Balkinization: Further thoughts on electing a constitutional dictator

Comments:

Under our constitutional system, I can see no reason to have a "consitutional" dictatorship -- with one possible except and that is insurrection (a civil war). Schmitt was concerned with a parlimentary system which legitimized "revolutionary" parties (right and left) and hence a perpetual state of war of all against all (anarchy). (In Germany, the right won that war by declaring a phony state of emergency and then eliminating (with prejudice)all non-right parties, not to mention the eventual slaughter of millions. Chile and Argentina are also examples of the disasterous consequences of emergency powers.
The so-called "war on terror" was never an extreme emergency that would have justified giving any president extraordinary powers -- let alone George Bush -- or say Sarah Palin. Sadly there has been but one Abraham Lincoln.

# posted by

Unknown : 5:38 PM

Sandy:

Only in my wildest dreams could I hope that the candidates would be presented with a question along the lines of:

Mr. Obama, you have been elected President and the year is 2010.

With the express purpose of avoiding a war with Pakistan, Congress has enacted a law prohibiting the President from conducting military operations in Pakistan.

However, the CIA has located Osama bin Laden in a village in Pakistan and the Special Forces have planned and staged forces to conduct a ground assault on the village to snatch bin Laden.

Time is of the essence, though, because CIA tells you that bin Laden is expected to leave the village in 24 hours. There is only time to notify Congress of your decision and not the weeks necessary to negotiate with Congress to reverse the prohibition on military operations in Pakistan.

The Special Forces is asking you for the order authorizing the mission to capture bin Laden in violation of the law prohibiting military operations in Pakistan.

Mr. Obama, what is your answer to that request and the reasons for your answer?

[The correct answer is, of course, to ignore the unconstitutional law and order the assault to capture bin Laden]

# posted by

Bart DePalma : 5:49 PM

Sandy:

I think you vastly overstate your case when you use the word "dictator." It is hard to take the rest seriously after seeing that word: it is almost like a Godwin's Law violation. When most people think of a dictator, they think of someone like Mussolini, Saddam, Stalin, Castro or Mugabe, not someone who believes that there are inherent powers to the office of the presidency that inhere in a time of war, particularly at 3 am when Congress is presumably not in session and cannot respond legislatively to any crisis.

It is no doubt true that some of McCain's appeal is in his appeal to those who want a strong foreign policy and a strong defense and who look upon Obama as a return to Jimmy Carterism. Even most Democrats didn't think Carter did a good job, and we were not in the middle of two hot wars when Carter was up for reelection.

However, some of McCain's appeal is based on his historical centrism, and the simple fact that the alternative to the extremism of the Bush administration does not have to be the extremism of the left. We do not have to ping-pong between extremes. What is needed is someone who is center-right (just like most of the country) and McCain seems to fit the bill.

Let me suggest that the Dems would be doing a lot better if they would nominate someone who is left of center ideologically, like Clinton, rather than temperamentally, like Obama. They had many people who could have fit this bill: Mark Warner, Evan Bayh, Jim Webb, Brian Schweitzer, etc., but they chose to go with someone who is ideologically on the far left of the party and the country.

I think what you are seeing in the polls comes from the following dynamic: Obama appeared to be more moderate earlier in the campaign based on his rhetoric, but as things have started to come into focus and he has started to get more into detail on his agenda besides just repeating the words "hope" and "change", people have come to realize that while his rhetoric is post-partisan, his ideas are not. His agenda is hard to distinguish from Kerry's. This does not help the Dems because if a center-right country is forced to choose between someone on the left and someone on the right, they are going to default to the right most of the time (even if both candidates are on the extremes). It's not about picking a southerner, it's about picking a centrist (although I concede that most centrist Dems are from the South).

