A Few Modest Thoughts on the Bergdahl Exchange

by Dr. Gerard Emershaw

The following is a list of thoughts on President Obama exchanging five Taliban prisoners held at Guantanamo Bay for captured Sergeant Bowe Bergdahl.

 

1. Innocent Until Proven Guilty

Regardless of accusations against Bergdahl, the American justice system—including the military justice system—is premised on the concept of innocent until proven guilty. Unless and until Sergeant Bowe Bergdahl is court martialed and convicted, he is simply an American army sergeant who was captured and held by the Taliban. Rushing to judgment on Bergdahl would be a foolish mistake. Just ask the French about Captain Alfred Dreyfus. The same neocon operatives who in an Orwellian fashion made distinguished Vietnam War veteran John Kerry seem like a cowardly traitor and the frat boy weekend warrior George W. Bush seem like a war hero appear to be at work in the Bergdahl story. Regardless of what turns out to be true about the nature of Bergdahl’s capture by the Taliban, the hatred aimed at him by neocons provides a stark counterexample to any rhetoric about supporting the troops. For neocons, troops are nothing more than cannon fodder to be used to fight pointless corporatist wars of choice. Bowe Bergdahl volunteered to serve his country. That is more than enough to earn him the benefit of the doubt until all the facts are in. Serving in the military is far more than chickenhawks like William Kristol, Robert Kagan, Max Boot, Paul Wolfowitz, or the rest of the Trotskyite gang that couldn’t think straight ever did.

2. Mental Health Issues

Assume that Sergeant Bowe Bergdahl did walk off his base and become AWOL. How can anyone be certain that mental health issues were not an important causal factor behind his actions? Prior to joining the army, Bowe Bergdahl was discharged from the Coast Guard for psychological reasons. If he was not psychologically fit to serve in the Coast Guard, might it also not be the case that he was unfit to serve in the army?

Bergdahl also told his parents that he witnessed an Afghan child run down and killed by a military vehicle. If this actually occurred, then it is possible that it led to him suffering PTSD. If it did not actually occur, but he believes that it did, it is a possible sign of mental illness.

When Bergdahl slipped away from his camp, he was armed only with a knife, water, a digital camera, and a diary. Walking out into a hostile terrain filled with potentially deadly enemy insurgents is not prima facie the kind of thing that a mentally stable individual does. The point is that one cannot be certain about his mental state at the time he walked away from his post.

What is certain is that Bergdahl requires mental health care after five years in captivity. Bergdahl has claimed that he was tortured and kept in a cage by his captors. The Taliban is notorious for using torture, so Bergdahl’s claims are hardly implausible. Draft dodging Senator Saxby Chambliss is skeptical about Bergdahl’s torture claims, but his treatment of Max Cleland in the 2002 election demonstrates what Senator Chambliss thinks of veterans.

If Bergdahl does turn out to have been suffering from PTSD or other form of mental illness, he may well become emblematic of the failed neoconservative/neo-progressive wars of choice in the Muslim world. He will be another disposable human being cast aside by the warmongers after he was no longer useful. While it happened on President Obama’s watch and he is responsible, the VA scandal is a symptom of the attitudes that both parties have had toward American military personnel for a long time. The anger toward Bowe Bergdahl just confirms this.

3. 5 for 1

President Obama traded five Taliban prisoners in exchange for the return of Bowe Bergdahl. Israel—a nation that faces actual terror threats and does not need to cook up phony terror plots to foil like the FBI does—traded 1,027 Palestinian and Arab-Israeli prisoners in 2006 in order to bring about the release of its soldier Gilad Shalit. Of these prisoners, 280 were serving life sentences. Combined, the released prisoners were responsible for the deaths of 569 Israelis. This deal was authorized by Israeli PM and Likud Neocon Benjamin Netanyahu. If an Israeli soldier is worth 1,000 Palestinians to the Israeli government, what does it say about the United States government that so many think that an American soldier was not worth 5 Taliban insurgents?

