Obama Was Created By Our Failure to Impeach Bush

Remarks at the Rutherford Institute, June 16, 2010
Video of these remarks and the following Q&A posted at

I want to save most of the time we have for your questions, so I’ll be brief and I’ll start with a couple of questions for you. And then I want you to think of questions for me, because otherwise I’ll just go on and on about what I want to talk about.

Who can tell me who said this and where they said it?
“I — like any head of state — reserve the right to act unilaterally if necessary to defend my nation.” — President Barack Obama, asserting the illegal and unconstitutional power to make war, in a Nobel Peace Prize acceptance speech in Oslo, Norway.

What about this one — who and where?
“There may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States. . . . As I said, I am not going to release individuals who endanger the American people. . . . We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.” — President Barack Obama standing in front of the U.S. Constitution in the National Archives, a Constitution that reads “The privilege of the Writ of Habeas Corpus shall not be suspended.”

OK. One more. Who said this and where and when?
“The blessing is not that God has promised to remove all obstacles and dangers. The blessing is that He is with us always.” –President Barack Obama in the Oval Office last night explaining how he’ll stop the explosion that is pumping millions of gallons of oil into the ocean every day, and defend the separation of church and state.

Something is missing, I think, from the recent debate over whether Nancy Pelosi blames George W. Bush too much. Pelosi chose not to impeach Bush. Had she pursued impeachment, Bush would have been a better president as long as he remained in office, and his successor — whether Barack Obama or someone else — would have been far less dangerous than Obama is right now.

That Bush and Dick Cheney had reshaped the powers of the presidency was not exactly a secret. In a December 31, 2007, editorial, the New York Times faulted Bush and Cheney for kidnapping innocent people, denying justice to prisoners, torturing, murdering, circumventing US and international law, spying in violation of the Fourth Amendment, and basing their actions on “imperial fantasies.” If the list of crimes had been smaller, such as robbing a liquor store and killing the clerk, the editorialists would have demanded prosecution. In this case, on the contrary, they demanded the same thing that Pelosi demanded of us, that we sit back and hope the next president would be better. But the next president was destined to enter office with the power to commit all the crimes listed above and many more, including the larger crimes of aggressive war to which the New York Times contributed so crucially.

We prosecute liquor store robbers when we can catch them, and we sometimes win convictions. Other times, the robbers get away. But we are certain that the effort, while far from perfect, deters some people from robbing liquor stores. Had Pelosi attempted to impeach George W. Bush and failed, President Obama, or whoever was president now, would have had to operate under that deterrent. And it is highly unlikely that Pelosi would have failed to win a majority in the House for impeachment, and it is unlikely that two-thirds of the Senate would not have convicted. It is also unlikely that a serious move toward impeachment and trial would not have resulted in criminal prosecution. I say this for several reasons.

1-Even with both political parties adamantly opposed to impeachment, a majority of Americans favored it. Imagine what the support would have been had impeachment hearings been held.

2-Pelosi has great powers of persuasion, including campaign dollars, media influence, positions on committees, and votes on bills and earmarks. She has won many tough fights, just usually fighting for horrible things.

3-The evidence of many of the crimes and abuses of power was and is overwhelming, and included public confessions. And impeachment and senate conviction does not even require allegation, much less proof, of a statutory crime.

4-During 2007 and 2008 when congressional committees subpoenaed witnesses to speak about executive branch abuses, those witnesses usually refused to appear. Pelosi could have begun using the Capitol Police to compel compliance, or simply allowed an impeachment committee to subpoena the White House. The first solution would have resulted in tremendous public awareness of outrageous criminal behavior. The second would have resulted in the same or in near certain impeachment, because refusal to comply with an impeachment hearing is an impeachable offense and is what President Richard Nixon was about to be impeached for when he resigned.

