Balkinization  

Wednesday, October 29, 2008

Is a totally unaccountable president the same thing as a "dictator"? You decide.

Sandy Levinson

From Dan Froomkin's invaluable column in the Washington Post, this one titled "One Last Bush doctrine," on the incursion into Syria:

The Los Angeles Times editorial board writes: "Some pundits have suggested that the attack is a parting shot from President Bush, his last attempt to exact vengeance on a longtime rival before leaving office. That's a bit cynical even for Bush critics, including this page, but it's notable that in the closing months of the administration, the military has grown considerably more aggressive in pursuing foreign insurgents -- especially in Pakistan, where U.S. attacks across the Afghanistan border have become almost commonplace. Bush, it appears, is conducting yet another experiment in Middle Eastern cowboy diplomacy, with the advantage (for him) that if it
all blows up, someone else will have to pick up the pieces."

Isn't it wonderful to have a completely unaccountable president, who needn't even fear impeachment given the time it would take for the House to impeach and the Senate to convict. What do we call completely unaccountable political leaders who feel no hesitation about engaging in adventurist use of the military? Just asking.....

As for Pakistan, Marvin G. Weinbaum writes in a Washington Post op-ed: "In its eagerness to reverse the mounting insurgency in Afghanistan, the United States has embarked on a policy course that could shatter our vital strategic partnership with Pakistan. By allowing American combat forces to freely conduct raids into Pakistani territory, a move that President Bush authorized in July, the United States intends to pressure Pakistani leaders to step up the fight against militants ensconced in the borderlands. But this policy threatens cooperation between the two countries, possibly to the breaking point."

I wonder if Mr. Bush consulted with either John McCain or Barack Obama about the possibility of leaving our relationship with Pakistan in shards as a result of Bush's actions. I suppose he doesn't really have to, since neither of them will have the slightest legal authority until January 20, 2009. Don't we really have a marvelous Constitution that allows Mr. Bush such untrammelled legal powers until that date? Wouldn't it be far, far better if there were people calling on Mr. Bush and Mr. Cheney to resign than the spent volcano Ted Stevens, who really can't do very much, if anything, to harm the country in the presumably two remaining months of his term (assuming that the people of Alaska reject him next Tuesday)? There really are worse things than being governed by a criminal.


Comments:

Bill Clinton behaved very badly in his final days of office. If Obama wins this election, I expect his behavior to be a model of restraint compared to George Bush.
 

Why don't we see outrage over dictator Bush's use of military force, authorized or not under AUMA, which invariably results in the deaths of ordinary civilians? The Syrian raid killed eight people, one of whom was a woman, and three juveniles. The Pakistani missile attacks surely have killed dozens of poor agrarian peasants, including children. Do we not care about these deaths because of an implicit feeling of American racial superiority that says a Syrian or Pakistani life is not worth very much?
 

Sandy:

Unless you are suggesting a President for life, every President no matter the system will have a finite term in office at the end of which he or she will still wield power.

BTW. Mr. Obama was among the first to suggest attacking the enemy in Pakistani territory without Pakistani permission. McCain opposes this position, calling it naive and reckless. From your post's condemnation of this Bush/Obama practice, I assume you will now be voting for McCain.

In any case, given how rapidly the undecided are breaking for McCain in Gallup and now Rasmussen (which has the race tied at 48% among those certain to vote), I am sure a President McCain will stop this evil practice which you oppose and save you from your vote for Obama.
 

Wait, aren't these the same shards Obama would leave our relationship with Pakistan in? Or are you of the widely held view that Obama's position on Pakistan is just some "I'm not a dovish softy like all those other Dems" campaign rhetoric?
 

Troll, troll, troll your boat,
gently down the stream,
merrily, merrily, merrily,
discourse is but a dream.
 

BTW. Mr. Obama was among the first to suggest attacking the enemy in Pakistani territory without Pakistani permission. McCain opposes this position, calling it naive and reckless.

That's not true. McCain has clearly "implied" on numerous occasions that he agrees with Obama's position, but believes it is naive and reckless to openly say so. Obama famously backhanded McCain with his "Bomb, Bomb, Iran" rendition (among other infractions) after McCain's last scolding of Obama for Obama's "recklessness" in this regard.

McCain is just trying to sell himself as "cleverer" than Obama by "being sneaky" about something everyone knows is true. It's quite absurd in this circumstance, and I think McCain has lost ground on it... clearly he's made none.
 

Is the people you're accountable to not agreeing with Sandy Levinson about when to rein in your behavior the same as being totally unaccountable? I don't think so.
 

And just in case I was misunderstood, I didn't mean to imply that Dems are dovish softies; they're not, but the perception's out there and it's one that some say Obama has tried to combat with his hawkish position on Pakistan, gleefully talking about finding Osama and killing him, etc.
 

Frankly, if there is actual evidence that the targets in Syria and Pakistan were of some value, I'd defend any President's right to attack those targets, as long as Congress was consulted beforehand.

The problem is one of credibility: I don't believe this administration anymore when it tries to assure us that everything is hunky-dory and squeaky clean. Their assumptions and intelligence seem to be routinely flawed.

As for the constitutional dictator angle, it's clear that Bush is basically unaccountable; even with a will to impeach, it would take longer to organize the hearings than it would to wait out his term. However, I would be far more upset if this were to occur in the liminal stage between Nov. 4 and Jan. 20, particularly given the expressed willingness of the Treasury to work with a new appointee from day one. If economic crisis demands a speedy transition, one would think national security crises would demand it as well.

Here's an idea: have Congress interview the appointees from both campaigns prior to the general election. This forces the candidates to provide an operational interim cabinet that can begin work on the Wednesday after election, serving at the new President's pleasure until such time as the Congress sees fit to confirm them.
 

Lets say that Obama agrees with you that Bush’s actions in Syria or Pakistan are not in the national interest. There is nothing preventing Obama from privately asking Bush to cease these actions or, if Bush refuses, from publicly stating his opposition. True, Obama has no legal authority here, but he could place an enormous amount of pressure on Bush and congressional Republicans, perhaps even threaten to seek a special session of Congress to cut off funding, etc. (Of course, this would only be effective if one assumes that the public would side with Obama in this controversy).

As far as I can tell, however, Obama has absolutely no interest in picking a fight with Bush over these actions or any other current matters. Obama is happy to collect the political dividends from bashing Bush over past decisions that have turned out badly, while remaining as unaccountable as possible for the tough decisions that have to be made now. Whether it is the military actions in Syria or Pakistan, or the negotiations over the status of forces in Iraq, or the Wall Street bailout and subsequent actions taken in response to the financial crisis, Obama seems to have no serious disagreements with the Administration, at least that he cares to mention. Curious, that.
 

every President no matter the system will have a finite term in office at the end of which he or she will still wield power.

Bart DePalma-

Given that you read every single thing Levinson writes, I'm certain you're aware that you're wildly mis-describing his complaint, and that his complaint is that under the American constitutional system the lag time between when a President ceases to have the approval of the people and the time at which he's replaced is much greater than it is under many other Democratic systems.

Why do you choose to construe his complaint in the way you do?
 

washerdreyer said...

Given that you read every single thing Levinson writes, I'm certain you're aware that you're wildly mis-describing his complaint, and that his complaint is that under the American constitutional system the lag time between when a President ceases to have the approval of the people and the time at which he's replaced is much greater than it is under many other Democratic systems.

Am I misdescribing the complaint?

Sandy is decrying Mr. Bush exercising the CiC powers of the President prior to the 2008 election. Sandy's complaint about Mr. Bush's perfectly legitimate exercise of power obviouslt has nothing to do with the transition period between administrations that has yet to begin. Rather, it is pretty clear Sandy has a near pathological hatred of all things Bush, even when the President exercises power in the same manner advocated by Sandy's favored candidate Mr. Obama.

If Mr. McCain pulls this election out, the keening around here will be deafening.
 

Enligtened Layperson:

Bill Clinton behaved very badly in his final days of office.

How so? Stealing White House furniture or the amenities off Air Force One? Didn't happen. That was a myth put together by the Rethuglicans....

Cheers,
 

tray:

[I]t's one that some say Obama has tried to combat with his hawkish position on Pakistan, gleefully talking about finding Osama and killing him, etc.

Your evidence of this "glee" is what exactly? The only evidence I've seen lately of "glee" (or anything approaching such untoward attitude) has been Dubya saying "F*ck Saddam, we're taking him out" or pumping his fist in the air and saying "Feels good!" on ordering the start of the Iraq invasion.

And it's Dubya's actions we're looking at here. Maybe without such a juvenile in the White House ever again, Prof. Levinson's concerns may be ameliorated, but we have to deal with what we have....

Cheers,
 

Whatever one thinks of the US Constitution, some facts are undeniable:

(i) it was written for a different age (eg, for a pre-industrial society, before the invention of modern communications or weapons of mass destruction);

(ii) it was written with a different franchise in mind (suffrage at the time of independence was a matter for the several states - some had religious tests excluding Jews, Quakers and/or Catholics, most applied a property qualification, some applied a literacy test, many excluded non-whites and all excluded women until Wyoming gave women the vote in 1869);

(iii) it was a constitution written largely by the elite of the colonies (the colonial gentry and landowners, and the higher bourgeoisie, lawyers being prominent players) who were actually fearful of "too much democracy", "the mob", "the Terror" (of the French Revolution);

(iv) it was product of many compromises between factions (so in places the language is deliberately vague so as to permit different factions to interpret the language differently); and

(v) it was drafted largely by lawyers and politicians trained in the British manner in the language used at the time and assuming a familiarity with the British constitutional conventions and legal drafting styles.

By now, it is showing its age.

As a simple example, the appointment of ambassadors was a matter of high state policy before modern communications were known, because such persons would have to speak for and engage the Republic in its relations with other sovereign entities without the ability to take instructions from Washington. Communications between governments and ambassadors in Europe were largely at the speed of the horse - but between continents at the speed of a sailing vessel. So the president's function of nominating ambassadors may only be exercised with the advice and consent of the senate - perhaps unnecessary today when an ambassador is a glorified mailman not uncommonly appointed as a reward for having been a bundler of campaign contributions.

Yet, many key advisers and operatives in an administration are not subject to senate confirmation at all - and that deficiency has been relied upon by presidents to appoint to positions of great power persons who arguably were quite unfit to be at the centre of national policymaking and execution.

