I never had any expection that Impeachment would be easy, if I beleived so I wouldn't have started writing the series - I felt that we needed a "roadmap" to pull most of the issues as we understand them now, before the 110th Congress begins it's investigations.
In this diary I take my turn providing a Prosecutorial Rebutal to the arguements of the Defense in order to bring the series to an appropriate close.
Let The Court of Truth be Now in Session. You are now the Jury.
Opening Statement by the Defense.
The overarching observation I begin with is that you impeach a person, not an administration. Every attempt at Presidential impeachment (and to my knowledge, all others) begins with the President voluntarily taking an action that he knew or should have known was wrong.
* Andrew Johnson intentionally provoked a Constitutional Crisis by firing Sec. Seward in contravention of the Tenure in Office Act, which he believed was unconstitutional. (Rightly, the Supreme Court later held.)
* Richard Nixon intentionally ordered that hush money be paid for people who had committed a burglary and committed espionage on behalf of his campaign.
* Bill Clinton was intentionally misleading (if not actually lying) under oath in his deposition regarding a civil case in which he was a defendant. (Yes, what he did wasn't technically illegal -- and to my mind not nearly impeachable -- but there was no doubt that he knew the truth and intended to conceal it for his own gain.)
I clearly agree the Impeachment relates to individuals, not an entire Administration - however what I was alluding to through-out my entire Impeachment Series was the fact that Congress has to be ability to not only Impeach the President, they can also Impeach the Vice-President or members of the Cabinet.
On the issue what a potential Impeachment target "should have known" - I do not agree that President Clinton should have known that his unwillingness to divulge information that he wasn't really asked - was "wrong". A lifetime ago I wrote my own rebuttal to the Starr Report. The Charges against Clinton were based on Perjury, Witness Tampering and Obstruction of Justice.
Allegation #2 reads as follows:
In his civil deposition, to support his false statement about the sexual relationship, President Clinton also lied under oath about being alone with Ms. Lewinsky and about the many gifts exchanged between Ms. Lewinsky and him.
The primary problem with this allegation was the Clinton didn't claim he wasn't ever alone with Monica Lewinsky - he admitted that he was and gave examples of when that could have occured such as
"A... when she worked at the legislative affairs office, they always had somebody there on the weekends. I typically worked some on the weekends. Sometimes they'd bring me things on the weekends. She – it seems to me she brought things to me once or twice on the weekends."
Q. So I understand, your testimony is that it was possible, then, that you were alone with her, but you have no specific recollection of that ever happening?
A. Yes, that's correct. It's possible that she, in, while she was working there, brought something to me and that at the time she brought it to me, she was the only person there. That's possible.
Certainly there was more to the story, the problem is that the they didn't ask him about it during the Jones deposition. His failure to volunteer additional information that he wasn't asked is not a "wrong" act on his behalf.
Back to the current President, almost.
So I take it as a given that we need to find similar personal knowledge, in advance of a crime, on Bush's part. Otherwise we may end up in the situation that we did with Iran-Contra where the investigation could not show that Reagan himself ever quite connected the dots -- due to his own incuriousity and feeble thinking -- to see that actions he ordered (or at least acquiesced to) were illegal. And that didn't work out so well.
In Iran-Contra many of the subordinates involved chose to "fall on the sword" and protect the President through plausible deniability and by lying to Congress. But Reagan did eventually admit wrong-doing.
Reagan's admission in March 1987 that "it was a mistake" to trade weapons for hostages was what saved his reputation, according to Cannon.
Reagan said at the time, "A few months ago, I told the American people I did not trade arms for hostages. My heart and my best intentions still tell me that is true, but the facts and the evidence tell me it is not."
As far as I'm concerned Iran-Contra worked out fine - because it resulted in changing the President's behavior and sending several criminals to jail, at least until Federalist Society Judges overturned the various perjury and contempt of Congress convictions that had been given to various Reagan Administration Officials.
Anyway, enough digression.
>Count 1 Intelligence Fraud
The minimum requirements for fraud are that you (1) intentionally (2) represent to someone else (3) that something is true, (4) when it is not true and (5) when you know is not true, intending that (6) they will take some action (7) that benefits you.
1. PNAC wanted to "invade." Arguably relevant to "motive," but "motive" isn't at issue here.
2. Bush said he wanted to invade Iraq "if I have the chance." Pretty much irrelevant to impeachment. The question is whether he did it by illegal means. If I want a Mercedes, and later you see me driving one, that doesn't mean that I stole it.
