Tuesday, October 04, 2005
[The Institute for Policy Study's Marcus Raskin and Joseph A. Vuckovich wrote the following article entitled: "George W. Bush: Legal Arguments for Impeachment".
We thank them for granting us permission to use the arctile here at the IBC. ]
This statement outlines the legal arguments for impeaching President Bush. The public policy grounds for impeachment (including the long-term effects of failure to hold the executive accountable for constitutional violations) are of equal significance, and we will discuss them in a separate statement.
Abuse of War Powers
In the invasion of Iraq, President Bush ordered the United States armed services into combat without an explicit declaration of war or other constitutionally appropriate authorization from Congress. The Constitution is very clear on the point that only Congress may initiate military hostilities. Article, I, Section 8 gives Congress the power to declare war, and the deliberations of the Framers and of the state ratifying conventions establish that this provision was understood to give Congress sole authority to choose between war and peace. (1)
The decision to vest the war power exclusively in Congress was not an accident, but a conscious decision by the Framers to break with contemporary practice in Great Britain and elsewhere in Europe, where all war powers had traditionally inhered in a monarch or other executive. (2) To the extent that the legislature is “first among equals” in our constitutional design, it makes sense to entrust only to it what amounts to the power of life and death over the American people.
The notion that the Constitution vests Congress alone with the power to initiate military conflict was affirmed by a number of early judicial decisions. In United States v. Smith (1806), for example, Supreme Court Justice William Paterson wrote that, when it is necessary for the US to go to war with a nation with which it is at peace (as was the case with Iraq), “it is the exclusive province of Congress to change a state of peace into a state of war.” John Marshall, in Talbot v. Seeman (1801), held that the “whole powers of war are, by the Constitution of the United States, vested in Congress.” In Bas v. Tingy (1800), the Supreme Court held that only Congress could authorize an “imperfect” (limited) war. The language of these opinions (“whole,” “exclusive,”) and the refusal to make an exception for small-scale or otherwise limited wars, suggests that the Constitution’s grant of war powers to Congress was seen as absolute. It is a qualitative rather than a quantitative distinction, and it admits no exceptions.
Again, the Constitution says that it is never up to the president to choose between war and peace, and no exceptions to this rule have ever been allowed. Both the Framers and Justice Paterson acknowledged that the president does not need congressional approval to repel an invasion of US territory, but in this case, a state of war would already exist. The choice between war and peace would already have been made – by a hostile foreign power, not by the president.
There is thus no loophole available to justify President Bush’s Iraq adventure. The plain fact of the matter is that Iraq’s armed forces had not attacked US territory. That they might conceivably have done so at some point in the future is, from a constitutional perspective, irrelevant. The administration’s doctrine of pre-emption does not exempt the president from the requirement to obtain a declaration of war from Congress.
Nor can President Bush argue that present counterinsurgency nature of the Iraq war makes it a “limited war” or “police action” that does not require congressional approval. First, whatever the character of current military operations in Iraq, they obviously would not be taking place if the president had not carried out what was unambiguously a conventional military campaign against the armed forces of a sovereign state. Second, and more fundamentally, Congress’s war power was understood by the Framers and by the early Supreme Court to extend to all military deployments, including those necessary for limited or “imperfect” wars.
Furthermore, the president cannot cite the war resolution passed on October 10, 2002 as providing him with the authority to invade Iraq. This resolution did not keep the fundamental choice between war and peace in the hands of Congress. As legal scholar Louis Fisher has written, “Did Congress actually decide to go to war? Not really. Members of Congress transferred that choice to Bush. They decided that he should decide.” (3) The fact that Congress chose to abdicate its constitutional responsibility to decide between war and peace has no bearing on the legality of President Bush’s actions. The decision by one branch to abandon its constitutional prerogatives does not legitimate usurpations by the other branch. In all cases, Congress must either forbid military action or command the president to carry it out. Both the Framers’ writings and early judicial decisions support the idea that the Constitution simply does not leave room for executive discretion in this matter.
Any argument that President Bush had the authority to invade Iraq in order to enforce compliance with UN Security Council resolutions similarly fails to pass constitutional muster. Such an argument simply does not bear on the basic fact of exclusive congressional war power. Second, Article I, Section 8 confers on Congress the power to punish “Offences against the Law of Nations.” There is simply no basis for the claim that the Iraq War could have been ordered by the president in order to enforce international law.
Finally, there is the matter of Bush’s repeated implicit linking of the Hussein regime to the attacks of September 11, 2001. Quite apart from the issue of whether or not this misleading suggestion amounted to a violation of the public trust that itself warranted impeachment, it is important to consider the rationale for the Iraq War that the Hussein-al Qaeda link was supposed to provide. The notion, presumably, is that retaliation for the 9/11 attacks was necessary for either policy or emotional reasons, and that the Iraq War was part of this retaliation. In short, the Iraq War was implicitly presented to the public as a reprisal. Unfortunately for the president, Article I, Section 8 specifies that only Congress can “grant letters of marque and reprisal.” The decision to use military means to punish other nations for harm done to the United States rests entirely with Congress.