All transitions of power in democracies are potential times of weakness. Modern conditions, unknown to the founding fathers, impose that transitions be as rapid as possible.

Take the situation in the UK. A general election always takes place on a Thursday. The result will be known on the following day.

Should the party of the Prime Minister have lost, at about 11 am on the Friday morning, he will travel by car to Buckingham Palace and tender his resignation and seals of office to the Queen. His last act will be to advise Her Majesty to appoint the leader of the opposition party as his successor. At about 2 pm the new Prime Minister will also go to the Palace, swear allegiance, receive the seals of office and return to 10 Downing Street as Prime Minister. Over the weekend the Prime Minister will appoint the principal Secretaries of State and Ministers who take office in the same way - almost instantaneously. The first cabinet of the new government will probably be able to meet on the Tuesday.

[At a time of crisis the whole legal transition could easily be compressed into about 15 minutes].

Moreover, in each department of state, the permanent officials stay. The total number of political appointees in each department will be no more than 10-15 in number. That is the model for most democracies - the USA is a notable exception.

Question - to what extent could US politicians give up the "spoils system"?

The relationship between the politicians and the permanent officials in the UK has been brilliantly satirised in the BBC Series Yes Minister. There are some extracts on You Tube from some of them of which this is fun Foreign Visit as is this one Nuclear Deterrent which still has its relevance today.

I think that most impartial observers would agree that when it comes to execution of high policy, the British cabinet and civil service system operates like greased lightening when compared to the US Executive. The issue is whether that is a better or a worse system of government, and a subsidiary question is whether a speedy transition could be effective without an apolitical and permanent civil service which would enable the incoming political team to "hit the floor running".

That would involve drawing a clear line - policy is for the politicians and execution for the permanent officials. It involves a permanent and politically neutral civil service able to deliver advice and see to the execution of policy from the moment the political head of the department is appointed.
 

PS - do look at the Nuclear Deterrent Video - folks - one might discern some similarities with some Obama policies.

M.
 

How about selling pardons, Arne? I thought that was pretty ugly.

"Didn't happen. That was a myth put together by the Rethuglicans...."

See, the incoming administration decides to be magnanimous about it, (And after that petty business of delaying the transition funding, yet!) and not press the issue, and are Democrats grateful? No, it's all, "See! It didn't happen! On your knees, apologize!"

Well, it DID happen, according to the GAO, though initial reports were somewhat exagerated.
 

"Bart" DePalma:

[washerdreyer]: Given that you read every single thing Levinson writes, I'm certain you're aware that you're wildly mis-describing his complaint, and that his complaint is that under the American constitutional system the lag time between when a President ceases to have the approval of the people and the time at which he's replaced is much greater than it is under many other Democratic systems.

Am I misdescribing the complaint?

Sandy is decrying Mr. Bush exercising the CiC powers of the President prior to the 2008 election. Sandy's complaint about Mr. Bush's perfectly legitimate exercise of power obviouslt has nothing to do with the transition period between administrations that has yet to begin. Rather, it is pretty clear Sandy has a near pathological hatred of all things Bush, even when the President exercises power in the same manner advocated by Sandy's favored candidate Mr. Obama.


In this post, Prof. Levinson is pointing out that even the traditional (if rather extreme) restraint on Presznitential excursions from the limits of Constitutional power and proper exercise of the duties [which, albeit, Prof. Levinson has decried elsewhere] -- that is to say, impeachment -- fails as a check in this case. Reducing the time during which such mischief can be done might ameliorate such concerns, but there's other steps that could help out as well.

But "Bart": You do really need to pay attention to what people are actually saying, rather than responding to what it is that you think they said (or should be saying)>. That's the first step towards a dialogue ... and honesty.

Cheers,
 

Brett:

How about selling pardons, Arne? I thought that was pretty ugly.

Well, yes, that would be pretty ugly, but the foaming of the Rethuglicans doesn't constitute evidence.

How about the wholesale pardons of G.H.W. Bush? Anything wrong there?!?!?

Cheers,
 

This comment has been removed by the author.
 

Brett:

[Arne]: "Didn't happen. That was a myth put together by the Rethuglicans...."

See, the incoming administration decides to be magnanimous about it, ...


Huh?!?!?

False charges flying left and right is "magnanimous"? Press rconferences repeating these scurrilous charges is "magnanimous"? Far from "magnanimity", the incoming Dubya maladministration was vicious and dishonest.

The GSA did an investigation, and found most of the charges false, and any "hijinks" (the occasional missing "W" keys and maybe a few love notes being such) no more than has occurred previously.

Cheers,
 

Mourad said (referring to the British transfer of power):

[At a time of crisis the whole legal transition could easily be compressed into about 15 minutes].

The U.S. addressed this issue once in the 20th amendment, moving the date of the presidential inauguration up from March to January. There is no reason we couldn't do this again, although we don't have the British system where a shadow government is already in place.

I agree with you that the Constitution is showing its age. I think there is the potential for great danger in a new Constitutional Convention though. Would the Bill of Rights survive? There would surely be efforts to put in things like a ban on flag burning or gay marriage.

I'm just sorry that the Framers got in a hurry with the Ninth Amendment. If they had had any idea how many Americans in the future would enjoy sticking their noses in other people's business, perhaps they would have taken a couple of days to come of with a longer list of the rights of the people. For example, I'm sure that General Washington had no idea that there would be a time when he could be sent to prison for growing hemp.
 

I think Arne and Brett's back-and-forth highlight the most glaring problem with the lag time in presidencies - the pardon power. If Clinton, HW, or G-dubs want to pardon bad people (and yes Arne, "sold" is an exaggeration, but Marc Rich was pretty egregious), they should only be able to do it when it can result in political push back. Say, no pardons after the 60th day prior to the election. This would be a pretty simple amendment.

However, anybody complaining about Clinton should just wait - that's gonna look like nolle-ing someone on a traffic ticket compared to what's coming next!
 

Some observations on impeachment and pardons:

Impeachment was a process you inherited from the British constitutional settlement.

It was never a very satisfactory process and of course, there has to be the political will to carry it through For all practical purposes, the remedy is obsolete in our system. It was mooted for Blair in relation to what many think was the unlawful "Enterprise of Iraq"* but the proposals got nowhere - partly loyalty triumphed over principle, much as it did over the equally unlawful conspiracy between the UK, France and Israel over Suez to invade Egypt and overthrow Nasser. The worst of that was fortunately stopped by the person whom I happen to regard as the last great Republican President, Dwight D. Eisenhower. Anthony Eden had to resign, of course, but he was not impeached. He was allowed to retire, granted the then customary ennoblement of a former prime minister and allowed to fade into relative obscurity.

The process is so unwieldy that your country's last two efforts have not exactly served to enhance confidence in the utility of the procedure. Think of the shabby pardon deal brokered between Nixon and Ford and of the partisan lunacy of the attempt on Clinton.

Although I cannot approve of the view taken by the Democratic leadership not to impeach Bush, I can understand the pragmatic thinking behind that decision.

Pardons have, of course, become a scandalous process.

I am not, of course, referring to the ordinary use of the process - for example, to cancel the effects of a wrongful conviction. [See for example, the tragic cases of the Dallas DNA Exonerations - where a pardon is the very least remedy that should be given - there ought also to be very substantial financial compensation (last year the UK paid out about £8 million to compensate such cases the going rate being about £50,000 per year served) - and it is worth questioning how many wrongful convictions there may have been in the 414 Texas capital cases where an execution has taken place. A posthumus pardon might console the family even if it cannot resurrect the victim of judicial murder.]

But the pardoning of Nixon in exchange for resignation and, for example, the pardoning of others after the Reagan Iran Contra episodes, all amounting to "get out of jail free" cards, were symptomatic of an abuse potential which can nullify the requirement that officials operate within the law.

In any revised constitution there would be an argument for reallocating the power to the Supreme Court - by petition to be voted on by secret ballot of the justices - majority required - no reasons to be given.

* I use the expression "the Enterprise of Iraq" because with hindsight I believe the invasion decision can be seen as a disaster of equal if not greater magnitude than than Philip II's decision to assemble an Armada to invade England and overthrow Elizabeth I.

As every schoolboy should know and perhaps even LSR Bart, the Spanish name for the operation translated as "the Enterprise of England".
 

it was a constitution written largely by the elite of the colonies (the colonial gentry and landowners, and the higher bourgeoisie, lawyers being prominent players) who were actually fearful of "too much democracy", "the mob", "the Terror" (of the French Revolution);

One mild note: they weren't concerned about the Terror because the Convention pre-dated the French Revolution.
 

"I'm just sorry that the Framers got in a hurry with the Ninth Amendment. If they had had any idea how many Americans in the future would enjoy sticking their noses in other people's business, perhaps they would have taken a couple of days to come of with a longer list of the rights of the people."

Hank,
Let's broaden this to how the Franers might have designed not only the Ninth Admendment but also other parts of the Constitution and Bill of Rights had they anticipated the vagaries and varieties of originalism that have been proliferating in recent years. Had the Framers been so prescient, most likely it would have taken more than a couple of days; in fact, that might have led to even more disagreement in the ratification process that eventually would have further fed the vagaries and varieties of originalism. Jack Balkin in the current post above this one provides a link to his new paper on originalism and the living Constitution that one can only hope is the missing link to the holy grail of constitutional interpretation. If constitutional scholars of today are capable of determining the Framers' intent, understanding and the meanings of that time, perhaps they can dig deeper into the Framers'psyche to determine what the Framers might have said had they known of these scholars' abilities to determine Framers' intent, understanding and meanings of the words and phrases they used.
 

It doesn't seem to have occurred to you that the Syrian base posed a threat to Iraq and to the U.S. forces that are building a democracy there. I can't believe you are trained to "think like a lawyer"! Did it even occur to you that the raid might have been justified? And yet you wonder why people question your patriotism? If your first thought is that our country is wrong, then you should have no expectation that anyone will believe you love this country.

BBB
 

It doesn't seem to have occurred to you that the Syrian base posed a threat to Iraq and to the U.S. forces that are building a democracy there.

You lost me with "building a democracy there". We didn't invade Iraq because it wasn't a democracy, we invaded because of imaginary WMD. At what point is that going to occur to you?
 

The power to declare war is vested in the Congress, not the President, but the USA has not declared war on any nation since WW2.

