April 18, 2008

"PAUL CAMPOS BECLOWNS HIMSELF YET AGAIN, and Brian Leiter pinches the red rubber nose."

Says Glenn Reynolds — you can tell it's Glenn from the all caps — linking to Leiter.

Here's the underlying Campos compost:
Leiter thinks various members of the Bush administration are war criminals, and that their worst crimes - crimes for which they should apparently be subjected to Nuremberg-style prosecution - include the systematic torture of helpless prisoners in the name of a phony "war on terror."

Anyone who believes this must also acknowledge that John Yoo's eagerness to make specious legal arguments in support of torture seems to have led directly to lots of people being tortured, some to death.

Under such circumstances, it takes a twisted sense of moral priorities to get outraged about the (very slim) possibility that Yoo might lose his academic sinecure because he went out of his way to help the U.S. government commit war crimes.

In the end, I suspect that for Leiter, as for so many professors of this or that, words such as "torture" and "war crimes" are indeed nothing more than words, with which they can continue to play their petty and useless academic games.
I don't know what's more common among law professors — "eagerness to make specious legal arguments" or willingness to apply the label "war crime." And sure, there are plenty of petty and useless academic games ... but why is Campos so sure he's outside of these games as he makes his pronouncements?

140 comments:

Trooper York said...

"PAUL CAMPOS BECLOWNS HIMSELF YET AGAIN, and Brian Leiter pinches the red rubber nose."

No, that just means he can't play any reindeer games.

TMink said...

"why is Campos so sure he's outside of these games as he makes his pronouncements?"

Becasue he is an insufferable narcissist? I never met the guy, but he writes that way.

Trey

Freder Frederson said...

I don't get it. Are you agreeing that Yoo's legal arguments were specious? If so, do you believe that those specious arguments led to the torture of detainees which undoubtedly led to some deaths--certainly in the double digits?

Or are you still sitting on the fence and still believe the president's lie that "we don't torture"?

Caveman Carl said...

I went to law school with Professor Leiter, and he was prone to outlandish statements in the mid 80's as well. Most people are fairly predictable, you know.

Bob said...

Freder - could you please provide some pictures which actually show US torturing? Not humiliating as at Abu Gharib. And not the Gitmo "I flushed a Koran" nonsense. I mean show me the shattered kneecaps, the pulled fingernails, the burn marks from blowtorches, or the dismembered appendages. And just how did you arrive at the certainty of double digit number of death?

Freder Frederson said...

Freder - could you please provide some pictures which actually show US torturing?

If you look at the Abu Ghraib pictures, there is a picture of a detainee who was tortured to death the very night all the other pictures were taken (apparently by civilian CIA contractors who have never been charged with anything).

There were two well documented cases in Afghanistan of detainees (one a completely innocent cab driver) tortured to death that received a multi-part write up in the WaPo. Another Afghan detainee died of hypothermia because he was kept in a too-cold cell (so much for manipulating temperature not being torture). An Iraqi General (clearly covered by the GC) was tortured to death when he was deliberately asphixiated. These are just the cases I can think of off the top of my head.

The military admits that 108 detainees died under suspicious circumstances while in custody. How many of these died as a result of the trauma of torture is unclear, but certainly given the documented cases I know of, it certainly must be well into double digits.

If you don't know these facts, then you are either wilfully ignorant or just haven't been paying attention.

rhhardin said...

do you believe that those specious arguments led to the torture of detainees which undoubtedly led to some deaths--certainly in the double digits?

Base two makes numbers seem bigger, eg.

This sentence has one thousand one hundred a's, one b, ten c's, one hundred thousand one d's, one million one hundred e's, one f, one g, ten thousand one hundred eleven h's, one hundred ten i's, one j, one k, one thousand ten l's, eleven m's, one million one hundred one n's, one hundred one thousand eleven o's, one p, one q, one thousand one hundred r's, eleven thousand one hundred s's, ten thousand eleven t's, ten thousand one hundred one u's, one hundred ten v's, one w, one x, one y, and one z.

if you need more oomph.

AllenS said...

For the record, put me down as pro-torture.

Freder Frederson said...

if you need more oomph.

So how many people does our government have to kill during torture before it concerns you? 100? 1,000? 10,000?

In your system, when does torture become a war crime? Only when we've tortured our 100th innocent victim. Only when torture doesn't produce actionable intelligence?

Hoosier Daddy said...

Don't get Freder started on the torture thing. Cause we all know waterboarding is far worse than getting your head hacked off with a rusty scimitar while some fascist ragheads are screaming Allah Akbar.

Which is probably why he gets his panties in a twist over the former rather than express any dismay over the latter.

rhhardin said...

outside of these games

It's not a game exactly, for instance you're not limited in what you can do in the genre, where in baseball there are certain things you must do to even be at bat at all.

Games seems to be saying, rather, that it doesn't reach reality ; when obviously it does.

Rhetoric is a serious business. You could say though that he doesn't have a poet's interest in the words, in that he isn't too concerned with getting things as you might find they are, say the poet's situation, where the right words were waiting to be found.

rhhardin said...

So how many people does our government have to kill during torture before it concerns you? 100? 1,000? 10,000?

It depends on how trustworthy I find the government on other grounds.

I trust Bush pretty much, when he isn't caving to the media or trying to reach out to Democrats.

Human rights are grounded in violence. Is this news?

Trooper York said...

"There were two well documented cases in Afghanistan of detainees (one a completely innocent cab driver)"

Obviously you haven't tried to take a freakin' yellow cab lately pal, cause there ain't no "completely innocent cab drivers."

Chip Ahoy said...

In large part, these are the people who populate the state where I live. They have no idea how wearisome are their arguments. They seize upon any and every shred of so-called evidence and utterly exaggerate every piece of actual evidence to make and remake their cases ad nauseum, ad vomitum. Freider is actually mild when it comes to pulling evidence out of his arse and insisting anyone who doesn't "get it" simply is not paying attention or is willfully ignorant. Got that, Stupid? If you don't agree, you're willfully stupid. Well, get this; if I don't agree it means I don't agree, and if you insist I agree and further insist if I don't agree I'm stupid, then you're Fascist. Got that, Fascist? Completely totally wearisome. Behind all that, the thing that motivates, is the unstated desire to make war not winnable. They don't recognize war, it's still, at this late juncture, an "illegal" war. That will never change in their minds. Period. Everything follows from that and they will simply not be reasoned with. To iterate, In their minds this war, the illegal one that doesn't really exist, will. not. be. won ● <---giant period

Freider, start saving up your sources so you can point to the other Leftist loser wankers you keep quoting instead of just screaming them. You sound like a nervous edgy girl. But I mean all that in a good way and no offense intended to actual nervous edgy girls who by comparison are quite tolerable..

SGT Ted said...

I was at Abu Ghuraib. We heard all about the abuses, because the chain of command there were the ones who, when they found out about the abuses, conducted the investigations. A picture of a dead guy at Abu is proof of nothing; we received detainees in all conditions; wounded, sick, diseased etc. Hell, we shot a few ourselves during riots.

But, actual people who were there count for nothing, unless they agree with freders pre-decided positions.

Freder Frederson said...

Which is probably why he gets his panties in a twist over the former rather than express any dismay over the latter.

Please provide any proof that I am not completely dismayed and disgusted by any and all acts of terrorism. Just because I do not want my government to commit war crimes doesn't mean I have any sympathy for those who do.

In fact I could accuse you of supporting terrorist acts. After all, if the U.S. government can act without any regard to the law, what possible blame can we assign to those who choose to use whatever means necessary to advance their own political goals?

Freder Frederson said...

A picture of a dead guy at Abu is proof of nothing; we received detainees in all conditions; wounded, sick, diseased etc. Hell, we shot a few ourselves during riots.

Are you denying the truth of what I posted?

Alone, of course, the picture of the dead guy doesn't prove anything. But the circumstances of his death are well documented.

dbp said...

I don't see any rational way for John Yoo to be considered responsible for war crimes.

Mr. Yoo provided legal arguments which are either of high quality or not. If his arguments are well thought out and backed-up in whatever ways legal arguments normally are, then one can debate their merrits but if they are reasonable...what can you say? Reasonable people DO sometimes disagree.

What if his work was shoddy? Well then, it won't provide any protection for people who broke the law. It is sort of like the fact that a soldier can be convicted of obeying an illegal order. The difference here is that John Woo never ordered anyone to do anything. I suppose if anybody did get convicted of war crimes then maybe they could sue Woo for malpractice...

radar said...


In fact I could accuse you of supporting terrorist acts. After all, if the U.S. government can act without any regard to the law, what possible blame can we assign to those who choose to use whatever means necessary to advance their own political goals?


Not all political goals are equal. Even if both sides are committing acts of 'torture' or 'terrorism' it is still necessary to pick a side. It is suicidal to think that mistakes, even tragic and grievous ones, require that we unilaterally surrender or withdraw.

