While reading the account in the New York Times this morning about the military commissions created especially for the prisoners in Guantanamo Bay, I found myself wondering whether Bush and Cheney could be impeached and convicted for having failed to uphold the oaths they swore upon taking office. Article II, section I of the Constitution requires the president to solemnly swear that he will “to the best of [his] ability preserve, protect, and defend the Constitution of the United States.” The separation of powers is widely understood to be a key principle of the Constitution. The creation of a judicial system directly responsible to the executive branch would seem to be a notorious violation of it.
Then there are the fifth and sixth amendments. The wording of those amendments does not limit the rights they confer only to citizens. The fifth amendment stipulates that no “person . . . shall be compelled in any criminal case to be a witness against himself”—a right that, as I understand it from the Times article, the military commissions deny to those they will try. The fifth amendment allows for alternate judicial standards for “cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger,” but the prisoners in Guantanamo were not “in actual service” in the U.S. armed forces, and in any case, the Bush administration is not trying them in the regular courts martial of the American armed forces. If they are not going to be treated as prisoners of war and allowed the protection of the Geneva Convention—and the Times reported earlier this week, while the media were consumed with the trivial issue of Mary Cheney’s sexuality, that in Guantanamo prisoners have been manacled and shackled in awkward positions with high air conditioning, bright light, and loud noise for periods of up to fourteen hours and have also been systematically deprived of sleep, so I think it’s safe to say that the Geneva Convention was left behind long ago—then they must not be prisoners of war. And if they are not prisoners of war, and yet we incarcerate them, I don’t see why the usual Constitutional rights do not apply.
The sixth amendment does not limit itself to citzens, either: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . .” Again, as I understand it, the Guantanamo prisoners have been denied speedy, public trials by impartial juries.
The Bush administration has created an alternate judicial system that systematically denies Constitutional rights to those over whom it has power and that reports to the executive rather than to the judicial branch of government. Is breaking the oath of office an impeachable offense? I’m no legal scholar, despite the URL of this blog, and I don’t know. The oath itself seems to imply a contract between the president and the people. Would an ordinary citizen have standing to sue for breach of contract?
Caveat: I'm not a lawyer either.
I think standing is an interesting question that a lawyer, or a phalanx of lawyers, should address. But as to what the Constitution requires, as I understand matters, that's pretty much up to the appellate courts, and so far they've been reluctant to rule against the Administration's high-handed treatment of prisoners. And impeachment, as we learned in the 90's, requires a majority of the House–an unlikely prospect in the present circumstances.
I suppose I'm wondering whether the offense would prompt impeachment and conviction in an ideal Congress rather than merely the actual one.
As for appellate courts and oaths, there are a couple of interesting essays on those issues by Bruce Ackerman here and here. Evidently the civilians appointed to serve on the court that will review the judgments of the Guantanamo tribunal have sworn an oath to "the rules applicable to the review filed by a military commission" but not to the Constitution. Ackerman, who is a law professor at Yale, calls this "flatly illegal," and notes that
Ackerman believes that "Nothing less than the rule of law is at stake."
So then the civilians appointed to serve on the court that will review the judgments of the Guantanamo tribunal … have no legal standing, therefore their judgments could be automatically mooted … leaving the judgments of the Gitmo tribunal standing? If we look too close, might we fall throught this looking-glass?