Declarations of war have rather gone out of fashion since 1945, because the Charter of the United Nations makes it unlawful to use military force against another sovereign state save in self-defence against actual or imminent attack. A country is supposed to refer a threat to international peace to the UN Security Council which may authorise the use of force under Chapter VII of the UN Charter.

So nowadays armed hostilities are dressed up as something else and, although popularly called "wars" in everyday language, technically they are occasions of armed hostilities, but not declared wars. For example, the Korean 'War' was UN 'peace enforcement' action under Chapter VII - which is why the forces wore UN insigina. Vietnam was technically going to the defensive aid of an ally. The invasions of Grenada, Afghanistan and Iraq were most probably purely and simply unlawful as a matter of international law.

The UN offered the USA and UK authority under Chapter VII to go into Afghanistan but the US spurned the offer - possibly because a UN mandate would have expressly set terms and conditions for the arrest and detention of persons which the pro-torture lobby thought too restrictive.

The invasion of Iraq was more plainly unlawful because the Security Council was already seized of the Iraq WMD Issue.

The AUMF is not a declaration of war and there have been doubts expressed about the constitutionality of the relevant underlying legislation since it was first enacted but neither the Congress nor successive Presidents have ever wanted to have the matter tested. In the back of my mind, I have a vague recollection that a presidential veto was overridden - but I can't be bothered to check and I will willingly be corrected. I suppose the underlying legislation is at least presumptively constitutional.

But I do wonder if an AUMF can properly be used to authorise the invasion of another sovereign state absent a declaration of war by the Congress. The intent of the legislation seems to have been to enable the Congress to exercise some control of deployments of US forces outside the USA to locations where they might be at risk of getting caught up in dangerous situations, not to enable full scale invasions of countries absent a state of war.

However, I defer to those qualified to speak to the US domestic law situation.

The fact is that the then Congress did purport to authorise the President to do what he has done and that seems to me to create substantial difficulties in domestic law terms for any action against the President or his subordinates in relation to the invasions themselves.

Presumably it would take a 60 majority vote in the Senate to rescind the AUMF resolution and the present Congressional leaders know they don't have the necessary votes.

So far as the law of nations is concerned, future governments of Afghanistan and Iraq could, I suppose, bring a claim for reparations against the USA before the International Court of Justice. But I expect the USA would simply do what it did to Nicaragua and ignore the Judgment of the Court. Other than to have the satisfaction of the verdict, it would be a waste of money going through the motions. Likewise, the USA has not ratified the Rome Statute of the International Criminal Court and neither have Afghanistan or Iraq.

What is beyond doubt is that the reputation of the USA has been deeply harmed by its unlawful wars. Further, the willingness of the USA (and, sad to say, the UK also) to act in breach of black letter international law and in defiance of the Charter of the United Nations, encourages other sovereign states to do likewise. US diplomacy was given pretty short shrift by the Russians when the issue of Georgia was discussed at the UN Security Council recently. The next Administration is going to need to do a lot of repair work.
 

Mark Field:-

Your point it well taken. I stand corrected. The troubles in France break out in 1788 and the mob storming Bastille is of course 14 July 1789.

The extent of the troubles in France would not have been known in the USA until the ratification period - which is why I think I recollect references in the Federalist papers or possibly from Jefferson in Paris. The Terror is of course 1793-4 - post ratification of the Bill of Rights.
 

@Mourad, @Mark Field,

Are you two saying the Framers were not explicitly concerned with the tyranny of the majority, a gloss for same being what I took Mourad's "too much democracy" to be?
 

mourad said...

Declarations of war have rather gone out of fashion since 1945, because the Charter of the United Nations makes it unlawful to use military force against another sovereign state save in self-defence against actual or imminent attack. A country is supposed to refer a threat to international peace to the UN Security Council which may authorise the use of force under Chapter VII of the UN Charter.

:::chuckle:::

Neither the President, Congress or the Citizenry has ever believed that the US has to go to the Security Council to get permission to go to war.

The UN Charter is a treaty that is subordinate to our Constitution and can be ignored or withdrawn from at will by the President and/or Congress.

While I can understand why opponents of the United States such as yourself might desire the power to veto US military actions, no President or Congress who wishes to stay in power would ever agree to such a foreign veto.
 

"The UN Charter is a treaty that is subordinate to our Constitution and can be ignored or withdrawn from at will by the President and/or Congress."

I've heard this argument before.

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

"he shall take care that the laws be faithfully executed"

Perhaps the Congress can unratify a treaty, but the President does not have that right in the Constitution. What a bothersome piece of paper.
 

Actually, it wasn't the UN Charter that outlawed war, it was the Kellog-Briand Pact (Paris 1928).
 

Robert Link asked:-

"Are you two saying the Framers were not explicitly concerned with the tyranny of the majority, a gloss for same being what I took Mourad's "too much democracy" to be?"

It seems to be fairly clear from the notes of the proceedings at the Convention that the participants were pretty much convinced that the British parliamentary system (as it then was) was a model they regarded as the best devised by man up to that point:
(i) a bicameral legislature;
(ii) a 'peoples' house (= the British House of Commons) albeit with the limited bourgeois male-only property owning franchise (in England - the "knights of the shires and the burgesses of the towns") which I think in the colonies of the time would have meant the enfranchisement of roughly 25%-35% of the population);
(iii) a 'second' chamber to act as a brake on the first.

The problem was that the UK House of Lords was composed of hereditary peers and there was serious discussion of what could be put in their place. It was recognised that only a monarchy can create a nobility - no monarch = no nobility. But what the House of Lords was then and remains today an assembly of what one might term "the great and the good". And the solution hit upon by the founding fathers was a senate which was to result in the "great and the good" - two from each state - having both the legislative function of acting as a brake on "the people's house" and also some of the attributes of the Privy Council - that of advising on and consenting to important executive decisions - again a process familiar to the participants because most colonial governors had such a council.

Today, "tyranny of the majority" is used in the sense of "party politics" - i.e. that it is good for the Senate to be in the control of the "other" party to that which controls the House or for the President to be of a different party of that which controls the Congress (McSame presently seems to be prattling on on that point - somewhat in extremis). Party politics was not as developed at that time - one speaks more of "factions". I suspect that what the founding fathers may have envisaged was more akin to the "conscript fathers" of the Roman Senate, the older, wiser, great men of the states, coming with some reluctance to the capital to give the legislature the benefit of the wisdom which comes of greater experience and to act as a brake on the enthusiasms of the "young lions" in the House. Hence the greater age qualification.

Shag from Brookline said:-

If constitutional scholars of today are capable of determining the Framers' intent, understanding and the meanings of that time, perhaps they can dig deeper into the Framers'psyche to determine what the Framers might have said had they known of these scholars' abilities to determine Framers' intent, understanding and meanings of the words and phrases they used."

This is the problem with an elderly constitutional document which has created what I refer to as the "originalist heresy". It is a bit off the point of this thread, but I will post something to Professor Balkin's thread on his new publication.

Interpretation is only necessary at all where a document's meaning cannot be derived from textual exegesis. It may be necessary to look at documentary materials form the time to ascertain the sense in which words which may have changed in their meaning. But I do not believe that it is legitimate to seek to divine the intent of the convention from the limited writings of a few of them. Our reading today is inevitably coloured by our knowledge of all that has happened since. For me, originalism is "pseudo scholarship" devised by conservatives to justify a more restrictive approach to human rights guarantees. I was very struck by Justice Scalia's cheerful admission at a lecture in London that he had problems in being consistent because the branding of thieves with a hot iron might not have been considered "cruel or unusual" at the time of the bill of rights. I take the view attributed to Mr Justice Binnie of Canada that "originalism is a quaint form of ancestor-worship".

I agree with what I understand to be Senator Obama's view that it is perhaps unfortunate that civil rights activists turned to the Courts to find some remedies which might better have been achieved through campaigning to have legislative change. The Courts are naturally uncomfortable in such a role.

What is perhaps needed is a modern "bill of rights". Readers may care to look at a guide to the UK incorporation of such rights into our system A Guide to the Human Rights Act 1988
 

Fraud Guy:

The Courts disagree. Both the President and Congress have repeatedly withdrawn from treaties and all have survived court challenge.

The President does so as the branch entrusted with negotiating treaties and Congress does so as the branch that must ratify the treaties.
 

Bart,

Is that what you tell your clients about contracts -- that if they want to simply blow them off it's just perfectly OK?

If so, then why bother entering a contract in the first place?

To defraud the other parties perhaps?
 

Roberto Antonio Hussein Eder wrote:-

"Why don't we see outrage over dictator Bush's use of military force, authorized or not under AUMA, which invariably results in the deaths of ordinary civilians? The Syrian raid killed eight people, one of whom was a woman, and three juveniles. The Pakistani missile attacks surely have killed dozens of poor agrarian peasants, including children. Do we not care about these deaths because of an implicit feeling of American racial superiority that says a Syrian or Pakistani life is not worth very much?"

"Sir, the Natives are revolting!"
This was the title of an episode of a British TV comedy series called "It Ain't Half Hot, Mum" set in WW2 British India. There is a double entendre in the title which harkens back to the British colonial past, when the British Empire was divided into "the Rulers" who were white British expatriates and "the Natives", the indigenous or aboriginal populations.

Throughout the imperial period, say 1560 -1920, there was an overt if unselfconscious culture of racial superiority which is embedded in the English language: "the white man's burden" was to bring "civilisation", understood as the English school system, English law, a British Civil Service, eventually a British model parliamentary democracy, together with cricket, football (soccer and rugby) and other sports to "the natives".

Probably the most successful transplants of all have been the sports: The Indians, Pakistanis, West Indians and Australians all regularly defeat the English at cricket. English law has transplanted rather better than parliamentary democracy.

When Mahatma Ghandi came to London for pre-independence negotiations for India he insisted on wearing tradional Indian garb and staying in a working class area of the East End rather than the Dorchester Hotel. As ever, this was politically astute. A reporter (unaware, no doubt, that Ghandi had studied law at University College, London and was a Barrister of the Middle Temple) asked Ghandi "What do you think of western civilisation?" - Back came the shy smile and the response, "I think it would be a good idea".

