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2008|08|12 - CLARINET.WOODWINDS.COM: Impeachment II

In July, Clarinet Esq. posted a good portion of the summary of Dennis Kucinich's 35 Articles of Impeachment. Clarinet Esq. works for a living. A cogent summing up took more time than Clarinet Esq was expecting. But, after a long break, here's the rest of the summary of H.R. 1258:

17. Detaining U.S. citizens and foreign captives indefinitely and without charge.

The 5th Amendment to the U.S. Constitution; the Geneva Conventions regarding the treatment of prisoners of war. The text of the 5th Amendment that would apply here is: "No person . . . [shall be] deprived of life, liberty, or property, without due process of law . . .."

From the beginning of the "war on terror" Pres. Bush has acted as if the Constitution and the Geneva Conventions do not apply to the detention of terrorism suspects. Various government agencies, including the military and the CIA, have detained terrorism suspects without charges for long periods. This has included some instances of detention in foreign prisons, secret prisons, Guantanamo Bay, and Afganistan.

Violations of a person's civil rights are serious business. For example: in the Rodney King incident, the police officers were acquitted in State Court - but in Federal Court the same police officers were convicted of violating Rodney King's civil rights. Violations of civil rights are crimes. The allegations here are even just as frightening: people are being held on the whim of military or intelligence bureaucracy. Some of those people were abused. There may be good reasons to keep those people in a "secure location" (i.e. prison/prison camp/dungeon/oubliette). However, the U.S. government withheld information from Congress and lawyers concerning who the captives were, why these people were captives, and where those captives were held. When people are captives for months and only federal "intelligence agencies" know where or why, those actions could easily contravene the 5th Amendment and the Geneva Conventions.

18. Authorizing and encouraging torture.

"[T]he Constitution, US Law, the Geneva Conventions . . ., and . . . basic human rights . . .." In this instance, torture is forbidden by: the 5th Amendment to the Constitution (there is no due process of law for a tortured prisoner); the Geneva Conventions, the International Covenant on Civil and Political Rights, and the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (or CATOCIDTP).

Pres. Bush has said: "America does not torture." Except, he recently admitted that detainees were tortured. Pres. Bush's "America" must not include "Americans" because the U.S. Government has water-boarded, knocked senseless, faked executions, sleep deprived, and confined in extreme temperatures. Lawyers in the Bush Administration wrote a memo that called torture an "enhanced interrogation technique." One could hardly say that America did not torture. But, maybe we already quit by the time Pres. Bush denied it.

Its torture. Duh. Authorize it, order it, do it and you got no ethics. But if you want the real reason torture is bad news: it doesn't work. Torture encourages people to lie - they will say they what they think the torturer wants to hear. The truth is optional. It is a rare person that will deny anything under torture. An exception, such as Gilles Corey, who was crushed to death under stones at the Salem witch trials rather than enter a plea, is unusual.

In the 1930s, the federally funded Wilkersham Commission Report said: "Not only does the use of the third degree [the equivalent of enhanced interrogation techniques] involve a flagrant violation of law by the officers of the law, but it involves also the dangers of false confessions . . ." The fundamental nature of these techniques and human behavior has not changed so that what was bad 60 years ago is suddenly beneficial today.

If you happen to think that “enhanced interrogation techniques” aren't torture: go stand in the corner without food, water, or facilities for 8 hours.

19. Illegal rendition

The unlawful taking and carrying away of a person, without the person's consent, to a place of unlawful confinement.

Translation: kidnapping people.

The administration has admitted that it has engaged in “extraordinary rendition” of individuals. Taking people against their will to secret locations for interrogation and imprisonment. Just as remarkably, some of the people who were kidnapped have been released to tell the tale. U.S. Government-sponsored taking and carrying away of person is legal - when there is an arrest warrant or probable cause for an arrest warrant. Its not an unlawful for the government to capture people to bring them to justice. The rest of the time, kidnapping is just another violation of the 5th Amendment. There is no due process of law in a kidnapping.

So the only defense is that there was a lawful grounds to take these people and imprison them. There are times where rendition could have been legal - unfortunately there aren't ethical excuses in the instances where people were taken, tortured, kept in secret prisons, and then released without explanation.

