Thursday, June 07, 2007

Repudiation, Not Impeachment

Repudiation, Not Impeachment
By Scott Ritter
Truthdig
Thursday 31 May 2007

It is a question I am faced with at every public event I
participate
in: What are my views on the impeachment of President Bush and others
in
his administration? Generally, the question is preceded by an
emotional
statement listing the "crimes" which Mr. Bush is accused of
committing,
and the questioner has already found him guilty. Whether it is the war
in Iraq, conspiracy theories about 9/11, Hurricane Katrina, or any
given
variation of the theme of constitutional abuse of power, the one thing
all of the questioners have in common (besides the desirable outcome)
is
their singular conviction that the president is guilty.

I have considerable sympathy for this stance. I myself have
stated
on more than one occasion that I believe President Bush has lied to
Congress and the American people about the reasons for going to war
with
Iraq (i.e., the whole WMD/al-Qaida intelligence
fabrication/misrepresentation fiasco). I also believe that the
president's sanctioning of warrantless wire-tapping, along with a
litany
of other abuses of power stemming from the Patriot Act approved by
Congress after Sept. 11, 2001, likewise constitutes grounds for
impeachment. Several Democrats in Congress are actually discussing the
possibility of impeachment of President Bush and the irrepressible
Congressmen Dennis Kucinich has actually introduced articles of
impeachment for Vice President Dick Cheney.

Even some Republicans are getting on board the impeachment
bandwagon, although with caveats. "Any president who says 'I don't
care'
or 'I will not respond to what the people of this country are saying
about Iraq or anything else' or 'I don't care what the Congress does,
I
am going to proceed' - if a president really believes that, then there
are ... ways to deal with that," Sen. Chuck Hagel, a Republican from
Nebraska, said of President Bush in obvious reference to impeachment.

Hagel is correct: Impeachment is the constitutional remedy for a
unilateral president whose governance is an insult to traditional
American democratic norms and values. However, impeachment alone is
simply a measure which addresses the symptoms of a larger malaise that
has stricken America. The arrogance associated with the concept of the
unitary executive is prevalent throughout mainstream American
political
life. The passivity of the legislative branch is one byproduct of the
dominance of the unitary executive. It is also an indicator that the
will of the people, as expressed through their election of the
people's
representatives to the Congress of the United States, no longer has
the
weight and bearing long associated with the American democratic
experience.

Any effort to impeach Bush and any of his administration found
to be
engaged in activities classifiable as "high crimes and misdemeanors"
would fail to rein in the unitary executive core of any successor. One
only has to listen to the rhetoric of the Democratic candidates for
president to understand that this trend is as deeply rooted among them
as it is with President Bush. Americans today look for leaders without
recognizing the absolute necessity of electing team players. The
Founding Fathers deliberately designed the executive branch to be
strong
and independent, but also made sure, through an elaborate system of
checks and balances, that it operated merely as one of three separate
but equal branches of government.

The "in your face" efforts of the Bush administration to minimize
the role of Congress and to achieve political control of the judiciary
are simply more public manifestations of trends that occurred in a
more
quiet fashion in past administrations, Republican and Democratic
alike.
When America elects a leader who states clearly that he or she will
work
with their equal partners in governance, the Congress, for the good of
the country, and who will acknowledge the supremacy of law set forth
in
the form of binding legislation passed by the will of Congress void of
any limiting or contradicting "presidential signing statement," then
we
will finally have a leader who is truly worthy of the title "President
of the United States of America."

But this will not happen of its own volition. The impeachment of
President Bush would not in and of itself terminate executive
unilateralism. It would only limit its implementation on the most
visible periphery, driving its destructive designs back into the
shadows
of government, away from the public eye, and as such, public
accountability. Impeach President Bush, yes, if in fact he can be
charged with the commission of acts which meet the constitutional
standard for impeachment (and I believe he could, if Congress only had
the will to do its job). But to truly heal America, we must repudiate
everything President Bush stands for, in terms of not only public and
foreign policy, but also in terms of his style of governance, since
the
former is derived from the latter.