According to Brig. Gen. Mark Martins, the chief prosecutor in the military commission, the five Taliban prisoners exchanged for Bergdahl—Abdul Haq Wasiq, Mullah Norullah Noori, Mullah Mohammad Fazi, Mullah Khairullah Khairkhwa, and Mohammad Nabi Omari—were all unlikely to be successfully prosecuted. If they are not convicted criminals, then these men—as unsavory as they may be—are essentially POWs. The Taliban is not a terrorist organization but is an insurgency made up of members and supporters of the deposed fundamentalist Afghan government. As such, the United States should be planning on releasing such fighters now or in the not too distant future. When the Nuremberg Trials were completed, the United States did not hold German or Japanese POWs indefinitely. If the United States was not afraid of soldiers who fought for the Axis, then it should not be afraid of soldiers who fought for the Taliban. If such an insignificant group as the Taliban is viewed as a legitimate threat to the United States, then the nation is simply not as great or as brave as it once was.

4. Impeachment

In the area of foreign policy, there are several things which President Obama has done which could technically constitute impeachable offenses. Among these actions are his unconstitutional “kinetic military action” in Libya, his drone campaign in the Middle East, and his assassination campaign which led to the deaths of American citizen Anwar al-Awlaki and his son. However, President Obama moving the five Taliban members from Gitmo without Congressional authorization is not among those potential impeachable offenses.

Under the Constitution, the President is Commander-in-Chief of the armed forces. The Guantanamo Bay detention facility is a military prison. Whether President Obama signed the legislation requiring the President to notify Congress in advance regarding the movement of detainees from Guantanamo Bay is irrelevant. The President may not consent to unconstitutional actions.

The Constitution grants Congress the power to declare war. Congress has unconstitutionally ceded this power to the executive branch. However, enumerated powers are not something that can be traded. Congress cannot assume the power to have advanced knowledge or input into the movement of military prisoners just because it has given up powers elsewhere to the President. Article I, Section 8 grants Congress the power to “make Rules concerning Captures on Land and Water.” While charitably this may grant Congress the power to make laws concerning how prisoners which will be sent to Guantanamo Bay are captured, there is nothing in the Constitution which gives Congress any power over these detainees once they are captured.

The main reason that Republicans in Congress have been so quick to seize on this point is that it is a very unique situation that is not likely to be repeated. Therefore, there is no risk of discouraging the next Republican President from being an Imperial President. Neoconservatives and other militaristic Republicans want their party’s next Commander-in-Chief to be able to unilaterally wage war like Caesar. Therefore, they are far less likely to criticize President Obama from doing the same in Libya or for his drone campaign.

Memo Authorizing Targeted Drone Killing of Al-Awlaki Released

by Dr. Gerard Emershaw

The memo by the Justice Department’s Office of Legal Counsel which authorized the targeted drone killing of American citizen Anwar al-Awlaki without a trial was released earlier this week. The memo reasons that the targeted killing of American citizens such as al-Awlaki is not a violation of 18 U.S.C. § 1119 which makes it a federal offense for an American citizen to murder or attempt to murder another American citizen in a foreign nation. The memo appeals to the public authority justification as providing an exemption to the statute in such cases of targeted killings. Public authority justification comes into play where “the defendant knowingly committed a criminal act but did so in reasonable reliance upon a grant of authority from a government official to engage in illegal activity.” The memo concludes that the Department of Defense and CIA operations involved with the targeted killing of al-Awlaki were justified under a particular variant of public authority under “the lawful conduct of war.”

This defense of the al-Awlaki assassination is dependent upon the War on Terror being an actual war, and this is dependent upon the Authorization for Use of Military Force (AUMF) being a legal Congressional declaration of war. As argued at length in a previous post, the AUMF is not a declaration of war because war must be declared against a specific entity, there is no precedent for declaring war against groups or individuals rather than against nation states, and terrorists cannot be viewed as both criminals and enemy combatants.

