Whatever happened to Blalron? He started this. I feel so alone. 
But these two analogies don’t work together. In the first example, Bush knows about the torture but does nothing about it. In the second, the CEO actively promotes the illegal act (similar to Nixon’s coverup). Absent any sort of presidential order, the best you can accuse Bush of is not stopping the torture within his knowledge and power.
So he is the truer analogy. The CEO catches the CFO cooking the books but does nothing. Is that a crime?
Because you don’t have a trial without a showing of probable cause.
In other words, a trial is about the finding of facts.
If the goverment cannot allege a crime, and lay out the facts to prove their case by probable cause, you don’t proceed to a trial.
Now, let’s look at the facts you’ve alleged:
Here’s the only one where you’ve got a shot, because, sure enough, there was an actual crime committed. But can you show right now that there’s probable cause to believe Bush has criminal liability? I don’t think so, especially if he can point to a Justice Department finding that said his acts were legal. (Remember the skateboard analogy?)
Again, what’s the LAW violated? No one’s saying Bush took money to fire US Attorneys. They’re saying he fired them because they didn’t meet his political standards. Well, guess what? Every time a new President is elected, he appoints all new US Attorneys. The appointment of US Attorneys for political reasons is not illlegal. They serve at the pleasure of the President. Bush’s mid-term firings are unusual, but breaking tradition in this area doesn’t create a crime.
Even a bigger uphill climb than the last one. Are you reading these things?
18 § USC 2340A (a) says:
Assuming you’re referring to Guantanamo, it’s not “outside the United States” within the meaning of the law.
18 USC § 2340 gives us the definition of “United States” to be used in the chaper: "“United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States. " And in case that’s ambiguous, it’s further clarified in 18 USC § 7 as:
So the law you quote criminalizes torture outside the United States. What torture are you referring to that was violative of that law?
sigh
No. The UCMJ does not apply to the President. Never has.
The thing about criminal sanctions is that they are always read strictly against the government. For this reason, we don’t prosecute crimals under leagl theories that include terms like, “It could be argued that…” or “This SHOULD apply…”
18 USC § 2441 presents numberous problems of proof as well. Assuming you’re not alleging that Bush personally tortured anyone, what acts, precisely and specifically, do you allege he committed that violate this law?
And what law is violated here?
Look, he can be impeached for any reason; Congress’ decision to impeach is unreviewable. But for a criminal convioction, you have to allege a specific act violated a specific law. “Look at all the bad stuff that happened! He must have had his fingers in it!” is not an option.
Although are debate here is adversarial you’ll have to help me out here (you being the attorney who would be more likely to know this).
It is my understanding that if you are a party to a crime you are guilty yourself as if you committed the crime, even if you did not actually pull the trigger (so to speak). So, a getaway driver for a bank robbery is guilty of murder if someone is killed in the bank even though he was not the one who shot anyone. Or the mob boss who has his thugs running around doing this or that illegal thing on his behalf.
For Bush he is the “Boss”. He sets the policy for the military and CIA and so on. Sure, generals and CIA directors carry it out but if Bush is cool with waterboarding in Guantanamo and people act on his policy is Bush not liable for those actions? Read it another way…if Bush said, “We absolutely will not torture prisoners in any fashion, including waterboarding” do you think our troops/CIA would continue to do so? Seems to me he has a distinct connection here and I would also think a legal connection here.
Again IANAL and am having a hard time sorting through what is all at issue here. But I think your hand waving it away as nothing to see here, move along, is disingenuous at the least. Certainly there is a LOT of action on this front (cite). If it were all just a matter of the President doing what every president does and fully within his powers would not merit the rather large fuss, to the point of legal action, this has caused.
This goes to my starting paragraph. As President are you saying he is not responsible for the actions of those under him?
As for outside the US we have Abu Ghraib unless you want to argue Iraq, under military control does not equal outside the US.
sigh
No. The UCMJ does not apply to the President. Never has.
The thing about criminal sanctions is that they are always read strictly against the government. For this reason, we don’t prosecute crimals under leagl theories that include terms like, “It could be argued that…” or “This SHOULD apply…”
[/quote]
Fine. Why doesn’t the War Crimes Act apply to the President? I think it should but never mind my wishes on the matter. Why don’t they?
