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stoutfellowI don't like arguing about politics. I don't like arguing at all. But some of the stories that are trickling out of Washington are forcing me to break silence.
Recently, it has been revealed that lawyers in the Department of Justice and the office of the Counsel to the President, at the administration's request, have discussed the permissibility and advisability of the use of torture in the war on terror, and that these lawyers have affirmed that, in the present crisis, it is both permissible and advisable. Repugnant though I find this, it is not the reason for this post. What disturbs me - what frightens me - is the underlying argument presented in these memos.
Historical note: in the Roman Republic, there was a set procedure for dealing with the gravest of dangers. It consisted of assigning absolute and unfettered power to a single individual, for a period of six months or until the crisis was resolved, whichever was shorter. The title given to this individual was dictator.
One of the memos asserts that the President, in his capacity as Commander-in-Chief, has the authority to set aside any law and any treaty commitment if he deems it necessary, and only he can judge that necessity. It is not uncommon for the President to reach for additional power in time of crisis. Lincoln did; Wilson did; Franklin Roosevelt did. But each recognized that he was reaching, and that he would be held accountable for it. This memo appears to deny that accountability - to assert, in short, that the Commander-in-Chief is above the law. (At one point, the memo suggests that the federal law barring torture - a law implementing one of the Geneva Conventions, a convention that was signed by President Reagan - was an unconstitutional limit on the authority of the Commander-in-Chief.)
That is not the Presidency that I learned about in school; it is not the Presidency described by the Constitution; and it is not an office compatible with our claim to be a free people.
Historical note, cont.: In the latter days of the Roman Republic, Lucius Cornelius Sulla had himself named dictator, but without the customary time limit. He held the office for three years before retiring; he died less than a year later. A generation later, Julius Caesar, embroiled in civil war with Pompey, had himself proclaimed dictator for a ten-year period; two years later, having defeated his rival, he was named dictator in perpetuity. Soon after, he was assassinated, triggering another round of civil war. When the war ended, the Roman Republic was dead, and the Empire had been born.
The war on terror is not like other wars. When Lee surrendered at Appomattox, it was clear that the Civil War was over. When the Japanese government signed the articles of surrender aboard the USS Missouri, World War II was over. I can see no plausible circumstances under which anyone could confidently say that the war on terror is over.
We have government lawyers claiming that the President is entitled, under certain circumstances, to dictatorial powers, and that the current crisis justifies his doing so - a crisis with no foreseeable end. This combination frightens me, and so I have broken silence. This administration cannot be trusted to uphold the Republic as we have known it; and this is not an assertion I would have made under any previous administration, no matter how much I disagreed with its policies.
I do not know what to do.
Recently, it has been revealed that lawyers in the Department of Justice and the office of the Counsel to the President, at the administration's request, have discussed the permissibility and advisability of the use of torture in the war on terror, and that these lawyers have affirmed that, in the present crisis, it is both permissible and advisable. Repugnant though I find this, it is not the reason for this post. What disturbs me - what frightens me - is the underlying argument presented in these memos.
Historical note: in the Roman Republic, there was a set procedure for dealing with the gravest of dangers. It consisted of assigning absolute and unfettered power to a single individual, for a period of six months or until the crisis was resolved, whichever was shorter. The title given to this individual was dictator.
One of the memos asserts that the President, in his capacity as Commander-in-Chief, has the authority to set aside any law and any treaty commitment if he deems it necessary, and only he can judge that necessity. It is not uncommon for the President to reach for additional power in time of crisis. Lincoln did; Wilson did; Franklin Roosevelt did. But each recognized that he was reaching, and that he would be held accountable for it. This memo appears to deny that accountability - to assert, in short, that the Commander-in-Chief is above the law. (At one point, the memo suggests that the federal law barring torture - a law implementing one of the Geneva Conventions, a convention that was signed by President Reagan - was an unconstitutional limit on the authority of the Commander-in-Chief.)