Assuming for the moment that AUMF is a legitimate declaration of war, the next step of the memo’s justification for the targeted killing of al-Awlaki is based upon the Supreme Court ruling in Hamdi v. Rumsfeld (2004). In that landmark case, the Court ruled that American citizens designated as enemy combatants have a right to challenge their detainment under the Due Process Clause of the Fifth Amendment. The Court supported its plurality opinion that it was appropriate to limit the amount of due process that an American citizen enemy combatant received by appealing to a three part test formulated in Mathews v. Eldridge (1976):

1. The interests of the individual in retaining their [life, liberty, or] property, and the injury threatened by the official action
2. The risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards;
3. The costs and administrative burden of the additional process, and the interests of the government in efficient adjudication.

In Hamdi, the Court ruled that an American who was being detained as an enemy combatant after being captured on a battlefield overseas required notice of the charges, access to counsel, and an opportunity to be heard. Although the Court held that the due process requirements of placing the burden of proof on the government and of making hearsay inadmissible would place too much of a burden on the executive branch during hostilities, the due process requirements for such individuals were nevertheless still stringent.

The government claims that capturing al-Awlaki was infeasible. It concludes that it was reasonable to believe that a decision-maker could conclude the threat posed by al-Awlaki’s activities to United States persons was “continued” and “imminent” and that this outweighed the risk of possible erroneous deprivation.

However, the hole in the memo’s reasoning is that depriving an American citizen of his or her life is far more serious than depriving him or her of liberty as in the cases of the detention of American citizen enemy combatants as in Hamdi. This makes it reasonable to conclude that the amount of due process to be afforded to the target of assassination should be equivalent to that afforded to detained enemy combatants if not even greater.

The biggest issue is the Orwellian nature of the War on Terror created by the AUMF. The very vague nature of organizations like Al Qaeda makes it all too easy for the federal government to find even the most arbitrary of connections between an American citizen and Al Qaeda. Even where such connections do not exist—like the alleged connections between Al Qaeda and Saddam Hussein that the Bush administration “found”—this will not necessarily discourage the government. Using its tortured logic, more and more Americans will become potential targets of targeted killing. Public authority and “the lawful conduct” of war can also just as easily be used as justifications for committing domestic homicides. The government sees the entire world as a “battlefield” in the War on Terror, so no American citizen is necessarily safe from losing due process in the name of doing “whatever it takes” to defeat the terrorists. Who decides whether an American citizen constitutes a “continued” and “imminent” threat to the United States? The President? What in Article II of the Constitution grants the Caesar-like power to decide life or death with a thumbs up or down like an Emperor to the President?

The United States and Russia: What's to Talk About?

by Gerard Emershaw

President Obama has decided to pull out of a planned one-on-one summit with Russian President Vladimir Putin in Moscow next month. This marks a dangerous turn in relations between the White House and Kremlin. The Wall Street Journal and many other mainstream sources claim that Obama's snub of Putin is due to Russia granting temporary asylum to whistleblower Edward Snowden. Joel B. Pollak of Breitbart claims that the snub is due to Russia's insistence that it will enforce its homophobic anti-gay laws during the Winter Olympics in 2014 in Sochi.

Regardless of why President Obama canceled the summit with President Putin, it is a major mistake. President Obama—like most presidents since McKinley—loves wielding powers that are not granted to the president in the Constitution. Whether it's declaring war or assassinating American citizens with drones, modern presidents love to act like Caesar. One of the few powers granted to the commander-in-chief in the Constitution is the power to make treaties. Thus, the President has the power to meet with foreign leaders as the sole representative of the United States. While Congress has the responsibility to confirm any treaties that the President makes, foreign diplomacy mostly rests with the executive branch.

Some may argue that not meeting with Putin is no big deal. What are the chances that some big agreement will come from the summit? What is the real harm if Barry and Vlad do not have a face-to-face chat in September?

The truth is that it is a big deal. The Cold War has only been over for two decades. While this may seem like a long time, Putin's belicosity and Obama's aloofness could be just the combination that again freezes American-Russian relations and begins a new Cold War. Putin has acted as if that is what he wants for much of his time in the Kremlin. Obama seems to enjoy “kinetic military action,” so maybe he would also enjoy a Cold War.