# posted by

Zachary : 6:01 PM

As for your suggestion of a shadow cabinet (I think this is where you are going), it is an interesting one, but I don't know how you pull it off in a non-parliamentary democracy. But I think you can guess the types of people the candidates will pick if they win from their list of prominent supporters. E.g,

McCain would pick Giuliani or Luttig for AG or Homeland Security, Lieberman for State or Homeland Security, Gates to stay at Defense, Romney for Treasury, Commerce or HHS, Fiorina for Treasury or Commerce, Arnold for Education or Interior, Huckabee for something domestic, and the rest of the spots to be filled by losing Senate candidates in 2008 or folks like Portman, Kasich, etc. who were considered for VP, plus a couple of moderate Dems. I assume Meg Whitman is in there too unless she runs for governor of CA. Possibly Lindsay Graham as well.

Expect Obama to likewise pick from his principal supporters, e.g., Sunstein (AG or SG), Harold Ford Jr. (something domestic), Deval Patrick (something domestic), Dodd (Labor or Treasury), Richardson (State), Wes Clark (Defense), and from losing senate candidates in 2008 (except for Franken). He might also throw in a couple of moderate Republicans, like Tom Kean or Susan Collins, if she loses.

It's not hard to guess who a candidate might pick: just look at whom they surround themselves with.

# posted by

Zachary : 6:01 PM

I agree with Zach on this; You're way to casual in your use of the word "dictator".

It's quite possible people think McCain would be a better war leader because he actually thinks the war needs to be fought; Thinking a war pointless might be thought to handicap you at that task.

# posted by

Brett : 6:19 PM

I disagree with Bart DePalma that a president can violate an act of Congress as well as the territorial sovereignty of another country such as Pakistan in order to capture or kill Osama bin Laden or anybody else.

Otherwise we flout all notion of law and just descend into armed gangs that do whatever they want, notwithstanding that some feel that it is imperative to kill bin Laden.

Bin Laden may deserve harsh justice, but it must be after due process and the rule of law is met. Otherwise, why have any trial or any court for murderers, rapists, serial killers or for anyone else we judge as guilty without a doubt?

# posted by

BOB EDER : 6:54 PM

The comparison to "real" dictators made in the comments don't really make sense. Professor Levinson is responding to an argument that has been advanced repeatedly by the Bush administration (and which has a fair amount of currency in the modern American political zeitgeist)--the fact that so far the Bush administration has not engaged in the same level of abuse as Stalin et al. does not mean that such power has not been impliedly asserted.

Of course, as the Obama/Pakistan example demonstrates, this type of thinking is not limited to the Bush administration. Many people now expect that the executive will act first and ask permission later. If that power isn't dictatorial .. what would you call it?

# posted by

Unknown : 7:01 PM

I'm surprised nobody has mentioned General de Gaulle and Article 16 of the constitution of the French Fifth Republic. This worked out pretty well. De Gaulle came to power in a major constitutional crisis, with the army in a state of mutiny. He needed monarchical powers to get France through it, and Article 16 allowed these to be temporary rather than permanent.

# posted by

James Wimberley : 7:14 PM

roberto antonio hussein eder said...

I disagree with Bart DePalma that a president can violate an act of Congress as well as the territorial sovereignty of another country such as Pakistan in order to capture or kill Osama bin Laden or anybody else.

Article I requires the Congress to declare war before a President may prosecute a war against another nation and more debatably against a NGO like al Qaeda. However, under my scenario, we have already been at war with al Qaeda for nearly a decade under the authority of a congressional AUMF and we are not prosecuting a war against Pakistan in this operation. There is no basis in Article I for prohibiting the President from prosecuting a legal war against an enemy hiding in third party countries.

Bin Laden may deserve harsh justice, but it must be after due process and the rule of law is met. Otherwise, why have any trial or any court for murderers, rapists, serial killers or for anyone else we judge as guilty without a doubt?

Bin Laden is a foreign enemy combatant and can be killed or captured wherever he is found without any due process whatsoever. It is only after capture when bin Laden would have the minimal rights granted by the GCs and US statutes to enemy combatants who do not observe the laws of war.

I would love to have Mr. Obama give your answer in a real debate. It would prove his incompetence to be President and the election would be over except for the counting of the ballots electing McCain in a landslide. The idea that bin Laden has due process rights that would prevent us from killing or capturing him in Pakistan would be rightly viewed as madness by a vast majority of the voters.