5-If the issue of impeachment had been raised, members of both parties would have had to support impeachment, conviction, and criminal prosecution if they wanted to be reelected. The evidence for this includes the polling already mentioned and several other indicators. Even with impeachment stripped out of our Constitution and thrown on the fire, the number one demand of Obama’s supporters on his campaign website was that he keep his promise to filibuster a bill giving immunity to corporations that illegally spied for Bush. The number one demand on Obama’s transition website was that he open a criminal investigation into Bush. Many Democratic-loyal organizations like the ACLU struggled with their members in order to refuse to support impeachment but began clamoring for prosecution as soon as Bush had done a full eight years’ worth of damage. Imagine what the push for prosecution would have been had impeachment happened. When Congressman Alan Grayson in 2009 sent around an Email complaining that Cheney was not behind bars yet, it helped Grayson raise a half million dollars in a day. President Ford hurt his election prospects by pardoning Nixon.

6-Whether Cheney was impeached first or second, whoever served for whatever period in the oval office (and no, it would not have been Pelosi herself) would have been a more law-abiding president, and reforms coming out of this ordeal would quite likely have included barring vice presidents from executive work and restricting them, in the words of Sarah Palin, to being in charge of the Senate.

Now, some people knew about many of Bush’s crimes and abuses but didn’t think of them as expansions of power. Rather, they were one-time aberrations, and whether they were punished or rewarded, the office of the presidency would not be altered. The next president would refrain from the same sort of behavior because he or she wouldn’t be the sadistic moron that Bush was. This was a pleasant fantasy and had a certain ring of truth to it. But how presidents behave is not determined purely by their genes and their childhoods. Bush is off at his new think tank urging them not to think too much and telling us we should shift to renewable energy. Had Congress resisted Bush the way it did Nixon, Obama could have easily been a better president than Jimmy Carter. As it is, Obama is exercising more abusive power than any other president in US history, Bush included. Which is not to say that Obama has added more new powers to the presidential tool box than Bush did, but that he has cemented in place those precariously claimed by Bush and added some new ones besides. In addition to political inertia, the Supreme Court has ruled in the past that powers used by multiple presidents become legal powers, making the Bush-Obama presidential powers more difficult to undo than they were as Bush powers alone.

We currently suffer the rule of a president who has claimed greater war powers than his predecessor, who asserted the power of aggressive war in a peace prize acceptance speech, who threw out habeas corpus standing in front of the US Constitution in the National Archives, who has claimed the powers to spy without warrant, imprison without charge, torture, murder, assassinate, occupy, and operate in unprecedented secrecy, and we think we’ve improved things because this president is from the other political party and speaks in complete sentences.

In my book “Daybreak” I looked at various powers Bush and Cheney had piled up to pass along to their successors. And this was very much Cheney’s intention, had been his mission for decades, and you’ll notice that people like John Yoo now speak very highly of Obama’s willingness to abuse the same powers. The first thing I looked at was the power to make laws. Of course, it’s been increasingly well-established since Jefferson’s presidency that presidents tell Congress what laws to make. But Bush produced laws like the PATRIOT Act and convinced Congress to pass them without, in the case of most members, reading them. Obama has produced bills too lengthy for anyone to read, such as his healthcare bill, produced through secret presidential negotiations with the corporations affected and ongoing direction to congressional committees. No bill is brought to the floor without Obama’s approval. If Obama slows down the withdrawal of troops from Iraq or sends more to Afghanistan, Congress simply picks up the tab. If Pelosi wants to crack down on reckless oil drilling, she doesn’t legislate, she asks the president to please do something But none of this is entirely new.

Nor is it entirely new for presidents to simply make laws with so-called executive orders, or for presidents to ignore laws, or for presidents to pardon criminals. But Bush developed these approaches beyond those of his predecessors. And, instead of pardoning criminals, he granted immunity to unnamed individuals and corporations for unnamed crimes, a much more dangerous approach. Obama has adopted all of these powers as his own, and has gone to great lengths arguing in court to protect the immunity of Bush, his subordinates, and his corporate coconspirators. In fact, Obama has made claims of secrecy and immunity to protect Bush and Cheney that Bush and Cheney never dreamed of, arguing that entire categories of court cases, not just particular pieces of evidence, must be dismissed on the president’s say-so.