Repudiation is a strong term, defined as "rejecting as having no
authority or binding force," to "cast off or disown," or to "reject
with
disapproval or condemnation." In my opinion, the complete repudiation
of
the presidency of George W. Bush is the only recourse we have
collectively as a people to not only seek redress for the wrongs
committed by the Bush administration, but also to purge society of
this
cancer that threatens to consume and destroy us as a whole, and which
would continue to manifest itself in our system of governance even
after
any impeachment proceedings.

Like any cancerous growth, the Bush administration has attached
its
malignancy to the American nation in a cruel fashion, its poisonous
tentacles stretching deep into our national fabric in a manner that
makes difficult the task of culling out the healthy from the diseased.
But we cannot truly repudiate something without its complete and utter
elimination from our midst. As such, there must be a litmus test to
help
us differentiate the good from the bad, that which must be restored
from
that which must be eliminated. For me, there is only one true test:
that
of constitutionality. There will be those who argue, and have argued,
that the time is well past for an oppressed people (and one would be a
fool not to comprehend that under the Bush administration, the
American
people have in fact been oppressed) to rely on the niceties of legal
argument, especially when the system of law we seek to use in our
defense has been so thoroughly corrupted by those who seek to impose
tyranny.

I was recently in Ireland, where I delivered a presentation on
the
current situation in the Middle East. In criticizing the Bush
administration's policies, I launched into a staunch defense of the
Constitution of the United States and decried what I believed to be
the
inadequacies of Congress and the American people in defending their
constitutional inheritance. Afterward, I was confronted by an Irishman
who challenged me on the validity of our Constitution. As he pointed
out, none other than President Thomas Jefferson himself, the author of
the Declaration of Independence and a proponent of constitutional law,
is famously quoted as saying, "The tree of liberty must be refreshed
from time to time with the blood of patriots and tyrants. It is its
natural manure." If, as I maintained, the Bush administration was
deviating so far off course from the ideals and values set forth in
the
Constitution, was it not time for a new American Revolution
to "refresh"
liberty with "the blood of patriots and tyrants?"

There can be no doubt that Jefferson was a promoter of
resistance to
the forces of tyranny. It was he who, after all, who penned the famous
words proclaiming the need for American independence from the tyranny
of
British rule: "That whenever any Form of Government becomes
destructive
of these ends, it is the Right of the People to alter or to abolish
it,
and to institute new Government, laying its foundation on such
principles and organizing its powers in such form, as to them shall
seem
most likely to effect their Safety and Happiness ...when a long train
of
abuses and usurpations, pursuing invariably the same Object evinces a
design to reduce them under absolute Despotism, it is their right, it
is
their duty, to throw off such Government, and to provide new Guards
for
their future security."

If faced with a situation today in which the American people felt
that our current form of government sought to imprison them "under
absolute Despotism," would we not be obligated to apply "natural
manure"
in an effort to refresh the "tree of liberty?"

Short of a complete and total abdication on the part of the
Congress, the collapse of the judiciary system, and a shocking
decision
by those men and women who wear the uniform of the armed forces of the
United States to lend force of arms to the will of a dictatorial
president, I cannot ever envision a time in which conditions in these
United States could deteriorate to the point that a violent revolution
"of the people and by the people" would be required to restore
constitutional legitimacy and authority. Having said that, I remind
the
reader that with so few Americans professing any working understanding
of the Constitution, it is difficult to speak of people defending that
which they remain ignorant of.

While I reject violence as a means of redressing social wrongs,
especially when applied to issues of governance, and instead rely on
the
rule of law as manifested by the Constitution and those legitimate
bodies empowered by the Constitution to remedy every situation, I
cannot
help but fear the moment when the foundation of legitimacy which
defines
who we are and what we are as a nation fades away into irrelevance
amidst a sea of complacency and ignorance. There is no greater
breeding
ground for the forces of tyranny than the surrender of civic
responsibility on the part of those entrusted with the defense of
liberty. And in this I do not mean the Congress of the United States,
but rather the people of the United States, the duly elected
representatives of whom constitute the Congress.

