Blogs > Cliopatria > Stanley I. Kutler: Has President Bush Committed an Impeachable Offense?

Jan 1, 2006 2:39 am


Stanley I. Kutler: Has President Bush Committed an Impeachable Offense?



Stanley I. Kutler is Emeritus Professor of Law and E. Gordon Fox Professor of American Institutions at the University of Wisconsin. He is the author of The Wars of Watergate and Abuse of Power.

He was interviewed by HNN's Rick Shenkman by phone on December 29, 2005.


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omar ibrahim baker - 10/19/2007

Mr N. Friedman's burgeoning change of heart re the conquest of Iraq is in no small measure due to his increasing open appreciation of the benefits that befell Israel from this American tragedy; fighting the Zionist cause with American blood and money.
Or is it that AIPAC is rallying the troops around an increasingly unpopular President in return of favours done to their ONE and ONLY cause; Israel??


Arnold Shcherban - 1/25/2006

I like when open or secret apologets of the US agression against
Iraq "innocently" use that "war" status label to reflect on the current situation. There is no war
going on or was going on, unless one considers the one-way US (long-before premeditated) agression
and thrashing of hapless Iraqis by the "coalition of the willing" as the
war-time situation for the superpower, and deny the sovereign state the omnirecognized rights to oppose the latter with military means on their own territory.
Besides, I can bet that sooner than
later it will be discovered (or more correctly to say - revealed) that not only foreign, but two-way domestic
communications have been intercepted, and not only those of the suspected Al-Qaeda operatives, but also those of just the real or perceived ideological and political adversaries of Bush administration and conservative agenda in general.


N. Friedman - 1/4/2006

Chris,

My comment about being a punching bag was made primarily because your rather substantial comment seemed to bounce from my comment rather than respond to it. In any event, your apology is certainly accepted.

As for your approach: I have some general thoughts. I think that mankind, considered as a whole, and individuals, considered as such, are constructs, not reality. And, mankindism or individualism is no less a construct than nationalism (e.g. as understood in the US or Israel), transnationalism (e.g. the ideology of the EU), religio/politicalism (e.g. Islamism and the ideologies of medieval Christiandom and medieval Calphism) or cityism (e.g. as in classical Athens and modern day Singapore).

I also do not see how one examines history and concludes that universal government or, the alternative, anarchism, leads automatically to an improvement over the current mess. It might, in some circumstances and it might not. More likely, universal governance or anarchism would merely cause a different mess and would, in time, descend toward barbarism without any substantial countervailing force - only powerless individuals - to abate the fall.

Given the current state of the world, you can assume that truly universal governance today or anarchism would be extremely reactionary and would eliminate the very notion of law you espouse. Which is to say, it would reflect the views of the most determined forces within it - at this moment, the Islamists and groups of that type (and not limited to Muslims but they are certainly a major part of the mix) -. Such would be, in other words, a nightmare and the end of civilization for centuries to come.

So, I think your position, if I understand you correctly, is utopian and dangerous. I do not see how your position leads to the rule of law. I do not see how, in the current world, it leads anywhere but to barbarism. So, I cannot, given the state of the world, imagine advocating such.

I suppose that turns me into a conservative. I reject that identification and merely note that one does what is possible to accomplish decent governance where it can be established and one employs the rule of law to the extent it is possible. I trust you know the saying of former US Supreme Court Justice Oliver Wendall Holmes: "The lifeblood of the law is experience, not logic."

Now, you write: Law in this sense is above history, since it is willing to incorporate universal principles and values that are inherent to all cultural, ethnic, and religious systems...those things we call rights.

The main problem with your statement concerns the ranking of values, not their universality (although there are real questions about universality as well).

One might pose the problem with your point this way. Some civilizations posit society as the highest principle and value. Others posit the individual. Societies which posit society highest tend to think in terms other than "rights" - at least if understood as individual rights -.

Now, this ranking of principles and values is not, in my view, a question of right and wrong ranking - unless, of course, you can prove that one ranking is universal while the other is not -. In that high civilization appears to have occurred either way, it is rather difficult to claim one ranking is correct while the other is not. Instead, one can say one prefers a given society which has ranked values a certain way.