Freder Frederson said...

Freider is actually mild when it comes to pulling evidence out of his arse and insisting anyone who doesn't "get it" simply is not paying attention or is willfully ignorant.

You know it is amazing. I just repeat accepted facts that the military itself has admitted to. I am careful what I say because I know that any exagerration will be jumped on as "proof" that I am a complete liar.

Of course, the documentation is not going to call the deaths in custody or during interrogation as due to torture or call them war crimes. I do. Also, the investigations of what happened in the 2002--2005 time frame concluded that the abuses were a result of command breakdown, not a deliberate program to torture and mistreat detainees. I don't believe that. There is enough evidence to believe that the abuses were systemic and were ordered by the Pentagon. The CIA practices are even more cloaked in secrecy.

But for you all to claim that these things didn't happen or that it is just a liberal fantasy to undermine the war effort just insults my, and your own, intelligence.

Insulting me doesn't advance the debate much at all.

Robert Cook said...

Of course we have committed war crimes--the war itself is an ongoing crime and every bombing sortie an act of terrorism--and of course we torture, and of course Bush, Cheney, Rice, Rumsfeld, et al were involved in the planning of torture, as was revealed last week by ABC, and of course Yoo and Bybee's memo contributed to the torture by providing legal justification for it.

And of course they're all war criminals.

former law student said...

As I read Campos, he's caught Leiter in an inconsistency -- that although Leiter believes Bush Administration officials acting on Yoo's legal advice are war criminals, yet Leiter believes the provider of that legal advice should be shielded from the consequences of his advice. (I have no idea if any of this is true.)

Leiter seems to be saying every prof should retain tenure until and unless he's convicted in a court of law (or ad hoc military tribunal?). However, I'm pretty sure professors can be fired even if their misconduct is not criminal.

Perhaps Ann could explain from her insider's perspective how tenured professors can be fired.

Freder Frederson said...

I don't see any rational way for John Yoo to be considered responsible for war crimes.

Well then you need to bone up on the rationale between the war crimes trials of the lawyers who provided the legal basis for the Nazi Holocaust. In fact one of the links in the main post gives a good overview of the argument.

Freder Frederson said...

Even if both sides are committing acts of 'torture' or 'terrorism' it is still necessary to pick a side. It is suicidal to think that mistakes, even tragic and grievous ones, require that we unilaterally surrender or withdraw.

This statement is so monumentally stupid I don't know why I am even bothering to respond.

First of all, no one mistakenly tortures someone. Secondly, your premise seems to assume that the only option to torture is unilateral surrender and withdrawl. What a repulsive concept!

dbp said...

"First of all, no one mistakenly tortures someone. "

freder, you mistakenly torture us EVERY day! Unless you are doing it on purpose--always a possibility.

Freder Frederson said...

Freder - could you please provide some pictures which actually show US torturing?

The CIA has already admitted they destroyed the videotapes of torture sessions.

dbp said...

"The CIA has already admitted they destroyed the videotapes of torture sessions."

That should be "torture sessions" since they actually call them interigation sessions.

Hoosier Daddy said...

Please provide any proof that I am not completely dismayed and disgusted by any and all acts of terrorism.

I guess I just must have missed those dismayed and disgusted posts which were intermingled with the Bush/Cheney/Rumsfeld is a war criminal rants.

But I wouldn't worry about it anymore. By this time next year, Obama will be running the show, Gitmo closed down, the CIA/Army torturers imprisoned for life, the US court system paralyzed with detainee trials, we'll be out of Iraq and we'll all have universal health care.

Good times are just around the corner.

Simon said...

dbp said...
"I don't see any rational way for John Yoo to be considered responsible for war crimes."

If you can tie anything he did to one of the treaties incorporated into domestic criminal law by 18 U.S.C. § 2441, that'd be a rational way to consider him responsible. I tend to think it's unlikely that such a connection can be made, but that's the burden of those who would cry "war crimes."

Cedarford said...

Robert Cook - and of course we torture, and of course Bush, Cheney, Rice, Rumsfeld, et al were involved in the planning of torture, as was revealed last week by ABC, and of course Yoo and Bybee's memo contributed to the torture by providing legal justification for it.
And of course they're all war criminals.


By the Left's standards, MacArthur, Nimitz, King, Eisenhower, Curtis Lemay, FDR, Truman, Patton, Churchill, Zhukov, DeGaulle, Harris, Field Marshall Slim, Bradley, McGovern, for starters. Then add in JFK, LBJ, Nixon, Carter, Reagan, Bush I, Clinton, BushII and all their subordinates as war criminals All up to Reagan fought dirty proxy wars against the Soviets, who were dirtier still. All failed to sacrifice US troops to spare civilians.
Then go back and add about half of the other Presidents and their subordinates and their military brass and about 1/10 of all Americans who ever served .....

As violating some "war crime rule" of the Jewish "human rights" activists, the EuroLeft that crafted all the present torture, absurd Geneva rulings, Protocol II, terrorist rights nonsense? You cannot fight a war and comply with all the rules, many contradictory, many that add perverse incentives for people with no regard at all for the rules of war - they will continue fighting that way to gain advantage with no downside to flouting all laws of war and humanity.

The American public by and large, know the whole "war crimes" shit that radicals have been spouting intends on criminalizing the military, and criminalizing any Administration that has to use armed force overseas. So they give the Lefties and Jewish human rights lawyers all the respect they deserve.
Meaning that we will not let them criminalize elected officials and troops doing the best they can to comply reasonably with "rules" - but as in all war, impossible to comply 100% with all the stuff peacetime lawyers have said must be done. Clinton won't be dragged off to the Hague for his Serbia "war crimes", Yoo won't be in front of a triumvirate of a Cuban, Nigerian, and Yemeni judges.

The Lefties will continue squawking. That is what they do, in lieu of joining up and serving.

Dust Bunny Queen said...

"I just repeat accepted facts that the military itself has admitted to"

Freder: just repeating "accepted" facts doesn't mean that you are repeating real verifiable facts.

A lie told often enough becomes the truth Valdimir Lenin

Simon said...

Robert Cook said...
"Of course we have committed war crimes--the war itself is an ongoing crime...."

I don't see how. It's not criminal under any domestic law, and any treaty under which it would be deemed as such is vitiated by 116 Stat. 1498 (2002) and the operation of the last in time rule (leges posteriores priores contrarias abrogant).

Freder Frederson said...

So they give the Lefties and Jewish human rights lawyers all the respect they deserve.

Yeah that's right Cedarford. The Jewish and Leftie dominated uniformed military dreamed up the Army Field Manual on Interrogation, acting as a fifth column to undermine the war effort.

Bob said...

Ah Freder, 'tis good to see your underwear is bound into a knot. By your definition that Afghani who froze to death was "tortured". he was actually kept in a conex to preclude his escape. So I'd say the one guarding him was guilty of negligence. The Iraqi General was killed as you said and the two soldiers were prosecuted. In neither of these cases did Yoo's memo apply. The Iraqi who died in Abu Gharib may or may not have been killed and who was responsible remains unclear.

Your certainty that there must be double digit deaths due to torture is an assertion based largely upon thinking generated from the anatomy on which you sit. You know this because "You just know".

As to the number at which I will become concerned that all depends when on AQ. The critical number for me is "1" - when AQ puts one of its members on trial for the torture and/or murder of a captured American then I'll reconsider.

Freder Frederson said...

just repeating "accepted" facts doesn't mean that you are repeating real verifiable facts.

Okay, what facts have I stated that are not verifiable?

Freder Frederson said...

The Iraqi General was killed as you said and the two soldiers were prosecuted. In neither of these cases did Yoo's memo apply.

Really? Both of the deaths occurred during the period when the military basically suspended the Army Field Manual and there was great confusion as to what interrogation rules were. And in fact the interrogation rules were loosened considerably under orders (apparently) from Rumsfeld and Stephen Cambone. How or why this occured has never been fully disclosed.

George said...

Here's another professor who thinks we need war crimes trials.....

"Five years after, we might stir ourselves to impeach the criminal heading up this cabal, we might prepare for the criminal trials these domestic hijackers deserve, and, at the very least, we might tell the truth in the public square and thereby contribute to building a mass movement for peace and justice."

This is from his blog entry on the fifth anniversary of 9/11.

This professor appeared at the March 9, 2008, "Louder Than a Bomb" event in Chicago.

But it was only a Youth Poetry Slam.

This professor's name is Williams Ayers, and he has a blog.

His blog entry on April 20, 2006 offers an extended defense of the Weather Underground's planting and detonating bombs in various locations in the United States. It is unbelievable. I am glad that Sen. Obama acknowledges that he does not "exchange ideas from" the terrorist Ayers on a "regular basis."

Hoosier Daddy said...