I fear not the bloody rebellion of an outraged citizenry, but
rather
the passive submission of a shameful mass which betrays the cause of
liberty and freedom through the abandonment of the Constitution, and
the
obligations of citizenship derived thereof, in favor of the narcotic
of
consumerism. Such a mass, foreswearing blind obedience to those who
profess how to best construct a cocoon that immerses the occupant in
transitory comfort, is the most pressing problem facing America today.
In a nation whose defining document begins, "We the People," I find
that
it is we the people who constitute the greatest threat to the future
of
America. It is not through the force of our actions, but rather the
vacuum created by our inaction and apathy, a vacuum all too readily
filled by those who would have us exchange our hard-fought freedoms
for
a gilded cage of market-driven consumerism.

This is the main reason why I am not a proponent of the 'impeach
now' mentality so prevalent in political circles that oppose George W.
Bush. The expediency of impeachment simply replaces one source of
tyranny (President Bush) with another (whomever replaces him). It is
not
the failures of an individual that have gotten us to where we are
today,
but rather the failure of the collective. So before we speak of
impeachment and the notion of executive accountability, I would like
to
address the issue of repudiation and the necessity of civic
responsibility.

Whatever field I endeavored to participate in, - whether as a
football player in college, an officer in the Marines or a firefighter
today, - whenever the going got tough, it was always pounded into my
head to fall back on "the basics." That is to say, a foundation of
norms
from which everything else was derived. By adhering to
these "basics," I
and others were able to navigate whatever treacherous course we were
attempting, more often than not with success. As such, in formulating
a
coherent response to the challenge put to me by the Irishman
concerning
the need to "fertilize the tree of liberty," I find myself falling
back
on the "basics" of citizenship, to seek out the fundamentals of
individual responsibility in the American democratic experiment. And
there is no better source for these fundamentals than the most
strident
defender of the individual American - Thomas Jefferson himself.

Jefferson was in France during the drafting of the Constitution,
and
did not play a direct role in negotiating its content. But such was
his
heft as a founder of America that his opinion was sought by many of
those who were so engaged. One of these critical players, James
Madison
(who later became the fourth President of the United States, following
Jefferson), wrote a letter to Jefferson shortly after the
Constitutional
Convention finished its work in September 1787, and prior to
ratification, interpreting critical aspects of the Constitution. I
view
Madison's words to be worthy of consideration when addressing the
issue
of citizenship and responsibility.

"In the American Constitution," he wrote on Oct. 24, 1787, "the
general authority will be derived entirely from the subordinate
authorities. The Senate will represent the States in their political
capacity; the other House will represent the people of the States in
their individual capacity. The former will be accountable to their
constituents at moderate, the latter at short periods. The President
also derives his appointment from the States, and is periodically
accountable to them. This dependence of the General on the local
authorities seems effectually to guard the latter against any
dangerous
encroachments of the former; whilst the latter, within their
respective
limits, will be continually sensible of the abridgement of their
power,
and be stimulated by ambition to resume the surrendered portion of
it."

In short, Madison underscored the fundamental role of the people
in
the chain of accountability, and the necessity of their informed
involvement if the system of American constitutional governance was to
work. A breakdown on the part of the "general authority" would lead to
chaos and anarchy. Likewise, the failure of the "subordinate
authority,"
inclusive of the people, to hold the "general authority" in check
would
facilitate the slide toward tyranny and oppression.

Jefferson himself, before the convening of the Constitutional
Convention, had long reflected on the issues of constitutional
government. Just as Jefferson's rendering of the Declaration of
Independence drew from his earlier work, "A Summary View of the Rights
of British America," so, too, were his views on the American
Constitution drawn from his earlier writings on issues pertaining to
the
Constitution of Virginia, which are contained in a collection of work
dating from 1781-82 known as "Notes on Virginia." The purpose of a
Constitution, Jefferson wrote, was " ... to bind up the several
branches
of government by certain laws, which, when they transgress, their acts
shall become nullities; to render unnecessary an appeal to the people,
or in other words a rebellion, on every infraction of their rights, on
the peril that their acquiescence shall be construed into an intention
to surrender those rights."