Actually "motive" is at issue here - since it statisfies requirement (7). In this case the benefit that Bush would have received by invading Iraq is exactly as he stated - he stated that he would gain political capital, and be better able to implement his legislative agenda.
3. About yellowcake: (a) Bush never said that the yellowcake story was true, but that the British government believed it to be true (so element (3) of the crime is not satisfied);
It's clear that by mentioning the issue during his state of the union Bush was expressing that he believed the story, not what the British Government believed. If he believe something different from what the British believed - it was incumbent upon him to make the distinction. He did not, instead he said:
The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.
This is not a statement of what the British government believed, "Saddam Hussein recently sought significant quantities of uranium from Africa" is stated as a fact, not an opinion of the British. Add to that his statments during the Cincinnati speech.
The evidence indicates that Iraq is reconstituting its nuclear weapons program. Saddam Hussein has held numerous meetings with Iraqi nuclear scientists, a group he calls his "nuclear mujahideen" -- his nuclear holy warriors. Satellite photographs reveal that Iraq is rebuilding facilities at sites that have been part of its nuclear program in the past. Iraq has attempted to purchase high-strength aluminum tubes and other equipment needed for gas centrifuges, which are used to enrich uranium for nuclear weapons.
If the Iraqi regime is able to produce, buy, or steal an amount of highly enriched uranium a little larger than a single softball, it could have a nuclear weapon in less than a year. And if we allow that to happen, a terrible line would be crossed. Saddam Hussein would be in a position to blackmail anyone who opposes his aggression. He would be in a position to dominate the Middle East. He would be in a position to threaten America. And Saddam Hussein would be in a position to pass nuclear technology to terrorists.
He would be - Kim Jong-Il?
None of these statements were true, and there was ample information available in the State Dept, Energy Dept, IAEA, CIA and DIA to refute all of it prior to October 2002. Further the NIE stated that the Niger claim was "highly dubious" and as a result references to it were removed from the Cincinnati speech, it also said it was highly unlikely that even if Saddam Hussein possesed WMD's that he would use them unless he was provoked. So naturally, Bush provoked him.
(b) the questionable acts described are those of his advisors -- note where Vyan quotes people saying "*they* put it back in, they preferred to perpetuate a lie" (so element (1) isn't satisfied, and remember that you can't impeach the administration, just the man);
As stated above, you can Impeachment individual members of the Administration. In this case the target(s) - exempting those who've already resigned - would be Cheney and members of his staff such as Scooter Libby, Stephan Hadley and Donald Rumsfeld who were all heavily involved in what Wilkerson describes as "The Cabal".
The ultimate question though is whether Bush himself was a willing member of the "Cabal" or simply improperly served by those beneath him. I think the answer to this is found in several places.
Bush was personally briefed by George Tenet and chose to ignore the information provided by Iraqi Foreign Minister Naji Sabri - that Iraq no longer had WMD in September of 2002. This was before the Cincinnati speech, before the passage of the Iraq Force Resolution and cleary before the 2003 SOTU.
European CIA Chief Tyler Drumheller was told "Well, this isn't about intel anymore. This is about regime change.'"
From the Downing Street Minutes from July of 2002.
C reported on his recent talks in Washington. There was a perceptible shift in attitude. Military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy. The NSC had no patience with the UN route, and no enthusiasm for publishing material on the Iraqi regime's record. There was little discussion in Washington of the aftermath after military action.
And Downing Street II.
A memo of a two-hour meeting between the two leaders at the White House on January 31 2003 - nearly two months before the invasion - reveals that Mr Bush made it clear the US intended to invade whether or not there was a second UN resolution and even if UN inspectors found no evidence of a banned Iraqi weapons programme.
And speaking of manufacturing a fraud...
Mr Bush told Mr Blair that the US was so worried about the failure to find hard evidence against Saddam that it thought of "flying U2 reconnaissance aircraft planes with fighter cover over Iraq, painted in UN colours". Mr Bush added: "If Saddam fired on them, he would be in breach [of UN resolutions]".
Defense Continued...
(3) so there's no evidence on record to show that Bush himself did not believe the story to be true or, more to the point, that he believed it was not true (as opposed to, say, mostly but not entirely proven) based on his advisors' representations, (so element (5) of the crime is not met).
According to the record he didn't care whether it was true or not. Bush was willing to paint as US plane as if it was a from UN on the hopes that Saddam would fire on it and prove that he had broken UN sanctions. That suggestion statisfies all 7 elements of criminal fraud right there. According to Downing Street - the policy had already been set in July of 2002, long before the President's State of the Union or Colin Powell's UN speech. From that point foward it was a matter of "selling the war" - not finding out the truth.