In fact I could accuse you of supporting terrorist acts. After all, if the U.S. government can act without any regard to the law, what possible blame can we assign to those who choose to use whatever means necessary to advance their own political goals?

Accuse away. If torturing some headhacking Islamoid saves even one innocent life go nuts.

I'm not about advancing a political agenda Freder, I'm all about insisting that our government ensure the safety of our nation so I don't wake up one day to see a smoking crater where NY used to be. If the headhackers want to self detonate amongst themselves as they seem wont to do in Iraq, then I'm all for withdrawal now, today and we won't waterboard, kneecap or otherwise bother the headhackers.

Your problem Freder is you see this whole issue as an episode of Law and Order rather than the reality of a psychopathic group of fuckheads who want nothing more than to destroy this nation.

Bob said...

Freder - "the Army basically suspended the Field Manual" - REALLY? First, Field Manuals are descriptive and don't actually have the force of law. We have dozens of Field Manuals. Of course then there is that old German Army saying "The reason the US Army is so hard to fight is it does not read its own field manuals." What you really want is the applicable SOPs and ROEs.

Second, please show me this alleged message suspending it? I'm sure the two soldiers tried & convicted for killing the General would be interested.

As for "the Army Field Manual", perhaps we should simply revert back to the one used during WWII (you know, the last "good" war). I believe it was 1927 edition. The one which allowed for the execution of illegal combatants (one's captured during hostile actions against US forces without GC required uniforms or insignias).

Crimso said...

One important thing to keep in mind about war crimes trials is that you generally (though not necessarily always) have to lose the war to be brought up on charges. This may in part be the reason why so many on the left are desperately hoping for a U.S. defeat.

Revenant said...

For purposes of this discussion it doesn't matter if the US government tortures people or not.

Even if Yoo wrote "the US government ought to torture some Muslims" and then the US government went out and did it there still wouldn't be grounds for stripping Yoo of tenure -- not under the precedents set over the last half-century of academic discourse. Academics are allowed to hold odious views and share them with other people. That's why there are still communists employed at my alma mater.

Now, if you want to have a discussion about eliminating tenure and the protections of "academic freedom" that go with it, well, I'll be happy to have that conversation. But it'll need to be eliminated for everybody, not just for people lefties dislike.

Freder Frederson said...

Your problem Freder is you see this whole issue as an episode of Law and Order rather than the reality of a psychopathic group of fuckheads who want nothing more than to destroy this nation.

And your problem Hoosier, is that you apparently think that this nation consists of the geographical boundaries of the United States and maybe the people who agree with you.

Read the oaths that our elected officials and military take. They don't swear to defend the country, but the Constitution. If we decide we are going to hold people with no process, torture them, make them disappear from the face of the earth, or, as Yoo argues, the President can abrogate treaties and laws on a case by case basis, then the "nation" we are supposedly defending has ceased to exist.

Freder Frederson said...

Second, please show me this alleged message suspending it?

That is the point of me saying "basically". What happened is while the Field Manual was never officially suspended, contrary instructions came down to use more harsh interrogation techniques.

Freder Frederson said...

Even if Yoo wrote "the US government ought to torture some Muslims" and then the US government went out and did it there still wouldn't be grounds for stripping Yoo of tenure

Umm, actually Yoo did more than this. He provided the legal basis for the administration to go out and torture some Muslims.

It is one thing to say "I think we should torture Muslims". It is another thing to say "Mr. President, here is a document to provide you with legal cover so you can get away with torturing Muslims."

Cedarford said...

The old Field Manual that gives the bare minimum on what a low-level grunt does when he has an Islamoid is different than the rules professional military intellegence officers and the civilian CIA used.
Until McCain, Graham and a pack of Lefties squealing and ACLU Jews suing sought to change the rules to try and force everyone to act as a Private with limited knowledge, custodial, and processing skills for captured enemy or terrorists.
A basic manual for doing the 1st hour or two of "intake" on the battlefield - but what McCain saw as the "good old Field Manual" where he would treat everyone with specialized skills dealing with the enemy as if they were all relatively unskilled privates who had received a few hours of training...
Akin to saying that the only questioning and processing of the 500 men, woman and children of the Texas polygamy cult who may be handled and questioned by lawyers, detectives, judges, psychologists, trained abuse investigators, licensed MSWs will be conducted only in accordance with the Texas Patrolman's Field Manual for dealing with arrestees and others brought into custody...

Paul Zrimsek said...

Here's a little background on that "108 deaths" number that keeps coming up in various guises.

It's quite possible that there has in fact been deliberate killing of prisoners that can be attributed to orders from Washington. But none of the supposed proofs I've seen have actually proven that.

AllenS said...

Freder, you're full of crap. You sound like an absolute idiot every time you start talking about the military, and what they can or can't do. Take an oath. I was going to do whatever I had to do when I was in the military to get myself and my friends home safely. I could have cared less what some pinhead (and, yes, I'm talking about you), had to say. People like you do not serve.

Robert Cook said...

Simon,

Our war in Iraq is illegal because it lacked either a UN Security Council resolution approving it or a self-defense justification. It was an act of unprovoked aggression predicated on lies. It is, by definition, a war of aggression, a crime against peace, the supreme war crime under the Geneva standard, as all other war crimes proceed from the original aggression.

Now, they're telling similar lies with regard to Iran, and, as before, providing no evidence to support their propaganda. They obviously want to attack Iran, and have surely drawn up plans to do so, (whether they will or not proceed against Iran remains uncertain at this point). If this will not already be so, an American attack on Iraq will insure that Bush, Cheney, et al will be remembered as monsters of world history.

Hoosier Daddy said...

And your problem Hoosier, is that you apparently think that this nation consists of the geographical boundaries of the United States

Uh yes, it does. Unless of course you're one of those open border folks.

Read the oaths that our elected officials and military take. They don't swear to defend the country, but the Constitution. If we decide we are going to hold people with no process, torture them, make them disappear from the face of the earth, or, as Yoo argues, the President can abrogate treaties and laws on a case by case basis, then the "nation" we are supposedly defending has ceased to exist

So tell me did it cease to exist when Lincoln suspended habeous corpus? Did the nation cease to exist when FDR confiscated the property and imprisoned 100,000 American citizens during WW2 on the sole basis of their race?

Let me know

Henry said...

Robert, I realize that you're not an intentional humorist, but your statement "whether they will or not proceed against Iran remains uncertain at this point" did give me a laugh.

Robert Cook said...

Uh, that's "an American attack on IRAN."

Our attack on IRAQ is the crime that has already been undertaken.

Freder Frederson said...

The old Field Manual that gives the bare minimum on what a low-level grunt does when he has an Islamoid is different than the rules professional military intellegence officers and the civilian CIA used.

The field Manual applies to all military personnel--in fact it is written specifically for MI types. The field manual that was in effect in 2001 was changed very little with the new one issued in 2005. The CIA is of course not bound by it as they are not part of the military.

It's quite possible that there has in fact been deliberate killing of prisoners that can be attributed to orders from Washington.

I never claimed that anyone was deliberately killed. It is clear that numerous people did die as a direct result of harsh treatment during interrogation or detention. The military admits as much.

Hoosier Daddy said...

Our war in Iraq is illegal because it lacked either a UN Security Council resolution approving it or a self-defense justification.

Don't want to rain on your parade but it had the authorization of the US Congress which gave it all the legitimacy it needs. Last time I checked, I don't think we need other nation's permissions to legitimize our acting in our own interests.

Whether you agree with those interests is another issue altogether.

Hoosier Daddy said...

I never claimed that anyone was deliberately killed. It is clear that numerous people did die as a direct result of harsh treatment during interrogation or detention.

Hell Freder, numerous people die as a direct result of harsh training too.

titusisnotcurrentlyhorny said...

I am surprised John Yoo was offered a job at Berkeley.

Seems like one of the last places he would be teaching.

Simon said...

Robert Cook said...
"Our war in Iraq is illegal because it lacked either a UN Security Council resolution approving it or a self-defense justification. It was an act of unprovoked aggression predicated on lies. It is, by definition, a war of aggression, a crime against peace, the supreme war crime under the Geneva standard, as all other war crimes proceed from the original aggression."

A claim that an act is illegal necessarily contains the ancillary claim that a validly-enacted law, that was in force when the war began, or that has been entered into subsequently, prohibited that action. What that law is is what I'm asking you. Since any law prior to the AUMF would be displaced thereby under the last in time rule (which also applies to treaties, see Julian Ku, Treaties as Laws: A Defense of the Last in Time Rule for Treaties and Federal Statutes, 80 Ind. L. J. 319 (2005)), to prevail, it seems to me that you'd have to find a law enacted or a treaty entered into subsequent to the passage of the AUMF.

