Please visit the new home of Majikthise at bigthink.com/blogs/focal-point.

« The Alec Rawls Trap | Main | Utah whip strikes blow for the Enlightenment »

February 27, 2006

The logic of impeachment

Finnegan has a very impressive post about the logic of impeaching George W. Bush for spying on Americans in violation of FISA: Put Your Modus Where Your Ponens Is.

Finn hammers home a point that can't be stressed forcefully enough or too often: Impeachment for FISA is a no-brainer. There's no question the president broke the law, and there's no question that his offense is a serious felony that he committed in his official capacity as POTUS. There are no nagging questions about whether his misconduct could be dismissed as a personal matter, or whether his misdeeds rise to the level of national importance. Nor is there any doubt that Congress has a duty to impeach any president who commits crimes on this scale--the alternative would be to put the president above the law.

Only practical questions remain: Do Democrats have the political power and the popular support to impeach George W. Bush. Right now, the answer is clearly no. However, the 2006 elections might drastically alter the balance of power in Washington. If and when they do, we should be ready. That means keeping the impeachment discussion alive until justice can be done.

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d8341c61e653ef00d834313ac253ef

Listed below are links to weblogs that reference The logic of impeachment:

» All Your Phone Calls Are Belong to Us! from Scott Paeth's Semi-Daily Blog
Whatever should we do about the crimes of the Bush Administration? Why, fix the law so that it's not a crime anymore!The federal government would have to obtain permission from a secret court to continue a controversial form of surveillance, [Read More]

Comments

Speaking of which: By way of Bookslut comes notice that Melville Press will be releasing Articles of Impeachment Against George W. Bush in conjunction with the Center for Constitutional Rights, as a paperback book. It lays out the litany of high crimes and misdemeanors in a way that the current crop will not. Blowback and whatnot yada yada. Even better yet, should any of y'all out there want to spend the measly $9.95 to send a copy to your congressperson or senator, Melville will pay for the shipping to do so.

It would make quite a media impression if enough of these were delivered from constituents to their representatives. Just a thought. $.02.

I suggest that you listen to the sainted Mark Levin on WABC-77 6-8, M-F, who can provide useful information on the legality of Bush's actions in the war against terror.

Silly discussions like this are major reasons why the US public does not and should not trust the Democrats / liberals on issues of national security.

Thanks for the link Lindsay. Are you optimistic that the Dems will in fact keep the impeachment discussion alive? Sigh, at least there's Feingold. The infuriating thing about their timidity is that it's self-defeating, and not difficult to see why. When the party in power acts as a parliamentary block and puts Bush at the head of both the legislative and executive branches, Tip O'Neill-style haggling over the fine points of Republican proposals ceases to involve a sacrifice of principle in the name of comity and good governance, and instead becomes a sacrifice of principle to no other end than further erosion of the party's position. To be sure, the Democrats might have backed their way into a dominated position, game theory-wise, but meeting Republicans halfway on their side isn't just morally repugnant, it's idiotic electoral strategy.

As you state, Bush clearly deserves impeachment. The Democrats are not up to the challenge. Their argument is that it cannot succeed.

Impeachment probably can't succeed. But there is still an obligation to make the attempt. To demonstrate that Bush has contravened the American Constitution. The failure to resist will justify the defense that there was no opposition. That everyone accepted the "necessity" for these crimes.

Well, here's where, what one of the smartest professors I ever had, George Bealer, calls the argument from handwaving, comes in. I think I have to plead guilty to a certain amount of equivocation for the sake of simplicity between normative theory and pragmatics. The thought is that normative theory necessarily constrains pragmatics, and necessarily not the other way around.

If you buy my argument, Congress has a direct duty to impeach the president. Given the fact that Congress is an ostensibly representative body, it seems plausible to say that we have an indirect duty to impeach the president, by means of applying pressure to our representatives to do so.

Only now do pragmatic considerations come in, and the question to ask is not what pragmatic platform should we adopt, which on its own is just ill-formed, but what pragmatic platform best fits the independently derived normative obligation. And that's how you get to the view that sustaining the argument for impeachment exclusively on FISA-violation grounds is both maximally pragmatic and obligatory; obligatory simply because of the independent analysis of our obligations, maximally pragmatic because advocating any conceivable argument unidentical to this one that produced greater pragmatic efficiency on whatever metric would fall short in some way of meeting our obligations.