Again, I thought it was not necessary for you to actually perform the torture to be guilty of it. If a general tells his troops to torture people is the general not just as guilty as his troops?
Well, it violates a US Treaty obligation. Specifically the United Nations Convention Against Torture, Article III which states:
“No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” (cite )
You have been perversely dismissive of violating treaties. They have the force of law and I would think anyone breaking them has a legal issue to contend with. You told me the US has no laws for violating the Geneva Convention and that turned out to be patently wrong. Is this another treaty that can be broken willy-nilly because we have no law for it? Seems absurd to me that such things could have the force of law, an obligation of the US, but actually have no teeth whatsoever.
Messed up previous post and missed edit:
Fine. Why doesn’t the War Crimes Act apply to the President? I think it should but never mind my wishes on the matter. Why don’t they?
The problem here, as I see it, is that the SCOTUS may in effect become a propaganda tool of the party in power.
If a PO’d Representitive decides to write some articles of impeachment (like Kucinich just did) that included allegations of violations of some Federal criminal statute, in your system the SCOTUS would look at the list and say “Yup. These are actually on the books as criminal code umpty-squat…”, Kucinich could jump up and say “See?? Even the SCOTUS says we need to investigate and impeach!”
Just the mere act of SCOTUS publicly deciding whether or not the “charges” may violate criminal code run the risk of giving those charges some kind of “stamp of approval” and undue weight in a process that is inherently a political one, not a legal one.
I don’t think the SCOTUS should be used as a political tool. It should be a disinterested neutral observer as much as possible.
It is more than looking at it and saying, “Yup, these are actual crimes.” It is also a first blush assessment that there seems to be enough evidence to suggest a trial is merited. Something more than a PO’d congresscritter on a witch hunt.
Except, isn’t the definition in 18 USC 7 not applicable to that section because of the definition in 18 USC 2340? This isn’t to say I’m arguing with your general point, just that part of it.
It would be rude. It would be like openly acknowledging that the Pope has cut one in church, a loud, burbling and sulpherous butt whistle that gags the first three rows into comas. It would require public acknowledgement of a President so grossly incompetent and repulsive that we could not be polite and tactful any longer, we couldn’t profer him the status of an ex-President we customarily do.
We would be admitting that we, the Americans, are not only capable of making mistakes, blunders, and oopsies, but are capable of installing and supporting a grossly malicious group of “leaders”.
We prefer to look the other way, shove it aside, and put it behind us. Alas, it is not behind us. And will not be for a very, very long time.
I am sorry. I think I may have misunderstood your proposal.
It sounded like you thought that the House impeachment trial would be the “investigative” phase of the whole thing. I thought I recall that you said that SCOTUS’s decision would “force” the House to investigate. Summoning witnesses, getting them to offer testimony under oath, subpeona-ing (sorry for spelling) documents, etc.
All this comes after the SCOTUS decides whether charges have merit, right?
(I presume that you think that this public investigation would be part of the benefit of the process: Exposing the dirty underbelly of the Bush Administration’s dealings so that the public finally “knows the truth”.)
We are at that stage now: Kucinich read into the record a laundry list of complaints. The next step is the committee deciding if there is an expectation of success in the House trial phase.
Kucinich, not happy with the committee, as it appears that it is not moving toward a resolution in his favor, goes to the Supremes (using your new process), charging that Bush ordered torture and violations of FISA. Those charges remain allegations only at this point, because the committee is the place where the evidence, if any, is gathering dust. The Supremes shouldn’t “hear” any “evidence” that the (Bush) defence has not had a chance to rebut/refute, IMO.
All the Supremes at this point can do is verify that Kucinich’s allegations may consitute a violation of Federal law. If they do that, then Kucinich can get his mug on TV and crow about how the Supremes agree that Bush is scum of the lowest order, and needs to be removed forthwith.
The rest of the collective House (via it’s Committe) may decide that there is lack of sufficient “hard” evidence to convict. Therefore, let’s stipulate the House decides not to move forward anyway, for this reason.
But Kucinich can now get his mug on TV, and complain about how “crooked” Washington is, how much of the lone Knight in Shining Armor he is, yada yada yada.