# posted by

Bart DePalma : 7:17 PM

I'm repeatedly amused by the assertions by people who "know what people mean" when they refer to a dictator -- and it just happens, coincidentally, to dovetail perfectly with their opinions on the Bush administration.

I don't believe in mass ESP, and I don't believe that dictatorship is an all-or-nothing condition. To the extent that the executive is allowed to act without consequence and without checks by the law or the people, to that precise extent is the executive a dictator.

As far as Bart's hypothetical, yes, if President Obama cannot prevent Congress from passing the law in question -- and the mind boggles at the idea that he couldn't muster one-third of the Senate to prevent a veto override -- then he would be so incompetent that it would be unsafe for him to tie his own shoelaces.

# posted by

C2H50H : 7:48 PM

When you're holding a hammer, maybe everything looks like a nail.

IMO, its not about national security, its about identity politics. McCain is a viable candidate because many voters can relate to McCain and his "story" better than Obama's. This is currently offsetting the countervailing factors like the economy and the relative unpopularity of the Republicans.

# posted by

Unknown : 8:56 PM

One might recall that JFK picked Dean Rusk as secretary of state never having met him before.

You mean Democrats make hasty decisions too? Aside from that bit of snark, I don't have anything to say, other than to heartily recommend Schmitt to the commenters who don't seem to know much about him. A fun starting-place is The Crisis of Parliamentary Democracy.

# posted by

Asher : 9:08 PM

The old "TTB" raises its ugly head again:

Only in my wildest dreams could I hope that the candidates would be presented with a question along the lines of:

Mr. Obama, you have been elected President and the year is 2010.

With the express purpose of avoiding a war with Pakistan, Congress has enacted a law prohibiting the President from conducting military operations in Pakistan.

However, the CIA has located Osama bin Laden in a village in Pakistan and the Special Forces have planned and staged forces to conduct a ground assault on the village to snatch bin Laden.

Time is of the essence, though, because CIA tells you that bin Laden is expected to leave the village in 24 hours. There is only time to notify Congress of your decision and not the weeks necessary to negotiate with Congress to reverse the prohibition on military operations in Pakistan.....

You're right about one thing, "Bart": Only in your wildest dreams....

The answer to your hypothetical is the same as the answer I gave on my post long ago on the TTB.

You want different laws, pass them. You want the Constitution changed, amend it. If you want to break the laws, then be prepared to defend yourself and take the punishment. That's the way things work in a nation based on the rule of law, rather than the "rule of one Doofus-In-Chief".

Cheers,

# posted by

Arne Langsetmo : 10:42 PM

Zachary:

It is no doubt true that some of McCain's appeal is in his appeal to those who want a strong foreign policy....

"... and who think that Iraq was the best idea since sliced bread."

Iraq, Guantàanamo, and Abu Ghriab are the best counter-examples to the idea that we ought to give eedjits in the White House (and Naval Observatory) free rein.

Cheers,

# posted by

Arne Langsetmo : 10:46 PM

Brett:

It's quite possible people think McCain would be a better war leader because he actually thinks the war needs to be fought....

You misspelled "is not a disastrous and idiotic move that will accomplish nothing good at best, and will cost over $1 trillion and 4154 slodiers lives lost...."

Hate to point it out, but not all wars are good. McSame was for Iraq. And still is. That's hardly a reassuring mark.

Cheers,

# posted by

Arne Langsetmo : 10:51 PM

I must be bored:

Mr. Obama, you have been elected President and the year is 2010.

With the express purpose of avoiding a war with Pakistan, Congress has enacted a law prohibiting the President from conducting military operations in Pakistan.

However, the CIA has located Osama bin Laden in a village in Pakistan and the Special Forces have planned and staged forces to conduct a ground assault on the village to snatch bin Laden.

First question--are our intelligence and military commands so independent that they may conduct an intensive search and staging of operations in a foreign, non-belligerent country without the assent or knowledge of the President? If President Obama had approved of such investigation and military preparation, he is likely ready to approve the operation. If not, then he should rightly sack the head of the agency and the officers in charge of the spec ops. I don't believe that our system is set up to allow the bureaucracy and military such leeway in setting up operations without command approval.

