Balkinization  

Wednesday, December 06, 2006

What if we had a good Constitution?

Sandy Levinson

Today's lead story, of course, is on the long-awaited report of the Baker-Hamilton Commission, which describes the situation in Iraq in quite dire terms and calls for significant changes. I quote only Maine Senator Susan M. Collines, a Republican it should be emphasized, who told CNN that “it is clear that the current strategy in Iraq has failed and we need a new approach.” Isn't it close to a self-evident truth that the architects of such a catastrophic failure should be fired and be replaced with leadership in whom the country might have some trust? Isn't it close to a self-evident truth that our own Constitution instead foists upon us a quasi-dictatorial Chief Executive/Commander-in-Chief who can, should his "gut" tell him to, simply continue with his failed strategy? My friend Jack Balkin says that he relies on the Republican Party in effect to tame the Bush Beast. But I don't understand the source of his optimism. Were we the UK, then the Republican Party could indeed tell George Bush to get the hell out of the White House, as the Tories told Margaret Thatcher (and Labor is trying to tell Tony Blair). But what actual hold does the Republican Party have on Bush? He's never going to run for another public office. And he continues, I am afraid, to view himself as the modern version of Winston Churchill, not noted for his party loyalty. There are certainly ways that the Republican Party can nip at the President's ankles and make life a little more unpleasant for him. Perhaps they will refuse to confirm some of his egregious nominations for the federal judiciary and the like. But this is small comfort when we're talking about getting a grip on a catastrophic policy that puts over a 100,000 American troops in harms way and threatens the lives of many more Iraqis and others in the region.

I received a fascinating post suggesting that if things get sufficiently dire, Congress should simply impeach Bush and Chaney, secure in the knowledge that impeachment is not subject to judicial review re grounds, and collaborate with House Democrats in securing the Speakership of the House for, say, George H. W. Bush or Robert Dole. I can't say that I advocate this, since it would be a quasi-revolutionary moment in our constitutional culture. The very fact that it is suggested by someone I know to be a sober and thoughtful analyst is, however, indicative of the possibility of what I earlier called a "looming constitutional crisis," thanks to our remarkably dysfunctional Constitution, drafted for an entirely different era and an entirely different conception of the presidency (and the individuals who would be chosen for that office).

I continue to await anyone on this list offering an affirmative defense of George W. Bush's leadership re the War, instead of a defense of the current Constitution.

Have a nice day.

Comments:

I continue to say that the affirmation of Bush as a leader of the US is unnecessary in any discussion on the constitution. Whether or not anyone likes to see Bush leave shouldn't be a litmus test on whether his arguments are sound.
 

Ditto. I voted for Bush, twice, as the lesser of two evils, and got what I expected, evil, albiet in not so "lesser" a dose as I'd hoped for.

But a different Constitution would not have saved me from that ugly choice, save possibly by denying me a choice. Structure can't substitute for an informed, enlightened electorate. You're confusing constititutional problems with a degraded political culture, which is what we're actually suffering from.
 

Professor Levinson: I continue to await anyone on this list offering an affirmative defense of George W. Bush's leadership re the War, instead of a defense of the current Constitution.

Respectfully, sir, "false bifurcation." Further, for myself at least, the issue isn't defending the problems you point to in the present Constitution. The issue on which we seem to not connect is the polarized partisan political environment which lets thugs like Rove and Gingrich and Cheney work their wonders, such as putting the failed oil man, Bush, in the White House, in the first place. This is not a safe time to let the rabble draft new rules, and you have not begun to convince me, an impressionable ideological ally, that the current realities in the voting booths would yield us anything more than the best Constitution Bechtel could buy. So, please, sir, don't paint your allies into ideological corners with bad rhetoric. Allow what agreement there is, please.
 

On the one hand, Professor Levinson pooh-poohs Congress's power to cut off war funding because the President can exercise the veto. So apparently Professor Levinson thinks it's too much to demand 2/3 support from both Houses.

Yet Professor Levinson himself is suggesting, as an alternative, that Congress be able to displace the President with a 2/3 vote.

Where is the sense in this argument?
 

Just a couple of observations from someone who's lived in both the US and Australia, and I've thus seen what votes of no-confidence can do to a polity.

The Westminster system whereby parliament can remove a leader quickly certainly has its downsides.

Firstly, make it easier, and it'll happen more often - in fact I suspect a good deal more often that you'd prefer. Elected leaders here in Australia, and in the UK have been frequently removed for many things that fall well short of high-crimes or bad-policy.

Secondly, one strength of the American system is that the president is directly chosen by the people, and he/she hires the best available talent (or political sycophants) to run various federal organizations, knowing that these folk can and will be forced to focus on the job at hand. In Australia and the UK (and most other Westminster countries I've seen), the next-to-most senior member of the Prime Minister's cabinet is a certain bet as a contender for the PM's job a couple of terms into a successful government, or a couple of years into an unsuccessful one. Success here is measured on political perception, not outcomes, and it means internecine fighting between the leader and their staff from pretty much day one. I don't pretend that the white house is a happy and fullsome place, but at the very least the President is secure enough in his position that he doesn't have to fight a constant rear-guard action throughout his term. Witness Tony Blair & Gordon Brown in the UK. Or John Howard & Peter Costello in Australia (probably less familiar, but no less poisonous).

To my mind, US lawmakers could do with losing their squirm over impeachment. Bill Clinton had an affair with a junior staffer - pretty harmless in my view. George Bush has done far worse by taking the country to war when war was not justified and the evidence for it was, at best uncritically reviewed or, at worst, falsified.

Impeachment may not stick, because the President's actions may not, in the end, be seen to be high-crimes, but the effect on his rule would be notable.

Yes, this is a pretty volatile way of providing congressional oversight, and if used too frequently would definitely fuel concerns of congressional over-reach. However, the price of a highly polarized congress is little scrutiny, especially when the razor-thin balance of power is not tilting in the 'right direction' (relative to the white house's encumbent).