Another Bush innovation in law-making was his particular use of the Office of Legal Counsel memo, often a secret memo, used to blatantly reverse existing law. Lawyers working for Bush legalized aggressive war, warrantless spying, torture, and many other crimes by drafting secret memos declaring that things appearing to be illegal are actually legal. And Bush famously created a whole new use for something called a signing statement. He would sign a bill into law and then alter portions of it with a written statement. Obama swore he would not do such things, but now he has. For his first half year in office President Obama issued signing statements just like Bush’s. Then he adopted a more dangerous policy. Rather than issue signing statements, which Republicans in Congress had suddenly discovered they objected to, Obama determined that he could silently refuse to comply with laws and rely on previous signing statements to make his case for him. If no previous statement fit the bill, he would ask the OLC for a memo. How many secret memos the OLC has drafted in the past year and a half we have no way of knowing. And what has Obama done with Bush’s signing statements? He’s announced that he has the power to, secretly or otherwise, overturn any one of them as he sees fit, a power Obama’s successor will have with regard to signing statements by Obama or Bush.

Second, I looked at the power of war. Our Constitution wisely placed it in Congress. It is now in the White House and growing ever stronger. President Obama has demanded and received a larger military budget than Bush ever had, plus a larger war budget on top of that, not to mention the secret budget for some of the spy agencies that engage in war. President Obama continues to insist on funding the wars off the books with so-called emergency supplementals. He’s put bases into more nations. He’s put more troops in the field. He’s expanded the use of mercenaries and contractors. He’s dramatically expanded the illegal use of drones to bomb Pakistan and other nations, resulting — among other forms of blowback — in a man trying to set off a bomb in Times Square, a man whose father’s job used to be guarding nuclear weapons. Obama’s Pentagon is pushing hard to use drones in U.S. skies as well. Meanwhile, Obama has — in another badder than Bush innovation — formally authorized secret military action in dozens of nations. He’s formally done away with habeas corpus and established the power to imprison people at Bagram and other sites completely outside any legal process. He’s kept our death camp at Guantanamo open. President Obama has continued to assert the power to torture, and torture has continued. He’s also continued to assert the power to kidnap or “rendition” people and send them to nations that torture. But, most disturbingly, Obama has largely replaced torture with murder. People we would have sought to capture two years ago, we now seek to murder instead. And Obama has claimed the power to assassinate anyone, including American citizens. And, needless to say, the warrantless spying programs and other violations of civil liberties roll on unquestioned, and Miranda rights may be at risk now too. And one reason to think things may be even worse than we know is that Obama has prosecuted more whistleblowers than any of his predecessors.

Many other powers are discussed in my book, and there’s a similar story to tell. But the bulk of the book deals with what we can do about it. Needless to say, nobody’s heart is broken when Congress loses powers. Many powers claimed by Washington would be better used by the states or localities or the people. And there is much that we can do apart from directly influencing our government, including nonviolently resisting bad policies, educating each other, boycotting corporations that need reform, declining to pay our war taxes, chasing recruiters out of schools, etc., etc. And in many ways, at this point, we can only undo the damage by amending the Constitution. Until we clean up the money and the media and the parties, reform the courts and the White House and the Congress, and establish truly representative government we’re fighting a steep uphill battle. But it’s one that we have to pursue and have to succeed in. The stakes are too high to walk away.

President Obama has a new nuclear policy. We will not use nuclear weapons to strike any non-nuclear nation except Iran. For decades, our government has had a suicidal environmental policy of subsidizing oil and coal and nuclear power. Our economy has been eaten out from the inside by a massive transfer of wealth upward and into the industry that least benefits any other, namely war. As weapons proliferate, climate change advances, and more and more people are pushed into terrorism by our overseas empire, we don’t have the option of leaving our government alone. Nor is Obama’s policy of “looking forward” and enforcing laws only against relatively petty criminals sustainable.