Here Jefferson himself answers the question of the need to
"fertilize" the "tree of liberty" with the blood of rebellion: It is
not
required, nor desired, so long as a system of rule by law (i.e., a
Constitution) is present and adhered to. The importance of a
Constitution in preserving the character of a nation through
perpetuity
was paramount in Jefferson's view. "It is true," he argued in
his "Notes
on Virginia," that "we are as yet secured against tyrannical laws by
the
spirit of the times. ... But is the spirit of the people an
infallible,
a permanent reliance? Is it government? Is this the kind of protection
we receive in return for the rights we give up? Besides, the spirit of
the times may alter, will alter. Our rulers will become corrupt, our
people careless."

Today one only needs to observe the corruption of our rulers and
the
carelessness of our people to understand the significance of the
Constitution when it comes to preserving these United States of
America.
The nefarious nature of the Bush cancer is that, in its infection of
the
American system, it seeks to draw legitimacy for its tyrannical
actions
by citing the very same Constitution it seeks to destroy. The
promoters
of this point of view cite the academic term "Unitary Executive
Theory"
when defining their philosophy. To me, it is nothing less than
treason.
The Founding Fathers, in discussing the concept of a "unitary
executive," made use of the term in a manner reflective of their
desire
to restrain executive power, versus the extreme interpretation
embraced
by counsels to President Bush and Vice President Cheney who seek to
expand executive power and authority to near dictatorial levels,
especially during a time of war. The tendency on the part of President
Bush to obviate the role of Congress is well documented, in matters
pertaining to governance in times of peace as well as war. The
unprecedented number of presidential signing statements issued by Bush
speaks volumes to this trend. These signing statements, historically a
device used by executives to protect presidential prerogative when it
comes to how a bill might be interpreted in a court of law, have been
used by the Bush administration to negate the legal impact of a given
piece of legislation by clearly stating the intent of the president to
act in a manner inconsistent with the letter of the law. That the
president believes he has a right to conduct himself in this manner is
the height of hubris; that Congress continues to facilitate this
behavior unchallenged represents the depth of legislative depravity.

It would be interesting to have a national debate on the concept
of
a "unitary executive," where the proponents would cite the "vesting
clause" (Article II, Section 1) of the Constitution, which
states, "The
executive Power shall be vested in a President of the United States of
America." The advocates of a "unitary executive" combine the "vesting
clause" with Article II, Section 3, Clause 4, the "take care" clause,
which states that the president must "take care that the laws be
faithfully executed" to make a case for a seamless hierarchy of power
solely vested in the executive. Stephen Calabrisi and Kevin Rhodes
staked out this argument in their 1992 article, "The Structural
Constitution: Unitary Executive, Plural Judiciary," in the Harvard Law
Review (Issue 105, 1992). The foundation of their argument is drawn
from
a backwards reading of the Constitution, which addresses the issue of
"Mandatory Jurisdiction" as set forth in the "vesting clause" not of
the
executive, but rather the judiciary, in Article III of the
Constitution.

By establishing a link between the exclusive authority of the
courts
derived from the "vesting clause" of Article III, Calabrisi and Rhodes
argue that a similar exclusive authority, this time for the executive,
is derived from the "vesting clause" of Article II.

Of course, the Constitution was not written from back to front,
and
should neither be read nor interpreted from back to front. Missing
from
the entire dynamic of the underlying theory of the proponents of a
"unitary executive" is the pressing reality of the Constitution
itself,
in particular the "vesting clause" of Article I, Section 1, which
states
that "All legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a Senate and
House
of Representatives."

Likewise, Calabrisi and Rhodes ignore Article I, Section 8, which
enumerates the powers of Congress, and Article I, Section 8, Clause 18
(the "necessary and proper" clause), which states that Congress shall
have all the power "[t]o make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers, and all other
Powers vested by this Constitution in the Government of the United
States, or in any Department or Officer thereof."