A good example of how this plays out involves the notion of religious freedom. Where the individual is ranked high, there is the right to change religions. Such is universally, so far as I know, the case in the West.

Where the individual does not rank on top, that right to change religions is generally seen as a danger to society. I am sure you are aware that Muslim countries universally (or, nearly universally) reject the right to change religion (except to convert to Islam) as such is deemed destructive of society. Which is to say, the rejection is made on principle. [Note: this view is not limited to Muslim countries but Muslim countries have been rather open in their opposition to individual rights, particularly related to religion, so they are a good example - a paradigm -.]

In my view, law itself is incapable of choosing which alternative is better, at least if the choice is to be made on universalist grounds. Instead, justice in countries which believe in individual rights tend to universalize those rights. In other counries, justices tend to universalize those rights which hold up society over the individual.

You write: There are those individuals who are trained and educated to be non-ideological, impartial, independent, and non-political...rights theorists, certain legal academics, and the judiciaries of certain nations and the international sphere. They have the skill and ability to interpret and judge law.

One might have the illusion that such exists or could exist if one is a teacher or a judge. However, anyone who stands before a judge or attends class will tell you that judges and teachers always bring their own views with them and do not discard them, particularly when the result affects them. Some may be better at hiding their views but, in the end, their views affect what they say and do and how they judge. There is, in my view, no getting around that problem - only working to make it difficult for judges to place their own concerns first, which means that judges cannot be, in a good society, the only arbiter of that society, just one cog in the wheel -.

Now, you make an interesting point when you write: All they can claim is that it differs with their ideology of whatever...America as the greatest, America as an empire, free market capitalism...whatever that fundamentally flawed and biased ideology is.

This is correct. That is all people can claim. However, it is also all that can be claimed for law. The notion of law, as you perceive it, as universal is a disguised form of imperialism that merely tells others that they must rank values as you do.

Now, in our society, what those who attacked the WTC did violated our laws and our way of resolving disputes. It may also have violated the Muslim notion of justice since no invitation to submit to Islamic authority and law was given before the attack. However, it did not otherwise violate Muslim law as war to spread Muslim rule is legal according to most versions of shari'a. And, as I noted, there is no way to show their view is less universal than your own.

Now, one can say that our ranking of values is right - which, is really what you say once the claim of universality is removed from your assertions - or one can say that one does not wish to submit to Islamic authority and law or one can say that the goals of the terrorists destroy civilization, whether or not there are universal values.

Our response to the attack may violate international law. It might not. In my view, how that plays out is the stuff of history. Whether it violates a law is an interesting point but not a point about history. It is, instead, a statement about law and values.


chris l pettit - 1/4/2006

I do not mean it as a personal attack. I just think we approach things differently. You seem to see law as part of a wider history...which it is, to a point. I see law as an equal and symbiotically related to history. Law can be looked at in terms of historical analysis...but historical analysis cannot be impartial and non-ideological...there will always be the bias of the person putting together the history that affects things. On the other hand...history can drive law as part of law...but is not the whole of law. Law in this sense is above history, since it is willing to incorporate universal principles and values that are inherent to all cultural, ethnic, and religious systems...those things we call rights. There are those individuals who are trained and educated to be non-ideological, impartial, independent, and non-political...rights theorists, certain legal academics, and the judiciaries of certain nations and the international sphere. They have the skill and ability to interpret and judge law. Democracy still has its input in terms of the customary traditions, social movements, and historical implications that affect law. However, law exists on its own authority. It is something arising out of nature and universality...not something that gets its authority from a sovereign, nor because it is able to be enforced, nor from some sort of higher power. This is why violations do not in any way impugn the authority or existance of the law...and why, if someone makes the argument that law is part of history, or that those in power or who can enforce make the rules and dictate, one must cease arguing that anything that is done that offends them is not legal, not moral, violative of rights etc. One is only left with the argument that the action offends ones ideology...and that whoever has the power to defeat the "other" will be the one to dictate the rules...in other words Machiavellianism and power politics. Law and rights then necessarily disappear and one is left with people like Mr. Heisler, Omar, etc, who cannot claim any legal, moral, or rights based backing, but instead can only claim that whatever happened does not agree with their power based ideological framework. In this context, there was nothing illegal, immoral, or violative of rights in the actions of the individuals who crashed the planes into the WTC...these things do not exists unless they are universal...therefore Mr. Heuisler, et al cannot claim this to be a fact when they utilize their own ideological arguments. All they can claim is that it differs with their ideology of whatever...America as the greatest, America as an empire, free market capitalism...whatever that fundamentally flawed and biased ideology is.