"They obviously want to attack Iran, and have surely drawn up plans to do so"

That's probably true, but to my understanding, the Pentagon also has plans of how to fight a war with anyone, anywhere at any time. One has no doubt that there are plans for how we would invade Canada should the need arise. When those plans don't exist, that's a problem, as Bob Woodward notes in Bush at War in connection to Afghanistan. So the question would be, if there aren't plans - numerous plans - for how to intervene militarily in Iran, or anywhere else for that matter, why not?

Freder Frederson said...

Here's a little background on that "108 deaths" number that keeps coming up in various guises.

Actually, your link ridicules the number as totally false. It is not as can be found here. In fact the actual number is 112.

Dust Bunny Queen said...

Okay, what facts have I stated that are not verifiable?

Debating 101: it is incumbent on the person presenting the argument to verify his/her data when you try to present it as fact. Just saying something is so, doesn't make it so. If you can't back up your arguments, then you are wasting everyone's time. Your debate team loses.

You are free (in debating and in the real world) to extrapolate opinions from your data that has been presented. Opinions are just that and don't need to be factual. However, opinions that are founded on actual verifiable facts carry much more weight. This might be why people don't tend to believe the opinions that you and others on this strew around.

Opinion /= Facts

Freder Frederson said...

Since any law prior to the AUMF would be displaced thereby under the last in time rule

Only if the AUMF specifically or at least implicitly abrogated the pertinent sections of the U.N. charter which prohibit preventative or aggressive war. It of course did nothing of the sort. In fact it purported to claim the authority of the U.N. Charter by citing specific U.N. sanctions that Iraq had violated and claimed that the AUMF was (in part) intended to enforce those sanctions.

You can hardly claim that the AUMF superseded the U.N. Charter when it used the very same Charter as a basis for its legitimacy.

Simon said...

Actually, let me correct my 1:15 PM comment (apologies, all): Robert, you could also rest the claim that the war is illegal on a showing that its commencement or conduct violated the U.S. Constitution.

Dust Bunny Queen said...

Said Freder: "And your problem Hoosier, is that you apparently think that this nation consists of the geographical boundaries of the United States and maybe the people who agree with you.

Read the oaths that our elected officials and military take. They don't swear to defend the country, but the Constitution."

This is actually a good debating point.

TMink said...

I think Freder is consistent in his position and is correct in at least a large number of his assertions. He and I may disagree about what constitutes torture, the acceptability of torture, and some minor details, but I think we can do better in our disagreements with him.

From my position, I take it as a given that torture was used in dealing with our enemies. Waterboarding is torture in my book. I understand that it does not do lasting physical harm, and I understand how that could be used to "justify" it as an interrogation technique rather than torture, but I do not buy it.

Psycholgocial torture is torture in my book.

Where FF and I part company is that I reluctantly and with a heavy heart acknowlege that I support the government using waterboarding. I hate it, and I feel embarassed and guilty to write it, but the truth is I do support it.

I would support using drugs to get information that saves American lives as well. I do not support dismsemberment or lasting physical damage. Well, other than trying and killing the bastards. 8)

Freder is not willing to accept any torture and he is critical of that policy. I do not think that he is in error in wanting to hold the US to a higher standard, and frankly, he may be morally correct in this matter.

But can't we take the dialogue to a higher level?

Trey

Freder Frederson said...

Robert, you could also rest the claim that the war is illegal on a showing that its commencement or conduct violated the U.S. Constitution.

And since war was never declared--which is the Congress' duty--this argument is very easy to make.

Der Hahn said...

titusisnotcurrentlyhorny said... I am surprised John Yoo was offered a job at Berkeley.

The controversy doesn't revolve around a job offer. Yoo is returning from a leave to a position he's held for over a decade.

Professor Yoo joined the Boalt faculty in 1993, then clerked for Justice Clarence Thomas of the U.S. Supreme Court. He served as general counsel of the U.S. Senate Judiciary Committee from 1995-96. From 2001 to 2003, he served as a deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice, where he worked on issues involving foreign affairs, national security and the separation of powers.

TMink said...

Robert wrote: "Our war in Iraq is illegal because it lacked either a UN Security Council resolution approving it or a self-defense justification."

Robert, we are still a sovereign nation, and a nation of laws. The UN is an international organization and has no legislative, administrative, or legal powers in this country.

It is one thing to criticize a war based on whether or not the conduct of that war conforms to our constitution and laws, but to criticize it on how it conforms to laws that have no bearing on the situation is either wishful thinking in the extreme or naive or disingenuous.

It would be similar to citing a comet for speeding, or a Canadian in Canada for violating our 1st ammendment.

Silliness.

Trey

Robert Cook said...

"Don't want to rain on your parade but it had the authorization of the US Congress which gave it all the legitimacy it needs. Last time I checked, I don't think we need other nation's permissions to legitimize our acting in our own interests."

As members of the United Nations, we are bound by its Charter, which prohibits member nations from inititating war for reasons other than self-defense, or without approval by the Security Council.

Moreover, although I think they're mostly lying through their asses, many members of Congress claim they voted for the AUMF because they believed the claims of this administration in re: Iraq's supposed WMD and "WMD programs,"--claims which were false. Many also claim--probably dishonestly--that they expected the President to come back to them at that point that he felt military action was necessary, at which time they would "formally" vote for or against such an attack. The President also, I believe, led Congress to believe he would obtain a UN resolution approving an attack on Iraq before actually initiating military action. He did not do so, of course.

But it's all beside the point: Congressional approval of an international crime does not make it legal. And, in what way was attacking Iraq in furtherance of "our interests," even supposing such a rationale would render a war of aggression legal? From that point of view, Hitler's invasion of Poland was in Germany's interest, as it added to the nation's resources and increased its empire. Was it therefore legal?

Paul Zrimsek said...

Actually, your link ridicules the number as totally false.

No, it pretty much stipulated that the number itself was at least approximately true (this was in 2005); what it ridiculed was the false conclusions which some people jumped to regarding it: specifically, treating deaths due to natural causes, enemy action, injuries received prior to capture, or criminal acts by individual US soldiers as a deliberate result of US policy.

Whether or not what you've got behind the registration wall at your link falls into that category, I can't say.

Revenant said...

Umm, actually Yoo did more than this. He provided the legal basis for the administration to go out and torture some Muslims.

My example was Yoo saying "the US ought to torture Muslims". Arguing that it would be *legal* to torture Muslims isn't "doing more" than that; it is doing less.

If all Yoo did was say "in my legal opinion you can use torture on captured terrorists" then he did absolutely nothing wrong. The worst you can accuse him of is faulty legal reasoning.

Revenant said...

As members of the United Nations, we are bound by its Charter, which prohibits member nations from inititating war for reasons other than self-defense, or without approval by the Security Council.

Self-defense is defined by the member nation, in this case us. We decided that our war against Hussein was self-defense, so there's no legal problem there.

Perhaps the UN feels that it wasn't self-defense. But the UN's opinion on the subject doesn't actually matter -- it has the power to declare that war IS justfied, but no power to declare that it isn't. If it were otherwise no nation would voluntarily sign the charter.

Revenant said...

Actually, your link ridicules the number as totally false. It is not as can be found here. In fact the actual number is 112.

Freder, that link only works if you have a login to the site. Otherwise you just get a login screen.

dbp said...

Freder Frederson said...

"...actually Yoo did more than this. He provided the legal basis for the administration to go out and torture some Muslims.

If Mr. Yoo provided a valid legal basis for what was being done then ergo, then what was done was legal. If he failed to provide a valid legal basis, then he failed to provide any cover at all.

Freder Frederson said...

Self-defense is defined by the member nation, in this case us. We decided that our war against Hussein was self-defense, so there's no legal problem there.

There are internationally agreed upon standards of what constitutes a defensive, preemptive, preventative or aggressive war. The first two are legal, the second two are not. You will never hear the Iraq war officially described as preventative because preventative wars are illegal and the government has never claimed we have the right to launch a preventative war.

The AUMF was crafted (and the intelligence ginned up) to make it appear as though the invasion was based on enforcing U.N. sanctions and preemption. Neither one was true. It can be argued that the preemption grounds were based on a good faith reasonable belief in available intelligence. I didn't buy it then, and I believe it less now.

dbp said...

Essentially all Mr. Yoo did was render an opinion. Doesn't the First Amendment protect this?

Robert Cook said...

"Self-defense is defined by the member nation, in this case us. We decided that our war against Hussein was self-defense, so there's no legal problem there."

Hitler declared a self-defense justification to invade Poland, and bin Laden could claim "self-defense" against American imperialism in Arab lands for attacking America on 9/11.

The perpetrators of aggression may not simply claim a "Get Out Of Jail Free" card merely by unilateral assertions of self-defense that are unfounded. Iraq was never a threat to America and thus there is no valid self-defense claim here. There are only the lies of Bush, Cheney, et al.

Freder Frederson said...

If he failed to provide a valid legal basis, then he failed to provide any cover at all.