20. Imprisoning Children
The Fourth Geneva Convention. It says - pretty much nothing at all about children who have been captured on the battlefield. Here's a sample of what it does say: "The Parties to the conflict shall take the necessary measures to ensure that children under fifteen, who are orphaned or are separated from their families as a result of the war, are not left to their own resources, and that their maintenance, the exercise of their religion and their education are facilitated in all circumstances. Their education shall, as far as possible, be entrusted to persons of a similar cultural tradition." and "Children under fifteen years, pregnant women and mothers of children under seven years shall benefit by any preferential treatment to the same extent as the nationals of the State concerned." and "Should the local institutions be inadequate for the purpose, the Occupying Power shall make arrangements for the maintenance and education, if possible by persons of their own nationality, language and religion, of children who are orphaned or separated from their parents as a result of the war and who cannot be adequately cared for by a near relative or friend." "In May 2008, the US government reported to the United Nations that it has been holding upwards of 2,500 children under the age of 18 as 'enemy combatants' at detention centers in Iraq, Afghanistan and at Guantanamo Bay (where there was a special center, Camp Iguana, established just for holding children). The length of these detentions has frequently exceeded a year, and in some cases has stretched to five years. Some of these detainees have reached adulthood in detention and are now not being reported as child detainees because they are no longer children." Under the Geneva Conventions, there is the expectation that children may be placed in internment. Moreover, to claim that imprisoning children is a violation of law is a bit much - juvenile detention is commonplace among our own state governments. By itself this isn't a per-se violation of law. (Now if the military tortured the children maybe we are getting somewhere.

21. Misleading the public over the level of threat posed by Iran, and supporting terrorist groups that are attacking Iran.
That mysterious (and nonexistent) law against lying to get your way. Kucinich doesn't note it, but giving material support to a terrorist group might be the crime here - Hamdi was recently convicted of material support for Al Queda as part of his war crimes trial. The national intelligence estimate from December 2007 said that Iran was no longer continuing to develop nuclear weapons. Interestingly, Pres. Bush had been told this by his intelligence people for some months, but he had ignored them and continued to assert in public that Iran posed a nuclear threat. There are also reports that the U.S. military has supported a terrorist group called Mujahedeen-e Khalq in its incursions into Iranian territory. First, lying isn't a crime. So, Pres. Bush can lie all he wants - we just won't believe him. That is his punishment for lying.

Second, the connection between Mujahedeen-e Khalq (and other terrorist groups) and the DOD is not well proven. If it were, perhaps Kucinich is onto something. This has some of the elements of the Iran-Contra affair; the use of government funds in a manner not designated by Congress. Also, isn't material support for a terrorist group a crime? After all, Hamdi was charged with supporting a terrorist organization.

22. Creating Secret Laws
The law that Pres. Bush allegedly broke: The law against creating secret law, right? You know, that secret law against creating secret laws? You don't? That one is a secret. We could try a failure to honor a valid FOIA request - its kinda the same. Pres. Bush has been getting advice from the Office of Legal Counsel (a division of the Justice Department) on how far the constitution's powers reach. Like, how much torture is ok, and how far can the President go in collecting intelligence. Congress, and concerned citizens, have been trying to get their hands on several documents that came out of the Office of Legal Counsel - particularly one document drafted by an attorney named Yoo. Yoo's memorandum on interrogation techniques was only recently obtained, after much effort. And it didn't have anything in it except legal advice on torture. Poor legal advice; in fact, the Attorney General withdrew the memorandum. The Yoo memorandum is not alone - there are others that haven't been released. Let's put aside why what the Administration did is wrong from a moral sense. There isn't a law against getting advice on torture. There isn't a law against keeping that advice confidential. Kucinich notes (quoting Russ Fiengold): “'It is a basic tenet of democracy that the people have a right to know the law.'” And they do - but does that mean the Yoo memoranda was secret law? Moreover, basic tenets of democracy are great on paper, but a basic tenet isn't a felony.

There are two laws that could be relevant: The first is the Freedom of Information Act, which is designed to give people access to specific non-confidential information. Kucinich argues that the Yoo memorandum, and other memoranda like it, were not properly withheld from the public. This may be, but the FOIA has its own mechanisms to ensure compliance. It's hard to argue that impeachment is necessary if the administration chooses to defend its decision by using the processes that FOIA has in place.

The second law is the Administrative Procedure Act. This law also has a method of sanctioning government agency officials for failing to make their regulations public. The law prevents administrative officials from enforcing a "secret regulation" without notice to the public of the regulation. Mind you, then the regulation isn't secret anymore.