Net effect: SCOTUS took time out of their schedules, and got used so that one Representitive can play political games. Cheap and easy TV time for his reelection campaign, or whatever.
What do normal Grand Juries do? I think they (may) have some investigative power to assess what is in front of them. But in the end a Grand Jury is NOT the trial! They merely say they think issue-X should go to trial (or not).
Unless you think the whole Grand Jury thing is bogus despite being a feature of US law forever why would the SCOTUS acting in this fashion would be any different?
The Grand Jury is a check on the power of the prosecutor. It is there to place at least a minimal burden on frivolous prosecutions or one nasty prosecutor could make life miserable for individuals who have no other power in the system.
Is the SCOTUS review here an effort to check the power of Congress? If not, then what purpose does it serve? Are you trying to restrain the power of Congress or place a new burden on Congress?
It’s an apples to oranges comparison for a couple of reasons (again, I’m not a lawyer so I may be totally wrong here). First off the motivation for trail is completely different, as a move to impeachment would be (and has been) POLITICALLY motivated. All someone like Kucinich has to do is present a bunch of allegations that could be considered criminal, and if the SCOTUS has only that to base their decision on they will affirm that, indeed, those are crimes and motion to proceed. I believe in a Grand Jury you have to present evidence that would enable a reasonable decision to proceed. Sure, it’s not a trial…but they aren’t just giving a laundry list of accusations (a la Kucinich) and basing their decision simply on if the things on the list are illegal or not.
Secondly you said that Congress could simply ignore whatever SCOTUS rules and proceed (or not) themselves…which is not as a Grand Jury works afaik.
Because either SCOTUS would have to see enough evidence to make an informed decision (which would mean this wouldn’t be a quick process), or it would simply be a rubber stamp for whichever moonbat in Congress had a bug up his butt about the President. In either case I think the potential for politically motivated abuse is high.
-XT
So you and others keep going on about. And it is true as things stand.
However, I have been trying to keep an eye to the OP which is more along the lines of should it be this way? Personally I answer that with an unequivocal, “No, it should not be strictly a political matter.”
I think leaving it as a strictly political tool has now proven its rather serious flaws. We get an impeachment of Clinton and nothing for Bush. One was a guy lying about a consensual blowjob and the other a guy who has broken international treaties, stomped on our constitution, cost us over a trillion dollars and squandered American lives (not to mention foreign ones too). Of the two who would you put on trial?
That is what politics has gotten us. That a matter of justice can be aborted so simply is anathema to my mind. I do not care who your friends are. If you (generic “you”) have committed some rather serious crimes you should answer for them. I can see no possible reason someone would argue otherwise.
That you and others here seem fine with the status quo blows my mind. It beggars the imagination a small group can upend our laws and integrity so completely and yet have nothing to answer for. I am just amazed you are not spitting mad but then I guess as long as it does not affect people personally they don’t care about the underlying values and principles that just got squashed.
My proposal was to force Congress to hold a formal investigation/proceedings if the SCOTUS said yeah, there were real crimes alleged and yeah, the evidence provided to the SCOTUS is suggestive enough to merit a trial. If the SCOTUS said no to either of those things Congress could still proceed if they wanted to just as they do today. This preserves their current powers as is and allows for the political removal of a president even if it only was for farting. Essentially Congress maintains all current powers as is and merely is faced with a second possibility to force their hand if the political will/numbers simply do not add up in Congress for them to do their job.
I would hope the SCOTUS would discern an impeachment request based upon presidential farting for what it is and reject it pretty much out of hand. The SCOTUS can give as much or as little attention as they feel they should with regard to such a request. In general I think we could assume such requests would be serious and that the SCOTUS would review it with due diligence.
I do not think Impeachment was meant to be a legal prosecution. We have that already with the Justice syatem.
Why have two seperate processes that do the same thing? (That is, criminally prosecute the President.)
Lack of Impeachment is not what is preventing Bush from being lead away in cuffs.
The Republican leadership was able to impeach Clinton because the moderate wing of the Republican Party was indifferent (or at least not opposed), IMO. The more right wing of the party was able to drive events, then, and the party leaders put on a show for them. (I don’t recall, but I don’t think that the voters punished the Republicans involved much. Some yes, some no.)