Which is where the argument that his memo constitutes a war crime comes in. His job at OLC was to provide legal advice to the president. The argument is that his memo was written to provide the President a justification for an illegal act, not actually tell the president what the law is (you can't torture people). By telling the president he could torture people, Yoo was partially responsible for the torture that occurred. Again, we held the lawyers who provided the legal basis for the holocaust (which after all was perfectly "legal" under German law) responsible for their legal reasoning.

Palladian said...

"As members of the United Nations, we are bound by its Charter, which prohibits member nations from inititating war for reasons other than self-defense, or without approval by the Security Council."

LOL

Freder Frederson said...

Essentially all Mr. Yoo did was render an opinion. Doesn't the First Amendment protect this?

No, if a lawyer tells a drug dealer he better kill a witness against him or how to launder money or where to set up illegal bank accounts, he is guilty of a crime, even though that is just speech.

Revenant said...

There are internationally agreed upon standards of what constitutes a defensive, preemptive, preventative or aggressive war.

Perhaps there are, Freder, but "internationally agreed upon standards" have no authority over the United States. We are bound solely by treaties, and no treaty we are bound by explicitly defines the Iraq war as non-defensive.

Simply put, Freder, it doesn't matter if every last one of the 5.7 billion non-Americans on Earth are in unanimous agreement that the Iraq war was non-defensive. Their opinions don't mean shit.

Revenant said...

Hitler declared a self-defense justification to invade Poland, and bin Laden could claim "self-defense" against American imperialism in Arab lands for attacking America on 9/11.

And your point is...?

dbp said...

Rendering an opinion is a far cry from recomending that an illegal act be done.

A better example would be if a lawyer told a client that it is perfectly legal to kill a witness.

If the client acted this advice he could still be held for murder. The lawyer would be an easy target for a malpractice case.

Revenant said...

Let me expand on that snark a bit:

Let's say, for the sake of argument, that in reality Iraq posed absolutely no threat to the United States, that that was nothing but BushHaliburtiCheneyHitlerian lies.

What you're missing is that, from a legal standpoint, it doesn't matter if that was a lie. Congress passed a resolution finding that Iraq DID pose a threat, and Bush signed it. That means that so far as the law is concerned, Iraq was a threat. That's all that our ratification of the UN charter requires.

"But wait!" you might say, "what's to stop anyone who wants to invade his neighbor from cooking up some BS 'defense' excuse for it?". That's easy: nothing. Congratulations, you've just stumbled across one of the MANY reasons why the UN is completely fucking useless -- why, in its 60 years of existence, it has never managed to prevent a war, stop an act of genocide, or bring a war criminal to justice.

The UN is a place where diplomats from pissant countries can get together and pretend they matter; that's all.

George said...

Maybe if Weatherman terrorist/early childhood education expert/professor Bill Ayers did abortions on Yale art students he could get more attention.

He admits that his terrorist group set off a dozen bombs and is not merely unrepentant but gleeful about it in this April 2006 entry here on his blog.

Talk about war criminal.

"Our signature was a warning call to some sleepy guard inside the building or to the police nearby or to a journalist with calm and detailed instructions to clear a specific area, and then letters of explanation—sometimes exhorting, sometimes threatening, sometimes still barely decipherable beyond the knowing—claiming credit and publicly defending our actions as politics by other means, signed and delivered simultaneously to several major newspapers in different cities across the country seconds after the blast."

"...barely decipherable beyond the knowing..."

What sort of mad raving is that?

"While the U.S. was killing two thousand people a day, planting a bomb in a pipe in the Pentagon was our high-pitched wail against the war’s sickness—part scream, part lamentation, part warning. The act was designed as a symbol, and as intended, neither killed nor even hurt a single person. Still, what if someone had been killed? We crossed crucial lines, and troubling questions echoed around us and pushed into our space."

Wow, dude, let's write a term paper about it.

"We would draw an angry sword against white supremacy, retaliate for racist attacks, and fight alongside our Black revolutionary comrades, but from a new and liberated space. And with care."

With care....

Who knew....the caring terrorist!

Dust Bunny Queen said...

"As members of the United Nations, we are bound by its Charter, which prohibits member nations from inititating war for reasons other than self-defense, or without approval by the Security Council"

Then we need to resign our membership and revoke the lease on the UN Building. It would make a really nice condo. Maybe do a Kelo eminent domain move on them and raise the tax revenue to New York.

Bob said...

Freder - I'm finding the "we didn't declare war" an amusing aurgument. However historically that hasn't been the case. Off top of my head we didn't declare war during Korea, Viet Nam, Grenada, Panama, Somolia, Lebanon (twice), the first Gulf War, or of course our Balkins adventures.

If the US committed a war crime by initiating a war against Iraq then it follows we did so in Panama, Grenada, and both our Balkin adventures (bombing of Serbia and occupation of Bosnia-H.).

Of course we could have used the "Iraqis fired on our planes" reasoning that Bill did to justify our military action. Did our unleashing of cruise missiles consitute a war crime?

And Mr Yoo is on solid ground by stating that he was asked to provide a legal aurgument and he did in his staff role. The President was one who decided and executed in his executive role.

Simon said...

Robert Cook said...
"As members of the United Nations, we are bound by its Charter, which prohibits member nations from inititating war for reasons other than self-defense, or without approval by the Security Council."

The only reason that the United Nations charter is binding on us is because we ratified a treaty that incorporated the provisions of that charter. But treaties are, at most, parallel to not superior to statutory law (the only hierarchy in the supremacy clause is as between federal and state authority, and the preeminence of the Constitution over both), and like statutes, can be repealed. Canons like repeal by implication being disfavored only get you so far, see Foreman v. United States, 60 F.3d 1559 (Fed. Cir. 1995) ("[a]lthough implicit repeals of statutes are highly disfavored ... [a] later statute may ... implicitly repeal a former statute where there is an 'irreconcilable conflict' or 'clear repugnancy' between the two" (citing Randall Loftsgaarden, 478 U.S. 647, 661; United States v. Fausto, 484 U.S. 439, 453 (1987)). The same goes for Charming Betsy - that requires only that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains," 2 Cranch 64, 118 (1804) (emphasis added). Nor is Congress' intent or lack thereof vis-a-vis the earlier treaty relevant; "Congress need not think about a subject for a law to affect it." Chi. Lawyers’ Comm. for Civ. Rights Under Law v. Craigslist, 2008 U.S. App. LEXIS 5472 (7th Cir., March 14, 2008) (slip op. at 8). Thus, if there is irreconcilable tension between an act of Congress and an earlier treaty, and if no reasonable construction of the earlier text and the more recent text is available wherein they don't conflict, the last in time rule dictates that the latter displace the former. The upshot is, if Congress authorized something that the United Nations Charter forbids (which, as Rev explained above, isn't clear), Congress abrogated the United Nations Charter in so doing.

former law student said...

Hmm... Let's try this substitution and see if the sentence still makes sense: 'If all Dr. Mengele did was say "in my medical opinion Jews are not human beings, merely highly developed primates" then he did absolutely nothing wrong. The worst you can accuse him of is faulty medical reasoning.'

Nope, it doesn't work. Sorry.

Bob said...

Revenant - I believe that the actual Congressional resolution on Iraq and regime change was passed and signed during the Clinton term (1998 I believe).

Simon said...

Bob: you have in mind the Iraq Liberation Act of 1998, Pub. L. 105-338, 112 Stat. 3178 (1998).

Robert Cook said...

"Their opinions don't mean shit."

And thus is encapsulated the thuggish worldview of American policy-makers, a world-view enacted in decades of American aggression worldwide. As the man said, the chickens are now coming home to roost. I don't say this happily, or to gloat, but to point out that terrorists are directing their violence against us not because "they hate our freedoms" or any such absurdities as the idiot Bush has put forth, but in response to our own rampaging violence around the world. It's axiomatic: it you hit someone, they're going to want to hit back.

As for the person who remarked that if Iraq is a war crime, then so were our military actions in Panama, Grenada, Viet Nam, Somalia, etc., well: BINGO! RIGHT ANSWER!

Freder Frederson said...

The upshot is, if Congress authorized something that the United Nations Charter forbids (which, as Rev explained above, isn't clear), Congress abrogated the United Nations Charter in so doing.

I know you're ignoring me Simon. But you're missing the obvious point that the AUMF embraced the UN Charter and specifically worded the AUMF so that it would appear to be a preemptive action. It is simply nonsensical to claim that a authorization (and the AUMF is not even a law--I'm not sure what the hell it is) is abrogating something that it is using, in part, as its claim of legitimacy.

Your claim is that Congress sought to enforce the UN Charter and abrogate it at the same time.

If you have any evidence that anything in the AUMF contradicts or was intended to contradict the UN charter, please provide it. The war with Iraq has never been described as anything other than one of preemption.

Revenant said...