Maybe I'm cutting my legs out from under me by framing everything in philosophical discourse, but just on reflection, it's hard to overstate the rhetorical power of the minimalist, FISA-only case for impeachment. Here's a thought experiment: you have some neighbors living next door, a man and a woman, neither of whom have particularly strong political convictions, who, let's say for the sake of argument, have arbitrarily wound up alternating their presidential votes between D's and R's in every election, and have also wound up voting for opposite parties every time. So the man, let's say, voted for Carter in 80, Reagan in 84, Dukakis in 88, Bush in 92, Clinton in 96, Bush in 2000, Kerry in 2004. The woman voted for Reagan in 80, Mondale in 84, Bush in 88, Clinton in 92, Dole in 96, Gore in 2000, Bush in 2004. Their inclinations thus oscillate around even division, but are never in fact evenly divided. (I'm trying to represent concretely the abstract weighted electoral coin-flipping that comes up in public choice and public ignorance literature.) Their issue preferences are very vaguely tilted towards national security (though not before 9/11) and they have an involuntary negative surface reaction to anything they (involuntarily) perceive as Bush-hatred. (Why? Blame the media if you must, 'why' is not really important for these purposes.)

The neighbors invite you over for dinner. Somehow, not by your design, the conversation turns to politics. You feel obligated to attempt to persuade your neighbors of the fact that Congress must impeach the president. Now you have to decide what approach you're going to take. Do you (a) recite a litany of charges ranging from authorization of torture of detainees to domestic spying to the promulgation of official lies to support an argument for war to an de facto negligent genocide brought about by indifference towards the fate of New Orleans and consequent incompetent disaster management? Or (b) assure your friends that while there are many issues on which you disagree with the president, you are not out on a hunt for some rationale, any rationale, to make a case for impeachment, but rather have come to the conclusion, through as objective a reflection as you're capable of on the intersubjectively agreed upon facts at hand, that you can find no intellectually honest way to deny the proposition that Congress must impeach the president? Or (c) adopt some middle ground approach?

Well a think it's just obvious that your approach is going to be (b). Establishing yourself as a definite non-Bush-hater is the surest way to procure a fair hearing. Though it would be better for everyone concerned if none of that large bloc that, without being composed of blind Bush loyalists, didn't have anything like their (actual) strong unexamined disdain for this elusive "Bush-hatred" entity, in pragmatics we just have to deal with the facts as they are. Lay out the a posteriori evidence to a persuadable foe of impeachment that the president committed a felony, and the a priori evidence that presidential commission of a felony offense obligatorily entails impeachment, and you stand a damned good shot at pursuading him. (And if that approach doesn't succeed, does manifesting some subset of properties of the right wing's parodic conception of unhinged lefty moonbats really improve matters?) The argument itself is extremely strong. All that is required of us is not to let the argument go to waste by means of any of the left's highly traditional forms of political suicide.

Well, here's where, what one of the smartest professors I ever had, George Bealer, calls the argument from handwaving, comes in. I think I have to plead guilty to a certain amount of equivocation for the sake of simplicity between normative theory and pragmatics. The thought is that normative theory necessarily constrains pragmatics, and necessarily not the other way around.

If you buy my argument, Congress has a direct duty to impeach the president. Given the fact that Congress is an ostensibly representative body, it seems plausible to say that we have an indirect duty to impeach the president, by means of applying pressure to our representatives to do so.

Only now do pragmatic considerations come in, and the question to ask is not what pragmatic platform should we adopt, which on its own is just ill-formed, but what pragmatic platform best fits the independently derived normative obligation. And that's how you get to the view that sustaining the argument for impeachment exclusively on FISA-violation grounds is both maximally pragmatic and obligatory; obligatory simply because of the independent analysis of our obligations, maximally pragmatic because advocating any conceivable argument unidentical to this one that produced greater pragmatic efficiency on whatever metric would fall short in some way of meeting our obligations.