That is not the Presidency that I learned about in school; it is not the Presidency described by the Constitution; and it is not an office compatible with our claim to be a free people.
Historical note, cont.: In the latter days of the Roman Republic, Lucius Cornelius Sulla had himself named dictator, but without the customary time limit. He held the office for three years before retiring; he died less than a year later. A generation later, Julius Caesar, embroiled in civil war with Pompey, had himself proclaimed dictator for a ten-year period; two years later, having defeated his rival, he was named dictator in perpetuity. Soon after, he was assassinated, triggering another round of civil war. When the war ended, the Roman Republic was dead, and the Empire had been born.
The war on terror is not like other wars. When Lee surrendered at Appomattox, it was clear that the Civil War was over. When the Japanese government signed the articles of surrender aboard the USS Missouri, World War II was over. I can see no plausible circumstances under which anyone could confidently say that the war on terror is over.
We have government lawyers claiming that the President is entitled, under certain circumstances, to dictatorial powers, and that the current crisis justifies his doing so - a crisis with no foreseeable end. This combination frightens me, and so I have broken silence. This administration cannot be trusted to uphold the Republic as we have known it; and this is not an assertion I would have made under any previous administration, no matter how much I disagreed with its policies.
I do not know what to do.
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no subject
Date: 2004-06-15 06:15 pm (UTC)you put forth a well-crafted position and deadly (for a democracy) historical analogies. what to do? vote in november. write a strongly worded letter of protest to your congressperson. write a letter to the editor of the new york times or washington post...
i think we'd probably all agree that assigning extra-constitutional powers to the president (including the right to torture) and placing him/her above accountability are not going to be found in any u.s. civics course. nor should it be tolerated. i guess my november vote will be my formal protest.
we should be worried about the long run, i guess, but i am (perhaps naively) hoping that set term limits would make creating a dictatorship or fiefdom difficult.
of more immediate concern to me is the reality that *my* government feels the need to get a legal stamp of approval on acts of torture!!?? that's not what america is about; basic respect for civil rights being one of the tenets that *separates* us from sadd*m's ilk.
i am not totally naive and of the belief that if we all joined in a group hug, we could be all one world and enjoy a coke - wait, that was already tried, wasn't it (g) - , but, to my mind, there is a huge gulf between "torture" and "accepted techniques of interrogation." i know we are talking about fanatics...but torture doesn't necessarily elicit a *better* truth...and how can we convince people that we hold to a higher ethic if we no longer do? and what about people who may hold extreme views, but are innocent of wrongdoing? where does the line get drawn? it's a quagmire that we don't belong in, ethically, and the taxpayers will have to pay for it many times over, including all the legal fees for each participant when the inevitable senate hearings take place.
distrust
Date: 2004-06-16 07:49 am (UTC)I, personally, happen to distrust the self-confessed war criminal even more than I distrust the incompetent playboy. An official who would sell out our P.O.W.s, our Hmong allies, and innocent refugees to win normalization with "former" enemies inspires me quite little. But different strokes, YMMV, all that.
In particular, I think we must express that concern to our legislatures, both state and local. "Checks and balances" is more than an idea -- it's a real safeguard. Long-term and slow acting, I fear, but then the problem is a long term one. The immediate problem is rather more near term; there ARE criminals with disproportionate power to destroy roaming freely -- what powers we can array to check and balance THAT need be deployed quickly -- AND, as you point out, provisionally. Temporarily.
I would point out to a historically minded friend that Jefferson's "War against Piracy" offers a number of useful parallels to the current situation. (A proposed international coalition effort being obstructed/betrayed by the French, just for openers...) Criminals operating from "safe harbor" might be dealt with individually -- but action against hosting nations can be more effective.
The "War on Drugs" is similarly abused. I note a former attorney general was able to deploy military equipment and personnel against a besieged criminal weapons-making ring by (falsely, it seems) alleging that the cult was also making drugs. Property is forfeit, in apparent disregard of IVth, Vth, and VIIIth amendment protections, provided only that the law enforcement officials charge the property-owner with allowing its use in support of the "Drug Trade". And, like the "War on Terror", Congress has so far provided no guidance on when the War will be considered won, nor sunset provision for the extraordinary powers awarded the executive branches to time out, expire, or obsolesce.