Hmm... Let's try this substitution and see if the sentence still makes sense: 'If all Dr. Mengele did was say "in my medical opinion Jews are not human beings, merely highly developed primates" then he did absolutely nothing wrong. The worst you can accuse him of is faulty medical reasoning.'

Nope, it doesn't work. Sorry.

Why doesn't it work? Exactly what crime are you saying the hypothetical Mengele in your scenario is guilty of? The *real* Mengele actually tortured people himself, of course -- but the one you describe is simply expressing the opinion that Jews are subhuman. That's an entirely legal thing to say.

Revenant said...

And thus is encapsulated the thuggish worldview of American policy-makers, a world-view enacted in decades of American aggression worldwide. As the man said, the chickens are now coming home to roost. I don't say this happily, or to gloat

Of course you do.

But the funny thing here is that your own world-view is America-centric. The simple truth is that NO country in the world is bound by the opinions of other nations -- nor is there a country in the world which wishes to be. That's why every signatory to the UN charter has ignored the UN whenever the UN's wishes conflicted with their own. The United States, the UK, France, China, Russia, India, Turkey... all the way down to worthless little dictatorships like Cuba, Zimbabwe, and Hussein-era Iraq.

Freder Frederson said...

I'm finding the "we didn't declare war" an amusing aurgument. However historically that hasn't been the case. Off top of my head we didn't declare war during Korea, Viet Nam, Grenada, Panama, Somolia, Lebanon (twice), the first Gulf War, or of course our Balkins adventures.

Korea was a UN action, as was Bosnia. As for the rest, you are right. As I am sure Simon will tell you, just because something is unconstitutional, doesn't mean there is a remedy for it. Just who would bring a claim, or how it would be ajudicated, is a conundrum. But the Constitution clearly states that Congress is the branch that declares war. This power seems meaningless if the President can conduct wars in all but an official declaration. But if the Congress goes along with it, funding a war, authorizing the use of military force (I would really like our resident originalist Simon to point out where in the constitution Congress has the power to "authorize the use of military force"), and doing nothing to stop the president, who has standing to sue to stop the war and who decides if the war is illegal?

Revenant said...

and the AUMF is not even a law--I'm not sure what the hell it is

A declaration of war, silly.

Freder Frederson said...

A declaration of war, silly.

It most certainly was not that. The administration never claimed it was a formal declaration of war and in fact its representatives (e.g. AG Gonzalez) stated publicly to the Congress that the AUMF was not a declaration of war and that a formal state of war never existed between Iraq and the U.S.

dbp said...

The AUMF is sort of like an ultimatum: Iraq, do x or we authorise the President to use force. We also authorise the President to determine if you have performed x to our satisfaction.

Bob said...

Simon - thank you

Since Mr Yoo did not, to my knowledge, actually conduct any interrogations but simply provided a legal opinion he seems on solid ground. The Doctor of Death actually performed and supervised executions & experimentation on humans.

Robert - and BINGO back! Our defense of Kuwait, Korea, and South Viet Nam was in defense of an ally against an aggressor. So surely they cannot be criminal - self-defense right? My point is American presidents have repeatedly utilized US military without an explicit declaration of war by Congress on another nation. That in and of itself in no way equals a "war crime".

You no doubt aurgue for a war crimes trial for Prez Clinton for his bombing of Serbia and his occupation of former Yugoslavian territory.

You are no doubt now comforted to know that the US is steadfast in its desire to not be a thug in the Sudan. Somolia must have been difficult time for you. Somolia was a humanitarian mission to relieve starvation under the very auspices of the UN. And yet it had the outward trappings of American thuggishness. And you have no doubt spent several of your years working in an NGO or the Peace Corp; laboring away.

tjl said...

We all owe Robert Cook for enlivening our Friday afternoon with his pure satiric gold. What an inspired riff on the theme of the demented Bill Ayers persona! It's like a time machine to 1968.

Revenant said...

It most certainly was not that.

I'm afraid that's exactly what it was. That's what a declaration of war IS under US law -- Congressional authorization for the use of military force.

The administration never claimed it was a formal declaration of war and in fact its representatives (e.g. AG Gonzalez) stated publicly to the Congress that the AUMF was not a declaration of war and that a formal state of war never existed between Iraq and the U.S.

I'm sorry... did you just cite Attorney General Gonzales as the final word in US law? I guess that clears up the question of whether or not the administration has committed war crimes, then. :)

Maguro said...

"Korea was a UN action"

Yes it was, but only because the Russian ambassador boycotted the session that auhorized force in defense of S. Korea. Supposing the Russians had been present that day and vetoed the resolution, are you suggesting that we should have stood aside and allowed Kim Il-Sung to conquer South Korea?

Bob said...

freder - newsflash: Truman decided to send troops into South Korea prior to obtaining any UN "approval". And that approval was granted because the Soviets weren't at the vote. If the Soviets had been at the vote it would have been defeated and US troops would still have been committed.

The US also did not seek UN stamp of approval for either the occupation of Bosnia-Herz. nor for the (NATO sanctioned) bombing of Serbia.

South Viet Nam was a more interesting case for you since the US was explicitly tasked by the UN to oversee elections and to supervise the formation of a government.

Jimmy Carter's misadventure in Iran (aka the hostage rescue attempt) must cause you fits since it was a response to an illegal takeover of US Embassy (hence US soil) without UN "approval".

Just to be fair - did the Argentinians obtain UN approval or the Soviets in 1956 or 1999? Where's your angst over those?

Bob said...

Its too bad Bush didn't explicitly demand a formal Declaration of War in Afghanistan or Iraq. He probably wouldn't have gotten it for Iraq and thus it would have been a non-event. But Afghanistan he could have gotten it I suspect. And then he would have gotten some real war powers -now that should keep the BDS sufferers awake.

Revenant said...

The funny thing about Korea is that, if I recall correctly, Truman never got permission from Congress.

Which would make that a *truly* illegal war, even if the UN said it was ok.

Bob said...

The "funny" thing about the Korean conflict is that it has not offically ended. A ceasefire was signed and remains in effect but no formal peace treaty exists.

Trooper York said...

The funny thing about the Korean War is that even though it was sort of a stalemate, we still ended up with a Korean deli and a nail parlor on every freakin; corner. That's gotta be classified as a net loss don't ya think?

Plus we’re stuck with Mash reruns. That’s some boring self-righteous bullshit right there let me tell ya

Hoosier Daddy said...

Read the oaths that our elected officials and military take. They don't swear to defend the country, but the Constitution."

This is actually a good debating point.


Ok lets discuss. What part of the Constitution were we defending after the Lusitania or Pearl Harbor? How about any of the other wars perhaps maybe the US Civil War was the Armed Forces of the USA 'defending the Constitution'?

If that's the litmus test, other than the US Civil War (or War of Northern Agression for our Southern brethern) are in question.

Hoosier Daddy said...

And since war was never declared--which is the Congress' duty--this argument is very easy to make.

Compare the congressional authorization to go to war with Iraq and the declaration of war against Germany, Japan and Italy and get back to me on that.

I'm talking the actual Congressional language.

Simon said...

Revenant said...
"I'm afraid that's exactly what it was. That's what a declaration of war IS under US law -- Congressional authorization for the use of military force."

It's an interesting illustration of the limits of originalism, isn't it?

The text of the AUMF says that "[t]he President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to-- (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq." That broad grant is limited by § 3(b) which says that "prior to such exercise or as soon thereafter as may be feasible, but no later than 48 hours after [the shooting starts, the President will] ... make available" to Congress an explanation as to which he thinks diplomacy won't be sufficient to accomplish those goals.

But § 3(c) says that the AUMF "is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution." What does that say? It abrogates reporting requirements imposed on the President's use of military forces if Congress "has declared war or has enacted a specific authorization for such use of United States Armed Forces" (emphasis added).

The task facing the originalist and the textualist judge faces in construing a text is "to ascertain how the text would be understood by a reasonable person contemporaneously with its enactment, and when the text is gaudy, fraught, or even internally contradictory, what conclusion would that reasonable person draw from the text, in light of the apparent purpose of the statute placed alongside the balance of the corpus juris, as to how they should behave in order to comply with the statute?" Simon Dodd, When Two Wrongs Do Make a Right: the Strange Case of Burke v. Bennett 16 (available at SSRN) (2008) (footnote omitted). The question is, would the text of the AUMF be understood by a reasonable person - one versed in Article I, the WPA, and as HoosierDaddy alludes to, earlier declarations of war - to constitute an declaration of war as the Constitution understands that term?

Like Rev, my immediate answer is yes: I was there, I'm a reasonable person, and I understood it to be a declaration of war. But not so fast. There's that nagging reference to the WPA: would a reasonable person read that "or" as a hard disjunctive, meaning that the WPA recognizes an authorization for use of military force against a foreign military power distinct from a declaration of war? And what would that mean? Furthermore, the AUMF didn't declare war. By its own terms, it delegated the decision to the President: it authorizes us to go to war if the President decides certain conditions are met. Would a reasonable person construe that as a declaration of war, as the Constitution comprehends it?

