Editor's Blog No. 5 - Moving On

by Neal Q. Herrick

In February of 1999, America "moved on" from the farcial trial of William Clinton. By moving on from Clinton's trial, we rejected all that we might have otherwise learned about the need for strengthening our impeachment provisions. In 2001 we "moved on" from Nixon's usurpations and Ford's illegal pardon. By moving on, we rejected the valuable lessons we (and future presidents) might have otherwise learned about the consequences of violating our Constitution. In late 2012, President Obama asked us to "move on" still again. This time we were asked to "move on" from our torturing of detainees and the mistreatment of civilians in Afghanistan and Iraq. It's time for America to stop "moving on." It's time for us to look our faults squarely in the eye. This would be a first step toward learning from history, doing what we can to remedy our past mistakes and and taking the actions necessary to avoid making similar mistakes in the future.

The 1999 acquital of William Clinton

On Feb. 2, 1999, the 106th Senate acquited then President Clinton of perjury and the obstruction of justice. A number of senators, including Sen. Snowe (R-ME) and Seen. Byrd (D-WV), publicly announced that they believed Clinton to be guilty but, for reasons of their own, would vote to acquit. It is important to note here that all the senators were under oath or affirmation to consider only the evidence and the law. Some senators voted to acquit because they did not consider the offenses impeachable. Yet the Constitution makes it clear that only the House has the power to decide whather or not an offense is impeachable. Some senators said they  were voting on the basis of what outcome they believed would be best for the country. Yet arbitrary judgements on the part of a court are an attack upon our form of government. Over and over again, over the objections of the Democrats, Clinton was granted 5th Amendment due process of law. Yet the Constitution is constructed so as to prevent impeachment defendents from being accorded this protection. Further, Hamilton wrote, in  Federalist 65, that impeachment courts should not be "tied down" by rules that favored the personal security" of the defendant. Another violation removed an obstacle to the rendering of impartial justice. Senate Impeachment rule number 5 gives the Senate  the  power to overturn rulings by the Chief Justice of the Supreme Court. The Constitution requires the Chief Jusatice to preside in presidential trials to ensure the rendering of impartial justice. The Chief Justice in the Clinton trial did not even attempt to make rulings. He was ceremonial only. The most important judicial power assigned by our Constitution was performed in a farcial manner by the 106th Senate. America responded by "moving on."

The 2001 Kennedy Profiles of Courage Award.

Perhaps the most tragic event of the Nixon saga occurred  in 2001. In 1974 Gerald Ford "moved on“ from Watergate by pardoning Richard Nixon. In 2001 The prestigious Kennedy Profiles of Courage Committee "moved on“ from Ford’s illegal pardon. It announced that he was to receive its annual award for political courage. The act of "courage" being rewarded was Ford's pardon of Richard Nixon. This pardon was in blatant violation of Article II, Section 2  of our Constitutionand. As such, iit was itself cause for Ford's impeachment. Section 2 gives the president the power to grant pardons "for offenses against the United States except in cases of impeachment." The debates of 1787 made the intent of this Section clear. For example, James Iredell said " . . . if the president had the power of pardoning in such a case (impeachment), this great check upon high officers of state would lose much of its influence." Mr. Ford did not have the power to pardon Nixon, but pardoned him nevertheless. His attack upon the Constitution was no doubt innocent. In a 2004 CBS interview, he told Cokie Roberts there had been "no deal" with Mr. Nixon.He said he had pardoned Nixon  because too much of his (Ford's) time was being taken up attending to Nixon's prvate affairs. However innocent Ford's pardon may have been, the  Profiles of Courage committee not only weakened the deterent effect of Section 2. It also weakened the entire Constitution

Obama's 2012 statement on torture

In late 2012, President Obama asid we should "move on“ from our torturing of detainees in Afghanistan and Iraq. We had already "moved on.“ Paragraph 501 of Army Field Manual 27-10 states that a commander is legally responsible “if he has actual knowledge, or should have knowledge,  . . . that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof.” There were seven commissioned officers in the chain of command that was responsible for El Gharib. The military “buck” stopped with Gen. Tommy Frank, who commanded all military personnel in Afghanistan and Iraq. Had Gen. Frank reminded Lt. Gen. Ricardo Sanchez, military commander in Iraq, that torturing detainees is a war crime, the torturing would very likely not have occurred. Had Sanchez told Brig. General Janis Karpinski, commander of Iraq detention centers, that she would be court marshaled if any torturing occurred “during her watch,” it is not probable that she would have ignored his warning.  Had Brig. Gen. Karpinski pointed out the relevance of Paragraph 501 to Lt. Col. Stephen Jordan, facility commender of El Gharib, Col. Thomas Pappas, MI commander and Lt. Col. Jerry Phillabaum, MP commander - they might have collectively persuaded Capt. Carolyn A. Wood, MP Company Commander to make the prevention of torturing a priority. Of these seven legally responsible officers, only Lt. Col. Jordan was court marshaled. He was  convicted, but his conviction was overturned on appeal by reserve Maj. Gen. Richard J. Rowe. It was the legal responsibility of each one of these officers to prevent torturing from occuring in his or her command. Since nine enlisted personnel were imprisoned for their roles in the El Gharib torturing, one of the consequences of this "moving on“ has been to suggest to all enlisted military personnel that the Uniform Code of Military justice is producing neither uniform nor just. A larger consequence has been to suggest to us (and to the international community) that America is in moral decline. The military person with the ultimate legal responsinility for the torturing at El Gharib, Gen. Tommy Frank, was never even reprimended.       

What  "moving on" should mean          

In order to move on to a more honest, prosperous and moral America, we must acknowledge our political, economic and moral shortcomings. We should study their causes and effects and act to correct them. In this way we can move on to an even finer America. We have been passively accepting the gifts given us by our forefathers without considering the duties that go along with these gifts.

We are extremely lucky to find ourselves living in relative comfort and freedom. However, we should now acknowledge that our peace, freedom and comfort are declining. We have not yet taken this important first step. Instead, we are burying our heads, ostrich-like, in the sand. Despite the examples set us by our forefathers, we do llittle but make futile and irrational complaints to our deeply-flawed federal government. Yet our Declaraation of Independence and our Constitution make it clear that we – not our government -  have the power and the duty to take action in times such as these. This action, of course, must be in accordance with our Constitution. We should petition our state legislatrures to call for a "money-free constitutional convention aimed at reforming our federal government..