Time is of the essence, though, because CIA tells you that bin Laden is expected to leave the village in 24 hours.

The question here is how likely is this information to be accurate? 100%? 50%? 1%? Is that likelihood high enough to offset the legal and international relations hit if the information is not accurate? And if time is such an issue, why did the CIA wait until the Spec Ops planned and staged their operation before notifying the President (see point above).

There is only time to notify Congress of your decision and not the weeks necessary to negotiate with Congress to reverse the prohibition on military operations in Pakistan.

The Special Forces is asking you for the order authorizing the mission to capture bin Laden in violation of the law prohibiting military operations in Pakistan.

And of course, you can't count on Congress not to leak the information about the operation within the 24 hours, allowing Osama to escape Obama.

Mr. Obama, what is your answer to that request and the reasons for your answer?

Finally, Obama has already answered this; he has stated that, if he had the chance to order a military strike across the boundary Pakistan (thus invading an ally) to catch Osama, he would do so.

[The correct answer is, of course, to ignore the unconstitutional law and order the assault to capture bin Laden]

The whole question suffers from tortuous logic. Obama has already stated his answer, but you also add Reaganesque disdain for constitutional congressional restraints.

# posted by

Fraud Guy : 10:52 PM

I don't believe that dictatorship is an all-or-nothing condition. To the extent that the executive is allowed to act without consequence and without checks by the law or the people, to that precise extent is the executive a dictator.

The president has checks, but they have never been used in the case of George W. Bush. There is the check of impeachment and removal, but the Congress (even under Democratic control) has rightly acknowledged that while his policies may not have been wise or effective, he has not done anything that a majority of Americans would agree was impeachable. The fact that you disagree with that assessment (either by a majority of the people or their representatives in Congress) does not mean there are no checks and balances on Bush, only that those entrusted with them have chosen not to use them under the circumstances.

Bush also has the Supreme Court, which has certainly been assertive in checking Bush's beliefs about executive supremacy.

Bush also had the election in 2004, in which his performance was endorsed by a slim majority of 3M people (but nevertheless a majority), over a rival promising to do things differently.

Bush also has the check and balance of subordinates unwilling to do his bidding and instead willing to resign. See, e.g., Ashcroft refusing to OK surveillance w/o warrants and promising to take the entire justice department with him in resignation if Bush went forward with it. (I think this was over surveillance; it might have been something else).

A true dictator is unbound by checks and balances. There is a distinction between checks not being used because of a belief they are unwarranted, and the lack of a check in the first place.

I don't think most Americans believe that the president acting contrary to law in an emergency situation (defined as a short period of time in which legislation is impossible or impractical) is dictatorial. In Bart's hypo, I think most American's would agree that the president (whoever he is) would have the right to so act, but should notify Congressional leaders before doing so and perhaps even get their buy-in. Likewise, if Bush had decided to send the Navy into New Orleans to help save lives after Katrina (or Gustav), I don't think anyone sane would have faulted him for violating Posse Comitatus.

# posted by

Zachary : 11:10 PM

Zachary,

If you are going to claim knowledge about what "most Americans think" the least you could do is link to a poll or other evidence that backs up your statement.

We cannot take for granted that Congress' unwillingness to prosecute an impeachment means they approved of Bush's (or Cheney's) actions. They may have had cowardly, political motives for failing to uphold the law.

1. In 2004, thanks to the secrecy of the Bush administration and NYT sitting on the story, the American public didn't know what had been going on. We still don't know the extent of it. It takes a special kind of ESP to deduce not only what was going on but that the American public would endorse it if they knew -- which of course means nothing at all, since it seems the American public, as currently constituted, is perfectly happy ceding dictatorial powers to the president. Please list any dictators down through history that did not come into power through popular approval (hint: there haven't been many.)

2. You can say crap like "A true dictator ..." -- but the fact is that no dictator is completely free to act with impunity. Even Stalin was not. These are matters of degree, not of kind.

3. To make any kind of assertion that Bush's underlings restrained his actions is the most laughable, ridiculous statement I've heard tonight. Thanks.