Now, to address your other point...and something that again touches on democracy. I will remind you that Europe one put all its stock in blessed leaders who could talk to god and religion as their glorified way to run a country and the world. Nationalism and the concept of the nation state is the new religion and I will grant you it is the dominant ideology currently, both in the US and international law. However, it is an idea that is as indefensible and untenable as religion before it...based in artificial mythologies that disappear when examined closely. That most of the public of the world are too ignorant to realise that they are humans before they are Africans or Americans or black, or Christian, is simply because they are not educated and cannot think critically. Guess what, things change...people learn...the concept of the holy leader and will of god fell...as will the concept of the nationa state. I am sure I will not live to see it, but as long as I can continue to educate and point out the idiocy of the arguments of others, humanity will progress to the point when nationalism in terms of running a state or governing humanity will go the way of the dodo bird. It may take a nuclear war, worldwide famine or disaster...in fact it probably will...remember, the THirty Years War and the deaths of millions lead to the banishment of religion and the rise of the nation state...WWI and WWII and the deaths of millions lead to the formation of the UN and the articulation of the very law you deride and claim is ineffective and irrelevant...and it will take another future occurrance to take us the next step...hopefully not with the loss of millions of lives...but probably with those deaths.

See what I mean about history being a vehicle of law...and that law is universal, historical, and transcendent regardless of history and its interpretation?

CP


Frederick Thomas - 1/3/2006



The courts have consistently held that the right to moderately violate individual rights is implied within the war powers clause.

All war presidents have done it, to win their respective wars. It is necessary and reasonable, particularly as practiced by Bush, involving only offshore calls by Al Quaida or terror suspects. Does anyone seriously think this is not a good idea? How are Americans hurt?

Immediately after 9/11, Bush went to the foreign intercepts court and asked for permission a la the law, and that many were turned down, modified or delayed, because of apparent political issues, the justices being partisan.

So, what is the difference here? Hey, we could have had the wholesale jailing of journalists and politicians that took place under Lincoln, Fidder and WW. This is nowhere near as bad as that.


N. Friedman - 1/3/2006

Chris,

The sentence that begins "Now, if I might suggest an example of how law is incorporated into understanding legal events, I would suggest reading ..." includes a mistake. The word "legal" should actually read "historical." The sentence should therefor actually read:

Now, if I might suggest an example of how law is incorporated into understanding historical events, I would suggest reading The History of the Armenian Genocide: Ethnic Conflict from the Balkans to Anatolia to the Caucasus by Vahakn N. Dadrian.


N. Friedman - 1/3/2006

Chris,

I feel like a punching bag for your comments and I am not sure why. Perhaps I have not written as clearly as I might. Perhaps you have not understood me. I do not know.

In any event, you are addressing a very different issue than I have discussed. As I see your discussion, your issue is to employ legal argument to judge events or, perhaps more than that, actually to judge people by legal standards. That is fine by me. It was, however, not what I was addressing.

Instead, I was making an observation. The observation is that historians looking back will not, by and large, judge Bush by his conformity to International law but by more general historical standards. I also made the observation that International law is, by and large, used merely as a political tool, not as the neutral thing it perhaps ought to be.