The late Sir John Betjeman, Poet Laureate to the Queen from 1972 wrote a bitter little wartime poem, In Westminster Abbey which I urge those unfamiliar with his work to read. In it one finds these lines:-

"Keep our Empire undismembered
Guide our forces by Thy Hand,
Gallant blacks from far Jamaica,
Honduras and Togoland;
Protect them, Lord, in all their fights,
And, even more, protect the whites."

I think those were sentiments not untypical of the upper-middle classes in 1940's England. While we are becoming more and more a multi-cultural society, the concept of racial superiority dies hard.

I suggest with some diffidence that one of the less desirable traits which Americans have inherited, partly from the British, is that same concept of racial and cultural superiority over "the natives" of other lands.

In England we are not unaccustomed to come across American tourists who enquire: "Do you speak Murkin?" leading some London shopkeepers on the tourist routes to exhibit signs stating "English spoken, American understood".

More significantly,at the time of the disastrous Paul Bremer pro-consulship in post invasion Iraq. I was shocked by the ignorance of those sent to deal with civil affairs. I happened to meet a group of such people whom I expected to have some knowledge of the history and culture of the people they were going to administer.

Not one of them was aware that Mesopotamia was civilised when Britons were running around in animal skins and painting themselves with woad. Despite their computer literacy, none of them knew that Alexander the Great had been to Baghdad before them, They were all completely unaware of the existence of a Cardinal Patriarch of Baghdad in whose eastern rite churches the language used for the services is Aramaic, the language Jesus spoke. They were totally unaware of the history of the Ottoman Empire, or of the British in Iraq, or even that Iraq had once had a monarchy.

They were unaware of the tribal and clan system or even of the differences between Sunni and Shia muslims. They were unaware that pre-Saddam Iraq had seen ecomomic development comparable to some European states, with well educated professionals, particularly in medicine, law and engineering, and that there were many exiles who would return with good skills once law and order was restored.

For them, the Iraqis were just ignorant "Ayrabs" from "Iyrak" who needed to have the benefit of "the American way". Predictably, the Coalition Provisional Administration was a complete and utter disaster.

So the answer to the question is yes, the lack of outrage is a symptom of the common American belief, regrettably shared by some of my countrymen, that Syrians and Pakistanis are not "PLU - People Like Us".
 

Robert, just a quick reply because I'm out of town.

It depends on which Framer you mean, but some of them (Madison in particular) certainly were concerned about the tyranny of the majority. Others, like John Jay, were pretty pure majoritarians.

They all shared a view that what they called democracy and what we would call "direct democracy" was something to avoid, and the reason they opposed it was the sense that majorities in such assemblies tended to make emotional and harsh decisions.
 

I just read now on the BBC website that the U.S. has attacked another Pakistani village with missiles, killing 15 people. Bush, not only constitutional dictator but also world tyrant, flaunts international law with his missiles and violates Pakistan territorial sovereignty.


"At least 15 people have been killed in a suspected US missile strike in Pakistan, security officials said.

"They said the attack hit a house in the village of Mir Ali, in North Waziristan, bordering Afghanistan.

"Reports said the target of the attack was an al-Qaeda operative, but it was unclear if he was among the dead."

How many of these 15 dead are women, children, villagers, peasants? How many are Al Qaeda types? There is no evidence whatsoever that any of the dead are Al Qaeda or "terrorists."

Bush gets away with these war crimes because Congress has authorized AUMA? Or because he is "commander-in-chief" of the army? None of these reasons permit killings like this.

If you were Pakistani, what would you think of Bush and the Americans?

The Pakis must loathe and hate Americans because of Bush's reckless lethal actions, just like the rest of the world.
 

charles gittings said...

Bart, Is that what you tell your clients about contracts -- that if they want to simply blow them off it's just perfectly OK?

Contracts are legally enforceable agreements.

There is no world government and treaties are not legally enforceable upon the party national governments. Rather. treaties and all other international law are the legal equivalent of unenforceable promises by national governments. The only time treaties or international laws are enforced is arbitrarily through the force of what are usually US arms.

And, yes, I do advise my clients that they can withdraw from unenforceable promises when an alleged agreement does not have the elements of a legally enforceable contract.

If so, then why bother entering a contract in the first place?

Promises are often made for mutual benefit or out of charitable impulse. This is the case with treaties.
 

roberto antonio hussein eder said...

How many of these 15 dead are women, children, villagers, peasants? How many are Al Qaeda types? There is no evidence whatsoever that any of the dead are Al Qaeda or "terrorists."

And there is no evidence whatsoever that they are innocents.

To the extent that innocents were killed with any al Qaeda, the civilians are being used unlawfully as human shields by al Qeada . It is a war crime for our troops to live among the civilians because our troops are legitimate wartime targets and it endangers the civilians for our troops to live with them. The same applies to al Qaeda.

Unless your intent is to act as a propagandist for al Qaeda, you may want to get your war crimes and their perpetrators straight.
 

And there is no evidence whatsoever that they are innocents.


Baghdad is right. If our bombs landed on them, they must have been guilty.
 

Bartbuster wrote:

You lost me with "building a democracy there". We didn't invade Iraq because it wasn't a democracy, we invaded because of imaginary WMD. At what point is that going to occur to you?

You are wrong again. The Authorization for the Use of Force Against Iraq Resolution quite clearly states the casus belli against Saddam. And that casus belli clearly includes the clause

"Whereas the Iraq Liberation Act of 1998 (Public Law 105–338) expressed the sense of Congress that it should be the policy of the United States to support efforts to remove from power the current Iraqi regime and promote the emergence of a democratic government to replace that regime...."

You need to get out of the liberal echo chamber and learn some facts.

BBB
 

You are wrong again

No, I'm not wrong. "Support the efforts" does not translate to "invade". If you assholes did not constantly lie during the runup to the invasion about imaginary WMD, there would have been no war. Period.
 

"Promises are often made for mutual benefit or out of charitable impulse. This is the case with treaties."

Oh really... And what exactly is charitable or mutually beneficial about defrauding someone?

The fact that you didn't simply ro0b them at gun-point?

But don't mind me Bart: you go right ahead and show me any treaty or precedent that says treaties or contracts are just non-binding expressions of meaningless sentiment.

That's pure BULLSHIT, and I got news for you: the IMT Charter was intended to ENFORCE certain treaties in exactly the sense that we enforce our LAWS, which depend on exactly the same mechanism for their enforcement, namely the concerted action of decent folks to defend themselves from predators.

And the US Constitution is just as much an international treaty as the UN Charter is. You might try reading them some time.
 

Charles:

1) Fraud is depriving someone of their property under false pretenses. How is withdrawing from say the ABM Treaty with Russia depriving Russia of their property under false pretenses?

2) Pray tell how is the Constitution in any way an international treaty? Are you perhaps an unreconstructed Confederate who believes the States are actually nations who can secede at will?

This should be amusing.
 

"Bart" DeForceIsTheAnswer:

There is no world government ...

Not exactly true. There are both world courts and world legislative bodies.

... and treaties are not legally enforceable upon the party national governments.

Yes, they are. One might say "with whose police [or army]". But that hardly places the world governmental agencies in a different place than the police in a mob society, outgunned and outmanned, but nonetheless still the law.

Rather. treaties and all other international law are the legal equivalent of unenforceable promises by national governments. The only time treaties or international laws are enforced is arbitrarily through the force of what are usually US arms.

Usually the U.S. has acted to enforce international laws and universal law. Only recently has it been dismissive of such. One might find the guns turned around next time, should the U.S. not desist from its agresssion and continue in its current ways.

Cheers,
 

arne:

The UN and the various international bodies the United States has allowed to be created are not collectively or individually a legitimate and sovereign world government chosen by the People. They are simply debating clubs we find useful to use on occasion and otherwise ignore based upon our own national interests - as does every other nation in the world.

Consequently, there is no such thing as enforceable international law analogous to US law enforced by the US government. At most, there is a conqueror's justice the United States and its alliances have imposed on those we have defeated in wars. I hardly consider this the rule of law. Rather, it is the application of the dictum "might makes right."

International law is in fact a collection of norms of behavior for the interaction of nations. These norms are followed because most nations find them mutually beneficial. However, they are not enforceable except through conqueror's justice. Major powers like the former USSR, Putin's Russia and China can generally violate these norms with impunity because other nations are not going to sacrifice blood and treasure to enforce them.

This may be cynical, but it is undeniable.
 

This may be cynical, but it is undeniable.

# posted by Bart DePalma : 4:51 PM


So you won't have any problems if Rumsfeld is tried as a war criminal if he is arrested while outside the US?
 

Oh this is amusing indeed Bart...

(1) "fraud, n. 1. A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. * * * 2. A misrepresentation made recklessly without belief in its truth to induce another person to act."
7 Black's Law Dictionary 670


(2) The Constitution as a treaty...

"We, therefore, the representatives of the United States of America, in General Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name and by the authority of the good people of these colonies solemnly publish and declare, That these United Colonies are, and of right ought to be, FREE AND INDEPENDENT STATES; that they are absolved from all allegiance to the British crown and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent states may of right do."
U.S. Declaration of Independence (Philadelphia 1776).

"Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled."
U.S. Articles of Confederation (Philadelphia 1777), art II.


"We, the people of the United States, in order to form a more perfect Union..."
U.S. Constitution (Philadelphia 1787), preamble.

"The ratification of the conventions of nine states, shall be sufficient for the establishment of this constitution between the states so ratifying the same."
U.S. Constitution, art. VII.


"In June 1776, the Convention of Virginia formally declared, that Virginia was a free, sovereign, and independent state; and on the 4th of July, 1776, following, the United States, in Congress assembled, declared the Thirteen United Colonies free and independent states; and that as such, they had full power to levy war, conclude peace, etc. I consider this as a declaration, not that the United Colonies jointly, in a collective capacity, were independent states, etc. but that each of them was a sovereign and independent state, that is, that each of them had a right to govern itself by its own authority, and its own laws, without any control from any other power upon earth."
WARE v. HYLTON, 3 U.S. 199 (1796), Chief Justice Chase seriatam, 224.
 

"They are simply debating clubs we find useful to use on occasion and otherwise ignore based upon our own national interests - as does every other nation in the world."

What a crock of steaming bullshit that is Bart -- in fact, it describes rather precisely your attitude towards the Constitution and laws of the United States.

Might makes right my ass: the only real authority for any law worthy of the name is human reason.
 

the only real authority for any law worthy of the name is human reason.

Legitimacy is conferred by consent. Which is to say, opinion.

