If the Democrats Are Smart

With the new Democratically-controlled Congress taking power last week, now is the time to start thinking about congressional hearings that would lead to impeachment trials.

That the Bush Administration has committed impeachable "high crimes and misdemeanors" is beyond the doubt of any reasonable person who has taken the most casual look into the evidence. Bush and his minions have boldly falsified evidence to Congress (regarding the Iraq war) and routinely violated the Constitution’s Fourth Amendment (with its wire-tapping programs), Fifth and Sixth Amendments (denying trials to detainees, some of whom are American citizens), and the Eighth Amendment (with torture).

George Bush and other senior members of his administration should be impeached for their many crimes against the U.S. Constitution. But where should Congress begin?

I believe Congress should investigate all of these avenues, but that an impeachment inquiry should be narrowly focused upon the torture and trial aspects of Bush’s high crimes.

The beauty of prosecuting the president (and the vice president and other senior administration officials, for that matter) on the charges of torture and denial of due process is that it requires no secret intelligence. All of the necessary evidence to convict is already out in the public domain. Unlike the lies and skewed intelligence that led us up to the Iraq war or the blatantly unconstitutional wiretapping and mail-reading schemes, there’s no need to get inside of Bush’s head to determine guilt (as in the case of the war) or to obtain top-secret policy memoranda (as in the case of spying on citizens). And there’s a host of constitutional and statutory criminal definitions that can be cited against the Bush Administration with regard to torture and trials. Where do you find the crime of "lying us into war" on the statute books, or even in the constitution, for that matter? You can’t, which is why any impeachment based upon falsifying war evidence is not only doomed from a legal standpoint, it will eventually bring public ridicule upon those who attempt it. Likewise, an impeachment inquiry upon wiretapping programs could be effectively stonewalled with "executive privilege" and "national security" claims.

And executive privilege/national security claims could work against the Bush administration on the torture issue. A carefully-planned wave of congressional subpoenas of secret torture memoranda – where Bush denies the subpoenas upon "executive privilege" and "national security" grounds – will only make the administration appear all the more guilty in public opinion. In the wake of overwhelming public evidence, a Bush stonewalling strategy would only reinforce a growing emerging public perception of a cover-up.

More importantly, unlike the wiretapping scheme, there are plenty of tangible innocent victims who could be called before televised investigative hearings to convict Bush and senior members of his administration in the jury of public opinion. Publicizing the innocent victims of torture puts a human face on the crimes. That’s crucial. The only problems with an impeachment effort right now are that 1. The evidence is not widely known by the public, and 2. The importance – and human cost – of the crimes are not widely understood among many of those who know the Constitution has been violated.

The jury of public opinion is just as important as finding the crimes on the statute books, because no congressman would dare impeach a president without tacit public consent. That’s not a problem. Excellent investigative books publicly available, such as Ghost Plane by Stephen Grey and Torture Taxi by Trevor Paglen and A.C. Thompson, provide a laundry list of innocent witnesses to call. Congress should begin with Maher Arar, Khalid el Masri, the Tipton Three, the five Chinese ethnic Uighurs and their attorneys, and Donald Vance. The authors of the above-mentioned books would also make for great televised congressional testimony. Several of the witnesses may be prohibited by Bush flunkies from entering the country for "national security" reasons, but the Democratic-led Congress could get around this restriction (and make the Bush Administration cover-up look all the more insidious and desperate) by holding the committee hearings abroad where the witnesses live.

Though enough evidence to secure a conviction is already in the public domain, the congressional hearings themselves may also shake loose a few whistleblowers from the CIA. The authors of Ghost Plane and Torture Taxi demonstrate that not all CIA employees are cold-hearted torturers who are eagerly marching in lock-step with Bush policy. "There was a white female with glasses," Torture Taxi relates of Egyptian detainee Benyam Muhammad’s testimony. "She was about 5’6", short, blue eyes. When she saw the injuries I had she gasped. She said ‘Oh, my God, look at that!’ Then all her mates looked at what she was pointing at and I could see the shock and horror in her eyes." The restoration of freedom in America may be aided by CIA agents coming forward as patriotic soldiers like Sgt. Samuel Provance did in the midst of the Abu Ghraib scandal. Ghost Plane reveals that Maher Arar encountered a CIA employee of Syrian descent that was near tears because he knew what was awaiting Arar.