But, deciding what an administrative agency thinks the law means does not make the memo the law - not at least until the administrative agency enforces that law against someone. If the agency is wrong, then the punishment flows from being wrong about what the law is- not from obtaining a poor legal opinion. If the CIA concludes that certain kinds of “enhanced interrogation” are legal, but those methods are actually illegal, then the people doing the “enhanced interrogation” and the people that authorized the interrogation risk criminal and civil sanctions.

Just as importantly, there is not a law against secret laws - so Kucinich hasn't alleged a crime.

23. Violating the Posse Comitatus
The Posse Comitatus Act, which prevents the President from using the Army or Air Force as a police force. Pres. Bush has unabashedly used the military for border protection and anti-terrorism operations. Let's ask a some simple questions:

Can the military be used to defend the nation's borders? Sure it can.

Is it logical that defense of the border extends to hostile terrorists that might have already entered the country? Seems logical.

So - what about the use of the military to track terrorist operations and prevent illegal entry on the border is exclusively a police function? It isn't.

Just because police entities enforce immigration laws, doesn't mean that the National Guard may not be called on to limit border incursions.

By the way - Kucinich alleges that the administration "employs active duty military personnel in surveillance agencies, including the Central Intelligence Agency (CIA)." The CIA isn't a police agency and isn't tasked with enforcing any laws. So, working for the CIA doesn't violate the Posse Comitatus, because the military personnel aren't executing any laws when they work for the CIA.

24. Spying on American Citizens without a warrant
The Foreign Intelligence Service Act and the Fourth Amendment to the Constitution. The facts that support it: President Bush has admitted that he authorized the NSA to conduct electronic surveillance (to search for terrorists) without a warrant. Why this violates the law: Electronic surveillance is illegal without a warrant. Government that listens to your every word in an e-mail, in an internet query, or in a telephone conversation, compromises your right to be secure in your personal life. The government is not free to violate the security of the person, the house, their papers, and their effects without a warrant that issues upon probable cause, sworn to under oath and that particularly describes what is going to be searched and what will be seized. Ignoring this rights is a serious breach of American freedom, and it violates the Constitution. There is, however, a remedy for this - the evidence collected can not be used to convict the target of the wiretapping in federal court.

25. Telling telecommunications companies to keep a database of telephone numbers and e-mail addresses.
The Stored Communications Act of 1986 and the Telecommunications Act of 1996. The Stored Communications Act says: "a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service . . . to any governmental entity." The Telecommunications Act doesn't say much on this particular sort of crime, but it does protect the privacy of the subscribers of telecommunications services. The CEO of Quest Communications has revealed that the administration asked for, and he refused to give, information on his company's customers e-mail, phone calls, and other internet activity. Laws command people, or groups of people, to do something or refrain from doing something. In this instance, these telecommunications statutes are directed at the providers of the telecommunications service. The person that violates the law is the service provider. In other words: Pres. Bush can ask, but the telecommunications companies have the duty to refuse.

Although, press reports indicate that most of the telecommunications companies did not refuse. And thanks to an immunity provision passed by Congress and signed by the President, we may never know for sure how many telecommunications companies broke it. Although, it can't be too many, because there aren't too many telecommunications companies.

26. Announcing the intent to violated the law through the use of Presidential signing statements.
Well, there isn't one law. Its more of a practice of saying he would violate the law. "In June 2007, the Government Accountability Office reported that in a sample of Bush signing statements the office had studied, for 30 percent of them the Bush administration had already proceeded to violate the laws the statements claimed the right to violate." A signing statement is the President's statement of intent that explains how the President will enforce a law when he signs it. There's nothing illegal about that. Unfortunately, Pres. Bush likes to issue signing statements that say something on the order of "This law doesn't apply to me - I don't have to follow it or enforce it." And, he doesn't. So, Pres. Bush has said that he was going to openly violate a law that he signed.

Saying that you plan on violating the law isn't against the law. It is not the signing statements that are trouble; it's the decision to ignore laws. Pres. Bush may be breaking those laws, but then, you would have to tell Clarinet Esq. which laws he broke before Clarinet.Woodwinds.Com could tell you whether he broke them.