Although there are people, Bart for example, for whom there are no principles, only force and the threat of force.
 

Latterly there have been mutterings that King George is becoming increasingly reclusive as he prepares to leave office and that he is spending an increasing amount of time fretting about "his legacy".

That is unsurprising because at present the Toxic Texan looks set to rate two entries in the Guinness Book of Records (i) as the US President with the lowest domestic approval ratings ever and (ii) as the US President with the lowest world approval ratings ever.

Professor Juan Cole's Informed Comment has just brought back to its front page a comment from 31st July 2002 predicting the outcome of the Admistration's planned Enterprise of Iraq. These were Professor Cole's prognostications:-

"While it seems likely that Bush will go to war, the outcome of such an action is very much in doubt and could haunt him (and us) in the future. The negative possibilities include:

1) Iraq could be destabilized, with ethnic forces becoming mobilized and squabbling over resources, as happened in Afghanistan after the Soviet invasion.

2) Iraq could be reconstituted as an unpopular American-backed dictatorship, as happened in Iran in the 1950s. So far, close US allies in the War on Terror in the Middle East include Egypt, which is a military dictatorship that just jailed Saad Eddin Ibrahim for human rights work; Pakistan, a military dictatorship whose leader is attempting to manipulate the fall elections to keep himself in power; Saudi Arabia (nuff said); and other countries with extremely bad human rights records or which are involved in imperial occupations. A Pinochet in Iraq would potentially harm the US diplomatically for decades to come.

2) The loss of civilian life will be significant, further turning much of the world against the United States and losing any sympathy generated by September 11.

3) Recruitment of terrorists to strike the U.S. in the Muslim world may well be easier in the aftermath of a bloodbath in Iraq.

4) The unilateral nature of the action may well provoke Europe, Russia, China and India to begin trying to find ways to unite against the U.S. on such issues in the future, so as to offset its massive military superiority by isolating it on the Security Council and in other international venues. Europe's relative economic clout could grow if war uncertainties keep the US economy weak.

5) The Bush First Strike doctrine may well be emulated by other nations who fear their neighbors, producing copy cat wars that destabilize entire regions. It should be remembered that the German army in 1914 had a first strike doctrine, which dragged Europe into an unnecessary and highly destructive maelstrom.

6) There may be no dividend to an Iraq war in the form of lower petroleum prices in the long run. Saudi Arabia and Kuwait both have significant excess capacity, and OPEC always has an incentive to pump less oil for higher prices, as they have done in the past. Even if Iraq could pump 5 million barrels a day instead of 2, OPEC can just reduce its output by 3 mn. barrels a day and put the price back up. They would have every incentive to do so since they could get about the same amount of income from less oil, benefiting them over time."


All that need be said is that the Professor Cole's assessment above can now be seen to have been far closer to reality than the combined wisdom of the "scholars", analyists and pundits of the American Enterprise Institute, the Heritage Foundation, the Hudson Institute, the Middle East Forum, the Washington Institute for Near East Policy, Commentary, the Project for the New American Century and the Jewish Institute for National Security Affairs, not to mention the loathsome spotted reptiles who lurk on this blog and parrot the Neoconservative propaganda line of the day.

Afghanistan-Pakistan
Just over a month ago, US troops conducted a ground operation in the Musa Nikah area of South Waziristan in which more than 15 people were killed. The BBC's Urdu monitoring service has reported no fewer than 80 people have been killed by suspected US missile strikes in South and North Waziristan on the Pakistan side of the Afghan-Pak border in the last 30 days. On 24th October 2008 there was a missile strike on a Madrassa (a religious school) in the Dande Darpakhel area of North Waziristan area killing seven students. On 27th October 2008 a missile attack on Mandatta village in South Waziristan which hit three houses killing a Taliban commander from the 1990's - Mohammed Omar - but also 20 others. Today there was a further attack at Esori in South Waziristan reportedly killing Abu Akash, an elderly mujahid from Iraq who reportedly was recruited in the Reagan era and who fought against the Soviets. The attack also reportedly killed 15 others.

These cross-border incursions at a time when the fragile government of Pakistan is struggling to cope with an earthquake in Baluchistan which has left thousands of survivors in the open air in sub-zero temperatures (ethnic Pushtuns by the way) seem tailor-made to provoke widespread popular anger. I can just imagine the sermons given in the local mosques at Friday prayer today.

Syria
The incursion into Syria is amply covered in the Dan Froomkin column in the Washington Post which Professor Levinson used to commence this thread, but I would draw attention to the AP report:

"Selective U.S. military action across the borders of nations friendly and unfriendly reflects increasing willingness to embrace what U.S. commanders consider a last resort: violating the sovereignty of a nation with whom the U.S. is not at war. It's a demonstration of overt military strength that the U.S. has been reluctant to display in public for fear it would backfire on U.S. forces or supporters within the governments of the nations whose borders were breached. Now, senior U.S. officials favor judicious use of the newly aggressive tactics, seeing more upsides than down. They reason that whatever diplomatic damage is done will be mitigated when President Bush leaves office and a new president is inaugurated."

Who might be the senior US officials to have pushed for this lunatic option. Past experience would suggest Cheney and Hadley, the latter now the President's National Security [Stupidity] Assistant Hadley Profile, as the prime suspects.

Should we be surprised that such a benighted Administration now appears to be embarking on a Götterdämmerung style scenario - alas not one true to the Wagnerian version which ends thus: "Brünnhilde, entering, orders a funeral pyre for Siegfried . She condemns the gods for their guilt in his death, takes the Ring, and promises it to the Rhinemaidens. Placing it on her finger, she throws a torch onto the pyre and joyfully rushes into the flames. As the river overflows its banks and the Gibichung hall is consumed, the Rhinemaidens, dragging Hagen to his death, regain their gold, at last purified of its curse. Flames engulf Valhalla, leaving a human world redeemed by love.

The Neocon version cuts out the "pure love" and appears to be more akin to the latter days of the 3rd Reich with the house of cards collapsing around the survivors.

How else can one interpret these time bombs being planted and timed to go off on or about Inauguration Day? Or perhaps this is part of the madness of King George - his après moi, le déluge moment.
 

Bartbuster wrote:

No, I'm not wrong.

Gee, maybe you are a lawyer. The title of the resolution is "Authorization for the Use of Force in Iraq". You are arguing that one of the premises of the use-of-force resolution, our intention to replace the regime of Saddam with a democracy, actually has nothing to do with the authorization for the use of force. Bravo -- you win the award for "most obtuse and transparently false argument of the day." ROFL.

Go ahead, call me an asshole again. That will help you polish your argumentation skills.

BBB
 

The title of the resolution is "Authorization for the Use of Force in Iraq".

Dumbfuck, without the imaginary WMD, the resolution for force does not pass. No imaginary WMD, no invasion. Why is that so difficult for you to understand?
 

charles:

As I suspected, you are an unreconstructed anti-federalist/confederate. We resolved the issue of whether we are a nation state rather than a confederation of states as a legal matter when we scrapped the Articles of Confederation for the Constitution and finally as a matter of fact with the Civil War.
 

Bartbuster wrote:

Dumbfuck.

I'm just overwhelmed by your intellect and command of the issues. But I seem to be backing you into a corner. Do you admit that replacing Saddam with a democratic government was a strategic goal of the Iraq campaign -- even prior to the invasion?

BBB
 

I guess before this thread peters out I should ask if Sandy actually knows or has known anyone who has actually lived under a dictatorship. I know several, including my dear late mother.

Ask them if we are living in a dictatorship now. The folks I know who have suffered under real dictatorships, not feverish imagined dictatorships of delusional liberals, rather resent this jejune posturing.

BBB
 

Mourad:

Juan Cole was wrong on nearly every prediction about the liberation of Iraq:

1) Iraq could be destabilized, with ethnic forces becoming mobilized and squabbling over resources, as happened in Afghanistan after the Soviet invasion.

al Qaeda tried and ultimately failed to make this Cole dream a reality. Once al Qaeda was destroyed, Iraq's ethnic groups are working together better than the Dems and the GOP in the US.

2) Iraq could be reconstituted as an unpopular American-backed dictatorship, as happened in Iran in the 1950s.

Wrong again. Iraqi democracy functions better and has a far higher approval rating than our current do nothing Dem Congress.

2) The loss of civilian life will be significant, further turning much of the world against the United States and losing any sympathy generated by September 11.

Despite propaganda put out by useful fools at the Lancet, the US still seems to be running things in Iraq and much of the Middle East, either openly or through private understandings such as that we have with Pakistan and reportedly Syria to take down the enemy in their territory.

3) Recruitment of terrorists to strike the U.S. in the Muslim world may well be easier in the aftermath of a bloodbath in Iraq.

Outside of the war zones of Iraq and Afghanistan, enemy attacks against US interests were almost totally stopped. Now they have been largely stopped in Iraq with the last stand of the enemy taking place on the Afghan/Pakistani border.

4) The unilateral nature of the action may well provoke Europe, Russia, China and India to begin trying to find ways to unite against the U.S. on such issues in the future, so as to offset its massive military superiority by isolating it on the Security Council and in other international venues. Europe's relative economic clout could grow if war uncertainties keep the US economy weak.

Cole's dream of the world teaming up against his own country never happened and "war uncertainties" never affected our exploding economy between the 2003 rate reductions and the victory of the Surge in the beginning of 2008.

5) The Bush First Strike doctrine may well be emulated by other nations who fear their neighbors, producing copy cat wars that destabilize entire regions.

Wrong again. Nations act to advance their own self interests. Bad actors do not need and have never waited for US wars to act.

6) There may be no dividend to an Iraq war in the form of lower petroleum prices in the long run. Saudi Arabia and Kuwait both have significant excess capacity, and OPEC always has an incentive to pump less oil for higher prices, as they have done in the past.

Cole is completely clueless as to how markets work. When demand for oil soared as the US, Chinese and Indian economies rapidly expanded, OPEC was only too glad to pump more oil to rake in the high oil prices while they lasted. Indeed, OPEC hit its capacity last year before the world economies started slowing down and the oil prices tanked.
 

What BS. What it shows is that you're lying Bart -- as usual -- and you just made yourself look like a complete fool, AGAIN.

I said nothing about the status of the states in the here and now, nor did I say anything about the status of the states in 1850. What I did say is that the US Constitution was an international treaty in the same sense that the UN Charter is, and then I proved it beyond any doubt simply by quoting the three relevant texts and a clear statement by the Supreme Court.