Violations of International Law
Article VI of the Constitution specifies that “all Treaties made, under the Authority of the United States, shall be the supreme Law of the Land,” equivalent in authority to the Constitution itself and to federal statutes. In violating treaties duly ratified by the Senate, President Bush committed an offense comparable to direct violation of the Constitution or of federal law. Moreover, in doing so, he subverted the Constitution by failing to show proper regard for its equation of its own provisions with those of international treaties. The Iraq War violated both the United Nations Charter (1945) and the Charter of the International Military Tribunal (1945) and its associated judgments.
President Bush has waged a war of aggression in violation of the UN Charter. Aggression, as defined by UN General Assembly Resolution 3314, is “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” (4) The United Nations Charter, signed by the United States and ratified by the Senate, permits armed combat against another state only when the Security Council approves it or when it is necessary for self-defense. (5) All other wars are aggressive wars, hence forbidden. The Security Council did not sanction the war in Iraq in 2003, and Iraq had not invaded or threatened another country. It posed no imminent threat to the United States, hence there is no case for self-defense as a justification for invasion. The argument that Iraq’s alleged WMD programs and history of aggression against its neighbors made aggressive war necessary simply does not meet the standard given in the UN Charter, which holds that there is an “inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations” (emphasis added). (6) Iraq never actually staged an armed attack on the US, and there were serious doubts in the US intelligence community that it was capable of doing so. Had President Bush sought proper Security Council authorization for the attack on Iraq, UN weapons inspectors stationed in the country at the time of invasion would have had a chance to complete their work, potentially showing that a war to “disarm” Hussein was unnecessary. Alternatively, had inspectors uncovered evidence of an advanced WMD program, the Security Council could have decided what steps to take to stop it. In either case, obeying international law would have saved lives and imparted legitimacy to whatever measures against Iraq were truly necessary. Asserting a unilateral prerogative to wage aggressive war undermined international law and produced a catastrophic policy failure.
President Bush also violated the UN Charter by bribing, intimidating, and otherwise coercing other nations into supporting his Iraq adventure. Such tactics violate the sovereignty of the coerced nation since they prevent its government from making the best decision, in the interests of its own people, about whether or not to go to war. Such a violation of another nation’s sovereignty is contrary to the UN Charter, which is “based on the principle of sovereign equality of its members.” (7)
According to Article VI of the Constitution, Bush’s breach of the UN Charter is equivalent to a violation of the Constitution and of U.S. federal law. This would seem to qualify as a “high crime” or “misdemeanor” (as provided by Article 2, Section 4) and thus merit impeachment.
One of the most fundamental precedents for dealing with aggressive war comes from the Charter of the International Military Tribunal and its associated verdicts, stemming from the Nuremberg Trials after World War II. Article 6 of this Charter explicitly states individuals may be held responsible for “Crimes against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties.” (8) As prosecutor (and U.S. Supreme Court Justice) Robert H. Jackson said in his opening address at the Nuremberg Tribunals:
Let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment. (9)
President Bush’s actions can thus be interpreted as a crime against peace, and one for which he can be held individually responsible on the basis of the Nuremberg judgment, as well as the UN Charter. Furthermore, given the large number of lives disrupted or destroyed by a crime against peace, it is entirely reasonable to classify such an offense as a “high crime” or, at the very least, a “misdemeanor.”
Marcus Raskin founded the Institute for Policy Studies in 1963 after serving on the staff of the National Security Council in President Kennedy’s administration. He is a distinguished fellow at the Institute and professor of policy studies at George Washington University. Joseph A. Vuckovich is a first-year student at the NYU School of Law. We wish to thank Andy Bowen, Sara Duvisac, and Jesse Feinberg for their assistance.
1. See David Gray Adler, “Clinton, the Constitution, and the War Power.” In The Presidency and the Law: The Clinton Legacy, Ed. Adler and Genovese. Lawrence, Kansas: 2002; Louis Fisher and David . Gray Adler, “The War Powers Resolution: Time to Say Goodbye,” Political Science Quarterly, 113(1), 1998; Louis Fisher, “The Way We Go to War: The Iraq Resolution,” In Considering the Bush Presidency, Oxford, 2004.
2. See, e.g., William Blackstone’s Commentaries on the Laws of England, which demonstrate that this was a settled principle of English law.
3. Louis Fisher, ibid.
4. UN General Assembly Resolution 3314. Text available at http://jurist.law.pitt.edu/3314.htm
5. See UN Charter, Chapter VII. Text available at http://www.un.org/aboutun/charter/
6. UN Charter, Chapter VII, Article 51.
7. The argument in this paragraph is based on Article III of Prof. Francis Boyle’s “Draft Impeachment Resolution Against President George W. Bush.” Available at http://www.counterpunch.org/boyle01172003.html
8. Charter of the International Military Tribunal, Section II, Article 6. Text available at http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm#art6
9. Justice Robert H. Jackson, “Opening Statement to the International Military Tribunal in Case No. 1, The United States of America, et al. vs. Hermann Wilhelm Goering, et al. Available at http://www.roberthjackson.org/Man/theman2-7-8-1/