On a side note, I happen to think that a highly polarized congress which provides little scrutiny is a direct result of the very efficient gerrymander, which turns lawmakers more into highly efficient demographers and less as sounding posts for their consituents. But that's another matter...
 

Professor Levinson:

I received a fascinating post suggesting that if things get sufficiently dire, Congress should simply impeach Bush and Chaney, secure in the knowledge that impeachment is not subject to judicial review re grounds, and collaborate with House Democrats in securing the Speakership of the House for, say, George H. W. Bush or Robert Dole. I can't say that I advocate this, since it would be a quasi-revolutionary moment in our constitutional culture. The very fact that it is suggested by someone I know to be a sober and thoughtful analyst is, however, indicative of the possibility of what I earlier called a "looming constitutional crisis," thanks to our remarkably dysfunctional Constitution, drafted for an entirely different era and an entirely different conception of the presidency (and the individuals who would be chosen for that office).

The fact that Mr. Bush's political opponents are openly suggesting that an outlaw Congress act extra-constitutionally to impeach the President absent any high crimes and misdemeanors says more about their willingness to subordinate the Constitution to the acquisition of political power rather than any fault with the Constitution.

I continue to await anyone on this list offering an affirmative defense of George W. Bush's leadership re the War, instead of a defense of the current Constitution.

I would be pleased to. This libertarian leaning Elephant voted for Bush despite deep misgivings about his Donkey-esque domestic policies precisely because of his war leadership.

To start, we need to define the enemy and our objectives.

Our enemy is the Islamic fascist movement and its state sponsors.

Our objectives are to check and degrade the enemy's current military ability to attack US interests and to win the ideological war over the long term until the enemy can no longer replenish its ranks.

Here is what Bush has done right to achieve these objectives:

1) Treat this as a war and not just a criminal justice matter. During the 90s, the enemy warred on us while we sent the FBI overseas to arrest them. As a result, the enemy was able to recruit, train and run operations murdering our citizens largely unmolested. After 9/11, Mr. Bush declared war against Islamic Fascism (Terror) and used all or our resources.

2) Recognized that this war required sending in ground troops to engage the enemy where he operated rather than long distance air strikes. During the 80s and 90s, we grew increasingly dependent on long distance air strikes to defeat our enemies without casualties. However, our Islamic Fascist enemy fights as civilians and uses them are human shields. While air power still has its uses, defeating this enemy requires boots on the ground to identify and engage the enemy.

3) Recognize that the long term way to defeat Islamic Fascism is the same method we used to defeat every other totalitarian "ism" over the past century - political and economic freedom. Free countries do not attack one another and provide an alternative for state dependence and worship for freed citizenry.

4) Finally and perhaps most importantly, Bush was willing to sacrifice his personal and political popularity to keep prosecuting this war to the end. To "stay the course" if you like. The enemy has repeatedly told us that it believes we have no stomach for war and its attendant military and civilian casualties. Using Vietnam and Somalia as templates, they believe that we will quit the fight if they make it bloody enough.

Where Mr. Bush has failed, perhaps catastrophically, is that he fails to realize that the United States is also in a propaganda war where images substitute for reality. It is not enough that he perseveres through personal will, it is critical that the nation perseveres through a common will amongst the citizenry. The enemy is playing our media like a fiddle with constant images of carnage and death while the media willfully dismisses the myriad of successes by our military decimating the enemy as "propaganda." As a result, despite remarkably few casualties among our troops, a perfect series of military victories by our troops and achieving nearly all of our political goals by establishing a friendly democratic government in Iraq, intelligent folks like Professor Levinson are under the impression that we face some sort of "catastrophe" in Iraq.
 

Just to clarify once more: I believe that voting to cut off war funding, while the war is actually going on, is and always has been a non-starter, not least because it places American troops in jeopardy. This is why Lincoln voted to fund the Mexican War after its initiation even though he thought it was both unwise and unconstitutional. The defunding of the bombing of Cambodia isn't really analogous bcause there were no US troops in Cambodia who would be left without ammunition, food, etc., etc.

I know of no opponent of the Iraq war, at least in circles within which I travel, who talk about funding cutoffs.

As for Robert Link's posting, it's fine with me to argue that the present Constitution isn't sufficiently broken to justify the potential terrors of a convention (or significant change through other processes). It's quite another to say that it's a terrific feature of our Constitution that we're stuck with a thoroughly discredited leader during time of war. I also take Brenan's point seriously that there are costs to a no-confidence system. I (un)happily concede that there are no perfect systems. But, at the least, we should recognize, in a way that I fear that we do not, that it is a genuine cost of our own system that it leaves incompetent Presidents free to exercise far more decision-making authority (power) than is desirable. To say that my proposed cure is worse than the disease is quite different from saying that there is no disease at all for which a cure would be desirable.
 

Just to clarify once more: I believe that voting to cut off war funding, while the war is actually going on, is and always has been a non-starter, not least because it places American troops in jeopardy. This is why Lincoln voted to fund the Mexican War after its initiation even though he thought it was both unwise and unconstitutional. The defunding of the bombing of Cambodia isn't really analogous bcause there were no US troops in Cambodia who would be left without ammunition, food, etc., etc.

I know of no opponent of the Iraq war, at least in circles within which I travel, who talk about funding cutoffs.

As for Robert Link's posting, it's fine with me to argue that the present Constitution isn't sufficiently broken to justify the potential terrors of a convention (or significant change through other processes). It's quite another to say that it's a terrific feature of our Constitution that we're stuck with a thoroughly discredited leader during time of war. I also take Brenan's point seriously that there are costs to a no-confidence system. I (un)happily concede that there are no perfect systems. But, at the least, we should recognize, in a way that I fear that we do not, that it is a genuine cost of our own system that it leaves incompetent Presidents free to exercise far more decision-making authority (power) than is desirable. To say that my proposed cure is worse than the disease is quite different from saying that there is no disease at all for which a cure would be desirable.
 