Now you want to change the subject to a fraudulent straw-man that's completely beside the point because what the treaty provides one way or the other doesn't change the fact that it is a treaty.

And that's you Bart -- you got caught lying and making things up out of whole cloth, got your lying ass kicked, and the only thing you can think to do is lie some more, because you're too stupid and dishonest to do anything else.

How the hell you ever managed to con a law school into giving you a degree is beyond my understanding; it really says something about the dismal state of "education" in this country. All you are is a trained liar, and you aren't even any good at that.
 

PS:

So I take it you think the US Constitution is a treaty which created a BINDING union between the independent states that negotiated it, correct?

That they were independent is clear from art. VII: upon ratification by any nine of the states, the Constitution became effective for only those states that had in fact ratified it.

Now you claim that it created an indissoluble union between the states and try to pretend I have the opposite view, when it's entirely beside the point.

And I don't see an escape clause in the Constitution outside the amendment process in any case, where you insist that anyone can can violate any old treaty at any time.

So you denigrate the UN Charter without actually bothering to read it, and the question is:

If in fact the Constitution could establish an irrevocable union, why couldn't the UN Charter do exactly the same thing on different terms?
 

Charles Gittings wrote of LSR Bart:-

"How the hell you ever managed to con a law school into giving you a degree is beyond my understanding; it really says something about the dismal state of "education" in this country. All you are is a trained liar, and you aren't even any good at that."

Let's explore the options:

(i)Since I would not wish to write in defamatory terms of the Florida State University College of Law (which granted Bart his parchment -or possibly pigskin), there is, of course the possibility that poor Bart took his examinations by a deputy;

(ii)There is then the possibility that Bart was properly instructed, but that since graduation his brain has ceased to function properly. The reptilian brain is, I am told, somewhat more
rudimentary than that of mammals;

(iii) Finally, there is the probability, that Bart knows very well that much of what he posts on this blog is complete and utter bilge, but that he puts it up to disrupt the thinking of others and, to sabotage the development of coherent debate - a variant of the Attwater/Rovian tactics so beloved of the extreme right and which have been a feature of the McSame campaign over the last few months.

LSR Bart's purported views on international law and the law of treaties have been exposed over numerous threads on this blog ad nauseam but let us set out some propositions for the benefit of those who may just happen upon this thread.

1. By analogy with ordinary principles of law, treaties can be regarded as a form of contract between sovereigns;

2. A state may be presumed to enter into a treaty only if it considers it is in its national self-interest to do so;

3. By analogy with other kinds of contract, the consideration is usually that of mutual undertakings: A promises to B to do Y in consideration of B undertaking to A also to do X (or Y);

4. A treaty will usually contain provisions for withdrawal or denunciation, if not, the general law of treaties applies;

5. Some treaties contain mechanisms for dispute resolution enforceable in accordance with their terms - others do not;

6. How treaty obligations become enshrined in domestic law is a matter for the domestic law of each state, some states operate a self-executing approach - others require specific implementing legislation;

7. It is not correct to say that treaties can only be enforced by the use of force. For example treaties may authorise one party to apply economic sanctions against the other, or provide that third states or agencies may take coercive measures - including in some cases the use of force.

8. In the ultimate analysis, a state can always decide to act in breach of its treaty obligations - but that may have military or economic consequences or penal consequences, for the individuals who cause the state so to act.

9. The United States of America has subscribed to many hundreds of treaties which have been duty ratified, among which are the Charter of the United Nations, some of the Hague Conventions and the Convention against Torture. Despite the best efforts of John Bolton and other neoconservatives, the USA has not withdrawn from any of those particular treaties.

10. The US Constitution prescribes that once signed and ratified, a treaty becomes the "supreme law of the land".

However, that is not the end of the matter. Like the UK and most countries whose legal systems originated in the Anglo-Norman model, treaties are not generally self-executing. That is to say that with some exceptions, they do not create private causes of action or automatically become part of domestic law - national implementing legislation is required to achieve that.

Where there is national implementing legislation, the Courts then have no particular problem.

The more difficult question arises where the Court has to consider the impact of a treaty on other legislation which may be inconsistent. As even poor dear Bart may understand, there is very little legislation produced which does not admit of more than one meaning.

I thank the Almighty that this is so because that reality provides much fee income to the legal profession [a profession which also provides Bart with the means of earning his living - so he should really not bite the hand which feeds him].

When there is apparent inconsistency, in our system, the Court adopts a rule of statutory construction that if a statute can be read to produce more than one result, the Court will prefer the result that is consistent with
the treaty obligation.

However, if the statutory language is clear, that is what the Court must apply. It may invite the legislature to put matters right, but it cannot rewrite the statute.

If there is a treaty to which the state has subscribed, but which has not been incorporated into domestic law, that may preclude the domestic courts from granting a remedy to a private individual. However that is still not the end of the matter.

There may be the possibility of a party with sufficient standing to apply for declaratory relief or other judicial review.

I would further suggest that where the Executive has acted contrary to the solemn terms of a treaty obligation, that would give rise to the possibility of impeachment
proceedings.

I consider that although dressed up with the trappings of legal process, impeachment is essentially a political process. But John Roland writing on the web site of the Constitution Society offers a reading of the constitutional provision which is not unattractive Meaning of "High Crimes and Misdemeanors".

Roland suggests that the adjective "high" refers not to the "crimes or misdemeanors" but to the high status of the official being impeached. That is consistent with the history of the process. His analysis also lays emphasis on the Oath of Office. I suggest that is also right.

The prescribed form of Oath (Constitution: Article II s.1) is:-

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Note that the two duties are "faithful execution of the office" and the "preservation, protection and defence", not of the United States itself, but of the Constitution of the United States.

By Article II, s 3 of the Constitution the President "shall take care that the Laws be Faithfully executed". "Shall" is the volitive future. Thus the obligation is mandatory not optional.

Article VI declares treaties to be "the Supreme Law of the Land".

Thus while the President may take the requisite steps to withdraw the USA from a treaty, for so long as he has not done so, a treaty to which the USA has subscribed is the law of the land.

While non-enactment into domestic law may mean that there is no private cause of action, a President may not act inconsistently with a treaty obligation. If he does, he is failing to take care that the laws be faithfully executed, and therefore failing in breach of the duty of faithful execution of his office imposed by his Oath of office.

Thus LSR Bart's assertion:-

The UN Charter is a treaty that is subordinate to our Constitution and can be ignored or withdrawn from at will by the President and/or Congress. is plainly wrong.

The UN Charter is part of US law and remains so until the the obligations of the USA under the treaty have been terminated. At no time thus far has the United States done so.

There is no provision in the Constitution permitting the president to suspend the operation of any law (a power claimed by the Stuarts in England abolished under the Glorious Revolution 1688) and on the contrary there is an obligation on the President to see that the Charter be faithfully executed.

The assertion that a president may ignore a treaty at will is therefore also unsustainable. There may well be no remedy at the hands of a private citizen, but the action of the President would clearly be in breach of his Oath of Office and therefore impeachable.
 

Bart wrote: al Qaeda tried and ultimately failed to [destabilize Iraq.]

It takes a special brand of discernment to claim that Iraq was not destabilized. You are quite insane, Bart. But we knew that.

Bart wrote: Iraqi democracy functions better and has a far higher approval rating than our current do nothing Dem Congress.

You don't say! Maybe you ought to consider emigrating, you know, to improve your quality of life.

Bart wrote: Cole is completely clueless as to how markets work

Bart on the other hand understands how markets work. In fact, he understands markets so well that he knows there isn't any free market reason for a melt-down or a depression. What a relief!
 

Well Mourad, I think Mattski got us right to the bottom line on Bart: he's quite literally insane... And in the context of the law, he's just a mangy little rat in a jungle full of rabid hyenas like David Addington and vipers like John Yoo.

What's most depressing to me about it is that things aren't much better on the other side of the political spectrum... Or for that matter, the other side of the Atlantic Ocean -- not that there aren't some bright spots here and there. We are in deep shit, and that's no joke.

But all that wearies me, because I've been worrying about the pathology a lot longer than recent examples like Bush or Bart.

*

As for the treaty stuff, I've looked at self-execution a lot. See my articles HERE, and in particular, see the amicus briefs I submitted to the Supreme Court and the USDC for DC.

18 USC 2441 executes Geneva and Hague as US law much as the UK Geneva Conventions Act does. the problem is bringing an indictment when it's the government itself is conspiring to violate the statute. Feel free to contribute any thoughts you might have on how that might have worked under English Common Law prior to 1776. The problem is that it likely wouldn't have even come up -- this sort of stuff would fall under the Articles of War. The only real precedent appears to be the trial of Charles I, when the charges were brought by Parliament.

Here we literally have the spectacle of DOJ committing war crimes by filing briefs in US courts. It's really a travesty, and I pointed it out to the court four years ago. Now there at it again, and I've been scratching my head thinking maybe it's time to point it out again. It's really difficult puzzle that I've been pondering for nearly seven years now.
 

Mourad:

It is not correct to say that treaties can only be enforced by the use of force. For example treaties may authorise one party to apply economic sanctions against the others...

Economic sanctions are backed by the threat of force.

In the ultimate analysis, a state can always decide to act in breach of its treaty obligations - but that may have military or economic consequences or penal consequences, for the individuals who cause the state so to act.

There are no penal consequences unless the nation that withdraws is conquered.

9. The United States of America has subscribed to many hundreds of treaties which have been duty ratified, among which are the Charter of the United Nations, some of the Hague Conventions and the Convention against Torture. Despite the best efforts of John Bolton and other neoconservatives, the USA has not withdrawn from any of those particular treaties.

No, the US has simply interpreted them differently than you and the EU. The effect is the same as ignoring provisions with which we disagree.

The US Constitution prescribes that once signed and ratified, a treaty becomes the "supreme law of the land".

For so long as the treaty is in effect. Given that both the President and Congress can withdraw from treaties at will, a treaty is never truly enforceable against either political branch, only against private citizens if self executing or enforced by statute.

The assertion that a president may ignore a treaty at will is therefore also unsustainable. There may well be no remedy at the hands of a private citizen, but the action of the President would clearly be in breach of his Oath of Office and therefore impeachable.