Maybe I'm cutting my legs out from under me by framing everything in philosophical discourse, but just on reflection, it's hard to overstate the rhetorical power of the minimalist, FISA-only case for impeachment. Here's a thought experiment: you have some neighbors living next door, a man and a woman, neither of whom have particularly strong political convictions, who, let's say for the sake of argument, have arbitrarily wound up alternating their presidential votes between D's and R's in every election, and have also wound up voting for opposite parties every time. So the man, let's say, voted for Carter in 80, Reagan in 84, Dukakis in 88, Bush in 92, Clinton in 96, Bush in 2000, Kerry in 2004. The woman voted for Reagan in 80, Mondale in 84, Bush in 88, Clinton in 92, Dole in 96, Gore in 2000, Bush in 2004. Their inclinations thus oscillate around even division, but are never in fact evenly divided. (I'm trying to represent concretely the abstract weighted electoral coin-flipping that comes up in public choice and public ignorance literature.) Their issue preferences are very vaguely tilted towards national security (though not before 9/11) and they have an involuntary negative surface reaction to anything they (involuntarily) perceive as Bush-hatred. (Why? Blame the media if you must, 'why' is not really important for these purposes.)

The neighbors invite you over for dinner. Somehow, not by your design, the conversation turns to politics. You feel obligated to attempt to persuade your neighbors of the fact that Congress must impeach the president. Now you have to decide what approach you're going to take. Do you (a) recite a litany of charges ranging from authorization of torture of detainees to domestic spying to the promulgation of official lies to support an argument for war to an de facto negligent genocide brought about by indifference towards the fate of New Orleans and consequent incompetent disaster management? Or (b) assure your friends that while there are many issues on which you disagree with the president, you are not out on a hunt for some rationale, any rationale, to make a case for impeachment, but rather have come to the conclusion, through as objective a reflection as you're capable of on the intersubjectively agreed upon facts at hand, that you can find no intellectually honest way to deny the proposition that Congress must impeach the president? Or (c) adopt some middle ground approach?

Well a think it's just obvious that your approach is going to be (b). Establishing yourself as a definite non-Bush-hater is the surest way to procure a fair hearing. Though it would be better for everyone concerned if none of that large bloc that, without being composed of blind Bush loyalists, didn't have anything like their (actual) strong unexamined disdain for this elusive "Bush-hatred" entity, in pragmatics we just have to deal with the facts as they are. Lay out the a posteriori evidence to a persuadable foe of impeachment that the president committed a felony, and the a priori evidence that presidential commission of a felony offense obligatorily entails impeachment, and you stand a damned good shot at pursuading him. (And if that approach doesn't succeed, does manifesting some subset of properties of the right wing's parodic conception of unhinged lefty moonbats really improve matters?) The argument itself is extremely strong. All that is required of us is not to let the argument go to waste by means of any of the left's highly traditional forms of political suicide.

There's no point impeaching a president if you can't convict him, too. It takes a two-thirds majority of the Senate to do that. Are we going to have sixty-seven Democratic senators anytime soon? If not, we're going to need Republican senators to basically slit their political throats by voting to throw the head of their party out of office. How many of these would we need? Right now, twenty-two. If we manage to take back the Senate, sixteen. Can anyone come up with sixteen current Republican senators they expect to vote to convict Bush for anything less than, say, eating a baby on live television?

We also need to ask ourselves whether we want to remove Bush from office at this point. Even with 67 votes, all we end up with is President Cheney and the VP of his choice.

I think the whole argument fails in this paragraph:

Here's what I mean. The paradigm of an impeachable offense is, as everyone knows, a "high crime or misdemeanor." Now, the highest category of crimes, as everyone knows, is felony. On any plausible reading of the Constitution' s account of the mechanisms involved in triggering impeachment proceedings, it's an essentially exceptionless truism -- synthetic, yes, but probably necessary under any constitutionalism sufficiently similar to our own -- that, if it is true that the president committed a felony offense, Congress is justified in impeaching the president. It isn't a strictly logical consequence of this proposition -- though it would be given some appropriate complementary moral and political premises -- but it seems to me rather undeniable upon reflection that if the president commits a felony, Congress not only is justified in impeaching the president, but has an obligation to do so.

