Cross my fingers,
Cross my toes;
Hope nobody´s looking,
In a July 2014 CNN poll, one-third of Americans supported impeachment of President Obama.
A delusional pipe dream? When the poll was released, Obama´s senior adviser Dan Pfeiffer said of impeachment: "I would not discount that possibility."
Neither do we. In fact, the 33% poll figure and the odds favoring impeachment can only be higher today. When the poll was taken and Pfeiffer spoke, the incredible, total CIA/Pentagon failure to counter ISIS was not yet a self-evident truth.
Our prior post, "The ISIS Crisis. The Abraham Lincoln Solution," discussed in depth the U.S. intelligence and military ISIS debacle. In a matter of days, that post received thousands of visitors, a record number.
Given the well-documented and incontrovertible ISIS genocide, the CIA-Pentagon failure was not only inexcusable, it was unconscionable.
But who is ultimately responsible?
In the TV interview in which he admitted the U.S. Government had "underestimated" ISIS and "overestimated" the Iraqi military, nowhere did President Obama accept any personal responsibility.
Given that missing admission, coupled with the fact Obama never applied the Lincoln solution, i.e., fire those responsible, Obama and Obama alone is responsible. The ultimate reason is ultimately simple: Obama and Obama alone is Commander in Chief. He obviously feels uncomfortable in his commander role which has little to do with his personal preference: government by photo-op. That is why the buck keeps going and going.
Because of Obama´s reluctance -- inability? -- to apply the Lincoln solution to the CIA and Pentagon, upcoming opinion polls will probably show that, increasingly, Americans want to apply the Lincoln solution to Obama.
* * *
Does Obama´s ISIS disaster justify impeachment?
Here are three arguments favoring impeachment that will likely be forthcoming.
(i) I will start with the little-known but highly-significant theory of presidential prerogative:
"In their endeavor to develop and legitimize an independent presidential war-making power, U.S. presidents have utilized the prerogative theory of presidential authority. According to this theory, the U.S. Constitution vests in the President a broad prerogative--a general, undefined power that is inherent in the Office of President and is in addition to the more specific, less ambiguous enumerated grants of presidential authority contained in Article II, Sections 2 and 3, of the Constitution. The adherents of prerogative theory hold that the presidential prerogative is a broad power to act in the national interest, or general welfare, of the U.S.A. during time of a very serious national crisis or extreme emergency. They contend that the President has general, undefined authority and responsibility to take rapid and decisive action to cope with a national crisis or emergency situation of extraordinary proportions, e.g., the U.S.A. being subject to foreign invasion or attack or being in imminent danger of foreign invasion or attack."
Abraham Lincoln was a vigorous advocate of presidential prerogative. During the American Civil War he felt that because of his presidential oath (see below) to preserve, protect and defend the Constitution, not only did he have extraordinary powers to save the nation -- he was obligated to use them. Among other things, Lincoln went so far as to suspend the constitutionally-guaranteed right of habeas corpus.
In extraordinary and extreme crises such as civil war, then, given (i) a clear and present danger to the nation´s very existence and (ii) the threat´s temporary nature -- which together form (iii) a dangerous emergency -- it is responsible and reasonable to invoke a provisional constitutional dictatorship.
Not surprisingly, FDR and every president after him subscribed to the prerogative theory. Fortunately for the United States, with notable exceptions, e.g., the internment of Japanese U.S. citizens during World War II, the theory was seldom applied full-throttle.
The hub of the matter: some impeachment advocates will claim that Obama failed to use presidential prerogative to protect America against the ISIS menace.
Faced with the above impeachment prospect, in what could be called defensive retreatism, Obama took the following position: unlike al-Qaeda, ISIS does not pose a direct threat to the United States. (In January he even likened ISIS to a junior varsity basketball squad.) If you accept Obama´s argument, presidential prerogative is beside the point. No national emergency of extraordinary proportions = no extraordinary presidential emergency powers, duties, obligations, responsibilities.
If preserving and defending America against ISIS is truly a non-issue, it follows that Obama should not be impeached for not exercising extraordinary powers in a non-extraordinary situation.