Withdrawing from a treaty is neither a violation of law or a breach of his oath of office. However, given that I believe that the use of the term misdemeanors in the Constitution as a ground for impeachment means that Congress may impeach a President for anything it considers a misdeed, I actually agree that there is nothing barring Congress from impeaching the President for withdrawing from a treaty.
 

As to Mourad's latest comments, a few thoughts.

(1) Interesting use of "high." I'm not inclined to be as originalist focused as the linked article. Reference to what it 'does not mean' as compared to what it 'did not mean' to the Framers. But, it's position focus and reminder removal is not a criminal punishment is sound.

I also agree that "high" doesn't just mean "serious." (A serious misdemeanor?) On the other hand, I have seen references to "high misdemeanors" applied to categories, not the individuals involved as such. In this case involvement in the illegal slave trade.

As to the oath, interesting how it (in part) includes "to the best of my ability." A low bar in the minds of some for some individuals.

(2) As to executing treaties, the various opinions in MEDELLIN v. TEXAS (2008) are interesting; I lean toward Breyer's dissent. The enabling legislation issue is complicated, but lack of such legislation across the board in many cases seems to me a violation of our obligations.

(3) As to the UN, Louis Fisher has highlighted that it does not assume countries' "constitutional processes" should be ignored. As in Breyer suggests, however, int'l and domestic law can go hand in hand, if we actually care to do so.

---

As to SL, again, maybe a headline about the "totally compliant Congress" or "we the people" (who elected that guy again in 2004) should be included once in awhile.
 

One way to understand the use of the term "high" is to consider the two types of treason at common law. "High treason" was committed against the King. "Petty treason" was an offense by a servant against a master. The term "high" was commonly used in matters of state (think "Your Highness"). Thus, a "high" crime is one involving a matter of state.
 

Charles:-

There has always been a right to bring a private prosecution in the UK. However, the Courts and potential respondents have to be protected against vexatious litigants and this is particularly so in thee case of members of the government.

1. The complainant has to be able to show a "prima facie" case before a defendant will be sent for trial. If the committing court sends a defendant for trial, nowadays the Crown Prosecution Service will take over the case if the complainant wishes and if it thinks there is more than a 50% chance of a properly instructed jury convicting. That absolves the complainant from any further costs liability.

2. Otherwise the prosecutor has to instruct solicitors and counsel to continue the prosecution because the Prosecutor must always be a professional lawyer. That will be expensive and in addition if the defendant is acquitted, the prosecutor will be liable to pay the defendant's legal costs. That is a significant barrier to taking a private prosecution past the initial complaint phase.

3, Finally, HM Attorney-General has the power in the public interest to enter a "nolle prosequi" on behalf of the Crown at any time. That puts an end to any proceedings.

There have been some private prosecutions in my lifetime. Notoriously, a self-appointed guardian of public morals, one Mary Whitehouse, brought a prosecution against James Kirkup in respect of a poem "The Love That Dare not Speak its Name" and against the editors and publishers of "Gay News" who had published the work. The prosecution was for the common law offence of blasphemous libel. The indictment described the offending publication as "a blasphemous libel concerning the Christian religion, namely an obscene poem and illustration vilifying Christ in his life and in his crucifixion" The Defendants were convicted but none went to jail. Cited as: Whitehouse v Lemon [1979] 2 WLR 281; or Whitehouse v Gay News Ltd [1979] AC 617, HL. Mrs Whitehouse's principal achievement thereby was to ensure that the offence was abolished by subsequent legislation.

In 1982 Mrs Whitehouse pursued a private prosecution under the Sexual Offences Act 1956, s13, which criminalises the "procuring of an act of gross indecency". The case was against Michael Bogdanov, the director of a National Theatre production of Howard Brenton's The Romans in Britain, in respect of a scene of simulated buggery of a Briton by a Roman soldier.

Since Whitehouse had not herself seen the play, the prosecution evidence rested on the testimony of a single witness: Graham Ross-Cornes, her solicitor. Unfortunately, she had done things on the cheap in relation to one small but vital matter. It was established during masterly cross-examination that Ross-Cornes had been sitting in one of the cheapest seats in the back row of the theatre stalls, 90 feet from where the alleged offence took place. This meant that he was unable to say with any certainty that he was able to see the actor's penis during the alleged offence.

If Whitehouse had have sprung for a more expensive seat in the front row stalls, matters might have been very different. The prosecution collapsed - expensively - and I think that brought an end to Mrs Whitehouse's attempts to use the Courts to enforce her moral standards on the public at large.

I would not rely on the regicides if I were you. Following the Restoration of King Charles II, the Act of Indemnity and Oblivion granted a free pardon to everyone who had supported the Commonwealth and Protectorate but it excluded those who had directly participated in the trial and execution of King Charles I in 1649. Ten were condemned to death and publicly hanged, drawn and quartered at Charing Cross or Tyburn, London, in October 1660: including 6 members of the Court, the preacher at the execution, the commanders of the guard and and John Cook, the lawyer who had directed the prosecution. A further nineteen participants were imprisoned for life. Prosecutors beware.

I'm not sure that the staff of the DOJ who file briefs or pleadings on behalf of the government are actually committing "war crimes". I would be looking first at issues such as conspiracy to pervert the course of public justice. But I imagine the DOJ people are being pretty careful - which is why they go up to the wire and then collapse. I do not know whether you noticed two recent developments in that regard which I referenced in the last post on this thread Uighurs et al before it dipped below the front page horizon in favour of vital threads on, inter alia, do not call lists, copyright and intellectual property. It seems that our Divisional Court did ensure that the defence got the documents it was entitled to have. Perhaps the DOJ has now understood that our courts are not quite as deferential to the executive as seems to have been the case in the USA - and perhaps some US Judges are also getting the message that there is something very rotten at the core of these cases.
 

Joe:-

Thanks for your observations. I think we have to be aware of the very different style of legislative drafting. At common law crimes were divided into felonies and misdemeanours, important because conviction for felony meant forfeiture of lands and assets to the Crown.

A misdemeanour was often also a "petty" offence - suitable for disposal by the Justices rather than on assize. So a "high" misdemeanour is something of a contradiction in terms. One can imagine the draftsman of the legislation you cite thinking, "we want this to be a misdemeanor but we think it nevertheless serious - how can we say that?".

Medellin -v- Texas is yet another reminder of the difficulties inherent in a federal system. This is not unique to the USA - there are other federal countries. It seems to me that the Court was right insofar as the Court held that the international obligation of the USA should have been implemented by domestic legislation. Failure to do that was probably a violation of the treaty obligation of the USA - but unimplemented what is the private law remedy ?

The trouble is that retaliation in kind by other states would probably breach their domestic human rights legislation. US citizens taken into custody usually demand the services of the US consul pretty loudly. I would not like to see them deprived of that right even though Europe is at least not now so barbarous as to execute its convicts.

More generally, blocs like the EU are beginning to put up a united front against US exceptionalism in such matters. When our present government is finally slung out, I think we are going to have to revisit our extradition and other treaties with the USA.

Mark: - yes for high treason, but there was never "high" and "petty" burglary, though there was "grand" and "petty" larceny. I certainly tend to the view that by encompassing together both crimes and misdemeanours and then using the word "high", the draftsmen had in mind high officials and matters of importance to the state - one doesn't impeach a postmaster, but one does impeach a Judge, a minister, an admiral or a colonial governor. And since in common parlance of the time the epithet 'misdemeanour' would include a child lying to its parent or neglect or negligent performance of duty, not necessarily criminal offences per se, we are, I think, looking at a procedure which is not confined to criminal conduct, but also to "disgraceful" or "dishonourable" conduct. Honour was a very real concept at the time which is why members of parliament, congress etc were and still are addressed as "honourable". I remember thinking about that when Saxby Chambliss was running against Max Cleland and thinking that in the days of the Founding Fathers, several officers and gentlemen might have sent their cards to Mr Chambliss calling him out.
 

Mourad,

Very short of time today, but I don't think there's any doubt about the crimes pursuant to 18 USC 2441 (war crimes), 18 USC 371 (conspiracy), and a number of other statues covering crimes like torture, assault, kidnapping.

See THIS post on my blog regarding 18 USC 2441(c)(2) in particular.
 

Charles: I have a personal conviction that some very serious crimes have indeed been committed which ought to be investigated and brought to justice.

But I have been practicing long enough to know that there is a vast difference between that personal certainty and having a case fit to go to trial with an odds-on chance of obtaining a conviction.

Therefore my personal preference at this stage would be for the next President to cause a special prosecutor to be appointed because that simply isn't going to happen under the present administration.

And I would prefer that prosecutor to be of high standing,and preferably a Republican.

And I can see why an incoming president might find it difficult to do that as his very first act.

Stage 1 has to be sorting out the mess the Bush Administration will have left behind. Repeal the obnoxious legislation and Executive Orders.

Stage 2 prosecute or release the existing detainees with due process and fair trials.

Stage 3 - investigation. Reforms to make sure it cannot happen again.

Stage 4 - eventually prosecutions and/or impeachments.

But none of that will happen if your compatriots send McSame to the White House, so let's wait until after Nov 4. In 2004 there were plenty of Bush effigies burned on UK bonfires on Nov 5th - I hope this year we can go back to Guy Fawkes.
 

Mourad, No offense, but I've been investigating these crimes for seven years, and while not an attorney I am a systems analyst -- facts are not personal opinions. As for the rest, I've been looking at those concerns since 2002. I could write out a list of a dozen first rate attorneys who could handle such a prosecution right off the top of my head. Their political affiliations don't matter to me at all -- and the Republicans will pretend the prosecutions are politically motivated regardless. Bart is nothing but a typical example.

This is not about politics, this about a deliberate and concerted attempt to subvert the laws of both the United States and humanity itself for the purpose of committing crimes that we once executed Nazis for committing. The next administration has no higher priority than prosecuting those crimes, which is not to suggest that it be done precipitously or carelessly. I want them indicted, convicted and punished to the full extent of the law, and I want no mistakes or short cuts: the object is to do justice in a way that will build on the precedent of Nuremberg and be remembered far into the future.

And while I respect your professional acumen and concerns, this is an area of the law that is too important to be left to the lawyers. Too many lawyers have dawdled and doubted while the crimes while the crimes were being committed right under their nose, and too many other have willingly aided and abetted the crimes.