It starts out with a simple falsehood - that "felonies" is the highest classification of crimes. The only proof offered for that seems to be that "everyone knows" it. The statement, though, is nonsense. First of all, there are, in fact, more exclusively serious classifications - capital crimes, or (depending on the system) Class A felonies, etc. Second, if "high crimes" just means "felonies," why doesn't it just say "felonies?" But most importantly, let's look at the full text of Article I, Sec. 2, cl. 5, which you omit: "The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment." The language is clearly power-conferring, not duty-imposing. In fact, there's little less duty-like than a sole, unreviewable power.

You can't impeach half a country. Mr. Bush is not the problem. The Republican Party is the problem. Other means are needed. I cannot think of a useful historical parallel. History, indeed, would appear to imply that totalitarianism, like many self-limiting diseases, must run its course, and that is typically a long one: two or three generations. The only effective course is prevention; but it is too late for that.

--History, indeed, would appear to imply that totalitarianism, like many self-limiting diseases, must run its course, and that is typically a long one: two or three generations. The only effective course is prevention; but it is too late for that.--

Please switch to a new supplier. The current product is making you say silly things.

In case you haven't heard, the country was attacked four years ago, and the President is using his manifest authority under the Constitution to fight a war.

In case you haven't heard, the country was attacked four years ago, and the President is using his manifest authority under the Constitution to fight a war.

You know, Phantom, if only (A) the President wasn't actually blatantly declaring himself above the law, (B) the war we were fighting was actually against the people who attacked us (hint: they are still at large), and (C) every single thing about the postwar occupation hadn't been completely fucked up, I bet your position would seem a lot more persuasive.

There's no point impeaching a president if you can't convict him, too.

Respectfully disagree, Mr. Fish.

The problem with liberals is that they all think they are the smartest in the room, so when they try to talk and state their opinion they just sound like pompous windbags. If this is the best political argument that Democrats can think of to take back the White house then Republicans have nothing to worry about. This "impeach Bush" crap will be easily spotted by the American people (voters) as being frivolous.

In case you haven't heard, the country was attacked four years ago, and the President is using his manifest authority under the Constitution to fight a war.

Posted by: The Phantom | February 27, 2006 at 10:20 PM

In case you haven't noticed.

1. He is incompetent fool who makes the country much more dangerous.

2. He breaks law. Not just lying about blow job either.

3. He creates 3 fronts war. None of them are in good progress.

I don't know about you, but If a captain is incompetent, dry drunk, cocain snorting, fratboy asshat, smirking chimp. He should be tossed out overboard. First thing.

The fucker is incompetent and gonna get us all killed.

Bush is a WAR criminal period.

http://www.law.umkc.edu/faculty/projects/ftrials/nuremberg/NurembergIndictments.html

(a) Crimes against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing;

(b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity;

(c) Crimes against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war,14 or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated.

Indictments

Count One: Conspiracy to Wage Aggressive War
This count helped address the crimes committed before the war began, showing a plan to commit crimes during the war.
Count Two: Waging Aggressive War, or "Crimes Against Peace"
Including “the planning, preparation, initiation, and waging of wars of aggression, which were also wars in violation of international treaties, agreements, and assurances.”
Count Three: War Crimes
These were the more “traditional” violations of the law of war including treatment of prisoners of war, slave labor, and use of outlaws weapons.
Count Four: Crimes Against Humanity
This count involved the actions in concentration camps and other death rampages.

Must see chart, fantastic chart. (Bush approval sprialing down, in spiral chart, amazing the consistency he is making. By summer, the moderate republican will demand his head on a platter. Bu winter next year, the die hard republican will start demanding his head on a stick. He better keep those envangelicals and neocon wackos tight. Cause that's all he has left)

http://www.pollkatz.homestead.com/files/NEWBUSHINDEX_27229_image001.gif

see also the famous Bush bounch.
http://www.pollkatz.homestead.com/files/pollkatzmainGRAPHICS_8911_image001.gif


POLL: The Second Term Free Fall

The latest CBS News poll puts President Bush’s job approval at 34 percent — an all-time low. Vice President Cheney is doing even worse. Only 18 percent of the public approves of the way he is doing his job.