There is of course another side to the same coin. In claiming that ISIS is not a national security threat, Obama foregoes any legitimate claim to presidential prerogative powers. He cannot, for example, because of ISIS suspend habeas corpus (as did Lincoln). Again: no emergency danger; no emergency powers.
Of course, Obama sees things differently. He wants to play the oligarchy´s favorite game: heads I win, tails you lose. His tactic is actually that of the CIA and Pentagon: make permanent a temporary emergency -- 9/11 has been extended to become a War on Terrorism -- and thereby render presidential prerogative perpetual. In a moment we will look into this radical change; it is part and parcel of a change of, not in, the American political system.
If, however, you believe ISIS poses a real threat to America, the scenario changes. Since June, Republicans have been headed in that direction; they called ISIS "the greatest national security threat since 9/11." For a balanced presentation of the argument that ISIS already constitutes a danger to America, click here.
With every inch of ground lost to ISIS abroad, the viewpoint that ISIS is a national security threat gains ground at home. According to a Washington Post/ABC poll conducted last month, 91% of Americans now view ISIS as a "threat to the vital interests of the U.S."
To the point: if ISIS truly constitutes a threat to America´s national security, Obama´s incredible ISIS intelligence and military disaster is of impeachable proportions. He failed to recognize the ISIS menace and consequently did not use his emergency prerogative powers to contain ISIS, much less eliminate it. Even worse, he may have concretely aided and abetted ISIS (see below). In either case, he violated his presidential oath construed in its larger sense, viz., defend America.
Is ISIS a national security threat?
It all depends on what you mean by national security and threat.
At what precise point does a non-threat become a national security threat -- when does quantitative addition create qualitative change? Some public figures, e.g., Senator Jeanne Shaheen, argue that with the beheading of Americans James Foley and Steven Sotloff, the line was crossed and thereafter ISIS constituted a threat to America.
We will let others debate whether or not ISIS constitutes a menace to United States security. We will not participate in that debate for a simple reason to be given later.
(ii) The second argument for impeaching Obama over the ISIS debacle: malfeasance in office.
The Constitution mentions "High Crimes and Misdemeanors" (see below) as causes for impeachment. If the incredible, total intelligence and military failure in Iraq/Syria is not malfeasance, what is? And if malfeasance is not at least a Misdemeanor, what is?
But what is malfeasance?
Here is one legal definition:
"Malfeasance has been defined by appellate courts in other jurisdictions as a wrongful act which the actor has no legal right to do; as any wrongful conduct which affects, interrupts or interferes with the performance of official duty; as an act for which there is no authority or warrant of law; as an act which a person ought not to do; as an act which is wholly wrongful and unlawful; as that which an officer has no authority to do and is positively wrong or unlawful; and as the unjust performance of some act which the party performing it has no right, or has contracted not, to do."
--Daugherty v. Ellis, 142 W. Va. 340, 357-8, 97 S.E.2d 33, 42-3 (W. Va. 1956) (internal citations omitted).
The court elaborated:
"malfeasance is the doing of an act which an officer had no legal right to do at all and that when an officer, through ignorance, inattention, or malice, does that which they have no legal right to do at all, or acts without any authority whatsoever, or exceeds, ignores, or abuses their powers, they are guilty of malfeasance."
That elaboration is crucial -- we will see why in a moment. It stipulates that a public official need not deliberately and knowingly commit malfeasance to be found guilty of it -- that ignorance or inattention qualify. Malfeasance, then, is a matter of consequence, not intention.
We come to the core of the malfeasance question. In America´s ISIS intelligence and military failure, what wholly wrongful and unlawful act did Obama commit either knowingly or unknowingly? Simple put: what did he do that he ought not to do?
Before continuing, note carefully that in all the definitions of malfeasance mentioned above, an act must be committed. Negligence, which consists of the non-commission of an act, therefore cannot constitute malfeasance. But can negligence, in and of itself, be a High Crime or Misdemeanor? We will examine that question shortly.
In the area of concrete acts, the arming and training of ISIS by the CIA and Pentagon may qualify as a High Crime or Misdemeanor. Much depends on the circumstances in which that aid and assistance were rendered. Purportedly, the circumstances were the civil war to remove from power Syrian President Bashar al-Assad.