And seriously: I'd be interested to know any specific comments you have about that post of mine I linked, or for that matter, the briefs cited at the end of the post. I don't see where there's any real doubt about the crimes per se. Where there are questions are the extent and degree of liability, and many of those are a for a jury to decide.
 

Charles:-

In response to your post, please understand that I have to be a little careful. While the law of England and of the 13 original colonies of the USA was once identical save in immaterial respects for present purposes, since independence, the two systems have gone their separate ways. They have gradually diverged, not just on matters of law, but on matters of procedure.

You are filing pro se briefs in US proceedings as an amicus curiae - something you could not so easily do in our legal system.

We have a procedural provision for interested parties to apply to be joined to public law proceedings. For example, in a dispute between, say, the Department of the Environment and a particular municipality on the validity and impact of particular environmental regulations, an association of municipal authorities, or an interest group, such as the Council for the Preservation of Rural England, could apply to be joined to the proceedings. Joinder will not be automatic, the applicant has to show a sufficient interest beyond that of the general public - and by participating an interested party goes on risk as to the costs incurred.

In contrast to an interested party, in our system the expression amicus curiae means a person or body, independent of the parties, who is literally able to assist the Court by reason of special expertise on a particular subject. The amicus will not be a volunteer but someone invited by the Court. It could be a member of the bar who is known to have particular expertise in a given area of the law or an interest group with very particular expertise. For example, the UN High Commissioner for Refugees, or Amnesty International might be invited to appear in the case of a refugee seeking asylum. Such an amicus will be represented by Counsel instructed by solicitors who will be paid out of central government funds, because they appear in the public interest at the invitation of the Court.

A member of the public who has no special expertise on an issue before the Court would not be invited or permitted to appear as an amicus curiae.

In our system, counsel for the parties do submit in advance of a hearing an outline of their oral submissions and a list of the authorities to which they will refer but they are not at all like the briefs submitted in US procedure. I understand that in the USA some briefs may not in fact even be read by the members of the Court, but are perused by clerks (recent graduates) who summarise them for the Judge for whom they are clerking. So the points you have sought to make in the briefs you have submitted may or may not have come to the attention of the Court.

The big difference between our system and that of the USA is that argument to the Court is oral. It is not time limited. In appellate cases, where there is a difficult issue of law, the oral argument can take days or even weeks. We think that it is the oral interaction between the bench and the bar which best informs the mind of the Court. I can assure you that forensic argument for two or three days before an appellate bench of 3 (Court of Appeal) or 5 (House of Lords) is no picnic. It can be a little like playing tennis alone against 3-5 opponents on the other side of the net and 3-5 balls which one has to keep in play simultaneously.

BTW - I am sure that would not deter you from appearing to present your argument were you able to do so.

Please understand, that I am not saying that our system is better or worse so far as arriving at a just result is concerned, but merely that, procedurally, it is now very different from the US system.

While I understand and applaud your statement that "this is an area of the law that is too important to be left to the lawyers", for me that is an argument for the citzenry to become involved in the political process - to elect honourable and trustworthy representatives to the legislature, to hold such representatives to account for the laws they pass and to press for effective congressional scrutiny of executive action.

I do not happen to think that it contributes too much to the process to intervene in the legal process by filing "pro se" amicus briefs which may not even be read.

I think your considerable expenditure of energy and time (displayed by the volume of papers you have filed) might have been better spent organising and supporting a pressure group such as "Human Rights Watch" so that it could have the resources to participate effectively in the legal process with focused forensic argument.

Just as importantly you should continue to bring citizen pressure to bear on your congressional representatives.

I do not think it would serve any useful purpose for me to comment on the briefs you have filed. I have been to your web site and perused some of them. But since they have already been filed, it is for the Court and not me to express a view on them and, since I have no licence to practise in any US state, I would not wish to advise you on future briefs - that would best be done by counsel of your choosing admitted to practice before the Court in which you might be minded to file.

But I admire your concern and your energy and if there were as many concerned citizens around, the USA would have a better democracy and a more just society. More power to you!
 

Ah Mourad, once again I'm very short of time (working at the local Obama phone bank the next few days), and equally, no offense intended at all, but...

All you're really telling me is that you don't understand the situation nearly as well as I do, mostly because you're a creature of your culture, namely, the Bar.

There's no need for me to waste my time duplicating Amnesty, HRW, Human Rights First, CCR, or Reprieve. They already exist, and have folks who do all those things that I'm not much good at like sales and marketing.

And I've been talking to lawyers about this stuff since early 2003. One of the things I do is maintain an email distribution list, and while I don't drop names by strict policy, I can tell you that there are a number of attorneys on it who are directly involved in the cases -- as well as a few in the UK -- and I dare say you'd recognize some of the names if I did drop them.

Welcome to my world even: as I told you, I'm a systems analyst, and the law is just one more system to me... One that happens to be archaic, irrational, and defective in many respects. Don't take that the wrong way, because I've come to have great respect for the law as an institution and I've gotten to know some very fine lawyers indeed over last six years. They are some of the finest people I have ever known.

But you strike me as someone who might have some acquaintance with Kant and Wittgenstein, and that's the playing field I operate on. I'm an ant on an elephant hunt: they've got me out-gunned, but I've got them out-classed.

And believe me, I'm well ware of my humanity and limitations, but this isn't about me and the stakes just do not get any higher than this. The fact remains that I saw 911 coming back in 1987, I've been working on the problems of that insight ever since, and I understood that the Bush administration was engaged in a conspiracy to subvert the laws of the United States and commit war crimes the minute I read the PMO on 2001.11.13.

This is all about the ideas Mourad, and even a lawyer can understand that when someone claims 1 + 1 = 0 or 3 it isn't because they are trying to tell the truth. Filing briefs isn't something I wanted to do per se, it's something I've done when I thought it might do some good.

And if nothing else, they put certain facts on the record. Read the book ANGLER where it discusses the Geneva memo of 2002.02.07 for example...
 

I'm a little late responding to Mourad, but I've been out of town. I hope he's still reading this.

For a good sense of the Founders' understanding of impeachment, we can start with Hamilton's explanation in Federalist 65: impeachment applies to “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”

In this context, my previous post was simply giving an example of a now-unfamiliar usage. For more on this subject, see here.
 

"Bart" DePalma:

The UN and the various international bodies the United States has allowed to be created...

Wow, that was big of 'em.

... are not collectively or individually a legitimate and sovereign world government chosen by the People....

WTF said anythign about "sovereign"? We got rid of ours over two centiries ago. I thought you'd heard about that.

But when we sign on to treaties, that becomes "the supreme law of the land".

They are simply debating clubs we find useful to use on occasion and otherwise ignore based upon our own national interests - as does every other nation in the world.

They're "debating clubs" to those that would prefer to pretend they do not exist. The same could be said for law enforecement (as I pointed out above) ... by those who have no respect for the law.

Cheers,
 

Mark Field wrote:-

"For a good sense of the Founders' understanding of impeachment, we can start with Hamilton's explanation in Federalist 65: impeachment applies to “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”

Yes, this is a very good indicator in favour of what I think we both agree is the nature of impeachment. My problem is that I am not an originalist. So I would not start from the Federalist papers.

My understanding of the proper approach to construction of a document resulting from meetings of a body of participants, is that one relies primarily on the text itself. Only if it is argued that the text admits of more than one possible construction would one go to outside sources with the first preference being decided cases and other legislation. Given that this was in the immediate post colonial period, evidence of English usage of English words is admissible because the draftsmen were working in the English political and legal tradition.

Next in the hierarchy would be evidence of the proceedings at the convention (eg Madison's notes).

I would put the Federalist papers rather lower in the list of aids to construction because they are ex post facto and therefore evidence only of what one participant thought subsequently, rather than evidence of the understanding of the Convention as a whole.

Anyway, I don't think there can be serious doubt as to the nature of the impeachment process.

Charles Gittings wrote:-

"I'm a systems analyst, and the law is just one more system to me... One that happens to be archaic, irrational, and defective in many respects.
...

"The fact remains that I saw 911 coming back in 1987, I've been working on the problems of that insight ever since, and I understood that the Bush administration was engaged in a conspiracy to subvert the laws of the United States and commit war crimes the minute I read the PMO on 2001.11.13."

Goodness me, how I agree with you! Some small points:-

Since I happen to believe in the existence of the Almighty who alone is omniscient, infinitely just and infinitely merciful, that signifies that whatever system humans can invent for the resolution of disputes and the dispensing of justice and mercy (and that's what the law is about) must by definition be imperfect. That does not relieve humanity from the obligation of trying to do better.

I'm afraid it is natural for the Courts to be reluctant to believe that there is a criminal conspiracy going to the very heart of government. That requires to be very strictly proved and asserting that it is so is not evidence. I am not saying that the day will not come when the evidence will become available and I would like to see all the conspirators, aiders and abettors and acccessories before and after the fact dealt with. I'm afraid the wheels of justice can grind fine but often very slowly.

One of the scandals in the Gunatanamo Bay cases is the delay in getting to the point where habeas relief is even under consideration. That could not have happened in England because of a procedural requirement that habeas applications take precedence of all other judicial business. I have personally walked into a court into the middle of a long hearing which the Court has interrupted so as to hear an application for habeas corpus - and the whole procedure from 1st application to ultimate appeal should be in months not years.

With the right sort of will, the truth will out. Gathering the evidence is an incremental process and that is why "regime change" is the very first priority. I am hopeful that a change of administration will enable a cleansing of the Augean Stables.

As I have posed here or somewhere else I am hopeful that on Guy Fawkes Night (5th November)there will be no further need to burn GW Bush in effigy on the bonfire. Although I might do so anyway.
 

Do you admit that replacing Saddam with a democratic government was a strategic goal of the Iraq campaign -- even prior to the invasion?

BBB

# posted by Bernard : 11:58 PM


No, I think the stategic goal was to get us into a 100 year money wasting clusterfuck. MISSION ACCOMPLISHED!!

Face it, if you warmongering assholes didn't spend months lying about WMD, you don't get your war. If you want to think that people who oppose your war don't "love" this country, that's fine. We're about to kick your "love" to the curb.
 

My problem is that I am not an originalist. So I would not start from the Federalist papers.

Neither am I. To me, evidence from 1790 is the beginning, not the end, of the process of interpretation. I do like to start there, though, and work my way forward because I think the history informs the current understanding.
 

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