I very much appreciate Bart de Palma's posting (which arrived while I was writing my previous one). Though we obviously disagree, he stepped up to the plate and did exactly what I hoped he (or anyone else) would do, which is to present a substantive defense of Bush's policies rather than continue the "purely" constitutional discussion of whether we have a mechanism to get rid of him.
 

Professor Levinson: It's quite another to say that it's a terrific feature of our Constitution that we're stuck with a thoroughly discredited leader during time of war.

The above sentence comes in context of addressing my earlier comment, and so I fear it is meant to apply to me. Sir, I never said any such thing. On the contrary, I have stated repeatedly that your book has opened my eyes to more problems with the current Constitution than the obvious issues of the Electoral College. I am your ally. I sometimes fear you do what I think of as our cause a disservice a) with an unwise call for a new Convention, b) in a manner which can reasonably be viewed as more partisan than formal. I have called the President a "usurping son of a chief spook". I don't think anyone can mistake me for being Pro-Bush. But Constitutional considerations really should not stand or fall on such.

I regret our Constitution calls for putting up with this chump for even a single day. I do not regret it so much that I relish the thought of Rupert Murdoch helping Cheney's old friends at Haliburting purchase a new and worse Constitution for us.
 

This comment has been removed by a blog administrator.
 

Professor Levinson is quite correct, of course, that there's no perfect system.

However, there are some elements of successful systems that are worth maintaining.

Even though we may be "stuck with this chump" another 2 years, I think it can be argued that this is necessary medicine. I don't wish to make light of the worsening situation in Iraq, or the significance of the results of November's election, but: it seems to me that, much like with children, unless the voters feel the consequences of their actions, they're unlikely to behave differently in the future.

I guess what I'm trying to say is: let's not jump to change the system because we elected a goose. Let's learn our lesson and try not to do it again so soon. No system can necessarily protect us from our own foolishness.

Note that 'we' had our chance in 2004 to kick the bum out but 'we' didn't. In fact, the majority of 'we' who turned out to vote in '04 chose the bum again. I doubt there are any modifications to the constitution that would change that result (though it's arguable of course on electoral college grounds from 2000 that the bum shouldn't have been there to begin with, of course). In '04, the President had an absolute majority of Americans disapproving of his job, right up to election day. He broke records in this regard, by getting re-elected from such an unpopular position. If there's any reform needed, it's to the electoral ecosystem and it's excesses, which is something that's legislatively addressable - probably a thousand times easier (and less risky) than attempting to overhaul the constitution.

I find it a shame that the press spends virtually no effort highlighting any of these electoral dysfunctions other than funding/donor reforms.

As for a deeply discredited President that is permitted to exercise great power, well, that's something we've permitted him to do through signing statements (at the low ebb) all the way through to Abu Graib and the indefinite detention of Americans without charge (at a full, tsunami-like high tide). Once again, I'd admonish Congress to get busy polishing the Chief Justice's gavel for an appearance in the Senate chamber. The mechanism exists, let's use it.
 

@Bart: We've had a go at fence-mending, I hope to carry forward that fledgling bit of good will here, truly. rl

Bart: To start, we need to define the enemy and our objectives.

To my eye this opening statement is too broad to be of much value. Rhetorically it would serve to garner a "yes response", but it lacks denotation.

Bart: Our enemy is the Islamic fascist movement and its state sponsors.

An assertion with some commons sense heft to it, but perhaps a bit less accurate than it might be. Certainly the evil people responsible for the attacks of September 11, 2001 are "our enemy." I propose, however, that it is unwise, at best, to too quickly generalize from "the people responsible for nine-one-one" to anything as amorphous, and heterogeneous, as "Islamic fascist movement and its state sponsors." Islam is not a monolithic homogeneous collection, any more than Christianity is. And while "Islamic fascist movement and its state sponsors" has tremendous sex appeal, it really hasn't much in the way of useful denotative value.

Bart: Our objectives...

You assume values here which are too limited in scope. What follows might be true of a military commander speaking strictly of a military campaign in a known region against a known foe. But we are more than that, and our objectives are "to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty". Your partisan's approaches to "common defense" have, arguably, come at great cost to "a more perfect union" (the country is polarized) and likewise to "the blessings of liberty" (e.g. concerns voiced over protections absent in the MCA.)

Bart: ...are to check and degrade the enemy's current military ability to attack US interests and to win the ideological war over the long term until the enemy can no longer replenish its ranks.

As noted above, you speak primarily as one would expect of a military person. You have stated several times your views that "our foe" is implacable. Do you suppose, however, they share any values with us? Belief in God (specifically, the God of Abraham)? Duty? Love of one's children? Do you really believe these creatures so far removed from yourself that there is no option but kill or be killed? That is a view indoctrinated into soldiers, one which helps them do their job. But it's not a very Christian view of the world, and it's certainly not a Humanistic view, nor a scientific one.

I am all for bringing to justice the evil people responsible for nine-one-one. I am all for doing what we should to prevent future such evil. But I am not willing to deny the humanity of my foe, nor to cease striving for ways to make peace, nor to so privilege the common defense as to jettison the rest of our objectives.

(Apologies for the repost; I couldn't live with the typos in the first draft which got committed when I accidentally hit "Login and Publish" instead of "Preview.")
 

Professor Levinson: I believe that voting to cut off war funding, while the war is actually going on, is and always has been a non-starter, not least because it places American troops in jeopardy.

Thank you for clarifying your argument. Nevertheless, I disagree that, under the present Constitution, Congress must risk the safety of the troops to constrain the President's war-making power.

For example, Congress can insert language in any war-funding bill declaring how the money shall (not) be used, and specifying that the funding shall not be cut off even if it is misused. If the President doesn't abide by the constraint, then Congress will have a legally sound reason for impeaching him. (If Congress is too timid to do this, the option of a "no confidence" vote would do no good.)
 