We have noted in prior posts that, blinded by an ideology, the CIA and Pentagon are ignorant of the cause of terrorism: middle class rebellion. The practical implications are enormous. That ignorance is what renders them incapable of distinguishing rebels (notably "moderate" ones) from rebels turned or about to turn into terrorists. Ignorance is, in one word, why the United States Government is wholly incapable of vetting terrorists like ISIS. (As this blog has shown, in case after case the American authorities have proven themselves unable to identify terrorists literally sitting three feet in front of them.)
The legal implications of that ignorance, too, are enormous. Look again at the second definition given above of malfeasance. Ignorance or inattention does not save the CIA or Pentagon -- or Obama -- from a malfeasance verdict. They cannot claim that when we helped ISIS we did not know what ISIS would become, and walk. Consequences, not intentions, count.
How Washington -- that is to say, Obama -- may have aided and abetted ISIS in its early days is shrouded in secrecy. He knows if the shroud is torn off, for reasons given above, the prospect of impeachment rises logarithmically.
Until more information is forthcoming about U.S. participation in the birth of ISIS -- the question is not if but when -- it is premature to say if Obama is guilty of malfeasance, therefore guilty of a Misdemeanor if not a High Crime, hence, guilty of an impeachable offense.
(iii) We come to the third argument for impeaching Obama over his handling of ISIS: negligence.
Common sense dictates that if negligence is not always a High Crime, it is always a Misdemeanor.
Here is the core of the legal definition of negligence:
"Conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.
In order to establish negligence as a Cause of action under the law of torts, a plaintiff must prove that the defendant had a duty to the plaintiff, the defendant breached that duty by failing to conform to the required standard of conduct, the defendant´s negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged."
To prove that Obama was negligent would require victims of ISIS to file a lawsuit. If the court found Obama guilty, because negligence is at least a Misdemeanor, there would be grounds for impeachment.
To sum up: the failure to use presidential prerogative to counter a dangerous emergency; malfeasance; negligence: you will be hearing more about them in impeachment discussions. As indicated, we will not be participants.
The reason: we regard all three arguments as red herrings.
There is a fourth ground for impeaching Obama. That ground is solid, irrefutable. And, it has nothing to do with ISIS.
* * *
Former President Jimmy Carter served in the U.S. Navy, 1946-1953. His last assignment was as senior officer of the pre-commissioning crew of the Seawolf, the second nuclear submarine.
A few weeks ago, Carter showed he still has a submarine cruising in his veins. Nuclear-powered, too.
In an interview on October 8, he fired a torpedo at Obama´s ship of state. Carter´s down the throat shot hit. As is often the case with naval attacks, the result will not be certified until later.
“´I really object to the killing of people, particularly Americans overseas who haven’t been brought to justice and put on trial,´ [Carter] said. ´We’ve killed four Americans overseas with American drones. To me that violates our Constitution and human rights.´
In May 2013, the Obama administration acknowledged that it had killed four American citizens in drone strikes in Afghanistan and Iraq since 2009."
President Obama violates our Constitution?
In a not-so-distant past, such a violation would have caused a presidential administration to jackknife, form a "V," sink to the bottom. The reason: if violating the Constitution is not an impeachable offense, a High Crime, what is?
Our post of February 4, 2013, "Barack Obama: Romancing The Drone," dealt with the violations Carter mentioned, specifically the death by drone in Yemen of Anwar al-Awlaki on September 30, 2011.
At issue is the 5th amendment to the Constitution. That amendment is part of the Bill of Rights:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
The presidential oath of office, administered by the Chief Justice of the Supreme Court, outlines and underscores any in-coming president´s obligations vis-à-vis the Constitution:
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
Carter´s bulls-eye makes urgent a revisit of the vital topic we addressed 20 months ago in "Romancing The Drone":
"No person ... shall be ... deprived of life ... without due process of law ...
Al-Awlaki, an American citizen, never received due process of law. No judge, no jury, no presumption of innocence, no formal charges, no conviction -- not even the most ridiculous kangaroo court ever cranked up.
What on earth (or elsewhere) happened?
´I want al-Awlaki,´ President Obama muttered. He personally ordered the killing. ´nuff said. Case closed.
Now, what made possible such a blatant, wanton disregard of the presidential oath and the due process of law ordered by the constitution?
