Modern Day Drifter

Impeach President Bush?  On what grounds?  Must I remind everyone that in order for articles of impeachment to be drafted against a sitting president, there must be evidence of that president committing 'treason, bribery, or other high crimes and misdemeanors'?  I will grant that the phrase 'high crimes and misdemeanors' leaves a tremendous amount of room for interpretation in determining what threshhold of severity must be breached in order to proceed with impeachment.  What I will not grant, however, is the idea that a president ought to be impeached because people don't like him or the result of policies he has implemented.  In other words, if you support the impeachment of a president or any other civil official, you had better be prepared to convince me that that president or official did, in fact, break the law and that that partcular violation of civic trust is so egregious that it merits removal from office.

Based on this standard, then, the popular arguments for the impeachment of President Bush face serious challenges.  One of the more common pro-impeachment arguments put forward is that President Bush lied to the American public in delineating reasons for the US's unilateral invasion of Iraq.  Okay.  But there are two problems with arguing that the manner in which President Bush sold the Iraq invasion merits impeachment.  The first problem is that, using the legal definition of lying, President Bush never lied to the American public.  Lying, at least how the legal system defines it, means deliberately providing information that you know to be incorrect and conveying it as the truth.  Period.  Remember that in late 2002, every major intelligence agency in the world (CIA, MI6, Mossad) thought that Saddam Hussein did have at least some weapons of mass destruction.  Accept the logical assumption that President Bush believed and therefore based his decision to begin combat operations in Iraq on this information.  So when he told the American public that Saddam Hussein possessed weapons of mass destruction, he wasn't lying; he was only conveying information that he believed to be true at the time.  The fact that the intelligence has since been proved incorrect is irrelevant.  The legal standard for lying requires that the alleged liar know that his information is false at the time of the alleged lie.  In other words, the definition is not, and cannot be, applied retroactively.

The second problem with the lying argument is that, even if you have convinced yourself that President Bush lied to the American public, you would find it very difficult to argue that lying to the American public is illegal.  Immoral?  Yes.  Despicable?  Certainly.  Damaging to civic trust and government?  Without a doubt.  But illegal?  No.  The last time I checked, the President is not under a legal oath when he delivers a speech to the public.  Nor is he constitutionally obligated to always tell the truth to the American public.  So you cannot accuse President Bush of perjury.  President Clinton was impeached for perjury not because he lied to the American public in the infamous press conference, but rather because he lied to a grand jury after taking an oath.  The latter is a crime for which anyone can go to jail, the former is not.  Scooter Libby, who I shall get to later, is guilty of the same crime: perjury in front of a grand jury.  So unless you can come up with evidence that President Bush made intentionally misleading statements which he knew to be so after taking an oath, the argument for impeachment based on the incorrect claims of weapons possession hold no water.

The rest of the arguments face similar problems.  The imprisonment and possible torture of terrorist suspects at Guantanamo Bay and other sites around the world?  It's atrocious and not in the spirit of the United States of America.  But you cannot convince me that it's illegal.  I understand that the Geneva Convention is the law of the land since the Senate ratified it, but President Bush and his administration found a legal loophole by declaring the suspected terrorists 'enemy combatants' and conducting their interrogations outside of the United States.  They outsmarted the legal system; that's what lawyers do.  They manipulate the system and bend the laws to suit their particular goals.  And we can, and should, thank them for revealing these particular flaws.  And never forget that when Congress was given the chance to fix the loophole and prohibit torture, in any form, against anyone, Congress balked and gave President Bush exactly what he wanted.  In this case, the individual senators who committed this deplorable breach of consicience are the ones who should be removed from office for their lack of courage and defense of the ideals of the union.

The commutation of Scooter Libby's prison sentence?  Well, yes, it wreaks of politics and political favoritism, but guess what?  It's not illegal since the president has the constitutional power to pardon criminals and commute their sentences.  And furthermore, every president uses the office to shower favors on their friends.  Yes, it pays to be rich and well-connected in modern America.  It always has.

The pitiful response to Hurricane Katrina?  Pitiful, yes, but one needs to look only at the title of this post to decide whether it merits impeachment.

The only pro-impeachment argument in which I can find evidence of a crime is the wiretapping program revealed by the NY Times in December 2005.  To me, allowing federal agencies to wiretap international calls without warrants is a violation of the FISA law enacted in 1978 and therefore illegal.  Here, President Bush and his administration clearly broke a law that was passed and enacted by Congress.  And for this, I certainly want him held accountable.  But more than that, I want anyone who would argue for the impeachment of the 43rd President of the United States of America, George W. Bush, to sit down and actually analyze their arguments.  Impeachment is not a trivial matter.  It is not a word or an idea that can be tossed around on a whim whenever a president or civil official does something that you don't like.  It is the most serious charge that we can level at an official in our government and we should treat it as such.