This is an on-going problem. It's not going to be decided this year.
Re: distrust
Date: 2004-06-16 08:55 am (UTC)(By the way, do you apply your second charge against Sen. Kerry with equal force to Sen. McCain?)
Re: distrust
Date: 2004-06-18 11:52 am (UTC)I think Nixon was first to put forward the concept of sort of personal/presidential ultimate sovereignty: whatever the President, as chief executive and therefore chief law enforcement officer, does, is both de facto and de jure legal. So if the president authorizes an illegal burglary, it becomes magically, a LEGAL burglary.
In this, he was not relying solely on his own long-distant legal training, but the historical precedents of kings, and the legal advice of John Mitchell, John Dean, and other.
Despite the wealth of legal opinion behind the thinking, this notion was quite properly -- and spectacularly -- shot down shortly afterwards.
There are limits, and must be limits, but in historic practice it seems to me that Clarke's 2nd Law applies -- the way to determine the limits of the possible is to go beyond them into the impossible. And so the immediate need to quell the "Whiskey Rebellion" led Washington to use Federal Troops against US citizens to put down a portest by tax evaders -- and led Congress, afterwards, to develop laws prohibiting such use of the military thereafter. (Laws, in my opinion, evaded at the Waco siege, recently cited.) Jefferson's Louisiana Purchase was extraconstitutional but led to statutes defining how such acquistions would be handled, later -- laws applied to the additions of Alaska, California, etc. The Income Tax was an illegal tax to support WWI, later codified by constitutional amendment. (I confess I don't remember which president did it.)
Teddy Roosevelt's creation of Panama, FDR's various new federal agencies, etc all involve similar take and take-back between the executive and legislative authorities.
The "War Powers Act" most notably retracted, after LBJ's abuses, the ability of later presidents to commit troops without Congressional cooperation. In my mind, this has not been strong enough, and the current "War on Terror" reflects the weak, ill-defined, sort of rubber-stamping of a presidential request rather than the more traditional "Resolution of War" in which the LEGISLATURE sets out the reasons for war, the particular enemies, and the goal. (So, in 1990 -- Push Iraqis out of Kuwait, or replace Saddam? Or in 1996, establish an independent and secure Kosovo, or simply replace,in a unified Yugoslavia, the genocidal Milosivich with some kinder, gentler, leadership?) A commander in chief may set forth a vision, but the POLICY is the function of the Congress. It's a function they have neglected and one we have allowed them to neglect.
Now, I am still concerned about Syria, Iran, North Korea, Venuzeula, Columbia, and a few other places becoming "failed states" where thugs rule and conspire with other thugs to attempt to "deter" the United States from interfering with their economies of crime. I am doubtful the United Nations is a useful body for organizing suppression of such crime. So I am in favor of exploring new roles for the United States in securing, for ourselves, our neighbors, and all our posterity, the blessings of peace and liberty.
I expect that the rules we develop for ourselves regarding non-citizens will be slightly different from the rules we develop regarding citizen -- just as the rules for juveniles criminals are different from the rules for adult criminals. Distinctions and discretion are not necessarily evil.
I expect that explorations and experiments into the new rule realms, will result in making some mistakes.
I would rather suffer mistakes of commission than omission -- failures of trying too hard, rather than failures to try. Overreach, and pull back; rather than under reach and fall short. YMMV.
I think of two major candidates now offered for my consideration, the frat boy is
more likely to err by overreach. I think the veteran-against-war is likely to err in hesitation.
Some play-to-win. Some play-not-to-lose. I understand that reasonable people may prefer that we play-not-to-lose. I understand that in many circumstances the not-lose strategy is preferable. I don't agree that not-losing is the optimal game in the near term.