The President of the United States, after 9/11, and even perhaps before, asked people to break the law. He asked CEO’s to ignore the FISA law and defraud their customers by violating their privacy. He asked CIA officers to use torture. There are individuals and organizations out there that have committed crimes at the request of the president. There are individuals and organizations out there that refused to commit crimes at the request of the president. This is now creating a serious problem for Congress.
On both issues, illegal warrantless surveillance and torture, Congress is faced with difficult choices. Yesterday, we saw the spectacle of the Democratic chairman of the Senate Intelligence Committee arguing that the telecommunications corporations should not be held accountable for their crimes because it would be ‘unfair’ to them. It would unfair to them, according to Rockefeller, because:
These companies were assured that their cooperation was not only legal but also necessary because of their unique technical capabilities. They were also told it was their patriotic duty to help protect the country after the devastating attacks on our homeland.
Rockefeller is saying that is okay to break the law if the president tells you to. It is as simple as that. He pretends that the president (technically, ‘the government’) will be held accountable, but there is no evidence that he will be held accountable.
We know for a fact, that the Office of Legal Counsel within the Justice Department, issued assurances to CIA officers that it was legal to torture people. Now we are told that it would be unfair to hold these CIA officers accountable for their actions.
Senator Arlen Specter of Pennsylvania, the committee’s top Republican, said at a hearing Wednesday that any statement by Mr. Mukasey that waterboarding is torture could fuel criminal charges or lawsuits against those responsible for waterboarding.
“The facts are that an expression of an opinion by Judge Mukasey prior to becoming attorney general would put a lot of people at risk for what has happened,” Mr. Specter said.
Let’s think about this for a moment. Senator Specter is saying, with a straight face I might add, that the Attorney General of the United States cannot call ‘waterboarding’ torture because, if he does, it will make torture a prosecutable offense. The reality is that torture is already a prosecutable offense. Torture is a violation of the constitutional ban on ‘cruel and unusual punishment‘, it violates several signed treaties (which is also a violation of the Constitution), and it violates express statutory laws.
Anyone that tortured someone at the request of the president, violated all of these laws and committed a crime against the Constitution of the United States of America. There is only way around this, and that is to follow the Unitary Executive Theory of government.
Under this theory, no treaty can be ratified or law passed that takes away powers granted to the Executive branch by the Constitution. In essence, the administration is arguing that the FISA law usurped powers from the Executive by curtailing its ability to gather intelligence. And laws and treaties against torture do not apply, either because torture doesn’t exist unless it causes “serious physical injury, such as organ failure, impairment of bodily function, or even death”, or because the Executive must do what he deems necessary to protect the country (you have no rights when you’re dead).
On intelligence gathering, there is at least an argument to be made. But the Unitary Executive Theory rests on the primacy of the Constitution over statutory law, and it is the Constitution that bars ‘cruel and unusual punishment.’ Even under the Unitary Executive Theory, then, the president has no authority to torture people…or to define torture away.
The obvious remedy for a president that wantonly violates the law is to impeach them and convict them. A failure to do so can sometimes be justified, if there are mitigating circumstances. And, in these cases, the mitigating circumstances would be ‘9/11’. The question is, did 9/11 provide a legitimate excuse for violating people’s Fourth Amendment rights, and did it provide a legitimate excuse to torture people?
On the former issue, the president might be forgiven for an overabundance of caution…an irrational exuberance for doing all he could to keep the country safe. That doesn’t mean that he shouldn’t be held accountable, but it does mean that ‘censure’ might be more appropriate than impeachment. But on the latter issue, there never was any legitimate justification for authorizing torture. There is no sufficient remedy for committing such a loathsome crime that does not involve ‘removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States.’
Human dignity demands nothing less. Yet, here we are…with a nominee for the position of Attorney General, the chief law enforcement officer of the Federal Government, who is precluded from calling ‘waterboarding’ a form of torture because, to do so, ‘would put a lot of people at risk for what has happened.’
In both of these cases, illegal warrantless surveillance and the authorization of torture, Congress is now faced with the consequences of ‘taking impeachment off the table.’ You can take it off the table but you cannot make the crimes go away or prevent them from becoming a precedent without impeachment.
Congress doesn’t want to punish telecoms and CIA officers for obeying a criminal president. They were only following orders. But, they must hold someone accountable. If they confirm Mike Mukasey after he testified that he doesn’t know if torture is torture, they’ll ratify torture. If they grant immunity to the telecommunications corporations without punishing the president, they will ratify illegal warrantless surveillance.
One of the arguments for impeaching Bill Clinton was that, no matter how small the crime, tolerating crime creates a bad precedent. The truth is, impeaching a popular president over a trivial crime is what causes a bad precedent.
George W. Bush is not a popular president. Dick Cheney is not a popular vice-president. They are not running the country well or competently. Their crimes are significant and serious, not trivial. Their crimes have brought dishonor on the entire nation…a dishonor that can be expunged in only one way.
I know that this Congress will not begin impeachment hearings over torture and illegal warrantless surveillance. They should, but they won’t. But what they can do, what they have the power to do, is to not confirm Mike Mukasey and to not grant immunity to the telecommunications corporations. That is the least they can do.