In 2008-2009, America underwent a revolution -- a change of, not in, political systems. We no longer have a Политей, or polity, the oligarchy/democracy hybrid created by Washington, Jefferson, Madison and other Founding Fathers. The moment Bush-Obama handed over billions of public dollars to the American super wealthy, the polity went the way of all polities. It was replaced by an oligarchy.*
The United States Constitution founded the polity. With the polity gone, the constitution is now obsolete. Or rather, unlike before, the constitution is not obeyed when it is inconvenient, only when it is convenient.
We are looking at a recently-formed oligarchic political system sporting democratic accessories -- gloves, hats, shoes. That system definitely has power, but not authority or prestige. Tradition, charisma, legality: the oligarchy lacks legitimacy. Such is the new order. Get used to it, you who are reading these words.
Strange isn’t it, though, how despite everything it keeps coming back. There it is again -- the 5th amendment: No person ... shall be ... deprived of life ... without due process of law ... No need to tell you, Dear Reader, what due process of law is; it is the heart of America.
Contrary to what the oligarchy wants you to believe, that heart is still beating. The proof is Attorney General Eric Holder was compelled to defend al-Awlaki´s death by resorting to a Bill Clinton-esk ploy: he said it all depends on how you define due process. ´The constitution guarantees due process,´ Holder asserted, ´not judicial process.´
Sorry, it won´t fly -- unlike the drones. Eric Holder, read the 5th amendment again: it says due process of law. [For an enlightening discussion of due process, click here]. For readers who believe in the legality of the C.I.A.´s ´kill or capture´ hit list for terrorists, Samir Khan, another American citizen who was killed with al-Awlaki, was not on it. Neither was al-Awlaki´s 16 year old son, who was killed in a separate drone attack a few weeks later. Obama adviser Robert Gibbs defended the second killing not by saying the boy was a threat or by claiming his death was an accident, but rather ´he should have [had] a more responsible father.´ All of which shows that al-Awlaki´s son wasn´t the only child to pick the wrong parents.
In the Anwar al-Awlaki affair, Obama relegated Gibbs, Holder and the entire Justice Department to play The Blivet Trick, i.e., try to shove 10 pounds of horse shit into a five-pound bag. Under the circumstances, Holder did the only thing he could do: hide. The bulk of his ruling on al-Awlaki is top secret...
It is doubly tragic that the Constitution is no longer the law of the land. It had a remedy for a president who defied due process or any other constitutional provision. Here it is:
´Article I, Section 2
Clause 5: The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.
Article I, Section 3
Clause 6: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Article 2, Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.´
The most irrefutable proof possible that the Constitution is dead letter came in the form of a non-event. The impeachment and trial of Obama never occurred."
After the above post was published, the Justice Department released a sawed-off version of its secret memo. The contents instantly brought to mind the French expression langue de bois: wooden tongue. Vague, tired, inflexible, the memo is as profound as flushing the toilet. The best that can be said about it is its form and content coincide, viz., the memo drones on and on about drones. In particular, Section VI, which addresses constitutional concerns, is so heavily censored as to be nonsensical.
The memo is not important for what it said but for what it did. A secret Attorney General ruling means America is on its way to creating the maximum political oxymoron possible: a secret constitution.
There is something else the memo did. The Justice Department employee who wrote it, David J. Barron, was rewarded by Obama with a plum job as a federal appeals court judge. If you do not know the significance of that appointment, anybody in the legal profession will set you straight:
"On God´s right sit Jesus and the Twelve Apostles; on his left, federal judges."
* * *
It took a conservative Republican, President Richard Nixon, to begin the normalization of relations with communist China. Had a liberal Democrat tried it, cries of treason would have resounded from California to the New York island.
Due to exactly the same correlation of forces, it took a Democrat and Harvard lawyer to capsize the Constitution. Had a conservative Republican tried it, cries for impeachment would have resounded from the redwood forest to the gulf stream waters.
And so, President Obama, you can uncross your fingers and toes. The buck finally stopped.
Somebody was looking.
Update: October 26, 2014:
(1) The United States is airlifting arms and medical supplies to Kurdish forces defending the city of Kobane against ISIS. Among those forces are the PKK, the Kurdistan Workers´ Party. The PKK is designated by the United States and NATO (among others) as a terrorist organization.