In my humble view and in response to your comment, I think that International humanitarian law is an important thing. I just do not think it has much to do with the behavior of nations. That is an observation, not my view of what is preferable. In my view, no country will follow any law, much less International humanitarian law, that severly undermines that country's perceived vital interests and, absent rather extraordinary circumstances, there will be no consequences for the violation. Or, as Bertolt Brecht observed, people first feed their faces, then talk right and wrong.

Now, if I might suggest an example of how law is incorporated into understanding legal events, I would suggest reading The History of the Armenian Genocide: Ethnic Conflict from the Balkans to Anatolia to the Caucasus by Vahakn N. Dadrian. The book includes a substantial chapter regarding International humanitarian law as it relates to and as was employed in connection with the Armenian genocide. It is depressing reading as he shows that the legal tools were sufficiently in place to prosecute those involved in the genocide but, due for a variety of reasons, were sporadically employed and, when employed, used politically and then scuttled for political reasons. On the other hand, even as used, the prosecutions uncovered substantial information regarding what occurred.

And, I might add and apart from legalities: the background from which the Armenian genocide occurred is a remarkable echo of the present time, from the long standing (then European) policy of "Humanitarian" intervention, to the machination of politics, to the underlying notions of Islam which non-Muslims failed to understand but which helped, along with pressure from the "West," bring about catastrophes in hapless, contracting and reactive Muslim regions.



chris l pettit - 1/3/2006

First...I really could care less whether you are a member of the bar or not. THis does not mean much to me...neither does someone telling me they have a PhD or 30 years experience in a field. If you are blinded by ideology or cannot think critically, those things are meaningless. Look at Daniel Pipes...lots of education, lots of experience...one of the poorer academics in the US due to his overwhelming ideology and lack of critical thought. If you really want to know, I am licensed to practice internationally, have no interest in being a member of the bar in the US (outside maybe NY and CA), and lecture international law and human rights, previously at a law faculty in South Africa and soon at a university in Florida.

Secondly...I care not about whether you approved the war or not...that is your ideological and political stance...in terms of international governance, the "rule of law" and universality it is completely irrelevant. What matters is what the law states. You disapproved...good for you...want a cookie? As Omar demonstrates, there are ideological misfits on both sides of the spectrum...hence the reason international law exists...to overcome artificial hierarchies and the ignorant ideologies they spawn.

As a lawyer, surely you must see the paucity of your position...the "rule of law" and international instruments are mostly used to further political agendas? So what? Where is your point? If you took international law in law school you will be well aware of the principle that, no matter how much a legal standard is violated, that does not mean that it ceases to exist or is not still applicable. So your claim is totaly irrelevant and does not provide you with any excuse whatsoever. You still slide out of any legal argument and into an ideological one...you see other people violating the law and therefore can claim that it is either "unrealistic" or that it justifies the violation by the position you are defending. This is not how law works (well...outside the US...which is not a system of law...it is a system of rules, oratorical contests, and manipulation...if you took jury selection you know exactly what I mean by that)...the law still exists in the face of violations....if it did not, you re-enter the realm of legal positivism where he who has the power to enforce, decides what the law is going to be...again, imposition of ideology and rules...not universal law.

In taking the position you have, you are essentially arguing that impartiality and non-ideological positions such as those in international law...that are being echoed across the globe by the leading scholars on the topic...are just another item in the biased ideologically based struggle of history and culture. I can respect that position, but again, it means that one cannot utilize "law", "rights" etc in ones arguments, because one basically admits that law is just something to be taken into consideration in the overall ideological analysis, and can be discarded when one feels it is not "realistic" or it does not fit with ones ideology. True law is universal...it is affected by social movements, yes, but at its core are the fundamental principles articulated in human rights treaties. The problem that you hit on is one of procedure and the system...nation state sovereignty and poer based positions are the problem...and lead to violations. This does not taint the sanctity of the law, or that there are those of us with the authority and scholarship to deal in such matters. I would make the decisions of the Special Rappetours legally binding myself, as well as grant universal compulsory jurisdiction to the ICJ, ICC, and other judicial bodies...because that is where the best and the brightest legal minds...impartial and non-ideological (except for the US and Chinese appointments) lie. They alone have the authority to articulate what international law and human rights state...and how the standards apply to certain international situations. I am wondering if maybe you have been in the US system too long and have been tainted by the stench of ideology and legal positivism to the point that you believe that law can be manipulated and rights can be sidestepped as only being part of the ideological whole. It is sad to see that happen...as it does to the majority of law students who do not even get the chance to study theory and principle...and are instead mechanically trained like they are in a trade school, indoctrinated into US legal thought and positivism, and learn "international law, the US perspective" which basically states we can use it when we feel it suits us. This is one of the core reasons why there is no universal rights conversation...because nation states feel they can use international law when it suits them...they can't...it is universal, applies equally, and obligates all parties at all times. This cannot be avoided...just violated. SO again...you must acknowledge the illegality. You can talk all you want about whether it will be "relevant"...that is up to your ideology...it will be relevant for some historians and less for others...the fact is that it will be there, and will be significant and undeniable.

