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Syria: Can Obama Be Impeached?

With the Syrian military option on hold for now while Obama and his inept administration are played like the proverbial fiddle by Vladimir Putin and Bashar al-Assad, the apparent congressional vote on the authorized use of military force is put off for another day…maybe. It was obvious that Obama was headed towards a stunning defeat in the House of Representatives in a vote that cut across political parties. In looking at the declared and leaning votes against a congressional resolution, it is amazing to see opposition from the rank-and-file against congressional leaders. Boehner, Cantor, Pelosi, Van Hollen and Wasserman-Schultz made for some very strange bedfellows indeed. As much as a defeat for Obama this would have been, it would have been equally stunning to this band of misfits and a good case to replace the existing congressional “leadership.”

We may yet get that vote should Putin and al-Assad fail to deliver as anyone with a functional synapse believes. The worry is that this latest “diplomatic breakthrough” plays out and drags on, that public outcry against military action will wane and this will simply be yet another vote in the House and Senate. That is why the public needs to remain vigilant and opposed to military action in Syria. Perhaps that is Obama’s strategy- delay, duck and continue the schmoozing for military action. Either way, it is very ironic that Obama’s temporary political saviors are a Syrian tyrant and a smug, former KGB agent. The story gets more humorous with each passing day.

Let’s assume this plays out as expected with a failed diplomatic effort and that Obama will go pleading again to Congress for authorization despite his assertion that he has alleged authority to proceed unilaterally without congressional authorization. And let’s assume the public remains vigilant, vocal and opposed and that no one in Congress changes their mind. The resolution authorizing military force goes down to defeat in the House. He likely gets approval in the Senate in a close vote. What then? Does Obama intend to go through with military strikes against Syria? To hear the likes of John Kerry speak, apparently so. However, there are whispers that Obama will pull a Cameron: “I have heard the will of the people through their elected representatives in the House and will abide by their wishes.”

So, the House rejects the resolution and Obama has no congressional approval for using military force of any kind in Syria. As the president, who is sworn to uphold the Constitution, can he be impeached for defying Congress and going ahead and using military force? The closest we have to this scenario is 1999 with Bill Clinton and Kosovo. Then, Clinton had approval from the Senate and a tie (hence, losing) vote in the House and went ahead regardless. However, in 1999- unlike today- Clinton had the rubric of some NATO backing to justify his decision. He argued with some minimal grain of tangential truth that he was abiding by a valid treaty which has the effect of law. Obama has no NATO or United Nations or any international body’s backing to use as justification. A signed letter by 24 or so countries condemning Syria for using chemical weapons is not a valid treaty, nor is it justification for unilateral American military action. Additionally, none of Syria’s immediate neighbors who are US allies have been attacked, nor is there any imminent danger of attack that would justify military action absent congressional approval. The bottom line: Obama lacks even the bogus legal cover Slick Willy had in 1999.

It is possible he could use one of two justifications- international treaties regarding chemical weapons, or the War Powers Act. As to the former, there certainly are international treaties regarding chemical weapons and the United States is, among many countries, a party to these treaties. However, nowhere in these treaties is any country, let alone a single President or any other leader, given express or implied permission to militarily “punish,” “deter” or anything else unilaterally. As much as I loath the International Court of Criminal Justice as a Utopian bag of seething dog poop, that would be the better and proper venue for holding Assad ultimately accountable under these international treaties and protocols. After all, there are treaties against genocide, yet it exists and the perpetrators are held accountable in this Court. The chemical attack in Syria, although certainly horrible, pales in comparison to events in the Sudan or Rwanda in the recent past.

With respect to the War Powers Act, which one assumes Obama is relying upon for taking action without congressional approval, perhaps he had that authority before he went to Congress seeking approval, although one is hard-pressed to identify the imminent danger. In fact, his foot dragging and delay is proof there is no imminent threat to the United States or any of our interests. The Act states that the President must, within 48 hours, report the action to Congress, keep them apprised and cease the action within 60 days. This clause was included so that the president’s hands were not tied in the case of an emergency. A perfect example would be an operation that was time sensitive where the military had to move quickly. But, that scenario is absent here and it would be a stretch of legal reasoning to suggest that because he could have done something at one time, he retains that right in the face of congressional disapproval. Such reasoning would render the law moot, which it may be now anyway. Josh Bolton is likewise under the belief that any President has the power to use military force and if Congress does not like it, they can refuse to fund it. In fact, this is exactly the Clinton line of thinking with Kosovo: because Congress funded the operation, they tacitly approved it.

Go to practically any conservative website and one is confronted with a poll or petition as to whether Obama should be impeached over Benghazi. Unless Obama is specifically implicated in some act that rises to the level of a crime, it hard to find any legal justification to impeach him on this matter. After reading and re-reading the presidential oath of office found in the Constitution, the President is bound to do two things: faithfully execute the laws of the United States, and uphold the Constitution. Nowhere in that passage is there a duty to tell the American public the truth, or not to mislead the public. Thus, impeaching Obama for Benghazi is a fruitless exercise from a legal standpoint, and politically petty. Other scandals like Fast and Furious and the IRS targeting of conservative groups, although loathsome, lack a smoking gun to implicate Obama directly. Yes, his attitude filters down, but we do not impeach presidents for misleading statements not made under oath, or “attitude.”

But, do we impeach presidents for violating the express will of a Congress that refuses to grant an authorization of military force? There is certainly some overlap between the power of Congress to declare war and the Executive’s role as Commander-in-Chief. However, this much is clear: it is a historical fact that Congress generally declares war and once that is done, they step out of the way and let the President execute that war. It was that way since when George Washington was President until Bill Clinton in Kosovo. In fact, Clinton is the only historical exception to this rule.

