Impeachable Offense?

UPDATE: 12/23 @ 2:20 AM
The ACLU has released some FBI memos that appear to imply that President Bush himself directly authorized (via executive order) the torture or inhumane treatment of suspects. This would run counter to claim by White House Press Secretary Scott McLellan that all interrogation procedures come from the Department of Defense, not the President.

While conceding there is no "smoking gun," Yale Law Professor Jack Balkin argues that if Bush did authorize torture, it's an impeachable offense (or at least that's what the title to his post implies).

Again, there is no smoking gun, just lots of interesting questions. We should not prejudge what the President did nor did not do until there is further proof. But my view can be stated fairly simply: If the President did authorize inhumane treatment of prisoners, whether or not his lawyers could claim that this was not technically in violation of various international agreements to which the United States made numerous reservations, these acts are morally unconscionable. He has shamed the country and should be removed from office.

I disagree with Balkin that, if the President's actions were "morally unconscionable" but legal, he should be removed from office. Impeachment is a very serious matter, and following the procedures and guidelines set out in our constitution for impeachment are essential to maintain a just government. If Bush's actions were ILLEGAL (and again, this all comes with the caveat that these are just questions, not proofs), then it's a closer question. I'm reticent to impeach officials for actions taken in their official capacity, so long as they aren't wantonly and recklessly in violation of US law. I'm not sure that any of President Bush's actions, even if they were illegal, were "wantonly" so. Presumably, our experience with President Clinton should have taught the Democrats that impeachment should not be used in each and every situation where the President has conceivably broken the law. I would agree, however, that if the President did authorize the illegal torture of detainees, it certainly would be more justifiable to impeach him than to impeach Clinton. But "more justifiable than impeaching Clinton" is not a particularly tough standard to meet.

UPDATE: Professor Balkin responds to some of the arguments I made (though not directly to me). A far more compelling post than the first, I think.

Ordinarily the fact that Congress thinks the President has acted immorally should not, without more, be grounds for impeachment. But the allegations in this case concern much more than that. The charges, if true, suggest a real abuse of power (and abuse of office) and violations of both domestic and international law.


I noted earlier that the Administration's torture memo tried to offer a very narrow standard of torture, and so his lawyers might claim that what was ordered was not technically "torture" under the (unreasonable) interpretation that the OLC torture memo gives to that word. Nevertheless, if the allegations are correct, it would very possibly make the President guilty of war crimes. And it would almost certainly be in violation of the Geneva Conventions. Not all violations of international law should be impeachable offenses, but surely ordering the abuse and torture of prisoners should be.