It's an interesting conundrum. there are intelligent people who, in good faith, argue either way. More to the point, there are reasonable people who, in good faith, argue either way. The point here is that originalism - at leat, my brand of originalism, which is to say, the idea that the original meaning controls - answers a great many questions, but not every question. It doesn't eliminate the requirement that those who judge have judgment.

(It's by no means a criticism of originalism, I should add, to acknowledge its limits. I am an originalist; it always defines the ballpark, but it doesn't always say precisely where the ball lands.)

Revenant said...

What part of the Constitution were we defending after the Lusitania or Pearl Harbor?

"Providing for the common defense" is one of the stated purposes of the Constitution. If a President can, within the scope of one of his powers (e.g. the "commander in chief" power) do something to defend the United States, and can do so without violating Constitutional limitations on his powers, he is obligated by his oath to do so.

Of course, some people would argue that the prohibition against cruel and unusual punishment forbids the interrogatory torture of enemy prisoners during wartime. I find that argument ridiculous, since the eighth amendment clearly applies to criminal and civil proceedings (bail, fines, and punishment) rather than to the conduct of wars.

Revenant said...

Furthermore, the AUMF didn't declare war. By its own terms, it delegated the decision to the President: it authorizes us to go to war if the President decides certain conditions are met. Would a reasonable person construe that as a declaration of war, as the Constitution comprehends it?

Isn't it well-established that Congress can delegate the execution of specific Article I powers to the executive branch, provided that it is understood that Congress has the ultimate authority over them? That's where the IRS and most of the other executive-branch agencies come from.

Cedarford said...

AllenS - Did the nation cease to exist when FDR confiscated the property and imprisoned 100,000 American citizens during WW2 on the sole basis of their race?

You unwittingly perpetuate the Lefty meme to smear America as racists in WWII, and stir up hatred and a false consciousness in bashing Americans role in WWII as evil racist monsters. Little better than the other evil white oppressor people, the Nazis. Unless you believe Japanese are a separate race from Asian, the internment was not based on race skin color, but on nationality. The fact that 40% of those interned were enemy alien nationals, and 60% were their kids, most who were under age 18 dependents. No "yellow-skinned" Chinese, Filipino, Thai, Indonesian, Korean was interned.

There were racist feelings in many Americans a visceral dislike that was not applied to other orientals in the US at the time unless they were mistaken as Japanese, but those sentiments were in large part identical to the hatred all other Asians had of the Japanese- provoked for their inhuman behavior in war. They were crueler, more savage worse in most respects than the Nazis and the Jewish Bolsheviks + their successor Soviets and associated commies. Just not as efficient at killing people.
************************
Freder- The administration never claimed it was a formal declaration of war and in fact its representatives (e.g. AG Gonzalez) stated publicly to the Congress that the AUMF was not a declaration of war and that a formal state of war never existed between Iraq and the U.S.

This has been a game for Lefties, anti-Americans and pure enemy within since Vietnam. Pretending that a formal declaration of war is possible when the UN Charter bars it (the last time a formal diplomatic declaration of war was made was Russia vs. Japan in July 1945) It is outlawed even in acts of self-defense and the Lefts cherished new meme that:

"wars in national self-interest or against dangerous threats are bad and illegal, but Darfur and other military humanitarian intervention is WONDERFUL!!"

The problem is the US Constitution is too difficult to fix since the Amending process is now too onerous and easily blocked by any special interest group - so we rely on mighty lawyers dressed in robes and scholar-lawyers to "interpret, finesse" Constitutional flaws. So rather than do away with formal Declarations of War, we substitute language, as every other nation that has had a military conflict or seen their forces in combate, language like "Korea Police Action", "humanitarian intercession by NATO in Bosnia".

What has fucked up Bush, America, and our military is most of the statutes written for dealing with the enemy, Court cases involving what to do with enemy or terrorist rights PREDATE the UN and sensibly linked the basis to legislation declaring war(not knowing NYC lawyers writing the UN Charter would outlaw declarations of war). That wasn't a big deal as long as people thought Vietnam was an abherration - that otherwise all wars would be (nuclear or conventional) short and sweet and done with before the first battalions of Lefties and ACLU types could file their 1st briefs on behalf of the enemy.

Ideally, all the statutes should be rewritten saying that AUMF is the same goddamn thing as an 18th century "We Declare War and will defeat you with our muskets and wooden ships!" But, like changing the Constitution to fix it in light of the UN Charter, special interest groups led by the likes of Teddy Kennedy have blocked fixing US Statutes involving conduct of war for over 40 years.

Michael McNeil said...

Freder Frederson sez:
> A declaration of war, silly.

It most certainly was not that. The administration never claimed it was a formal declaration of war and in fact its representatives (e.g. AG Gonzalez) stated publicly to the Congress that the AUMF was not a declaration of war and that a formal state of war never existed between Iraq and the U.S.


Really! Let's hear what erstwhile Democratic candidate Senator Joe Biden, Chairman of the Senate Foreign Relations Committee and author of the Authorization for the Use of Military Force, had to say to the contrary, when faced by a question on that subject at the close of a speech he delivered on October 22, 2001….

Question: “My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom?”

Biden: “The answer is yes, and we did it. I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction … Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what … against whom we were moving, and what authority was granted to the President.”

downtownlad said...

It's pretty simple - as long as brown people are being tortured - then it's perfectly alright according to Glenn Reynolds.

Revenant said...

Unless you believe Japanese are a separate race from Asian, the internment was not based on race skin color, but on nationality.

It was based on ethnicity. That's why the evacuation notices ordered people of Japanese ancestry to report for relocation.

The fact that 40% of those interned were enemy alien nationals, and 60% were their kids, most who were under age 18 dependents.

First of all that's 62%, and that's "kids, grandkids, and great-grandkids". There were more than two generations of Japanese-Americans at the time, and virtually all of them had been living here at least 17 years (Japanese immigration was banned in '24).

Secondly, your use of the word "most" concedes the argument. If "most" of the American-born Japanese internment victims were children it logically follows that some weren't -- i.e., that at least some of those interned were American-born adult American citizens.

Which proves they weren't interned based on nationality.

Simon said...

Michael, citing Joe Biden - a man who makes Jeff Sessions look smart and Charles Schumer look decent - as an authority on the Constitution is like citing Tony the Tiger as an authority on particle physics. If he's right, it's by sheer coincidence.

Revenant said...

Simon,

Wouldn't Biden's opinion carry a lot of weight in terms of Congressional intent, even if the man himself is a twit? I know you don't place much weight on intent, but it seems to me that the intended purpose of the resolution was VERY well understood at the time.

Cedarford said...

Revenent -

If you look at the documents, there was a debate between relocation of the enemy alien Japanese and their families, relocating the enemy aliens without families, and going under Martial Law along the whole West Coast as opposed to just Hawaii, Alaska, and Puget Sound Naval District.

The Japanese Civic Associations were involved in those talks, along with civilian governments of the states. The leaders of the Civic Associations preferred Martial Law - but adamantly opposed seperating enemy alien Japanese from their US-born descendents. They said the breakup of families, putting Japanese-American kids in foster care or temporary adoption, was absolutely unacceptable.

The Civic Associations also agreed there was an element in the Japanese community in American territory that was still fanatically loyal to the Emperor, and the War Cause of Imperial Japan. They agreed that this was a menace, estimated at 10% of enemy aliens by the FBI and 25% by military leaders - but thought by Civic leaders to number under 5% - that something had to be done.

There was also a matter of safety - Japanese in the American territories had had murders, attacks, and buildings burned in California, Hawaii, Canada, Washington State by vengeful Filipino, Chinese, and white and black Americans. The community was threatened, and at that time no one knew how organized Jap spy and sabotage efforts were and what the reaction would be if major loss of life came to be blamed on the Japanese nationals in the USA.

It wan't ethnic.

There is truth that the US did not understand the culture and ways of Nippon as well as they did, German and English, and attributed Jap atrocities and inhuman behavior to ethnicity more than we tie problems these days to ethnicities involved.....And that we put far too little effort in identifying the threat level of those tied to Japan or communism before the war compared to the effort to ID fascists prior to Pearl Harbor.

BUt compared to other nations, especially Japan, we were a beacon of racial enlightenment 70 years ago, and it is unfair to slime any of today's nations with the stuff Americans, Yamotos race believers, Chinese who believed all non-Chinese were animals, racial Zionists, Bolsheviks, fascist supporters, and primitive tribal peoples believed in bygone years.

People that are "ashamed" that people in the past and actions were not as PC as "enlightened" people today are just looking for an excuse to loathe themselves and their nation, or seeking to use command of media tools to convince others they should have that loathing. 50-200 years from now, the same game will be played against people in America and elsewhere to tout spontaneous self-loathers and the usual manipulators out to convince certain classes that they should loath themselves as the manipulators seek to profit from it..

