Article: Pundits, Presidents, and Impeachment

Yesterday, Abraham Kneisley spoke on behalf of Constitution Summer on the John Gibson radio show. The topic of the show was the Supreme Court's ruling that the Bush administration's plan to try Guantanamo detainees before military commissions was unauthorized by federal statute and violated international law.

Toward the end of the segment, Gibson asked Kneisley if he believed that President Lincoln should have been impeached for unconstitutionally suspending habeas corpus during the Civil War or if he believed that President Roosevelt should have been impeached for interning American citizens of Japanese descent during World War II. After all, claimed Gibson, President Bush's indefinite detainment of terrorist suspects without trial is no different from the actions of Lincoln and Roosevelt - it is, he argued, merely a presidential effort to protect the American people during a time of war.

As posed, Gibson's question presented Kneisley with a classic catch 22. Answer, "No, neither Lincoln nor Roosevelt should have been impeached," and Gibson would surely have attacked Kneisley for being a partisan liberal whose real interests were not in upholding the Constitution, but in ousting a conservative president. On the other hand, answer "Yes," and Gibson would just as surely paint Kneisley as a raving lunatic, discontent with even the greatest of American presidents. Given these two choices, given that the host was barking for an immediate answer, given that Gibson is a professional radio talk show host, and given that Kneisley is not a professional radio talk show guest, it is not surprising that Kneisley was unable to articulate a meaningful answer to Gibson's question in the time allotted.

The correct answer to Gibson's question is the following: no, neither President Lincoln nor President Roosevelt should have been impeached. And, if the only unconstitutional action taken by President Bush had been to unlawfully detain suspected terrorists without trial, then it would probably be inappropriate to impeach him. What Gibson fails to understand is that President Bush and his administration have not just unlawfully detained individuals; they have also unlawfully extradited individuals, unlawfully tortured individuals, unlawfully spied on the American people, and unlawfully misled the American people into war. It is this sustained disregard for the Constitution - this repeated indifference towards the fundamental law of our country - that is deserving of impeachment. A single unconstitutional policy can be dealt with through our usual system of checks and balances. A sustained disregard for the Constitution requires something more.

Should Lincoln have been impeached for suspending habeas corpus during the Civil War? No. But would Lincoln still be considered one of our nation's greatest leaders if he had misled the American people into the Civil War, authorized the torture of detained confederates, authorized the extradition of some confederates to foreign countries for the purpose of having them tortured, and unlawfully spied upon the American people? Or would he have been impeached?

DAVID HARRIS is a member of the Constitution Summer Board of Directors and a graduate of Yale Law School.