For the record, I never thought that Robert Link believed that it was a "terrific feature" of our Constitution that we're stuck with an incompetent president. He's always made it very clear that he doesn't think it's worth taking the risks of opening the can of worms necessary for fundamental constitutional change. That is obviously a serious position, even if I happen to disagree with it. So if anyone else thought I was referring in any way to Robert Link in the comment quoted at the head of his posting, I apologize.
 

Thanks, Prof! (Now I feel like I was whining too loud...)
 

Robert Link said...

@Bart: We've had a go at fence-mending, I hope to carry forward that fledgling bit of good will here, truly. rl

By all means. I came here because the discussion appeared to be civilized and the bloggers interesting and intelligent. While I have no trouble defending myself, I would much rather avoid snarky flaming contests.

Bart: To start, we need to define the enemy and our objectives.

To my eye this opening statement is too broad to be of much value. Rhetorically it would serve to garner a "yes response", but it lacks denotation.


Unfortunately, my intent with this statement was to set the table and to narrow the subject matter of the discussion to the real enemy which we are fighting rather than the sectarian fighting between the Shia and Sunni in Iraq, which includes factions which are not really our enemies.

Bart: Our enemy is the Islamic fascist movement and its state sponsors.

An assertion with some commons sense heft to it, but perhaps a bit less accurate than it might be. Certainly the evil people responsible for the attacks of September 11, 2001 are "our enemy." I propose, however, that it is unwise, at best, to too quickly generalize from "the people responsible for nine-one-one" to anything as amorphous, and heterogeneous, as "Islamic fascist movement and its state sponsors." Islam is not a monolithic homogeneous collection, any more than Christianity is. And while "Islamic fascist movement and its state sponsors" has tremendous sex appeal, it really hasn't much in the way of useful denotative value.


If I understand you correctly, I agree that Islam as a religion is not our enemy. Islam is a varied faith which has many divisions as does Christianity.

However, our enemy within Islam is a rather homogeneous group with similar methods and goals. The enemy is primarily fundamentalist Sunni. They are at war with western society and modernity. Their objective is the creation of a world wide Caliphate starting in the Middle East, then progressing into Europe and finally covering the world. Their politics and tactics are fascist with a theologically pure rather than a racially pure state as its goal.

The Shia theocracy in Iran is similarly at war with western society and modernity and also appear to share the same fascist politics as the Sunni movement. However, instead of visions of a Caliphate brought about by man, the Iranian Shia seem to be looking for the return of the Missing Imam and the end of days.

The Islamic Fascist Sunni and Shia generally consider one another heretics and often actively war with one another as is happening in Iraq. However, because they share the same enemy, the US particularly and the west in general, they will cooperate on occasion against us.

Bart: Our objectives...

You assume values here which are too limited in scope. What follows might be true of a military commander speaking strictly of a military campaign in a known region against a known foe. But we are more than that, and our objectives are "to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty". Your partisan's approaches to "common defense" have, arguably, come at great cost to "a more perfect union" (the country is polarized) and likewise to "the blessings of liberty" (e.g. concerns voiced over protections absent in the MCA.)


OK, you are getting way past the issue at hand again. Professor Levinson challenged someone to post a defense of the President's conduct of the war and that is all I am doing. Given this this is a war and I am a former Army officer, I tend to see the war and describe it in military terms. You will have to forgive this middle aged former grunt, but I think using military terms in this case is apt.

You have stated several times your views that "our foe" is implacable. Do you suppose, however, they share any values with us? Belief in God (specifically, the God of Abraham)? Duty? Love of one's children?

I am sure that this enemy, like the Communists and Fascists before them, love their wives and families as we do, call upon the support of the same God we do (presuming you believe in God), but that does not make Islamic Fascists any less implacable an enemy than were the Nazis or Communists.

Do you really believe these creatures so far removed from yourself that there is no option but kill or be killed?

The evil we are fighting is not genetic, it is taught and learned.

Fascism is based on uniting around a commonality like race or religion, blaming some "other" for your problems, dehumanizing the other, and then committing mass murder of the other.

I am all for bringing to justice the evil people responsible for nine-one-one. I am all for doing what we should to prevent future such evil. But I am not willing to deny the humanity of my foe, nor to cease striving for ways to make peace, nor to so privilege the common defense as to jettison the rest of our objectives.

I do not deny the humanity of the followers of fascism, but they most certainly deny your humanity and your very right to exist in their world.

We have never been able to negotiate or reason with fascists. Fascists take such approaches as weakness and it merely inspires them to attack you more vigorously. This is as true now was it was dealing with the Nazis.

I truly wish to God there was an alternative to war in dealing with Islamic fascists, but we had to destroy most of Europe and much of Asia to stop the last century's version of this virulent evil. The fascists were willing to see their own country razed and millions of their citizens killed rather than giving up their iron dream. I would much prefer to stop this century's version of facism before it metastasizes into something which can substantially harm us like al Qaeda with WMD.

(Apologies for the repost; I couldn't live with the typos in the first draft which got committed when I accidentally hit "Login and Publish" instead of "Preview.")

I apologize for inflicting my typos on the rest of you because I am a horrible typist and do not usually go to the trouble to redo my pieces after they have been posted.
 

Bart: They are at war with western society and modernity.

First, I should rightfully join with Prof. Levinson in acknowledging that you provided exactly what he asked for, an honest statement advocating Bush. As the kids say, "Props."

Second, if someone points a gun at one of my loved ones I will not hesitate to kill in their defense. I am no pacifist. The further we get from such clear-cut examples the more room there will be for misunderstanding or even disagreement. But I want to make clear I am not anti-military nor anti-violence in some dreamy fashion. Like Sun Tzu I believe the best victory comes when the enemy doesn't even know there's been a war, but such victories are not nearly so easy nor numerous as any of us would like.