4. Most of the other things "they" did or didn't know do not refer to Bush's own demonstrated knowledge; nor does the fact that any of these turned out not to be true, or that with hindsight turned out to be based on a weak premise, prove that the proponents of the information knew that it was false. Did the CIA say otherwise?
Yes they did, the NIE said that Saddam was unlikely to use WMD even if he had them according to Senator Bob Graham - who along with Sen. Durbin has requested the NIE in the first place.
There were troubling aspects to this 90-page document. While slanted toward the conclusion that Hussein possessed weapons of mass destruction stored or produced at 550 sites, it contained vigorous dissents on key parts of the information, especially by the departments of State and Energy. Particular skepticism was raised about aluminum tubes that were offered as evidence Iraq was reconstituting its nuclear program. As to Hussein's will to use whatever weapons he might have, the estimate indicated he would not do so [use WMD's] unless he was first attacked.
...
Under questioning, Tenet added that the information in the NIE had not been independently verified by an operative responsible to the United States. In fact, no such person was inside Iraq. Most of the alleged intelligence came from Iraqi exiles or third countries, all of which had an interest in the United States' removing Hussein, by force if necessary.
Continued...
All Bush has to say is that he didn't fully trust the CIA's position. If he knew that they were anti-war, he would have had reason for skepticism. Most of the stuff dealing with Powell, etc., doesn't implicate Bush's knowledge.
This suggests facts not in evidence.
5. Bush's 2003 SOTU can be defended against constituting fraud. When Bush said "This is a regime that agreed to international inspections -- then kicked out the inspectors," this is not literally untrue (element (4) not satisfied), though it's misleading as hell; as Vyan's diary shows, Saddam did kick out "the" inspectors, if by that one means American inspectors (a misleading but permissible construction) in 1997.
Misleading but technically true statements are permissible? - You mean like "It depends on the what the meaning of "Is" is?" or "I did not have 'sexual relations' with that woman, Ms. Lewinsky?"
In both of these cases, Bill Clinton was telling the truth as he saw it. "There is no relationship" depended on whether one of Clinton's attorneys was speaking in present tense or past tense. What Clinton was saying was the statement was true in present tense, and false in past tense. He was admitting that had been a relationship, but it was over at that time. In this case, he was actually admitting something against his own interests - that his lawyer might have been lying.
The definition of 'sexual relations' was not something Clinton made up, it was a very specific list of items provided by the Jones attorneys, and in Clinton's judgement he didn't do anything on the list - Monica did. They never asked him what Monica did.
Yet again, misleading - true - but permissible? Not hardly according to existing precedent.
By contrast Bush did not claim that the Saddam kicked out the American inspectors, he clearly implied that he'd kicked out all the inspectors and that simply isn't true. If he'd said "some" it might have been closer to the truth.
His counsel will argue that even if that was misleading, it didn't matter, because Bush did believe that Saddam posed a serious danger and possessed WMDs and the additional puffery he ladled on to help make the political case for war doesn't constitute fraud. As for the fact that Saddam didn't violate the agreement -- if Saddam thought that he has a chemical and bio weapons program, then we certainly can't say that Bush knew for certain that he did not (element (5) unsatisfied.)
Saddam knew full well that he had no chemical weapons since he'd ordered them destroyed in 1991. He actually announced this fact to his own Generals three months before the war.
So then we get to the crux of Vyan's argument in point 1:
If Bush didn't know what he was claiming were complete falsehoods - he should have known. It's HIS JOB TO KNOW. Whether he personally initiated the fraud isn't the point, he helped perpetrate it. He legitimized it. He is the one ultimately responsible.
No. That is simply not the law of fraud, absent specific statutory language (such as you may see in some Sarbanes-Oxley requirements) to the contrary. Here's a perfectly good defense against fraud: Bush relief on the advice of competent advisors, the most senior of which were approved by the Senate, in these areas, and he believed in good faith that Saddam had at least some WMDs and therefore posed a threat to the U.S. It is not "his job to know"; it's his job to take the information he has, form an opinion, and promote a policy that is not, to his knowledge, opposed to the facts.
The record shows, including the NIE, that Bush had been told by several competent advisors - who had been approved by the Senate such as George Tenet - that there was significant doubt regarding Saddam's WMD status.
The reason I say that it was Bush's "job to know" isn't based on the law of fraud - it's based on the Presidential Determination section of HJ 141, which like Sarbanes-Oxley did include very specific requirements for the President to meet prior to using force against Iraq.
(b) PRESIDENTIAL DETERMINATION.