There are five very good reasons why President Obama should meet with President Putin as often as possible.

1. Syria

In 1914, problems in the seemingly insignificant country of Serbia ignited World War I—which lasted four years, led to the mobilization of more than 70 million military personnel from more than twenty of the world's most powerful nations, and killed over 9 million combatants. Syria is just the kind of insignificant nation which could ignite a war between the United States and Syria.

Russia is one of the staunchest allies of Bashar al-Assad's Stalinist Ba'athist Party in Damascus. The United States is arming the Jihadist Syrian rebels which includes elements of al Qaeda in its ranks. Russia has long enjoyed strong relations with Syria. Russia's only Mediterranean military base is in Syria. Russia's exports to Syria are worth over $1 billion per year, and its investments in Syria are worth over $20 billion. The United States, in contrast, has no real significant interest in Syria. Syria's petroleum industry accounts for just a drop in the bucket of world production. A Jihadist-dominated government in Syria is likely to be a greater threat to the United States and allies like Israel than the Stalinist paper tiger al-Assad.

The United States is well advised to take a non-interventionist approach in Syria. Unfortunately, President Obama loves nothing more than to take a Wilsonian approach. But instead of “making the world safe for democracy,” President Obama tends to make the world safe for radical and violent Islamic fundamentalism as he has already done in Libya. Given that President Obama seems fully committed to aiding al Qaeda-friendly elements in Syria, it is even more essential that President Obama meet early and often with President Putin. The effects that can potentially be caused by the violent and foolhardy interactions of two such despotic and arrogant leaders in a civil war are as dangerous as can be. Syria is even more Podunk than Cuba was in the 1960s. Therefore, it is just the sort of place that could cause the next Cuban Missile Crisis type situation.

2. Nuclear Arms

Neoconservative and neo-progressive wonks have all been quaking in their boots for years over the possibility of Iran eventually developing or acquiring a single nuclear weapon. Well, Russia still has 8,420 nuclear weapons. Of these, an estimated 1,720 are operational, 2,700 are in storage, and 4,000 are “retired, awaiting dismantlement.”

Taking every possible step to ensure that Russia dismantles as many of these weapons as possible is in the best interests of the United States given that Russia's weapons actually do pose an existential threat to the United States and her allies. Allowing Snowden, anti-gay Russian laws, Obama's pride, or anything else to get in the way of diplomatic discussion between the United States and Russia on the issue of nuclear arms is nothing short of insanity.

3. The cost of a new Cold War

The United States is approximately $17 trillion in debt. Its military budget is already an unsustainable $865 billion. Even with no true superpower rival, the United States insists on spending more on its military than the next 13 nations combined. What if President Putin decided to reignite the Cold War? He has been trying to gin up a new Cold War for some time now. How could the United States afford a new Cold War? Sure, the Military-Industrial Complex and the neocon chickenhawks would adore a new Cold War, but how can the American people possibly afford one?

4. Trade

American trade with Russia in 2012 consisted of nearly $11 billion in exports and nearly $30 billion in imports. Endangering so much trade would certainly be detrimental to the United States economy as well as the world economy. Russia has a population of over 140 million people. While there is some disagreement over the numbers, most agree that the Russian middle class is growing. It would be far better for the United States to treat these middle class Russians as potential customers for American businesses than to treat them again as potential targets for American weapons of mass destruction. What the American and Russian economies can both use is even more free trade between the two nations. The last thing that they need is another Cold War. Despite what crazy Keynesians might believe, war—whether “hot” or “cold”—is not good for a nation's economy. What is good for the economy is the production of goods that consumers—whether in Saint Petersburg, Russia or St. Petersburg, Florida—wish to buy.