Third, I know I am taking your words, above, out of context, but even on my first reading with their surrounding text I felt they represent perhaps the greatest difference in our thinking. To my eye this sentence defines a demonized "other," much as you say "fascists" do. To my eye it conflates "war as campaign to end an injurious condition" with "war as armed conflict between [nations/tribes/&c]", a conflation which only muddies the waters ala my previously voiced concerns about the "war" on terror. To my eye the quote above casts "us" in an unrealistically golden light, as if Western Society itself didn't include the Crusades and the Inquisition or Modernity the Nazi gas chambers.

You and I agree that the folks responsible for nine-one-one should be brought to justice. After that it may be harder to find agreement, especially with regards to what means are acceptable towards that worthy end, what opportunity costs we should be willing to pay. We are on the same side, loving, patriotic, duty bound members of the same great nation. I like to think the fable of the blind men and the elephant applies to our disagreements.
 

robert link aid...

Bart: They are at war with western society and modernity.

Second, if someone points a gun at one of my loved ones I will not hesitate to kill in their defense. I am no pacifist. The further we get from such clear-cut examples the more room there will be for misunderstanding or even disagreement. But I want to make clear I am not anti-military nor anti-violence in some dreamy fashion.


I suspect that many here would share that view once you strip away all of the political baggage. The reason I take the time to make the arguments I posted above to to try to reach that viewpoint.

Like Sun Tzu I believe the best victory comes when the enemy doesn't even know there's been a war, but such victories are not nearly so easy nor numerous as any of us would like.

Anyone who has read Sun Tzu cannot be all bad...

Anyway, I agree completely that most wars are not easily and cheaply won, which is why perseverance and will matters.

Third, I know I am taking your words, above, out of context, but even on my first reading with their surrounding text I felt they represent perhaps the greatest difference in our thinking. To my eye this sentence defines a demonized "other," much as you say "fascists" do.

I was expecting this reaction when I typed my description of fascism. While I would grant you that the SS solider cleansing the Warsaw Ghetto and the Jews fighting back might both consider the other to be evil and less than human, I would hope you would agree that the Jew has the better argument under the circumstances.

Once again, I fully recognize the humanity of the Islamic fascist enemy. I would not be a Christian if I did not. I do not advocate warring against them because they are less than human. I advocate war because the enemy thinks we are less than human is doing their best to kill us even when left alone.

To my eye the quote above casts "us" in an unrealistically golden light, as if Western Society itself didn't include the Crusades and the Inquisition or Modernity the Nazi gas chambers.

I do not think the Islamic fascists are at war with western society and modernity because of the Crusades, Inquisition or the Nazi final solution. Indeed, the enemy often cites the Nazi final solution for the Jews as a strategy to emulate and the Crusades are a propaganda point.

I am not excusing any of the myriad of bloodlettings in the past of Western society. When they wanted to be, the Europeans and Americans could (and still can) be the most ruthless warriors on Earth. However, this enemy is not defending itself from a western Crusade. The enemy attacked the United States and Europe repeatedly before we responded in kind, while the Europeans have yet to respond.

We are on the same side, loving, patriotic, duty bound members of the same great nation. I like to think the fable of the blind men and the elephant applies to our disagreements.

:::chuckle:::

Perhaps, perhaps...

That is why it is important to share our blind perspectives to figure out what the truth is.
 

"Bart" DePalma says:

The fact that Mr. Bush's political opponents are openly suggesting that an outlaw Congress act extra-constitutionally to impeach the President absent any high crimes and misdemeanors says more about their willingness to subordinate the Constitution to the acquisition of political power rather than any fault with the Constitution.

"Bart" slept through the '90s, IC.... This is called "projection".

[Prof. Levinson]: I continue to await anyone on this list offering an affirmative defense of George W. Bush's leadership re the War, instead of a defense of the current Constitution.

I would be pleased to. This libertarian leaning Elephant voted for Bush despite deep misgivings about his Donkey-esque domestic policies precisely because of his war leadership.


WGAF?

To start, we need to define the enemy and our objectives.

No. "Bart" needs to. This is his favourite game: "framing". He's studied Rove and Gingrich for quite some time, and aspires to their purported greatness. He wants to "define" the terms of the debate to his advantage as best he can. I say, to use the words of Nancy Reagan: "Just say 'no!'"....

Our enemy is the Islamic fascist movement and its state sponsors.

... as I was saying: "Islamic fascist". Now who could possibly be against nuking all "Islamic fascists"? If you do object, you're prolly one of those Commie-symps ... oh, sorry, forgot the Emmanuel Goldstein du jour, "Terra-ist lovers"....

Our objectives are to check and degrade the enemy's current military ability to attack US interests and to win the ideological war over the long term until the enemy can no longer replenish its ranks.

"Bart" thinks one can win an "ideological war" with more and bigger guns ... and torture.

I'd point out for good measure that "Bart" thinks just like the maladministration. His "defence" of maladministration policies here is no actual defence, but rather just a sterling example of the kind of 'thinking' that got us in to this mess in the first place.

Here is what Bush has done right to achieve these objectives:

1) Treat this as a war and not just a criminal justice matter. During the 90s, the enemy warred on us while we sent the FBI overseas to arrest them....


... and convict, sentence, and imprison more than Dubya has done in six years.

... As a result, the enemy was able to recruit, train and run operations murdering our citizens largely unmolested....

Assumes facts not in evidence. "Bart" is claiming, with no evidence, that this was the inevitable "result" of said policies. In fact, given the current world situation and the events since 9/11, including ever increasing terrorism (to the point that the State Department had to readjust its rosy numbers a couple years back -- after complaints -- to reflect the fact that terrorism was up over the previous year, and then to stop giving these reports entirely because they were just too dismal), it's clear that "Bart"'s preferred solution is hardly a better one.

... After 9/11, Mr. Bush declared war against Islamic Fascism (Terror) and used all or our resources.

No. As various people have pointed out, we are not doing rationing or begging people to buy war bonds. Not putting in long hours or curtailing our consumption. In fact, at one point the maladministration's suggested behaviour was to tell people to go out and shop.