The American public has a dismal assessment of Bush’s policies across the board:

– 30 percent approve of Bush’s handling of the war in Iraq — an all-time low.

– 27 percent approve of Bush’s energy policy.

– 32 percent approve of Bush’s handling of the economy.

– 5 percent of Americans are pleased with the way the rebuilding of the Gulf Coast is going.

Today, White House Press Secretary Scott McClellan said, “Our focus is on the important priorities of the American people.” Looks like the American people disagree.

http://thinkprogress.org/2006/02/27/second-term-free-fall/

Iron Lungfish--

There weren't enough votes to remove Nixon until his tapes came to light. The only reason this evidence was exposed was the testimony given during the Watergate hearings.

The tapes were released on Aug 5. On Aug 7, Republicans in the Senate told Nixon they would no longer support him. He resigned Aug 9. It's important to go forward as soon as you can impeach, even if you don't think

Dan Koffler--

I think you're right about limiting the argument to the illegal wiretaps. Information about his other crimes was available before the last election, so impeaching for those offenses would just be undoing an election, and I don't think that would be good for the country.

Eli--

While I don't think there's ever a legal duty to impeach, I think that the duty to the oath of office would requires it. How can a person claim to be defending the Constitution if she allows the President to violate the law?

Phantom--

I never had you pegged as a kool-aid drinker. This isn't WWII or the Civil War. The stakes simply aren't that high. We can't allow the President to usurp this amount of power every time the U.S. fights a war.

The fact is, for the last half century, peace has been the exception rather than the rule. To say that the President can override the Constitution every time we have troops in harm's way is to say that you don't believe in constitutional government.

--This isn't WWII or the Civil War. The stakes simply aren't that high. We can't allow the President to usurp this amount of power every time the U.S. fights a war. --

Very strongly disagree. The stakes are --higher-- than in those conflicts, as awful as they were. And we are in the earliest stages of this struggle. Rethink your position.

My friend’s daughter is being deployed to Iraq. This is just terrible and senseless, but it is being replayed all over our country. I am sick about this, because I have no power alone to do anything about it. Together we can make a difference. Now that Bush’s approval rating on the handling of Iraq is only at 30%, we need to push Murtha’s plan:

To immediately redeploy U.S. troops consistent with the safety of U.S. forces.
To create a quick reaction force in the region.
To create an over- the- horizon presence of Marines.
To diplomatically pursue security and stability in Iraq

The people need to “speak up” against continuing this war. It is over. Iraq is close to or in a civil war. A civil war is not our fight. Please write to everyone you can think of and push them to end this madness. We need to bring our troops home before we lose anymore of our true treasure – our men and women.

Very strongly disagree. The stakes are --higher-- than in those conflicts, as awful as they were.

Posted by: The Phantom | February 28, 2006 at 08:59 AM

How high is the price? what is cost? Kill all arab, detain every scrawny brown people, put all evangelist wackos and neocon in every government posts? Attack everybody in the planet? 100% Budget deficit? 100% crony politics?

what? tell us the limit?

Do you have an argument or is this ditto head aparatchick talking point?

might as well skip the fluff and go right to "Bush is the greatest gift from God to humanity. All bow down to his highness"

gufaw

I tell ya something. your contrite talking point might fly with other people. But with me, "higher" means higher up yours.

The stakes are --higher-- than in those conflicts, as awful as they were.

You honestly believe that the stakes in Iraq are higher than in the fight against the Axis powers in WWII?

Care to try to defend that position?

--You honestly believe that the stakes in Iraq are higher than in the fight against the Axis powers in WWII? --

No, I never said that. You libs need to expand your worldview a bit.

The war on TERROR -- which involves Iraq, but is not limited to it -- is even more deadly for America and the world than WWII or the Civil War.

Lemon's silly comments ( " kill every Arab " ) are unworthy of a response.

Keep it up. You guys think GW Bush is a greater threat than Osama bin Laden. Your comments are excellent tragic-comedy. I shall save them for posterity.

You've already lost the 2008 election with this attitude.


The war on TERROR -- which involves Iraq, but is not limited to it -- is even more deadly for America and the world than WWII or the Civil War.

OK, care to defend that position? Start with WWII.

The comments to this entry are closed.