# posted by

C2H50H : 11:34 PM

i certainly dont think we need a constitutional dictatorship under our current constitutional system. I respect the views and opinions of all others who have posted here though.

jay
Cyber Monday

# posted by

Anonymous : 2:50 AM

"You misspelled "

I've never been particularly impressed with the practice of altering other people's posts, in the guise of "correcting spelling" or "shortening" them, instead of responding to what they actually wrote. In fact, my general rule of thumb is that, if you have to change what somebody wrote to respond to it, you probably don't HAVE an effective response.

# posted by

Brett : 7:09 AM

Only in my wildest dreams could I hope that the candidates would be presented with a question along the lines of:

Mr. Obama, you have been elected President and the year is 2010.

I think Mr. McCain would be angry about being called Mr. Obama.

Maybe not, though--I understand he's a maverick. It certainly explains all the talk about "change" in St. Paul...

# posted by

PMS_CC : 12:37 PM

Brett:

"You misspelled "

I've never been particularly impressed with the practice of altering other people's posts, in the guise of "correcting spelling" or "shortening" them, instead of responding to what they actually wrote. In fact, my general rule of thumb is that, if you have to change what somebody wrote to respond to it, you probably don't HAVE an effective response.

OK, then let's get down to brass tacks. Do you think the "war needs to be fought"? Do you think that McCain does? Does the fact that it's a disaster costing a trillion dollars and 4154 U.S. soldiers' lives (not to mention hundreds of thousands of Iraqi lives) enter into the discussion, or are we just having a sterile conversation on what McCain believes untethered from any actual "facts on the ground" by which we should even care as to what he believes?

In this light, does his being a soldier and ... <*POW!*> ... have relevance to his qualtities as a preznit?

Let's use your original words:

"It's quite possible people think McCain would be a better war leader because he actually thinks the war needs to be fought; Thinking a war pointless might be thought to handicap you at that task."

If it were true that a war wasn't only "pointless" but possibly even counterproductive and costly, nay even disastrous, would the denial of such make the leader a better leader?

Does the fact that a person's experience in a war that was unarguably disastrous and counterproductive hasn't twigged him on to the fact that such was (and is) the case -- even when this experience is as horrible as he states -- give one pause as to the ability of that person to make wise decisions in matters so momentous as war? The fact that he's military ... and <*POW!*> means little if he didn't learn a damn thing from it.... Do you really think that his "take-home" lesson was that "war[s] need to be fought"?!?!?

Cheers,

# posted by

Arne Langsetmo : 1:10 PM

fraud guy said...

BD hypothetical question:

Mr. Obama, you have been elected President and the year is 2010.

With the express purpose of avoiding a war with Pakistan, Congress has enacted a law prohibiting the President from conducting military operations in Pakistan.

However, the CIA has located Osama bin Laden in a village in Pakistan and the Special Forces have planned and staged forces to conduct a ground assault on the village to snatch bin Laden.

FG First question--are our intelligence and military commands so independent that they may conduct an intensive search and staging of operations in a foreign, non-belligerent country without the assent or knowledge of the President?

Of course. See the multiple times the CIA found bin Laden and staged to take him out in Afghanistan waiting only for approval from the White House.

The President knows very little about the day to day operations of the military and CIA. Rather he or she simply gives general orders and the war fighters do the rest. One assumes that even a President Obama would continue the search for bin Laden. Thus it is very plausible that the CIA would come back to him with an attack plan if they should find him again.

The BD question continues:

Time is of the essence, though, because CIA tells you that bin Laden is expected to leave the village in 24 hours.

The question here is how likely is this information to be accurate? 100%? 50%? 1%? Is that likelihood high enough to offset the legal and international relations hit if the information is not accurate? And if time is such an issue, why did the CIA wait until the Spec Ops planned and staged their operation before notifying the President (see point above).

One can only hope that Obama would hem and haw in this way and McCain would simply reply in rebuttal that he would order the strike immediately because one does not pass up taking out the leader of a mortal enemy out of diplomatic considerations. Election over.

The BD question continues:

There is only time to notify Congress of your decision and not the weeks necessary to negotiate with Congress to reverse the prohibition on military operations in Pakistan.