The "necessary and proper" clause gained preeminence with the
landmark case of "McCulloch v. Maryland," decided by the Supreme Court
in 1819. The decision by Chief Justice Marshall clearly established
the
principle that that the Constitution grants to Congress implied powers
for implementing the Constitution's express powers, in order to
create a
functional national government. Marshall noted that the "necessary and
proper" clause "purport[s] to enlarge, not to diminish the powers
vested
in the government. It purports to be an additional power, not a
restriction on those already granted." Marshall went on:
This government is acknowledged by all, to be one of enumerated
powers.
The principle, that it can exercise only the powers granted to it,
would
seem too apparent, to have required to be enforced by all those
arguments, which its enlightened friends, while it was depending
before
the people, found it necessary to urge; that principle is now
universally admitted.


That Chief Justice Marshall was speaking about the Congress of
the
United States when addressing the issue of the expansion of enumerated
power should not be missed by those who seek to invalidate the theory
and practice of a "unitary executive."

The sad fact is, however, there are far too few Americans who are
equipped and/or prepared to engage in a constitutional discussion, not
to mention one of this magnitude. Having failed to read and comprehend
this vital cornerstone of America, they are poorly positioned to come
to
its defense in this, the Constitution's time of need. You cannot
defend
that which you remain ignorant of. Thomas Jefferson, in an 1802 letter
to his friend and confidant, Joseph Priestly, noted that, "Though
written constitutions may be violated in moments of passion or
delusion,
yet they furnish a text to which those who are watchful may again
rally
and recall the people. They fix, too, for the people the principles of
their political creed." Thus, an American people ignorant of their
Constitution remain a people collectively void of principle or creed.
Given that state of affairs that is the American body politic today,
this is a harsh yet far too accurate indictment of the state of
American
citizenship.

Those who espouse the nobility of patriotism by extolling Article
II, Section 4 of the Constitution, which addresses the issue of
impeachment of the president and vice president, are all too mute
about
the remainder of that great document. Whether this silence is derived
from negligence or ignorance, or a combination thereof, is not the
point. What lies at the heart of this issue is that void of a solid
foundation of "creed," as Thomas Jefferson put it, to fall back on in
times of constitutional crisis derived from the abuse of power and
authority. The American people have only a bottomless pit as their
support, and this is no support at all. Impeach President Bush? Maybe,
if due process dictates. Repudiate President Bush? Absolutely,
especially if one aspires for an America that truly matches the
visions
and ideals set forth by the Founding Fathers.

Repudiate the notion of a "unitary executive."

Repudiate presidential signing statements.

Repudiate executive violation of Article 6 of the Constitution,
which binds municipal law in America with binding treaty obligations
incurred when the Senate ratifies a treaty or agreement by a two-
thirds
majority or better.

Repudiate "faith-based initiatives" pushed by any branch of
government.

Repudiate a weak Congress.

Repudiate weak senators or representatives, especially those
with a
track record of abrogating their constitutional mandate.

Repudiate ignorance, especially that of the American citizen who
knows little or nothing about the Constitution which empowers him or
her.

Repudiate consumerism, especially the virulent form it takes in
the
selfish framework of American-centric capitalism.

Repudiate pre-emptive wars of aggression.

Repudiate American Empire.

Instead, embrace the empowerment of education. Embrace active
citizenship. Embrace the rule of law, as set forth by the
Constitution.
Do all of this and, in the end, if conditions and circumstance
warrant,
impeach President Bush and any of those in his administration so
deserving.

Thomas Jefferson was prescient in his musings to another
confidant,
Moses Robinson, in 1801 when he wrote, "I sincerely wish ... we could
see our government so secured as to depend less on the character of
the
person in whose hands it is trusted. Bad men will sometimes get in and
with such an immense patronage may make great progress in corrupting
the
public mind and principles. This is a subject with which wisdom and
patriotism should be occupied."

That wise American patriots would be so occupied today is my wish
and dream.

--- End forwarded message ---

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