CIA whistleblowers would be icing on the cake for any impeachment hearings, but all that is really needed to convict Bush beyond a reasonable doubt are his executive orders (already in the public domain) declaring native-born American citizen Jose Padilla an "enemy combatant" and denying him the criminal trial required under the U.S. Constitution.

Here’s a sample three-count impeachment indictment that Congress could – and should – pass in its next session:

RESOLVED, That George W. Bush, President of the United States, is impeached for high crimes and misdemeanors. In his conduct while President of the United States, in violation of his constitutional oath to faithfully execute the office of the President, George W. Bush has undermined the integrity of his office, betrayed his trust as President and acted in a manner subversive of the rule of law, treaties ratified under the Constitution and the Constitution itself by:

Article One (conspiracy to commit torture):

Knowingly approving procedures to torture numerous prisoners under his charge, by "inflicting severe physical pain" in the form of stress positions and "severe mental suffering," including the "threat of imminent death" against detainees under his charge through the so-called "waterboarding" procedure. This crime is codified as a felony under 18 USC 2040A(c) as "conspiracy" to commit torture, and punishable by a prison term of up to 20 years per offense, and a blatant violation of the Eighth Amendment to the U.S. Constitution, which prohibits "cruel and unusual punishments."

Article Two (extradition for torture):

Knowingly conspiring to transfer numerous detainees to countries which have a history of torturing prisoners, including Syria, Morocco, Uzbekistan and Egypt, with the expectation that these prisoners would suffer torture. Detainees have testified that they have suffered torture such as beatings with electrical cords, boiling alive, genital mutilation, electric shock torture and other forms of torture. This serious crime is contrary to Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UN Torture Convention), which states that, "No State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." Because the UN Torture Convention was signed by the President of the United States and ratified by the United States Senate in 1986, and Article 6 of the U.S. Constitution reads: "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land," the President has willingly and obstinately subverted the supreme law of the land.

Article Three (denial of due process):

Knowingly conspiring to deny due process under both military law and criminal law, as specified by the U.S. Constitution, to many U.S. citizens and non-citizens. In many cases, President George W. Bush has orchestrated a conspiracy to deny a right to counsel, a right to jury trial, and the right to habeas corpus – even to American citizens such as Donald Vance, Jose Padilla and Yaser Hamdi. These actions are contrary to the explicit requirements of the Fifth Amendment to the U.S. Constitution, which guarantees that "No person shall… be deprived of life, liberty or property without due process of law," and contrary to the Sixth Amendment to the U.S. Constitution, which categorically guarantees "the right to a speedy and impartial trial, by an impartial jury … and to have the assistance for counsel for his defense."

These crimes are felonies in criminal statutes at 18 USC 241 (conspiracy against rights) that are punishable by up to ten years in prison for offenses against American citizens, and a crime under 18 USC 242 (Deprivation of Rights under Color of Law) for legal resident aliens such as Ali al-Marri and others, violations of which are punishable by a prison term of up to one year.

Can the Democrats impeach Bush?

Yes, but they could much more easily bungle an impeachment effort, making themselves look ridiculous by piling on such "crimes" as "lying us into war." But by sticking to torture and its relationship to lack of due process, and focusing upon the many innocent victims of unconstitutional Bush Administration torture, they have a real chance to end the Bush presidency before January 2009.

As a conservative who believes in small government, I hope that’s what happens.

January 9, 2007

Thomas R. Eddlem [send him mail] is a radio talk show host, member of the Boston-based Antiwar League and an occasional contributor to LewRockwell.com, AntiWar.com, and The New American magazine.

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