5. Oil

It is a crying shame that an advanced space age and computer age civilization like the human race powers itself with the remains of dead plants and animals—a.k.a. oil, petroleum, "black gold," Texas tea, etc. Nevertheless, since the world is so dependent on oil, it is a good idea that the United States remain friendly with as many petroleum producing nations as possible. It is unlikely that Americans will support many more "humanitarian" regime-changing, nation-building enterprises in oil producing nations. Plus, unless the neocons and neo-progressives fancy a war with Canada, Mexico, or Norway, there simply are not that many petroleum exporting nations that the United States has not already waged a war of aggression against. The United States needs cheap oil, and Russia has it. Russia is one of the world's largest oil producers. Having cordial relations with as many oil producing nations as possible is the best way to ensure that cheap oil is available as long as possible as the world nears "peak oil."

On Impeachment

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Article II, Section 4

“The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.”

Article I, Section 2

“The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”

Article I, Section 3

During the administration of President George W. Bush, seeing signs and bumper stickers reading “Impeach Bush” was common. Following the Benghazi incident in which four Americans were killed by terrorists at a Libyan consulate, the revelation that President Obama may have ignored requests to send backup during the attack has led to an outcry for impeachment by critics of Obama. But under what circumstances may a sitting president be impeached?

According to the Constitution, the President may be impeached if he or she is convicted of treason, bribery, or other high crimes and misdemeanors.

Impeachment, in the U.S. and Great Britain, proceeding by a legislature for the removal from office of a public official charged with misconduct in office. Impeachment comprises both the act of formulating the accusation and the resulting trial of the charges; it is frequently but erroneously taken to mean only the removal from office of an accused public official. An impeachment trial may result in either an acquittal or in a verdict of guilty. In the latter case the impeached official is removed from office; if the charges warrant such action, the official is also remanded to the proper authorities for trial before a court.

Impeachment is brought in the House of Representatives and may be initiated by any member. The House Committee on the Judiciary which determines by majority vote whether grounds for impeachment are present. If grounds for impeachment are found to be present, the House Committee on the Judiciary makes a recommendation and presents the articles to the entire House. The House of Representatives then votes on each article. A simple majority is necessary to bring an impeachment trial to the Senate. The impeachment trial of a president is conducted in the Senate and presided over by the Chief Justice of the Supreme Court. A two third majority vote of Senators is necessary to convict a president on any article of impeachment.

Two presidents have been impeached, but neither was convicted. In 1867 President Andrew Johnson was impeached for violating the Tenure of Office Act, which stated that the president may not remove an official whose appointment required confirmation by the Senate without the approval of the Senate. The Senate refused to concur with Johnson’s replacement of Secretary of War Edward Stanton with Ulysses Grant. President Andrew Johnson was impeached on 11 articles relating to his removal of Stanton. Johnson was acquitted when the Senate fell one vote short to convict him. Years later, in the case of Myers v. United States (1926), the Supreme Court further exonerated Johnson by holding that the president has exclusive authority to remove executive branch officials because the Constitution was silent on requiring the advice and consent of the Senate in doing so. In 1998, President Bill Clinton was impeached on one charge of perjury and one charge of obstruction of justice in connection with grand jury testimony Clinton gave in connection with his relationship with former intern Monica Lewinsky in a lawsuit brought by Paula Jones against Clinton. The Senate fell seventeen votes short of the total needed to convict Clinton on the charges.

In order to fully understand the criteria for impeaching a president, the meaning of “high Crimes and Misdemeanors” must be determined. The Constitution clearly lists treason and bribery as impeachable offenses, but for what other actions may a president face impeachment? According to Constitutional scholar Professor Stephen B. Presser of Northwestern University School of Law, “high Crimes and Misdemeanors” was a “term of art used in English impeachments.” From this, Professor Presser concludes, “the grounds for impeachment can be not only the defined crimes of treason and bribery, but also other criminal or even noncriminal behavior amounting to a serious dereliction of duty.” If this is true, then it is a feature of the separation of powers that it is up to the House of Representatives to determine whether there is a prima facie case for a serious enough crime or “dereliction of duty” on part of a president, and it is up to the Senate to determine whether the president is in fact guilty of those charges. 