The Georgia state legislature is considering* a bill that would allow Georgia counties to display the Ten Commandments and other historical documents (read Mayflower Compact) on county government property. Most state legislators predict that the bill will make it through the legislature by the end of the current term. Also, as, expected, the ACLU is gearing up to challenge the bill in court should it pass. The arguments for and against the bill are effectively the standard arguments given for this issue. Supporters claim that the Ten Commandments are one of the founding documents of the western (and in particular american) legal system and for that reason should be given their proper due and reverence in the legal institutions of the state of Georgia. Opponents argue that such displays violate the establishment clause of the Constitution because governments effectively endorse religion by displaying some of the fundamental tenets of Christianity.

Now, these types of cases should be less of an issue in the future because the Federal Court of Appeals for the 6th Circuit has recently established what I'll call the "reasonable person" statute. This statute basically says that any display of the Ten Commandments on government property is okay provided that a reasonable person can interpret the display as historical in nature. Thus, since we have this statute and it hasn't yet been challenged in a higher court, the proposed Georgia law is not unconstitutional on its face because the bill explicitly allows the display of the Commandments on historical grounds. In other words, the language of the bill clearly states the legislature's intent as desiring to show how certain religious documents have influenced the american legal tradition.

Here's the thing, though. I'm not convinced by the arguments that proclaim that the Ten Commandments are the basis of the american legal system for two reasons. The first reason has to do with the nature of the Commandments themselves. Reading the Ten Commandments, I can only find two, maybe three that have actually made it into the common law in this country-prohibitions on murder and theft. Lying is only illegal in very specific circumstances and adultery is typically only grounds for divorce, never for incarceration or other civic punishment. Thus, it seems the Ten Commandments are only batting about .200 in terms of influencing the explicit laws in the american legal system.

If you're not convinced of this argument, then consider what the other Commandments prescribe as laws for believers. How can "I am the Lord thy God who brought you out of the land of Egypt" be interpreted as part of the american common law? Where does the american legal system consider it a crime to "make a sculpted image or any likeness of what is in the heavens above"? Have people ever been sent to jail for "swear[ing] falsely by the name of the Lord" under any circumstances?

Furthermore, my explicit problem with the Ten Commandments is that they have absolutely nothing to say about protecting children. Do the statues that we have enacted to protect children from would be predators have a religious foundation as argued by supporters of Ten Commandments displays? Not if you believe that the Commandments are part of the foundation of the american common law.

Given the above statements, it would seem then that the argument for Commandments displays as a historical exhibit fails. Not quite. I have also heard the argument that the historical significance of the Ten Commandments is that they represent the first time in man's history that laws were explicitly codified and put on public display. The argument goes that after Moses descended Mount Sinai, individuals no longer could claim ignorance of the laws because they were now plainly visible to all. Thus, the tradition of the american legal system's transparency descends from the explicit codification of God's laws in the form of the Ten Commandments.

There is one massive problem with this argument, however. Depending on how much faith you put in carbon-dating archaeological methods, the Ten Commandments may not be the first time in man's history that laws were codified and put on public display. This distinction could go to the Code of Hammurabi, a large black obelisk that contains 242 explicit prescriptions and their punishments. By most accounts, the Code dates from nearly four thousand years ago and may be older than the Ten Commandments. Furthermore, as a potential influence on the legal system, it actually is more compatible with the american common law than the Ten Commandments ever could be. To begin with, the Code contains explicit punishments for violation of the established laws. While violating laws in the current american legal system does allow for some flexibility in punishments, a would-be criminal can have a reasonable expectation of his punishment will be if he is caught and convicted. The Commandments provide no such punishments for violations.

Secondly, and this is the key difference between the two documents, Hammurabi never considered himself to be a descendant of God. Where the Ten Commandments are explicitly God's laws, the Code codifies Hammurabi's laws. Since Hammurabi was not a descendent of God, laws of his creation could not be divine in nature. Thus, because the american legal system does not consider its laws divine in origin, it would seem that the Code is a more natural choice since it definitively represents the first time in history that man codified man's laws.

So, here is my proposed solution to what is likely to be a long and drawn out battle over the display of the Ten Commandments in public buildings and courthouses. I don't dispute that the Ten Commandments have had an impact on the american legal system. Far from it. I'm only saying that the arguments that are currently given in favor of their historical significance are flawed because the Ten Commandments largely don't reflect the laws of this country and may not be the first time laws have been codified. So, in order to satisfy the believers who want their document on display and to mollify the ACLU types who fear the coming theocracy, let's simply have displays that really do represent the historical foundations of this country's legal system. Such a display would include the Ten Commandments, the Code of Hammurabi, the Mayflower Compact, the Cherokee and Iroquois charters, and perhaps a couple of other documents that I'm currently unaware of. Such a display really would portray all of the legal traditions that we hold dear as well as capturing the influences of several different religions on the codification of american laws. No reasonable person could ever be put off by such a display. And, hell, they may even learn something.

* This essay was written in January of 2006.  I believe the bill passed, but I cannot find a source on whether or not this is accurate.