The Special Forces is asking you for the order authorizing the mission to capture bin Laden in violation of the law prohibiting military operations in Pakistan.

FG: And of course, you can't count on Congress not to leak the information about the operation within the 24 hours, allowing Osama to escape Obama.

Hardly. The question assumed that the President notified congressional leadership of the operation as Bush did concerning the TSP.

The BD question continues:

Mr. Obama, what is your answer to that request and the reasons for your answer?

FG: Finally, Obama has already answered this; he has stated that, if he had the chance to order a military strike across the boundary Pakistan (thus invading an ally) to catch Osama, he would do so.

Actually the twist to this question posed by the lead post is whether Mr. Obama would violate Congress' operational prohibition in doing so.

BD: [The correct answer is, of course, to ignore the unconstitutional law and order the assault to capture bin Laden]

The whole question suffers from tortuous logic. Obama has already stated his answer, but you also add Reaganesque disdain for constitutional congressional restraints.

I have posted my reasoning why Article I nowhere grants Congress the power to circumscribe the President's CiC power to direct military operations and why the Article I power to declare wars does not apply to this scenario.

What provision of Article I do you contend grants Congress the power to enact my hypothetical law?

# posted by

Bart DePalma : 2:10 PM

Brett:

Here's more along the lines of McCain's "Nobody Knows The Trubbl' Ah Have Seen ... so elect meeeeeeeeeeee, I can assure you that I'm only in favour of 'war[s] [that] need[] to be fought'....".

Where's the beef, "Brett"? What is it about <*POW!*> McSame that makes him an accurate judge of "war[s] [that] need[] to be fought"?.

You might say that it's his experience in seeing some of the worst that wars have to offer (although there might be plenty that disagree with that; ask the 'Nam grunts, for instance). But while that might lead one to a guess, isn't his current behaviour a better mark of what was learned than just a of-the-cuff guess that he must have learned something from his experience?

Cheers,

# posted by

Arne Langsetmo : 2:27 PM

"Bart" DeFlacka:

See the multiple times the CIA found bin Laden and staged to take him out in Afghanistan waiting only for approval from the White House.

1). ABC docu-dramas aren't evidence.

2). Even if this were true, doesn't this argue for the CIA being given free rein, rather than having to wake the Preznit???

Cheers,

# posted by

Arne Langsetmo : 2:32 PM

"Bart" DeRedundant:

I have posted my reasoning why Article I nowhere grants Congress the power to circumscribe the President's CiC power to direct military operations and why the Article I power to declare wars does not apply to this scenario.

Give it a rest, "Bart".

Aside from the obvious fact that the Constitution clearly does give Congress plenary power to decide who we're at war with, and who not (which handles your hypothetical here), I'd note that Jane Mayer's book "Dark Side" also points out that if your (and Addington's) view of the Constitution is correct, then the entire UCMJ is simply unconstitutional.

Cheers,

# posted by

Arne Langsetmo : 2:38 PM

arne langsetmo said...

BD: I have posted my reasoning why Article I nowhere grants Congress the power to circumscribe the President's CiC power to direct military operations and why the Article I power to declare wars does not apply to this scenario.

Aside from the obvious fact that the Constitution clearly does give Congress plenary power to decide who we're at war with...

Read for content. Congress has granted authority to prosecute the war against al Qaeda. The hypothetical I offered postulated that Congress attempted to geographically limit the President's CiC power to conduct that authorized war against al Qeada in Pakistan. This it may not do.

# posted by

Bart DePalma : 2:57 PM

Equally indefensible, of course, though with happier consequences, was JFK's picking his brother to be Attorney General.

Robert Kennedy was very good after the Kennedy presidency, but his big action as Attorney General was to attempt to derail the civil rights movement that he later claimed to support by tapping Martin Luther King Jr.'s phones in an attempt to gather discrediting information so that the South could remain segregated (and Democratic).

He actually goes down as an AG who had no respect for civil liberties, like Palmer and Mitchell. And it would have been much better if we had in place at that time a nepotism law that would have kept his racist butt out of the government.