In connection with the exercise of the authority granted in subsection (a) to use force the President shall, prior to such exercise or as soon there after as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that
(1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq, and
The President was required by the Iraq Force Resolution itself to report to Congress his determination that further attempts at diplomacy would not be effective at protecting the United States from Saddam Hussein. The core of my fraud charge is based on this point - the President was required to prove that Saddam was a imminent threat, he was required to know by the resolution he himself had signed in October of 2002, but according the Downing Street Minutes (with various levels cooberation) Bush and his Administration were already commited to regime change regardless of the facts at least as early as the previous July.
Yet Saddam Hussein had told us and the UN that he was disarmed in December. The President was required to verify that disclosure, but instead he chose to ignore it, and the weapons inspectors who said our WMD intel was garbage and invade.
I submit that there is no reasonable way that document delivered to Congress to justify the use of force against Iraq under the requirements of HJ 141 could not have been fraudulent.
Count 2 Domestic Spying.
1. Let's start by dispensing with the Constitutional argument. There is already no warrant needed. You can get authorization for a warrant after a call -- it's now three days; the Democratic Congress wants to make it a whole week. No one is still challenging the fact that you don't need a warrant in advance for surveillance. For "chasing down terrorists" -- as Vyan quotes the President -- then you do. But then we have probable cause, thanks to this surveillance -- a program that is highly supported by the American people, unlike, say, paying hush money or lying during depositions.
The issues isn't whether you need a warrant in "advance" of doing listening - it's whether you need a warrant and any judicial oversight to verify that probable cause has been met ever. The President's position is now that he doesn't need to meet probable cause and doesn't need to secure a warrant at all, which is clearly extra-constitutional.
And I wouldn't say the program is "Highly supported".
"As you may know, the Bush Administration has been wiretapping telephone conversations between U.S. citizens living in the United States and suspected terrorists living in other countries without getting a court order allowing it to do so. Do you think the Bush Administration was right or wrong in wiretapping these conversations without obtaining a court order?"
9/15-17/06 Right 55% Wrong 45% Unsure 3%
2. FISA doesn't intend to tie the President's hands during wartime. Congress never intended FISA to prevent the Administration from defending against direct attack on the United States.
And truth be told, the President hands would not be "tied" if he were to simply use FISA as it currently exists to obtain surveillance warrants. The existing three-day grace period guarantees this.
3. If FISA does do so, it's an unconstitutional encroachment on the President's powers as the unitary executive. During wartime, the constitution demands deference to the President's authority as Commander-in-chief. Etc. If the unitary executive model is correct, then the President's actions are proper. "If the President does it, it's not a crime," some guy once said.
No, the Constitution makes no such demand. The only change which is created by the existence of a war, is the option for the Congress to temporarily suspend Habeas Corpus - the Constitution does not grant the President any special dispensation or additional powers during wartime.
4. AUMF authorized these actions. [OK, I can't write much to support the argument, but they will make it and some will buy it.]
That has been debunked by Hamdi V Rumsfeld, which states that there is a "judicial role" to be played involving the handling of terrorists.
5. Much of what the Administration is accused of is not actual interception of the content of messages, but the equivalent of looking at the outsides of envelopes without opening them. This is legal.
If we were talking about the U.S. Mail - it would be, but we aren't. Tracking the "wrapper" of an email or phone call - without accessing the content - required the installation of a "Pen and Trap" or equivelent device similar to those which have been installed it would violate 18 USC § 3121.
(a) In General.— Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under section 3123 of this title or under the Foreign Intelligence Surveillance Act of 1978
Defense continued...
6. Most importantly, the President was relying on the advice of competent counsel, the leaders of which were approved by Congress, in all of these matters. It may be that the President's position was mistaken; Presidents win some court cases and lose them, but we don't talk about impeachment when they lose a case. (LBJ favored minority set-asides ruled unconstitutional in Adarand. Was his action impeachable?) Even if the President's actions were wrong here, he was acting on legal advice. To find an impeachable offense here, you have to include that not only was the advice he was given about FISA, the AUMF, and the unitary executive wrong, but that it was so obviously wrong that the President was unreasonable to accept it. The fact that the author of one such memo was approved by Congress to a lifetime appointment on the 9th Circuit Court of Appeals, and that another is a prominent professor at a leading law school, both positions being attained after their participation in these activities was known, shows that -- at worst -- the position was arguable. To say that the President risks impeachment for relying on the legal advice of counsel would weaken the Presidency irreparably. This is not the standard we would use when the penalty at issue was a mere fine, let alone the Presidency.
Well, if they could consider Clinton's attorney saying "There is no relationship" to be Impeachable - I think the bar has been signicantly lowered in this area.