Of course, we’re in a trickier place now. Impeachment is only possible with a Republican Congress and a Democratic President and only for offenses that make a mockery of the impeachment process and incline the public against it. Prosecution of Bush’s subordinates or the former president would be hard to achieve without addressing crimes of which the current president is guilty too. And among the current president’s new powers is the power to publicly tell the Justice Department when not to enforce laws. Italy has done us the favor of convicting two dozen CIA agents for kidnapping a man in Milano and sending him off to be tortured. Spain has pursued prosecutions. The International Criminal Court could theoretically become truly international. This week it added wars of aggression to the list of crimes it can prosecute, despite US opposition. Civil suits against people like John Yoo and Donald Rumsfeld may someday win damages for the victims of crimes, despite the criminals never being prosecuted. But what can Congress do? No matter how many times it redundantly bans torture, it can’t prosecute torturers.

Well, I can think of two obvious things Congress could do, and impossible as it seems to influence a member of the US House of Representatives, it is far far easier than influencing a senator or a president. The first thing that Congress could do is completely off everyone’s radar screen and therefore very difficult, short of building a decent communications system. That is, Congress could reclaim the powers of impeachment and subpoena by subpoenaing and impeaching Jay Bybee. With the exception of Joe Lieberman, who is not a Democrat, nobody in Congress has subpoenaed anyone in a year and a half. Jay Bybee wrote the worst of the secret memos and is now a judge who should be impeached and removed from office. And if he were, he would bring some other people down with him.

The other thing Congress can do is alive in public discussion and even in the corporate media. Congress can halt the worst crimes, the ones that make the others possible, by ceasing to fund them. The House is about to vote on $33.5 billion to escalate the war in Afghanistan. This war is illegal, immoral, against the public will, economically catastrophic, counterproductive on its own terms, and a cynically motivated intentional failure. And Congressman Tom Perriello, who has thus far voted for every war dollar he could get his hands on, has refused to say whether he will vote for this escalation funding or not.

This war is not in self-defense and was not authorized by the UN Security Council. Under the UN Charter and Article VI of our Constitution it is not legal. Most of the people we kill with drones are civilians, but we kill even more civilians in night raids, and General McChrystal says that every single person killed at checkpoints has been no threat at all. And what do we mean by civilians exactly? If our nation were occupied would we consider it legal to kill those who fight back but illegal to kill those who don’t? Polls show a majority of Americans oppose continuing the war, and here Congress is proposing to escalate it — in the name of spreading democracy of course.

The money we are spending to take away lives could be spent to save even more lives. We could save millions from starvation and disease around the world or in Afghanistan or our own country. We could have 20 green energy jobs paying $50,000 per year for every soldier sent to Afghanistan: a job for that former soldier and 19 more, and reduced demand for the oil and gas and pipelines and bases. We’re spending as much as $400 per gallon to bring gas into Afghanistan where the US military used 27 million gallons of the stuff in April. We’re spending hundreds of millions to bribe nations to be part of what we pretend is a coalition effort. We’ve spent $277 billion on making war on Afghanistan, and using Linda Bilmes and Joseph Stiglitz’ analysis of Iraq we need to multiply that by four or five to get a realistic cost including debt interest, veterans care, energy prices, and lost opportunities. Public investment in most other industries or in tax cuts produces more jobs than investment in the military. In fact, military spending is economically, as well as morally, the worst thing Congress can do.

During the global war of terror we have seen a global increase in terrorism. The supposed tools for fighting terrorism may fight it, but their net impact is almost certainly to increase it. A RAND Corporation study released this year looked at 89 of what it called insurgencies. With a weak government, like that of Afghanistan, the insurgency won 90% of the time. Our military experts including the retired 31st Commandant of the Marine Corps say we would need hundreds of thousands of troops to do what we’re attempting. The National Security Advisor says more US troops could just be “swallowed up.”

Last summer a majority of the Democrats in the House voted for a so-called exit-strategy. A simple truth has been lost. You do not exit a war by escalating it. We did not exit Iraq by escalating it. We have not exited at all, and the escalation does not explain the decrease in violence. And if it did, we would still need those hundreds of thousands of troops to do it in Afghanistan. We have 198,000 troops and mercenaries in Iraq. And violence is down there because so many people are dead and displaced, because a complete withdrawal date has been announced, and primarily because the troops have pulled back from urban areas. When they stopped patrolling for violence, the violence went down, because the violence was being driven by the occupation.