Jon Roland of the Constitution Society further explains that "high" crimes are "those punishable offenses that only apply to high persons, that is, to public officials, those who, because of their official status, are under special obligations that ordinary persons are not under, and which could not be meaningfully applied or justly punished if committed by ordinary persons."

The sobering fact of the matter is that a strong case could be made that each American president over the last thirty years should have been impeached.

President Ronald Reagan

In 1982, Congress passed the Boland Amendment aimed at limiting the aid given by the federal government to the Contras, a fascistic rebel Nicaraguan rebel group that was attempting to overthrow the left-wing Sandinista government. In 1984, Congress strengthened the Boland act to make it nearly impossible to give any aid to the Contras. In 1985, the Reagan administration sold more than 1,500 missiles to Iran, which was at the time at war with then American ally Iraq. At the time there was an embargo against selling arms to Iran. In exchange for the missiles, Iran paid money and also agreed to facilitate the release of seven American hostages being held by Iranian terrorists in Lebanon. The proceeds of the arms sale were funneled to the Contras in violation of the Boland Amendment.

After the Iran-Contra Affair came to light, President Reagan appointed a three man commission – the Tower Commission – the Tower Commission – to investigate. The Tower Commission and a separate Congressional investigation concluded that President Reagan had no knowledge of the full extent of the Iran-Contra Affair. Eleven individuals – Assistant Secretary of State Elliot Abrams, government contractor Carl R. Channell, CIA agent Thomas G. Clines, Chief of the CIA’s Central American Task Force Alan D. Fliers, Jr., Deputy Director for CIA Operations Clair E. George, Iranian-American businessman Albert Hakim, National Security Advisor to President Reagan from 1983 to 1985 Robert C. McFarlane, fundraiser Richard R. Miller, National Security Council staffer Oliver L. North, Deputy National Security Advisor and National Security Advisor for the Reagan administration John M. Poindexter, and Air Force officer Richard V. Secord.

While it is possible that President Reagan did not know the full extent of the Iran-Contra Affair, it is clear that he knew that he was violating the embargo against Iran and the Arms Control Export Act when he allowed weapons to be sold to Iran without Congressional approval. Violating the Arms Control Export Act is a criminal offense. Therefore, it is indisputable that President Reagan committed a “high Crime” and should have been impeached.

President George H. W. Bush

There were legitimate questions concerning whether President George H. W. Bush was involved with the Iran-Contra Affair when he was President Reagan’s Vice President. In December of 1992, shortly before leaving office, President Bush pardoned Elliott Abrams, Duane Clarridge, Alan Fiers, Clair George, Robert McFarlane, and Caspar Weinberger for their parts in the Iran-Contra Affair. Given the possibility that Bush had been involved in the scandal, this is a clear conflict of interest. He may have pardoning these men in order to hide his own criminal activities while he was Vice President. While President Bush pardoned these individuals on his way out of office, an impeachable offense is an impeachable offense no matter when it occurs. 

President Bill Clinton

President Clinton, as previously discussed, was impeached but acquitted on charges of perjury and obstruction of justice in connection with the Paula Jones case. The Senate was right to acquit Clinton. While perjury and obstruction of justice are crimes, they do not rise to the level of treason or bribery. Given that the crimes were committed in connection with lies about his marital fidelity in a private lawsuit that had nothing to do with his duties as Commander-in-Chief, no true “dereliction of duty” was involved.

However, this does not mean that President Clinton did not commit an impeachable offense during his time in office. On February 28, 1993, agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF) attempted to execute a search warrant at the compound of the Branch Davidians in Waco, Texas. A fire fight broke out, leading to the deaths of four ATF agents and six members of the Branch Davidian cult. This led to a siege that lasted for fifty days. Ultimately, a fire started in the compound building, killing twenty-six men, women, and children.

The official government story was that members of the Branch Davidian cult started the fires that engulfed the compound building. However, footage reveals that fires began in the areas where FBI combat engineering vehicles (CEVs) broke holes into the building in order to shoot pyrotechnic M651 tear gas grenades inside. Despite the official story, there is a strong possibility that it was the FBI and not the Branch Davidians who caused the deadly fire. It has been revealed that on April 18, 1993, President Clinton explicitly endorsed the tear gas plan.