However, I think again that the Supreme Court Hamdi decision where the Court required Judicial Review in relation to terrorist suspects and established that "War is not a Blank Check" for the President has largely eviscerated any legitimate argument supporting this program.
The fact the Gonzales and the DOJ continue to ignore this is a good argument for the Impeachment of Gonzales on malpractice grounds for giving advice to a client that knowingly precipitated and justified a criminal act.
>Count 3 War Crimes
(A) Vyan argues that the Gonzales Memo suggesting exempting Taliban fighters from the protection of Geneva is prima facie evidence of a crime, stating that "We Are Signatories and as such we are required to abide by Geneva." But this doesn't contradict the memo, In fact, Vyan himself quotes the relevant portion:In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
I've boldfaced the parts that Vyan did, but the critical section is what I've italicized: terrorists, including unrecognized governments, are not representatives or forces of states, and therefore they are not "High Contracting Parties" and the protections we have agreed to do not extend to them. Because of this mistake, Vyan raises a number of arguments related to treatment of "Prisoners of War" that are inapplicable to the Al Qaeda and Taliban fighters. They aren't Prisoner's of War because they aren't fighting for a Geneva signatory.
I did make a mistake, but not the one you claim. I didn't quote the right paragraph of the Conventions.
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
Any signatory or High Contracting Party to the Conventions is required to abide by the Convention in all cases, not simply when they are in armed conflict with another High Contracting Party.
I would also agree that Al Qaeda and Taliban fighters are not "Prisoners of War" under the Convention until they has been a competent tribunal to determine this on a case by case basis, and then prior to such a tribunal any persons captured by opposing forces are afforded the full protection of the conventions under Article 5.
Article 5
The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
Furthermore, Congress has implicitly if not explicitly accepted this in numerous of its acts, by both commission and omission. Should the President now be impeached for a "crime" that Congress has agreed up until now is not a crime based on a fair interpretation of Geneva?
The likelyhood of the Military Commissions Act passing Constitutional muster is extremely low, and partly why the restrictions on Habeas Corpus within the bill are so onerous. If - no when - the new Congress acts to restore Habeas and remove these restrictions this law is likely to fall into itself like a souffle. The fact that Congress repeated the President's error does not change the fact that it is a gross Constitutional error.
This issue was indeed the one where various members of the Bush Administration had the highest and most serious vulnerability, hence their urgency in utilizing the 109th Congress to provide legal cover for their actions with the MCA before the end of their term. For the time being they have "innoculated" themselves on this count.
(C) The Rumsfeld memo is subject to a similar analysis as the Bybee memo.
Possibly, pending a judgement on the matter from the Supreme Court or a repeal/amendment to the MCA.
(D) Extraordinary rendition fell within the power of the President under the theory of the Unitary Executive. Again, impeachment on this point means fighting that out.
Bring it.
(E) If Hamdan did make previous Bush Administration actions potential war crimes, the Military Commissions Act settled that they are not, and impeachment will take place after passage of the MCA, not before. Many of the Bush Administration's actions have been retroactively "cleansed" by a bipartisan vote and cannot serve as a basis for impeachment.
Agreed. As I said, they've been "innocolated" for the time being. Any future SCOTUS decision which overturns all or portions of the MCA will reopen this issue.
(F) Again, consider the "advice of counsel" defense. The President is entitled to rely on the advice of his competent counsel. Taking away that right would be a disaster. This means that you must show not simply that the President was wrong, but that the President was not reasonable in accepting this advice. That's a high bar to clear.
Going again back to the Clinton precedent, Ken Starr argued that Bill Clinton was engaging in Obstruction of Justice when he gave factually inaccurate information to his staff, including White House Counsel - even when there was no pending legal proceeding related to that issue, and none of the persons he was speaking with were on any witness list.
Essentially he was considered to be "under oath" at all times even in private conversations with his secretary Bettie Currie. The bar is already pretty darn low.
What I'm suggestion though is that there is no legal protection for an attorney who gives his client advice to specifically circumvent and break the law, and that is exactly what Gonzales and Bybee have done here. The charge is that their advice was knowingly false, and that it was requested specifically by the President in order to persue illegal activities.
Conclusive proof of this intent does not currently exist in the record, but sufficiently targeted Congressional subpeonas are IMO likely to discover quite a bit of information that we don't current have which just might resurrect this charge even while the MCA is still in effect.
I have presented a Count 4: Criminal Negligence - which was not included in the Defense argument, but for the sake my carpal tunnel - I'll leave that for another time.
Vyan
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