Violence will go down in Afghanistan too if the US troops pull back. And perhaps that is the cynical plan, to pull back and reduce (but not end) the occupation after a pointless battle fought for U.S. political purposes or to please the military industrial congressional complex. We know that last year President Obama sent 21,000 more troops and 5,000 more mercenaries to Afghanistan, and that violence increased as a result. What’s staggering is that the president said he was sending 17,000 troops first and would then figure out a plan for Afghanistan later. Sending the troops was an end in itself. We know that a pipeline and major military bases are part of the desired plan, but so is winning elections back home, which is where war opposition comes in.

No matter how awful Afghanistan is when the U.S. military leaves, it can never become a decent place to live during a foreign occupation. And the post-occupation Afghanistan is likely to be worse the longer the occupation has lasted. That’s the opinion of the Revolutionary Association of the Women of Afghanistan. Our chief obligation is to cease committing the crime of aggression and get out of Afghanistan and Pakistan and Iraq, and stop giving weapons to Israel and Egypt. But there is no reason our troops could not employ their bravery to clean up cluster bombs before they leave. There is no reason we cannot fund non-drug agriculture as our ambassador to Afghanistan advises us to do instead of escalating the war. Jobsforafghans.org recommends spending $5 billion for jobs through the National Solidarity Program, which is run by local elected leaders.

In one view, Congress can only influence the president. So a toothless request to end the war is just as good as voting No on the funding. But in another view, not only do presidents respond better to real threats, but Congress needs to build a caucus large enough to vote down war funding whether or not the president approves. Doing so restores the power of war to where our Constitution so wisely put it and prevents future wars while ending a current one. So I want to see members of Congress commit to voting No on $33.5 billion, no matter what good things are packaged into the same bill.

Today at noon we’re going to take as many people as possible into Congressman Perriello’s office at 313 2nd Street SE in Charlottesville to ask his staff there when the congressman will stop pouring so much of our money into horrific and stupid wars. If you share that concern, I hope you will be there. We have to meet on the sidewalk by the street, and then walk across the parking lot without stopping, and enter the office. Protests are not allowed in the parking lot. So try to be there at noon, so we can all go in together. Or if you get there late, just join us in the office at 313 2nd Street SE.

Congressman Perriello used to always tell me he was deferring to the president, but I think he caught on that I didn’t appreciate that line. He still does, however, defer to the president and to the Democratic Party. Last summer, Perriello wanted to vote against another war bill that had been combined with a bailout for Eastern European banks. It was the bailout that Perriello opposed. I opposed both items. However, the Democrats needed his vote for passage, and they got it. I don’t know what they said to him, but they were reported to have told freshmen they would be “dead to us.” Perriello, you may recall, got a million dollars from the Democratic Party in DC for his last campaign. He couldn’t afford to be dead to them. And just after he voted for the bill, strange things happened. The Democrats bought radio ads promoting Perriello. White House environmental bigshots, including Van Jones, came to Charlottesville to do a press event with Perriello. House Majority Leader Steny Hoyer came to Charlottesville to do a press event with Perriello. So I was probably the only one to find such a thing ominous, but when the Secretary of Agriculture announce a telephone press conference with Perriello last week, I didn’t like the sound of it.

If you think representatives should represent people and explain to people what decisions they are making, not fall in line behind presidents or party leaders, I hope you’ll join us in Congressman Perriello’s office at noon today. And I hope you’ll also contact Charlottesville City Council Member David Brown who has refused to support a resolution opposing more war funding because he thinks we should defer to the wisdom of Congressman Perriello and not dare to let him know what we think.

So, Perriello defers to the man whose constitutional job is executing the will of Congress, and Brown defers to Perriello. This is, of course, a reversal of representative government.

Now I’d like to hear what you think and take any questions you’ve got. Thank you for inviting me here.


David Swanson is the author of the new book “Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union” by Seven Stories Press. You can order it and find out when tour will be in your town: https://davidswanson.org/book.

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