Conclusion: the United States is assisting a terrorist organization. (NOTE made November 1. Three days after the above PKK commentary was made, CNN filed this report).
We do not view the U.S. aide to the PKK as a betrayal of moral principles or tactical priorities -- on the contrary. As our prior posts have pointed out, what is needed against ISIS is a truly international alliance. That alliance would be of Churchillian proportions, to wit:
The day Nazi Germany invaded Russia in 1941, Churchill faced a moral but not a strategic dilemma. He declared:
"The Nazi regime is indistinguishable from the worst features of Communism... It excels in all forms of human wickedness..., No one has been a more consistent opponent of Communism than I have for the last twenty-five years. I will unsay no words that I've spoken about it. But all this fades away before the spectacle which is now unfolding...
We have but one aim and one single irrevocable purpose. We are resolved to destroy Hitler and every vestige of the Nazi regime. From this nothing will turn us. Nothing...
Any man or State who fights against Nazism will have our aid. Any man or State who marches with Hitler is our foe."
The White House, CIA and Pentagon are to be congratulated for doing what needs to be done to destroy ISIS. In doing it, make no mistake: by working with the PKK, Washington crossed the Rubicon.
Is an authentic world alliance against ISIS emerging? Will the alliance expand to include Iran and Syria? I caution against undue speculation. The reason: what is at stake is not just the future of ISIS but of a new world order to displace the old dysfunctional one set up during the Cold War.
Dysfunctional, that is, for all but a few. According to a Credit Suisse report, the richest 1% of the world own 48% of the property. And, the share held by the mega-rich is expanding. You just saw the secret inner essence of Henry Kissinger´s prevailing world order.
(2) When I opened up the censored version of the secret Brennon memo on the killing of al-Awlaki, this is what I expected to find:
Three days after 9/11, the United States Congress passed a Joint Resolution that established the foundation for presidential prerogative:
"Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and
Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and
Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and
Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States:"
Note the words unusual and extraordinary threat. There immediately follows what readers anticipate: an authorization for presidential prerogative:
"That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
Keep in mind we are speaking of al-Qaeda, not ISIS. Anwar al-Awlaki was a member of al-Qaeda, consequently, he came under the presidential prerogative to use military force granted in the Joint Resolution. Extraordinary threat = extraordinary powers for the president. Killing al-Awlaki without due process of law was therefore legal.
Open and shut case. Over and out; have a nice day.
The above is not at all, however, the reasoning of the Brennon memo.
Instead of presidential prerogative, Brennon justifies the killing of al-Awlaki on the basis of public authority.
Public authority is the weak sister of presidential prerogative. When I was an expert witness on politics in federal court, we would have come down hard, with both feet, on any public authority justification to kill a U.S. citizen. No need to do so here because the New York Times did it for us.
"the memo turns out to be a slapdash pastiche of legal theories — some based on obscure interpretations of British and Israeli law — that was clearly tailored to the desired result. Perhaps the administration held out so long to avoid exposing the thin foundation on which it based such a momentous decision.
The main theory that the government says allows it to kill American citizens, if they pose a threat, is the ´public authorities justification,´ a legal concept that permits governments to take actions in emergency situations that would otherwise break the law. It’s why fire trucks can break the speed limit and police officers can fire at a threatening gunman. But it’s a dangerous concept if expanded because it could be used to justify all kinds of government misdeeds, especially since Congress has never explicitly authorized an exception for official killing in this kind of circumstance, as the memo acknowledges."
*According to Aristotle, the rich destroy a polity:
“[Forgetting the claims of equity], they not only give more power to the well-to-do, but they also deceive the people [by fobbing them off with sham rights]. Illusory benefits must always produce real evils in the long run; and the encroachments made by the rich [under cover of such devices] are more destructive to a constitution than those of the people."
Aristotle, The Politics of Aristotle, translated and edited by Ernest Barker, Oxford University Press, New York, 1962, p. 186. (Book IV, Chapter XII). Brackets made by translator.
For a scholarly, quantitative study that America today is ruled by an oligarchy, see "Testing Theories of American Politics: Elites, Interest Groups and Average Citizens."