And if we wanted to "use[] all our resources", surely Dubya should tell his reprobate daughters to go enlist and fight the "good fight" rather than partying away in Buenos Aires....

2) Recognized that this war required sending in ground troops to engage the enemy where he operated rather than long distance air strikes. During the 80s and 90s, we grew increasingly dependent on long distance air strikes to defeat our enemies without casualties. However, our Islamic Fascist enemy fights as civilians and uses them are human shields. While air power still has its uses, defeating this enemy requires boots on the ground to identify and engage the enemy.

This is a defence of Dubya's policies?!?!? Clinton didn't send a single soldier into harm's way that didn't come back alive ... and he achieved each of his objectives. "Bart" may think that Dubya's tactics are better, but "Bart" isn't entitled to make up his own facts ... and we are allowed to judge the results for ourselves.

3) Recognize that the long term way to defeat Islamic Fascism is the same method we used to defeat every other totalitarian "ism" over the past century - political and economic freedom. Free countries do not attack one another and provide an alternative for state dependence and worship for freed citizenry.

RW talking points (as well as patent nonsense). Why bother asking "Bart" what he thinks if he's just going to parrot "talking points" off the RNC website (and places like Freeperville and WhirledNutzDaily)?

To be blunt: Invading and occupying a country is hardly instituting "freedom".

4) Finally and perhaps most importantly, Bush was willing to sacrifice his personal and political popularity to keep prosecuting this war to the end....

BS, of course. Dubya (and Rove) were betting on an "all terror, all the time"/"dontcha know there's a war on [so STFU]" strategy to carry them. They're as 'political' as it gets. They were eedjits, as is becoming more and more apparent, but it's a total myth to claim they were not political animals in all of this, and that they didn't do it at least in part because of the political benefits that they hoped to achieve.

... To "stay the course" if you like. The enemy has repeatedly told us that it believes we have no stomach for war and its attendant military and civilian casualties. Using Vietnam and Somalia as templates, they believe that we will quit the fight if they make it bloody enough.

Perhaps. But it doesn't much matter what we do. They'll probably get what they want either way. Is a voluntary withdrawal more or less ignomious than a forced one? I dunno, what do you say, "Bart"?

Where Mr. Bush has failed, perhaps catastrophically, is that he fails to realize that the United States is also in a propaganda war where images substitute for reality....

Bulltwaddley. This maladministration is all about propaganda, from the military office dedicated to producing such, to Walter Williams and Maggie Gallagher, paid to write such, to the faux "newscasts" produced by the maladministration and pawned off on TV stations as supposed straight news stories. They know all about propaganda ... and its uses. "Bart" sells them short here, I think.

... It is not enough that he perseveres through personal will, it is critical that the nation perseveres through a common will amongst the citizenry....

"Ein Volk! Ein Reich! Ein Fürher!"

... The enemy is playing our media like a fiddle with constant images of carnage and death ...

... all just made up and PhotoShopped. Here's a (relatively benign and droll) example.

... while the media willfully dismisses the myriad of successes by our military decimating the enemy as "propaganda." As a result, despite remarkably few casualties among our troops, a perfect series of military victories by our troops and achieving nearly all of our political goals by establishing a friendly democratic government in Iraq, intelligent folks like Professor Levinson are under the impression that we face some sort of "catastrophe" in Iraq.

Ummmm, hate to say it, but Prof. Levinson has plenty of company. "Bart", OTOH, is finding fewer and fewer people that even want to speak to him nowadays.

Hell, even the hand-picked Iraq Study Group agrees that we have a disaster ... and that's with a coterie of warhawks running it.

"Bart" is entitled to defend the maladministration and the Deciderator-In-Chief. But he's not entitled to his own "facts".....

Prof. Levinson gives him credit for trying to do so. I'd recommend that Prof. Levinson just go read as much of Freeperville and WhirledNutzDaily as he can stomach (or just listen to FauxSnooze-Anchor/Press-Sec Tony Snow), and refuse to credit "Bart" with being anything more than a "cut'n'paste" troll.

Cheers,
 

Bart: That is why it is important to share our blind perspectives to figure out what the truth is.

Between this and the chuckle I'm feeling pretty good right about now.

Bart: I advocate war because the enemy thinks we are less than human is doing their best to kill us even when left alone.

I'll limit myself to parsing this one. "thinks we are less than human" is irrelevant. The part that matters is, "is doing their best to kill us." We agree when folks are trying to kill us it is usually fair and just to kill them first. War, for this purpose, is a member of the class "killing others first". There are other members of the class "killing others first", the vast majority of which do not qualify as war. This is significant in that, per our Constitution, war raises emphasis on "provide for the common defense" and "ensure domestic tranquility" at the expense of "blessings of liberty" and "form a more perfect union." It's important to note that there's little point in "domestic tranquility" without "the blessings of liberty," and that "the common defense" only exists to the extent that we "form a more perfect union". Lose the union, defense isn't common. And whatever domestic tranquility there might be without liberty, well, I think you see where I'm going with that.

You know I reject the use of war in pursuit of the evil people responsible for nine-one-one. I know you reason by analogy with reference to (and I haven't followed up your sources on this yet) U.S. action against the Barbary Pirates. I might be able to see an analogy from the Barbary Pirates to al Qaeda (I am not accepting this currently, but considering it for the sake of conversation.) But such reasoning would still not justify a) the "war" on terror nor b) the illegal and immoral invasion and occupation of our former ally the sovereign nation of Iraq (and note, I'm granting there is a colorable argument that our invasion and occupation of Afghanistan fits under "war w/ al Qaeda. I don't accept that argument, but at least it's not a frivolous argument.)

Which brings us to the "even when left alone" part of your sentence. You understand, I trust, that in the eyes of ObL this condition does not obtain, especially with the likes of the signatories of PNAC having set their sights on business opportunities in the region, without so much as a "by your leave" or the honesty to refrain from couching their business agenda in offensive imperialist puffery. From our failure to pressure Israel to come clean on their nukes to our installing of the Shah in the first place to a myriad other legitimate griefs folks in that part of the world have with U.S. foreign policy, you can dispute such views, but it really isn't wise, nor fair, to dismiss the whole kettle as frivolous.
 