CP


N. Friedman - 1/2/2006

Chris,

CORRECTED:

You would help your argument a whole lot if you would read what I wrote. Note my exact words from my prior post: "But more seriously, I did not favor the Iraq adventure." That, evidently, did not register with you. And, I note: I have said the same thing over the course of years, not just for purposes of this discussion.

As for your comment - and assuming, arguendo, it were fairly based on my comment (which your comment was not) -, I certainly believe in the rule of law. I am, as you know full well, a practicing member of the bar.

The issue is not whether I am committed to the rule of law but how (i.e. in what way) historians, looking back fifty years from now - which is the perspective my comment noted -, will understand our period and understand the rule of law in our period. My suspicion is that law will not be understood to be a primary factor in the way your comment supposes.

To sumarize my views: I certainly believe in the rule of law and in International law, uniformly applied. But I think that most of International law is, frankly, almost never uniformly applied so that it merely becomes a tool of those with a political agenda. Hence, it is not a tool by which to judge historical events but must instead be judged as just one other phenomena among many. Sometimes it will be important but that is the exception.

In the current circumstances, the role of law may be somewhat larger (but still rather small), not because law can be used to judge events, historically speaking, but because the opposition to the war has raised legal arguments so that there is something to chronicle and explain. More importantly, the fact that law has not restrained anyone from doing what they will is a fact to be chronicled and understood and the fact that some use law for political purposes is another fact to be chronicled and understood. But, whether or not Bush broke or did not break the law is a fact with little historical import, in my view.

The main factors for historians, as have always been, will be the actors involved in the dispute, the issues involved in the dispute, the societies involved in the dispute and, since religion appears to have a role in the current dispute, the role of religion in the dispute and, quite obviously, the events that occurred. Somehow, the main question for historians looking back will not be whether President Bush is a law breaker (unless, of course, he is impeached, in which case there will be something to examine).


N. Friedman - 1/2/2006

Chris,

You would help your argument a whole lot if you would read what I wrote. Note my exact words from my prior post: "But more seriously, I did not favor the Iraq adventure." That, evidently, did not register with you. And, I note: I have said the same thing over the course of years, not just for purposes of this discussion.

As for your comment - and assuming, arguendo, it were fairly based on my comment (which your comment was not) -, I certainly believe in the rule of law. I am, as you know full well, a practicing member of the bar.

The issue is not whether I am committed to the rule of law but how (i.e. in what way) historians, looking back fifty years from now - which is the perspective my comment noted -, will understand our period and understand the rule of law in our period. My suspicion is that law will not be understood to be a primary factor in the way your comment supposes.

To sumarize my views: I certainly believe in the rule of law and in International law, uniformly applied. But I think that most of International law is, frankly, almost never uniformly applied so that it merely becomes a tool of those with a political agenda. Hence, it is not a tool by which to judge historical events but must instead be judged as just one other phenomena among many. Sometimes it will be important but that is the exception.