27. Failing to comply with Congressional subpoenas and telling his former employees not to comply with the subpoenas as well.
This would be a lot easier if Mr. Kucinich would care to cite a law. A subpeona isn't much by itself. It commands the appearance and testimony of witnesses, and the production of documents. Current and former members of the Bush administration have either failed to show up when a subpoena was issued, or failed to testify after they did appear. In general, for a subpoena to have any power, a court must declare the recipient in contempt of the subpoena and issue sanctions. Usually those sanctions are fines, but sanctions can include imprisonment. There is a problem, however. For Congress to enforce a subpoena, Congress must get the Justice Department to enforce it. Which, the Justice Department being under the control of President Bush, it refuses to enforce those subpoenas - as we shall see in the next allegation

28. Election tampering

Mr. Kucinich has just stopped citing specific statutes all together. Clarinet Esq. would expect that election tampering is a violation of federal elections law. The alleged tampering has two sides: First, Pres. Bush directed Federal prosecutions be brought against Democrats. Second Pres. Bush directed that prosecutions be slowed or suspended against Republicans. He purportedly accomplished this goal by threatening to fire otherwise excellent U.S. Attorneys who refused to change their litigation plans for political purposes. Notably, Pres. Bush has refused to allow two of his former subordinates to testify on this topic, and the Justice Department has refused to enforce the contempt of Congress orders that have been issued against them. The allegation is not really vote tampering in a classic sense. Vote tampering would be manipulating election returns, discounting votes or counting extra votes. It isn't even election fraud - sending people who are not voters out to vote. The facts mismatch the crime Kucinich purports to allege.

The factual allegation is abuse of power. Pres. Bush used his power over the executive branch (and the Justice department) for partisan political ends. If true, Pres. Bush has seriously abused his authority. Ethically, it would be a breach of the promise to faithfully execute the laws of this country. Selective prosecution can also be unconstitutional, depending on the kind of selective prosecution. There are also the restrictions of the Hatch Act, which prevents the partisan political activities of government employees while they are on the job (and sometimes when they are off the job.)

But a President is impeached for “high crimes and misdemeanors.” It's hardly proof of a crime to allege an abuse of power and not bother to point to anything other than the oath of office as the legal principal at play.

29. Conspiracy to violate the Voting Rights Act of 1965.
Voting Rights Act of 1968. Its perhaps the most important law protecting the right of people to vote outside of the 14th Amendment to the Constitution. In 2004, Ohio had a sudden purge of people from the ballots in the predominantly African American neighborhoods in and around Cleveland. There were also shortages of voting machines and provisional ballots which made it difficult for people from those precincts to vote. Justice Department attorneys were blocked from bringing lawsuits against those counties for violating the Voting Rights Act. And there are more irregularities alleged that happened in Ohio (from A to EE)...but we will leave it there. Kucinich connects each instance of voter disenfranchisement to Pres. Bush's subordinates and associates, and claims that Pres. Bush either ordered or authorized their actions. Provided that we take the allegations as truth - Pres. Bush would have violated the Voting Rights Act on many counts. He would have engaged in a systematic effort to disenfranchise a protected group (African Americans) in violation of the Constitution and the Voting Rights Act. The big problem of this allegation is that proof which would actually connect Pres. Bush to the actions of the Ohio officials is in short supply.

30.Misleading Congress and the American people in an attempt to destroy Medicare.
That law against lying. A Medicare actuary (a bean counter in Health and Human Services) knew that the prescription drug benefit would cost in excess of $400 billion dollars. Yet, Pres. Bush was telling Congress that the cost was no more than $400 billion dollars. What's $100 billion dollars between friends? Moreover, that was the bean counter's opinion, hardly a great case for lying to Congress. If this is a crime, then one might as well convict Bush of lying to get his way in Iraq. Wait, that's right, Kucinich has already accused Bush of lying on that.

31. Failure to prepare for, and mitigate, the damages caused by Hurricane Katrina.
The law against incompetent disaster planning. Of course, there is not a law like that, so we'll just settle for the law against being stupid. For which, Mr. Kucinich is rapidly becoming a candidate for impeachment. In 2001, FEMA recognized that New Orleans was in serious trouble - if a Catagory 4 Hurricane hit New Orleans, the devastation would be the equivalent of a San Francisco earthquake. In 2004, FEMA conducted a simulation and found that many people in New Orleans would need government assistance in evacuating from the disaster. However, in 2004 and 2005, FEMA's budget was cut and the Army Corps. of Engineers' budget was cut.

In the hours before the storm, Pres. Bush was advised that the levees would break, there would be no power for weeks, and that fresh water supplies would have to be supplied. But when he spoke about the disaster in public - he said that no one would have predicted that the levees would break.

