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Commentary

Commentary

6.1

The key point is this: if Congress is to have effective oversight power to safeguard against the dangers of abusive office holders, then for impeachment with the purpose of removal from office only, it seems Congress must have very broad power to provide for its ability to obtain both evidence and testimony, from anyone, about anything, on penalty of perjury.

The doctrine of “executive privilege” has often been advanced to limit the ability of Congress to obtain testimony and information from the executive. The basis for executive privilege goes back at least as far as Marbury vs. Madison (1803). In light of both our present circumstances and of this constitutional theory, it seems the whole concept of “executive privilege”, a term that does not appear anywhere in the constitution, also requires fundamental reexamination.

The Constitutional Power and Duty of Congress today

We have considered, as did the constitutional convention and the people who ratified the constitution, the dangers inherent whenever fallible and corruptible people wield powers of government. It now seems clear that the constitution provides Congress with two general kinds of remedies for cases where this danger breaks forth in events. The first remedy is to cleanse: impeachment powers that are general and unlimited in scope, but limited in consequence to removal from office. The second category of remedies consists of both the special case of Article II, Section 4, where the independent actions of the House and the Judiciary can cause removal from office of civil officers, together with limited elements of judicial powers of Congress, including the power to directly impose a death sentence in cases of treason. Of these two categories of remedies, the second category is virtually unexplored. As just one example of an issue to be resolved, it appears likely that the supreme court may have constitutional original jurisdiction to conduct criminal trials of civil officers covered by Article II, section 4. Much more research and discussion is required for this second category.

However, this is not purely a theoretical and academic discussion.

We have reached both a time in our history, and a point in this analysis, where a simple and overriding conclusion can be restated and connected to a specific application that follows from it. Congress has both the constitutional power and the duty to safeguard America by removing office holders from power when their use of it is incompetent or dangerous. In a situation such as the present one, where there is evidence of widespread, systematic torture of Iraqi prisoners, the United States Congress can and should impeach and try in the Senate those civilian office holders who have had direct responsibility for what happened. Unless he resigns first, or is fired, the process should start with defense secretary Donald Rumsfeld, who has stated the grounds for his own impeachment simply by acknowledging that the torture and abuse “happened on my watch.” This cleansing action by Congress, together with related actions, will tell the world, ourselves, and posterity:

When something as horrible as the systematic and extensive torture and abuse of prisoners happens, and when it is shown and acknowledged to have been done by our government, we must and will err on the side of stopping and preventing the abuse of powers of our government. Our Congress, the democratically elected representatives of the American people, will remove from office immediately, any civilian -- the highest authorities in our government are all civilians -- who is found to directly have had the power, the authority, and the duty to see that nothing like this could be allowed to happen, and who has failed to prevent it. Further actions and consequences will follow. We can only say, first, that we are terribly sorry about what our nation has done, second, that we are still reacting to the terrorist attacks of 9/11, and, finally, that until recently it simply has not been collectively evident to us that our government could do such things. We can only hope and pray that our horror of what our nation has done, and the freedom we have been blessed with, will be combined to guide our future actions in ensuring that this never happens again.

Let's be clear and frank about this: the widespread U.S. torture and abuse of Iraqi prisoners is likely if not certain to be a cause of future terrorist attacks against the U.S. We already know of at least one direct consequence: an American civilian who has been killed. Those in our government who were responsible for establishing the corrupting environment that led to the abuse and torture were not following orders, they were giving orders. The tragedy these ill-conceived orders led to has resulted in “aid and comfort” to the terrorists. It is now easier for terrorists to recruit more people to kill innocent people.

The action of Congress to impeach and remove from office those responsible for giving the orders, will be a proclamation to ourselves and the world that we are turning away decisively from this tragic course of events. It is part of the war on terror for Congress to speak for the American people, and to make this proclamation. We will say to the people terrorists are trying to recruit: when we know that we have done wrong, America stops. We turn away from a path when we find it is wrong -- and we continue to do the many things we have always done that are right and good.

Obviously, the American people will render a decision in the coming election. Because it is an election, and not a referendum, we cannot view it as a verdict of the American people on any single issue. The possible re-election of president Bush, as with the actual re-election of president Nixon after the Watergate break-in and cover up but before the extent of wrongdoing in the Nixon administration was fully known, cannot be seen as a blanket impeachment amnesty for anyone. Note that Article II gives the president reprieve and pardon power “except in Cases of Impeachment.”  Note also that not even secretary Rumsfeld's resignation would be a bar to his impeachment by the house and trial by the Senate. The Senate's impeachment powers include the power to disqualify from future office. The point of noting this is that it helps to realize the full extent of the oversight powers of Congress.

Congressional impeachment action on non-criminal grounds can be as fast and as simple as necessary. Articles of impeachment can be one page. The nub of a House impeachment article can say: “Whereas, [name] has had the duty and the power to prevent the systematic and widespread torture and abuse of Iraqi prisoners, and has failed to prevent it, therefore, be it resolved by the United States House of Representatives on [date] that [name] is hereby impeached from [office].” The House can hear testimony (optional), take evidence (optional), debate and vote in a day, or two days, or a week – it's up to them. Of course... no testimony and no evidence would be shocking and intolerable in a criminal trial. Part of the point of identifying these elements as optional is to emphasize the unique nature of decriminalized impeachment by Congress. If a highly publicized event occurs, known to the whole world, that makes the need to remove from office obvious, then obvious means obvious, and fast can mean one day.

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