As it is, I don’t think that the majority of the American public, or even of the Democratic Party, wants impeachment right now. (I think they just want to move on, and pick someone who will fix the blunders made by the current administration.
If the majority of the citizens were calling for impeachment, I think the Congress would give it to them.
Impeachment is not about justice. A criminal trial is. Two seperate processes, for two different purposes.
The system is set up so that a small group (or one) of the Congress-critters can’t bog the system down with unprovable assertions (or personal political vendettas). It takes a majority of will to act.
Needless to say, it sucks raging donkey dicks if you ain’t in the majority.
So, you want someone (in this case, the SCOTUS) to force Congress to do something it doesn’t want to do. Something that only Congress can do. Something that you would allow Congress to do if it felt like, without the prodding from SCOTUS anyway.
I would hope Congress wouldn’t impeach for farting, either.
I would hope that Congress would impeach if they thought that serious crimes had been uncovered.
No one needs to go to the SCOTUS to know that (some of) the violations you laid out, if Bush was provably quilty of doing them, violate a serious Federal statute.
Do you really think Pelosi is unsure of the serious nature of some of the charges?
Maybe she realises that they can’t be proven a) within a time frame to make impeachment non-moot, and b) to the satisfaction of enough Congress-critters to get a conviction.
If the Congress doesn’t think it’s worth it, why should the (presumadly apolitical) SCOTUS Justices would know better?
(I presume any Justices appointed by Bush would have to recuse themselves. Bricker?)
Remember my other idea that an Impeachment would strip the President of protection for acting within the realm of his Article II powers (only for the specific items for which he was impeached).
Bricker (somewhere and others too I believe) noted that the President gets considerable protection for “doing his job”.
Further you noted other problems with all this. The AG works for the president. So justice is thwarted there. It is hard to imagine any president opening the can of worms of sicking his AG on the previous president so even a new president probably will not go there.
Again politics is trumping justice. I am not suggesting presidents should become easy targets but when the issues are as overt as these are it is hard to contemplate anything a president might not do as long as it was within the realm of doing his job that he could not get away with. Starting a war under bogus pretenses, hundreds of thousands dead and injured, trillions spent, constitutional protections circumvented, blatant breaking of decades old international treaties, torture…just how far can someone go before you say, “Wait a minute! This is too much!”?
What does this even mean? The President’s Article II powers doesn’t give him the right to do illegal things as it is. If there’s a law against X, the President still can’t do X and say, “Article II” as a defense.
Impeachment would not automatically remove the blanket Article II protection from the President.
The President may not be charged with murder (or manslaughter, or whatever) when exercising his lawful duties.
Example: President Carter order a rescue attempt of the American hostages held in Tehran.
Historically, the failed (poorly planned) operation resulted in the death of eight U.S. servicemen. technically, it might be considered an (un)declared act of war, when viewed from the Iranian point of view.
President Carter is immune from any criminal prosecution (either from the poor planning that resulted in the U.S. deaths, or any Iranian deaths if the op was a success) that might have resulted from his direct orders, as well as any civil lawsuits from bereaved family members.
This protection is extended to his duties as President. Not because he is/was President. It followed him (Carter) even after he left office, because when he ordered that operation, it was within the scope of his lawful duties to do so.
What you would need to do is convince a prosecutor that Bush’s orders do not reasonably flow from his lawful duties.
Many President’s have directly ordered operations that have resulted in deaths, both American and -non.
Is Carter criminally liable for the deaths in Operation Eagle Claw?
Reagan: Grenada, Libya, Lebanon?
Clinton: Balkans, Sudan, Mogadishu?
One of the things protecting Bush, is Congress itself. It gave Bush the AUMF v. Iraq. “But he Lied!!” Congress had access to the same stuff he did, but didn’t look at it. If Bush is criminally liable for however many deaths resulted from the Iraq war, then isn’t Congress?
As an example: Bush gets Congressional approval to prosecute the war. In his efforts to do that he wiretaps Americans. The president’s stance has been that his constitutional authority as Commander-in-Chief trumps the FISA law.
IOW: Hiding behind his Article II powers.
Good grief…read what you quoted again.
I said it was a notion of mine. Not that that is how it works. And also note I said it does not remove blanket protections…only for the issues he was explicitly convicted of in his impeachment.