If it was the FBI and not the Branch Davidians who started the fire, and if President Clinton did give the order to shoot flammable tear gas grenades into the building, then such actions could very well constitute a “high Crime.” President Clinton should have been impeached for this action and not for lying about fellatio.

An even more clear cut case of an impeachable offense committed by President Clinton was his unconstitutional waging of war in the Balkans. President Clinton decided to bomb Yugoslavia without the approval of Congress. According to Article I, Section 8 of the Constitution, only Congress may declare war. This egregious violation of the Constitution was a clear impeachable offense. The failure of Congress to act set the stage for further impeachable offenses in the adminstrations of George W. Bush and Barack Obama.  

In an important sense, the hubris of Congress for impeaching Clinton over something as inane as lying about marital infidelity in a civil suit unrelated to his duties has made it unlikely that Congress will use its impeachment powers for legitimate reasons in the future.

President George W. Bush

While only two presidents have ever faced impeachment, there was perhaps no president who merited impeachment more than George W. Bush. Bush knowingly dragged the United States into war in Iraq on false pretenses. Bush made 259 false statements about Iraqi weapons of mass destruction and 28 false statements about links between Iraq and al Qaeda. Overall, the Bush administration knowingly made nearly 1,000 false statements about Iraq in order to justify military action and “regime change.” Blatantly lying the nation into a war that has cost over 4,000 American lives is clearly an impeachable offense.

Bush also brazenly violated the Fourth Amendment. The Fourth Amendment grants the right for people “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Under the Foreign Intelligence Surveillance Act (FISA), warrants for national security wiretaps must be authorized by the secret FISA court. Following 9/11, President Bush initiated a program in violation of FISA that monitored Americans’ international telephone calls and e-mails without FISA warrants. When the nation is in a state of war – especially a war that was initiated on false pretenses – this is no reason to unconstitutionally suspend civil liberties. Knowingly violating the FISA law is grounds for impeachment.

President Barack Obama

President Obama violated the constitution by instituting his “military kinetic action” in Libya. According to the Constitution, only Congress possesses the power to declare war. This did not prevent President Obama from waging war – or rather the Orwellian “kinetic military action” – in Libya in March of 2011. This “kinetic military action” involved launching Tomahawk cruise missiles against the Libyan people. Obama’s actions in Libya violated the War Powers Resolution. According to the War Powers Resolution: “The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” While Qaddafi was a state sponsor of terrorism and no friend to the United States, Libya did not declare war upon the United States. No attack upon the United States was undertaken by Libya. No such attack was imminent.

Under the War Powers Resolution, after sixty days, the President is required to terminate such military action “unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States.” Nevertheless, while Obama sought the approval of NATO, the United Nations, and the Arab League before attacking Libya, he never bothered seeking the approval of Congress at any point. After the sixtieth day of hostilities, Obama claimed that Congressional approval was no longer necessary because American military action had conveniently become “intermittent and principally an effort to support the ongoing NATO-led and UN-authorized civilian support mission and no fly zone.” 

In addition, President Obama brazenly violated Article 2, Section 2 of the Constitution by appointing various "czars" without the advice and consent of the Senate. These "czars" wield power akin to cabinet secretaries yet have been appointed by President Obama without confirmation by the Senate. This is a serious violation of the separation of powers and the checks and balances of the Constituion and, as such, constitutes an offense much graver than the alleged offenses for which Johnson and Clinton were impeached.

The Future

Congress has neglected its duty by not using the power of impeachment where it has been clearly warranted in recent decades. If Congress is only going to use the power for political purposes where it is clearly unwarranted while not using it when the president has willfully and seriously violated the Constitution, then Congress has forfeited a power necessary to preserve the separation of powers and the checks and balances inherent in the Constitution. Therefore, it can be expected that future presidents will ignore the Constitution and continue to push the boundaries of their executive power until they become Caesars.