Pres. Bush and his FEMA director were pretty foolish regarding the way they handled Katrina. There is really no argument - FEMA exists to provide support above and beyond the emergency management that any individual state puts in place. For one thing, the economics of scale make it beneficial to share in the emergency support network so that when a disaster hits, no one state's finances are crippled to deal with monumental disasters. When the flooding hits the Midwest, or fires strike California, or planes level the World Trade Center, the federal government has taken responsibility for easing the pain of the local authorities. It's cheaper. It's more efficient. It allows for emergency response that far exceeds what local and state governments can afford. Sadly, when the managers at the top don't think that the federal government can do any good, then those managers tend to act like the federal government shouldn't ever get involved.

But no matter how you slice it, its not a crime to be a bad manager. It is not a crime to reduce budgets, or lie to the press, or fail to dispatch an army of federal employees to provide drinking water and repair infrastructure. Should a President be better at these things? Of course. But, it is not a crime to act irresponsibly.

32. Misleading Congress and the American public to prevent the effort to address global climate change.
The law against lying. That's right. Same silly non-citation to nothing particular except Pres. Bush's duty to uphold the Constitution that Kucinch has cited in every allegation already. Doesn't really change the analysis, but: The Bush Administration has engaged in a systematic effort to prevent government scientists from saying things that harmed the "official" position of the Administration. Namely, that global warming is a scientific theory that is open to serious scientific objection and that few "real" scientists have evidence that it is happening or that climate change is man-made. Ok. One more time. Lying isn't a crime - or in this instance, hiding the truth is not a crime either.

33.Ignoring the intelligence reports that anticipated the 9-11 attacks.
The law against being an idiot. You know, the one that Kucinch is going to be impeached with at this rate. Sorry, Clarinet Esq. is just sick of typing - "lying": Kucinch has not identified any specific statute. Pres. Bush was told, many times, that terrorists would attack. He didn't even so much as call a meeting between the different members of domestic law enforcement and intelligence agencies. Richard Clark - the terrorism expert for Pres. Bush - couldn't get so much as a meeting with the Pres. The best Richard Clark could do was get into a meeting with Deputy Secretary of Defense Paul Wolfowitz, who didn't much care about Al-Queda at all. Again, Pres. Bush acted foolishly. He did not decisively deal with a ridiculously dangerous situation. However, that this isn't a crime. Thankfully, Kucinich stops short of accusing Bush of ordering the attacks. (Unlike some - Clarinet Esq. is pointing at you Stanley Hilton).

34.Impeding the investigation into the events of 9-11.
Kucinich doesn't cite one. Pres. Bush, and his people, didn't want to cooperate with an investigation into 9-11. They didn't want to admit that they knew (and he knew) that an attack was likely. They didn't want to be politically responsible. And, they didn't want to talk about it later. Fine. Give us a law that this broke, and we'll impeach Pres. Bush. Gross incompetence and being a lying snake doesn't make it to "high crimes and misdemeanors."

35.The EPA screwed up the air-qualtiy assessment in the aftermath of 9-11.
Kucinich hasn't cited one. Again. The Inspector General said that the EPA screwed up the air-qualtiy assessments after 9-11. How could it be? There isn't a failure to follow the law.

Final thoughts on impeachement

Kucinich writes this passage as the law on which our President should be impeached in every allegation:

In all of these actions and decisions, President George W. Bush has acted in a manner contrary to his trust as President, and subversive of constitutional government, to the prejudice of the cause of law and justice and to the manifest injury of the people of the United States. Wherefore, President George W. Bush, by such conduct, is guilty of an impeachable offense warranting removal from office.

Presidents aren't impeached for harmful decisions. If this were so all presidents would have been impeached in the House and convicted in the Senate. We elected President Bush. Twice. Next time, vote for the guy (or gal) that won't act in a manner contrary to the trust that we place in the President of the United States. Or, at least have the decency to vote against that guy after he's shown that he can't be trusted.

By the way - Clarinet Esq. is not suggesting that lying is not so bad. In fact, Pres. Bush's lies have done massive harm to the country. Pres. Bush has acted in a shockingly unethical manner - not only has he failed to protect people, he's lied to cover-up the many failures of his adminstration and he's failed to ask hard questions on the issues. Ideology and political advantage trumped good management and intelligence gathering. It was stupid, and he appears to have been blind and deaf to it.

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