Robert Link said...

You know I reject the use of war in pursuit of the evil people responsible for nine-one-one.

Do you have a viable alternative? If so, I sure would like to hear it and why you think it would work better.

It is easy to be against something, but a great deal harder to come up with a different solution.

IMHO, war sucks but sometimes the alternative is worse.
 

Bart: It is easy to be against something, but a great deal harder to come up with a different solution.

Deep breath, pardnuh. You have heard my suggestions, on this blog. You dismiss them outright. Tail, trunk, leg, ear, we see this elephant very differently. But it's not very sporting to act as if you a) haven't heard my views already or b) haven't already summarily dismissed them, much less to c) toss barbs like the above.

The U.S., the "war on terror", and the world would have been much better served had we treated nine-one-one as a matter of international crime, with appropriate crime detection methods and maybe a couple billion in diplomacy instead of hundreds of billions for KBR no bid contracts in Iraq. IMO. And the O of not an insignificant number of others. Disagree, but don't try to casually dismiss serious arguments with which you strongly disagree.
 

robert:

You have posted a great deal of complaints about the foreign policy of this Administration, many of which are unrelated to the war with Islamic fascism.

I was asking you for your alternative to war to stop the Islamic fascists from attacking the US, its citizens and its interests around the world, not dismissing any particular ideas of yours.

The U.S., the "war on terror", and the world would have been much better served had we treated nine-one-one as a matter of international crime, with appropriate crime detection methods and maybe a couple billion in diplomacy instead of hundreds of billions for KBR no bid contracts in Iraq.

Fair enough.

Given that the Taliban declined our demand to surrender al Qaeda and very few other Middle East countries were cooperating with us to gain access to their al Qaeda, exactly what law enforcement action did you have in mind?

Additionally, with whom are you proposing that we should have negotiated with?

I attempted to explain why I thought going to war was efficacious. I think it is only fair that you do these same with your ideas.
 

Bart: Given that the Taliban declined our demand...

This would be some of that diplomacy I called for? ;) Seriously, I've stipulated that there is a colorable (but far from open-and-shut, and for me far from convincing) argument that the Taliban and Al Qaeda are sufficiently tied as to warrant military action against one, our former allies (pawns?) against the USSR, in order to pursue the other. Even with this stipulated, however, you are a long way from establishing by even a mere preponderance of evidence that our invasion and occupation of Afghanistan was the right thing to do, or even wrong-but-efficacious. Many continue to harbor reasonable doubts on that point.

Bart: I attempted to explain why I thought going to war was efficacious. I think it is only fair that you do these same with your ideas.

You have made your views clear; we disagree. I have made my views clear, if you will do me the courtesy of thinking about it, or reviewing earlier posts on this blog, or recalling your visit to repeal-aumf.org. Even stipulating, as above, that there is a colorable argument for the war in Afghanistan, this does nothing for the "war" on terror, nor the illegal and immoral invasion and occupation of Iraq. As for answering questions, I might point out, gently and with a smile, that I am still waiting to hear how an innocent citizen's family, on that citizen's wrongful detention as an AUEC, gets to prove the wrongfully held citizen detainee's citizenship under the MCA.

Bart, we have done some fence mending. I am not so starry eyed as to think either of us is going to convince the other of much, although it *is* a pleasure finding those things on which we agree. It will continue to be a pleasure to shout "it's a sail, it's a sail" and hear you shout, "it's a tree, it's a tree" in friendlier tones than before, one blind patriot to another. Peace.
 

Robert Link said...

As for answering questions, I might point out, gently and with a smile, that I am still waiting to hear how an innocent citizen's family, on that citizen's wrongful detention as an AUEC, gets to prove the wrongfully held citizen detainee's citizenship under the MCA.

My friend, I have answered this in the past, but in our new spirit of amity, I shall try again.

To start, I reject your premise. There is no evidence this has every happened.

However, if I were snatched off the street by the Gestapo and a status hearing found that I was an alien unlawful alien combatant on completely fabricated evidence forged in the bowels of the White House for laughs and giggles, then here is how my family could go about getting a court hearing on the matter.

1) Get a damn good lawyer.

2) File a Habeas Petition with attached evidence of my citizenship such as my original birth certificate, affidavits by my mother an various relatives, passport, my military personnel file (I still have a copy) and any other documents which the attorney feels is necessary. This evidence will give me standing to file the petition under the Constitution and the MCA.

The government's forged evidence better be pretty good to overcome all the records my pack rat mother and myself possess.
 

Bart: To start, I reject your premise. There is no evidence this has every happened.

Twaddle. "It never happened," is no answer to, "What prevents it from happening?" I guess if 43 said, in response to the famous August 6 memo, "There is no evidence this has ever happened," you would be satisfied he had done his pre-nine-one-one duty? Hardly a sporting or honest reply.

Bart: However, if I were snatched off the street by the Gestapo and a status hearing found that I was an alien unlawful alien combatant on completely fabricated evidence forged in the bowels of the White House for laughs and giggles...

Using prejudicial phrasing doesn't really help your case. I originally posed this as a fairly neutral hypo of "what's to prevent the administration (this one or any that follows) from using MCA as a tool against political opponents?" I only personalized it in our pre-détente days in order to spark your reply. Now that we're playing nice, how about toning down the irrelevant and distracting rhetorical flourishes? The question is, "How does a citizen, on wrongfully being picked up as an AUEC, get the chance for her family to prove her citizenship?" To that I will add, on the heels of your version, above, "What part of the MCA requires that there be any charges or evidence at all before a person can be detained under MCA, or even probable cause?" and "What part of the MCA says you ever have to be given a status hearing at all?" By your own account in earlier posts, "none."

Bart: ...then here is how [a wrongfully detained citizen's] family could go about getting a court hearing on the matter.