# posted by

Dilan : 4:54 PM

(n.b.--I will elide to avoid excessive repetition)

BD With the express purpose of avoiding a war with Pakistan, Congress has enacted a law prohibiting the President from conducting military operations in Pakistan. The CIA has located Osama bin Laden in a village in Pakistan and the Special Forces have planned and staged forces to conduct a ground assault on the village to snatch bin Laden.

FG First question--are our intelligence and military commands so independent that they may conduct an intensive search and staging of operations in a foreign, non-belligerent country without the assent or knowledge of the President?

BD Of course. See the multiple times the CIA found bin Laden and staged to take him out in Afghanistan waiting only for approval from the White House.

The President knows very little about the day to day operations of the military and CIA. Rather he or she simply gives general orders and the war fighters do the rest. One assumes that even a President Obama would continue the search for bin Laden. Thus it is very plausible that the CIA would come back to him with an attack plan if they should find him again.

So not only can the President order an invasion of a allied country, but the military can also do so without his knowledge? I would like to find that in Article 2.

Note, this is not an "Oops, missed the border on a map" moment, but an intentional violation of a known law by the military without direct orders to do so. That's a military having a "will no one rid me of this troublesome man" problem.

BD Time is of the essence, though, because CIA tells you that bin Laden is expected to leave the village in 24 hours.

FG The question here is how likely is this information to be accurate? 100%? 50%? 1%? Is that likelihood high enough to offset the legal and international relations hit if the information is not accurate? And if time is such an issue, why did the CIA wait until the Spec Ops planned and staged their operation before notifying the President (see point above).

BD One can only hope that Obama would hem and haw in this way and McCain would simply reply in rebuttal that he would order the strike immediately because one does not pass up taking out the leader of a mortal enemy out of diplomatic considerations. Election over.

Of course, you ignored the fact that Obama said that he would do it, and you didn't answer the question (what is the accuracy of the report).

BD There is only time to notify Congress of your decision... The Special Forces is asking you for the order authorizing the mission to capture bin Laden in violation of the law prohibiting military operations in Pakistan.

FG: And of course, you can't count on Congress not to leak the information about the operation within the 24 hours, allowing Osama to escape Obama.

BD Hardly. The question assumed that the President notified congressional leadership of the operation as Bush did concerning the TSP.

Of course, a wise commander may have forewarned Congress as to his hunt for Osama, forestalling objections when he ordered the attack.

BD Mr. Obama, what is your answer to that request and the reasons for your answer?

FG: Finally, Obama has already answered this; he has stated that, if he had the chance to order a military strike across the boundary Pakistan (thus invading an ally) to catch Osama, he would do so.

BD Actually the twist to this question posed by the lead post is whether Mr. Obama would violate Congress' operational prohibition in doing so.

Asked and answered.

BD: [The correct answer is, of course, to ignore the unconstitutional law and order the assault to capture bin Laden]

FG The whole question suffers from tortuous logic. Obama has already stated his answer, but you also add Reaganesque disdain for constitutional congressional restraints.

BD I have posted my reasoning why Article I nowhere grants Congress the power to circumscribe the President's CiC power to direct military operations and why the Article I power to declare wars does not apply to this scenario.

What provision of Article I do you contend grants Congress the power to enact my hypothetical law?

Art I, Sec. 8: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water

Your question stated that you are planning on capturing Osama, correct?

# posted by

Fraud Guy : 9:51 PM

"Bart" DeSembler:

[Arne]: Aside from the obvious fact that the Constitution clearly does give Congress plenary power to decide who we're at war with...

Read for content. Congress has granted authority to prosecute the war against al Qaeda. The hypothetical I offered postulated that Congress attempted to geographically limit the President's CiC power to conduct that authorized war against al Qeada in Pakistan. This it may not do.

Militarily invading a sovereign country against their will is an act of war.

Much as it would be nice to capture bin Laden, that hardly makes just any old effort to do so legal.

But we didn't do it when we had the chance in Tora Bora. The Doofus-In-Chief decided to do it "on the cheap" and hire mercenaries. How'd that work out, "Bart"? Maybe there's a good practical reason to curb the hand of eedjit preznits as well.

Cheers,

# posted by

Arne Langsetmo : 1:11 AM