In the current circumstances, the role of law may be somewhat larger (but still rather small), not because law can be used to judge events, historically speaking, but because the opposition to the war has raised legal arguments so that there is something to chronicle and explain. More importantly, the fact that law has not restrained anyone from doing what they will is a fact to be chronicled and understood and the fact that some use law for political purposes is another fact to be chronicled and understood. But, whether or not Bush broke or did not break the law is a fact with little historical import, in my view.

The main factors for historians, as have always been, will be the actors involved in the dispute, the issues involved in the dispute, the societies involved in the dispute and, since religion appears to have a role in the current dispute, the role of religion in the dispute and, quite obviously, the events that occurred. Somehow, the main question for historians looking back will not be whether President Bush is a law breaker (unless, of course, he is impeached, in which case there will be something to examine).


N. Friedman - 1/2/2006

Omar,

Strange as it may seem to you, I have - and you can check every single one of my posts - never said I support starting a war against Iraq. In fact, I have said the opposite and said it repeatedly.


chris l pettit - 1/2/2006

Mr. Friedman,

You must realize the paucity of that choice of phrase..."policy choices?" Are you kidding me? Have you heard of something called the "rule of law?" International law? International treaties? Or are you going to take the position of someone else on this website who simply stated that the resort to international law as proof of illegality, even though the Constitution blatantly states that international agreements, customary law, jus cogens and peremptory norms are part of US law, "discourages the US from taking part in or joining the international legal framework." We are part of the the international legal framework whether ideologues like it or not. Basically, your position is...we have the might and power...we will commit illegalities...stop us if you can. You basically have to admit the illegalities and say that you don't agree with international law on an ideological foundation if you claim that there are no problems and that it was simply a "policy choice" Guess what..."policy choices" MUST comply with the law of the land, which includdesa international legal obligations. If you do not want to accept this, admit the illegality and simply state that you do not accept international law. In addition, cease to use the words "law", "freedom" and "rights" in your arguments, as these are terms of universality and meaning...not things that can be used to cynically further an ideological argument. One other thing...if you want to admit that there is no law...that is fine to...I actually think that law and rights only exist in classrooms and academic thought where reason and critical analysis can actually overcome the ignorance and ideology of the so called "realists"...but then you can't make any arguments against terrorist attacks, state actions, etc, except on ideological grounds. You cannot claim that what they are doing is illegal, violative of rights, or even wrong...because these concepts do not exist...you can only argue that it violates your particular political ideology and that you will use the force you have behind your ideology to try and fight the ideology that you do not agree with. There is no law, no rights, nothing to be discussed other than whose brute force can win...the essence of legal positivism and Huntington's clash of civilizations.

So please...enlighten me...are you going to universally apply law, admit the existence of international law, human rights, and universal standards, and actually listen to those of us who are authorities on the topic and are untainted by ideological idiocy...or are you content to admit that you are taking the position that there is no law, rights, etc...and admit you cannot complain or argue about airlines being crashed into buildings except to say that it does not agree with your power based ideology. There is no middle ground, as law is by its nature universal and applies equally to all...as do rights. Which will it be?

CP


N. Friedman - 1/2/2006

Arnold,

It seems to me if Clinton's minor doings can be turned into an impeachable offense, anything can. For Bush, perhaps he should be impeached for gross incompetence and gross bad luck. Or, in simple terms, everything Bush touches turns to drek. Such ought to be an impeachable offense on its own terms - the drek charge!!! -.

But more seriously, I did not favor the Iraq adventure. However, I cannot deny that a stark examination of today's reality really did include a president, whomever he or she was, having to make some pretty awful choices. So, I can really imagine someone looking back at our time 50 years from now seeing the matter rather differently, depending of course on how things turn out overall, not so much in Iraq.



Arnold Shcherban - 1/1/2006

The first impeachable offense (more of that - war crime) commited by Bush and his criminal clique was agression against Iraq. So, this last offense is just a small part of the wide-scale and perpertual right-wing-corporate-mafia's against democracy, humanity, vital American and other nations' rights, national economic and socio-political independence and sovereignity.
It's a tragedy for this country that because those reactionary forces
have been actually ruled this country
for decades by now, current Commander-in-Crime won't be impeached.

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