1) Get a damn good lawyer.


This wrongly, perhaps even dishonestly, presupposes the family is on notice the person has been detained. What text in the MCA requires such notice? If none, say so. Or are you telling me the MCA has a "one phone call" rule or some other due process right you take for granted but which is completely absent in the text in question?

Bart: This evidence will give me standing to file the petition under the Constitution and the MCA.

What text in the MCA provides for such filing? Because cogent sober readers (one Bart de Palma in particular) have found the MCA to allow a person to be picked up, in error, with no required time frame for a status commission, absent which even the mockery of a trial defined by the MCA (in which one has no rights to confront witnesses, call witnesses, or present evidence) need not ever actually be convened. Again, which part of the MCA stops the government from wrongfully picking up a citizen in error and holding them indefinitely without ever actually convening their commission? According to you, no part of the MCA prevents that, which was fine with you as long as the conversation presumed a guilty terrorist. Not only are you willing to let a guilty terrorist sit in durance vile with no assurance that her commission would ever convene, you stated baldly that the only reason to convene such a commission would be to render a death sentence. How do you square these? With which words of the MCA? If none, say so. And, really, no fair calling on other rules or laws or institutions. The specific question is what part of the MCA protects the innocent.

The answer is "none." Time to say so.
 

Robert:

Kidnapping and unauthorized detentions are illegal. The state needs affirmative authority to detain an individual. The MCA strips the habeas privilege from aliens, but not US citizens.

If Jack Bauer wants to seize and knee cap me with his service pistol to gain information about my plans to nuke the US, he is acting unlawfully. Will the law stop him? Probably not Jack. However, the law is all we have and all we ever had.

Now, I think I have gone above and beyond indulging in this paranoid fantasy of yours.
 

"Bart" DePalma, fact-free as always:

[Robert Link]: As for answering questions, I might point out, gently and with a smile, that I am still waiting to hear how an innocent citizen's family, on that citizen's wrongful detention as an AUEC, gets to prove the wrongfully held citizen detainee's citizenship under the MCA.

My friend, I have answered this in the past, but in our new spirit of amity, I shall try again.

To start, I reject your premise. There is no evidence this has every happened.


Well, considering the MCA just went into effect, it's rather disingenuous of "Bart" to demand an concrete instance of such having already happened. But as to whether such a situation could occur (again), habeas corpus, I just give you Jose Padilla.....

Let's see if "Bart" can explain why -- after the MCA was passed in part to justify and legalise Padilla's treatment after the Supreme Court warned the maladministration that what they had done would be looked at askanse -- "Bart" thinks that this maladministration would not grab a U.S. citizen on U.S. soil and hold them incommunicado without charges, access to a lawyer, and attempt to prevent any legal recourse....

Granted, that was before the passage of the MCA, but the MCA is not a law granting Terra-ists more "rights"....

Cheers,
 

"Bart" DePalma:

Kidnapping and unauthorized detentions are illegal. The state needs affirmative authority to detain an individual. The MCA strips the habeas privilege from aliens, but not US citizens.

IOW, the MCA doesn't give any greater protections than Jose Padilla got. Glad we got that cleared up. Dubya's big mistake was to allow Ashcroft, in yet another political "leak" to try and prop up a maladministration, to soot his mouth off in Moscow about Padilla. Had he not done so, Padilla would still be rotting in jail, blindfolded, gagged as necessary, drugged as seemed propitious, and shackled with no hope whatsoever.

It's no defence to say, "Well, Padilla was a Terra-ist, so what's the problem?" (in particular, since the actual charges filed against Padilla are far from the originally publicised allegations, and even the conservative judge in the case has admonished the gummint on its weak position) When the 'determination' of who is to be an "UEC" is made unilaterally and unaccountably (as the MCA now provides, but which the courts have still expressed scepticism of), we are no longer a land of law. As Robert Link keeps pointing out, without Ashcroft's chestbeating, who would have known about Padilla and who would have demanded that he be charged or set free? At least now he has an honest opportunity to defend himself ... which is what everyone deserves at a minimum in any civilised society. But the MCA does nothing to prohibit future Padillas.

Cheers,
 

Bart: Now, I think I have gone above and beyond indulging in this paranoid fantasy of yours.

More inflammatory dismissal, because you still can't find any words in the MCA to protect an innocent citizen from its reach. Here is the absolute, black and white truth you keep running from: The MCA, in the hands of an unscrupulous administration, presents a terrible danger to all dissidents, for there is nothing in it to preclude our own Night and Fog. You can rely on your faith in your partisans, but there is nothing in the black and white of the text in question which protects the liberty and rights of an innocent citizen wrongfully detained under its authority. You know it, absolutely, and it is a shame you haven't whatever it takes to say so.

This isn't a matter of "a sail, a sail" versus "a tree, a tree." Here it is a matter of simple literacy, absolute honesty, and not tolerating any BS. Care to drop this, then? Or do you want to look one more time at the text? Your call.
 

Arne: Dubya's big mistake was to allow Ashcroft, in yet another political "leak" to try and prop up a maladministration, to soot his mouth off in Moscow about Padilla.

I've been hammering Bart on one particular point for the most part because I am not well read enough on some of the other matters to engage in substantive debate. You, by way of contrast, Arne, sure do seem to know a lot of good stuff about a lot of good stuff. Can you gimme a link on this one in particular? Because I was pondering just this morning how Padilla came to get a mouthpiece in the first place? And what of the folks who haven't, who never will?
 

Robert Link:

Can you gimme a link on this one in particular? Because I was pondering just this morning how Padilla came to get a mouthpiece in the first place? And what of the folks who haven't, who never will?

Ask and you shall receive.

Here ya go.

I don't know who it was that then first took an interest in his case, but this statement by Ashcroft disclosed that he was classified an "enemy combatant" and put into military detention, which, IIRC, did raise some eyebrows seeing as he was a U.S. citizen "captured" on U.S. soil.

Cheers,
 

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