During the Constitutional Convention in 1787, the original wording of the Clause in question read that Congress would have the exclusive power to “make war.” This was changed to read “declare war.” The reason was that under the original wording, the President would be hamstrung to defend against and repel sudden attacks upon the country. Obviously, the potential for attack on the US was greater then than it is now given the early warning systems and sophisticated technology today. During the debate on the Mexican-American War in Congress, the purpose of the congressional war powers clause was best articulated by Abraham Lincoln, then a Representative from Illinois. Our Founders were deeply aware of kings waging wars under the guise of it being good for the people. This was the ultimate oppression of the people according to our Founders. Therefore, the whole purpose was to avoid a single person from declaring war or entangling the country in a foreign war. Only one delegate to the Constitutional Convention- Pierce Butler of South Carolina- voiced an opinion approximating the arguments of Obama today. Thankfully, Butler’s views were aborted in their infancy after vehement opposition from James Madison, James Mason and even Thomas Jefferson from afar.

During the ratification debates, Alexander Hamilton, in Federalist #69, tried to dispel the fears of those who opposed a strong executive. Speaking specifically about the president’s war powers, he wrote:

It would be tantamount to nothing more than the supreme command and direction of the military and naval forces as first general and admiral of the confederacy; while that of the British king extends to the declaring of war, and the raising and regulating of fleets and navies; all which by the Constitution under consideration would appertain to the Legislature.

Nothing can be clearer than this. It is the duty of Congress to authorize military force- historically, by a formal declaration of war, but not necessarily so- and once that is achieved, it is the role of the Executive branch to execute that “war.” There is good reason for this. It would be foolish if Congress were to involve themselves in military strategy and the minute details of every military action (although the current resolution seems to do just that).

From Korea onward, whenever the US military has been used (except Kosovo in 1999), there has not been a formal declaration of war by Congress. Instead, presidents rely on following through on international treaties (the UN Charter in Korea; NATO in the Balkans) or congressional resolutions (Gulf of Tonkin, Iraq and others). But in every case, the Executive had, to some degree, received congressional authorization. Silence on the matter is not approval. Failing to heed the deafening disapproval would be a contemptuous action by the Executive. Most recent actions (post-1973) have been under the War Powers Act which has never been constitutionally challenged. There have been attempts, but they have rightfully been rebuffed by the Judiciary under the “political question” doctrine.

Getting to the original question, one needs to understand for what the President can be impeached. The Constitution specifies “high crimes and misdemeanors,” but those phrases are open to interpretation. During the Bush administration, there were ten discrete attempts or threats to “impeach” the President. Admittedly, most of them were political grandstanding, being introduced on the last day of a Congressional session knowing that it would have to be introduced yet again when a new Congress was sworn in. Most revolved around the Iraq War. The first “serious” attempt was the Conyers-Nadler resolution in 2006. Although Pelosi, as Speaker, tabled the motion, she also announced that she would have likely voted for impeachment. There were several other resolutions introduced thereafter- McKinney in 2006, Conyers, and then Kucinich in 2007. The most “serious” resolution and the one that advanced the furthest was the Kucinich-Wexler resolution in 2008. This was actually referred to the House Judiciary Committee after a House floor vote. Originally a laundry list of objections to Bush policies over eight years ranging from Iraq to Hurricane Katrina to Guantanamo, it died in committee in 2009 because Bush was now out of office. You cannot impeach a former president. As a comic aside, in 2008 Senator Joe Biden said he would introduce an article of impeachment if Bush bombed Iran without congressional approval. This may explain why Vice President Foot In the Mouth is strangely silent these days.

The underlying premise of the only article that survived in the Kucinich-Wexler resolution involved the intelligence used to justify the Iraqi intervention. It asserted that it was false intelligence, that Bush knew it and that they basically lied to Congress. This is stretching the facts. The intelligence may have been faulty, but even foreign intelligence backed up that faulty US intelligence. In short, there was no “perjury.” In the current instance, however, since no one doubts the intelligence suggesting Assad used chemical weapons, the question is whether presidential disregard of congressional disapproval of military action is tantamount to a “high crime and misdemeanor.”

Lying to Congress under oath constitutes the crime of perjury. Refusing to cooperate with Congress or a court in an official inquiry could constitute the crime of obstruction of justice. In the case of Syria, neither of these crimes are implicated. Instead, Congress would have to introduce a resolution holding Obama in contempt of Congress which is certainly a “high crime.” Unlike Fast and Furious or the IRS situation where Obama is somewhat insulated from the actions of people in his administration, there is no insulation from his actions as Commander-in-Chief. He cannot hide behind the coat tails of generals or the Secretary of State and Defense, especially since he is using that title to justify his actions in the first pace.

In the practical sense, this doesn’t mean this will actually happen. It is one thing for Democrats to cross the aisle and agree with Republicans in refusing the use of force in Syria and quite another to expect those same Democrats to vote to impeach Obama for defying that Congressional mandate. Those Democrats voting “NO” on military force would also vote “NO” on impeachment, although it would certainly be hypocritical. What would be the purpose of voting “NO” on military authorization and then refusing to hold that President accountable for violating that congressional mandate? Of course, that is the political calculation, not the legal, constitutional one.

To conclude, if Congress votes down a resolution authorizing military force in Syria and if Obama nevertheless follows through with military force, he would have to be held in contempt of Congress first, and then impeachment proceedings could potentially be initiated. Ironically, the case for impeachment against Obama would be light years more justified than any reason proffered in the case of George W. Bush.

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