intent whatever of being bound by them. They decided not to ask for what they really wanted because Congress would refuse, and their actions would be harder to defend if they were doing something Congress had expressly declined to authorize than something Congress never considered. Advocating for a law with no intention of following it and breaking it from the very start sounds as impeachable as can be.

But two problems still remain. One is the practical matter of getting it done. To actually remove Cheney from office, half of all Senate Republicans have to support the measure. Given that Senate Republicans are obstructing even non-controversial bills (to make Democrats look bad), it seems unlikely they would vote for removal. The only way to change that is by an overwhelming public outcry for impeachment. Ultimately, an impeachable offense is whatever public opinion will support. Richard Nixon was forced to resign because public opinion demanded his impeachment. Bill Clinton was acquitted because public opinion supported him. And Democrats did not even attempt to impeach Ronald Reagan over Iran-Contra because he was just too popular. No doubt it made a difference that Nixon had just reached an unsatisfactory end of an unpopular war and was presiding of the beginnings of stagflation, whereas Reagan and Clinton were presiding over general peace and prosperity. That is one strike against Cheney, but not enough.

It also made a difference that Watergate was about illegal measures against political opponents. Although Nixon tried to plead national security, he was utterly unconvincing. Iran-Contra could legitimately invoke national security, and the defendants could plausibly (though not legitimately) claim to be persecuted for trying to protect us. And the Clinton impeachment was ultimately about a sex affair. In the case of warrantless surveillance, Cheney can invoke national security and claim that he is being persecuted for trying to protect us, and millions of Americans will undoubtedly believe him. Suggestion to Congressional Democrats: Investigate the surveillance program thoroughly. No one knows if abuses are taking place. If not, any attempt to impeach Cheney will simply be a replay of Iran-Contra. But if there have been abuses, that might generate the outcry to force even Republicans to turn against this Administration.

The second problem is, if anything, even more troubling. The reason Cheney has been so influential within the Bush Administration is that, whenever there is a dispute, the President almost always supports him. And the obvious reason is that the President agrees with him. Is it so surprising that the President would prefer advisors who tell him he has unlimited power over advisors who tell him he has to obey tiresome laws? So removing Cheney might not, after all, change all that much.

Nonetheless, I still believe that impeaching both would be absurd and hopeless overreaching. Given the choice between removing Cheney and elevating him to the Presidency, I say, IMPEACH CHENEY.

*It should be noted that the revelation that John Yoo intended to interpret the AUFM to authorize warrantless surveillance from the very start goes against AL's earlier speculation that the Administration originally relied on its Article II powers alone and only later adopted the AUFM theory.

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