Revenant said...

It wan't ethnic.

It was just an eerie coincidence that the only common trait of all the victims was their ethnicity. I mean, sure, the Japanese-Americans were interned without regard to age, citizenship, political affiliation, criminal history, or foreign ties... but a person would have to be crazy to think that their *ethnicity* was the deciding factor. That's just crazy talk. Only a very great fool would think that John "A Jap is a Jap" DeWitt was, like, racist or something.

Your initial claim, Cedarford, was that the internment was based on nationality. I already proved that claim wrong. I'm not quite sure where you'll move the goalposts to next and I really can't say that I care. I really doubt that any of the posters here are actually ignorant enough to fall for your historical revisionism -- especially considering who is offering it.

Seven Machos said...

Robert -- In the past, I have attempted to explain to you why you are actually wrong from a political and legal perspective. It hasn't worked, obviously, because you are back with the same loose, silly arguments.

Let's try a more common-sense approach. Let's say a group with no executive, legislative, or judicial authority whatsoever determines that it is illegal to commit some act. I commit the act.

What has happened?

Seven Machos said...

Just two more quick things...

1. As members of the United Nations, we are bound by its Charter. Gosh, Robert, I guess, like the college up the road or the or the corporation with its bylaws, the United Nations will avail itself of its one basic remedy, right? When can we rule-breaking Americans expect to be kicked out?

2. The whole of your argument, Robert, rests on the premise that the United Nations has governmental authority. It doesn't.

3. I didn't realize that this thread invoked Godwin's Law long ago. Sorry.

AllenS said...

Cedarford said...
"AllenS - Did the nation cease to exist when FDR confiscated the property and imprisoned 100,000 American citizens during WW2 on the sole basis of their race?"

Those weren't my words, but Hoosier Daddy's. I go agree, however, in what he said. I think I understand the point he was trying to make. Chill out.

rcocean said...

Rev-

I love your attitude. After all, why learn historical fact when you can be smug and self-righteous?

In 2008 moaning about the "poor Indian" JA internment, or slavery is just a cheap way to score moral superiority points.

Several other facts:

1) JA's were not interned in Hawaii.

2) During the war 6,000 JA's refused to confirm their allegiance to the the USA and renounced their US citizenship. They returned to Japan after the war.

3) MOst JA's had left the Camps by June 1944 and had found work off the Pacific coast. Most of those who stayed in the camps did so voluntarily.

4) More German-Americans and Italian-Americans were put in camps than JA's. Further, during WW II every country put enemy aliens in interment camps.

5) Over 10 percent of the US Citizens interred by Japan died of disease and malnutrition. All these deaths were caused by Japan's refusal to let Red cross packages be delivered.

SGT Ted said...

The AUMF complies with the War Powers Act. Which makes it legal.

Claiming our re-invasion of Iraq, which was also due to numerous violations of the 1991 cease-fire agreement to end hostilities against the regime of Saddam Hussein, is illegal is really absurd.

We had every legal reason, based on the treaty that Saddam Hussein himself signed, to take him out for violating said treaty. The only things lacking in the past was political will at home and the opposition of foreign governments that were violating of the UN sanctions by selling Saddam Hussein arms and getting him access to cash by accepting kickback under the guise of the Oil for Food program. I personally handled captured weapons and ammunitions manufactured in 2001 from member states of the UN that are not friendly to the US. Where's the outcry?

In fact, evidence suggests that high level UN officials were complicit in taking money from Saddam as well. Which make the UN criminally complicit in the death of Iraqis killed by Saddam, who was enabled to remain in power by their money.

What I see from Freder and our "international law uber alles" types is what we in the Army call "shithouse lawyers" piddling their pants because they don't like Bush. History will not be kind to these one sided arguements from the left.

Using weak legal arguements to oppose the removel of a Genocidal dictator from power shows me that you don't really care about human rights, but political oppositionalism.

Fen said...

"As members of the United Nations, we are bound by its Charter, which prohibits member nations from inititating war for reasons other than self-defense, or without approval by the Security Council"

Archaic. We now have the triangle of 1) rogue nation states 2) who support terror orgs 3) seeking WMDs. None of which the United Nations will do anything about [even worse, see Oil for Food scam]. And yet, we can't defend ourselves without their permission? Bullocks.

International "law" is outdated and needs to be revised. It would also be nice to apply some equal protection under the law - the legal restrictions appear to only be applied against the United States.

SGT Ted is spot on. Our "international law uber alles" types only care about it as a tool to hamstring US policy they oppose.

Robert Cook said...

"The United Nations Charter is the treaty that forms and establishes the international organization called the United Nations[1]. It was signed at the United Nations Conference on International Organization in San Francisco, California, United States, in 1945, by 50 of the 51 original member countries (Poland, the other original member, which was not represented at the conference, signed it later). It entered into force on October 24, 1945, after being ratified by the five permanent members of the Security Council—the Republic of China (later replaced by the People's Republic of China), France, the Union of Soviet Socialist Republics (later replaced by the Russian Federation), the United Kingdom, and the United States—and a majority of the other signatories.

As a Charter, it is a constituent treaty, and all members are bound by its articles. Furthermore, the Charter states that obligations to the United Nations prevail over all other treaty obligations."


Wikipedia


"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."

U.S. Constitution, Article VI, paragraph 2

Fen said...

/Freder-types in a nutshell

Freder lives in NorthEast DC. Its a violent neighborhood. Just last week, the house across the street was robbed. The wife and daughter were brutally gang-raped and then burned alive.

Freder wants to protect his family from such a fate. So he buys a gun. But the DC Law says Freder must keep his gun separate from his ammo. He must have a safety pin inserted in the chamber. He must have another lock on the gun case.

The Law renders Freder's gun useless in the middle of the night. But Freder wants to obey The Law. And he wants everyone else to do so, just like him.

So Freder buys his wife and daughter condoms - they won't get STDs if raped by the local thugs. And some kinky lingerie - hopefully they can seduce the thugs into not burning them alive.

And Freder is hurt that the rest of us mock his expert advice re home security and The Law.

Fen said...

And just like the United Nations, the local DC police and EMTs can't be counted on to even respond to a 9-11 call, mcuh less arrive in time to stop anything.

Maybe Freder will leave some extinguishers outside for them to put out the fire when they eventually arrive.

Revenant said...

I love your attitude. After all, why learn historical fact when you can be smug and self-righteous?

RC, when a person tells me that adult American citizens (coincidentally all Japanese) were interned not because of their ethnicity, but because of their nationality (which was "American"), being smug is the only reaction that makes sense. After all, it is an objective fact that the person saying that is an idiot.

It is certainly true that some -- a little over a third -- of the 110,000 internees were foreign nationals, almost exclusively because they had been legally barred from becoming citizens by the (then) pathologically racist United States federal government. But the simple fact of the matter is that the native-born, English-speaking adult Americans got thrown into the same camps that the foreign-born Emperor-worshipping minority did. Because, like I pointed out, and like all serious historians acknowledge, the internment was based on ethnicity -- not nationality.

1) JA's were not interned in Hawaii.

Which, of course, proves that the internment wasn't about security. The government let just under 150,000 Japanese live free right smack next to our major naval base -- one which the Japanese had attacked. But third-generation Americans living in San Francisco got thrown into camps. That's exactly the opposite of what would have happened if security was the real concern.

2) During the war 6,000 JA's refused to confirm their allegiance to the the USA and renounced their US citizenship. They returned to Japan after the war.

Wow, 5% of them refused to pledge allegiance to the country that stripped them of their basic human rights and forced them from their homes? And then they -- gasp! -- *left* that country once they were able to? That IS shocking!

MOst JA's had left the Camps by June 1944 and had found work off the Pacific coast. Most of those who stayed in the camps did so voluntarily.

And your point is? The "evacuation" happened in early 1942. Yeah, things got better a few years later. So what?

4) More German-Americans and Italian-Americans were put in camps than JA's.

I'll generously assume you're actually stupid enough to believe that, rather than deliberately lying. Only a handful of American citizens of German or Italian extraction (i.e., "German-Americans" and "Italian-Americans") were interned. In contrast, 62% of the Japanese internees were US citizens.

Revenant said...

As a Charter, it is a constituent treaty, and all members are bound by its articles. Furthermore, the Charter states that obligations to the United Nations prevail over all other treaty obligations.

The Charter can say whatever it wants, but it cannot be superior to the US Constitution. The section of the Constitution you cited states that. Treaties have equal weight with US law, and can be modified by Congress passing new laws.

So if a treaty says "you have to listen to the UN" and Congress passes a law saying "the UN can kiss our ass, we're doing whatever we want", Congress wins. That's simplified a little, but not much.

Robert Cook said...

"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."

U.S. Constitution, Article VI, paragraph 2

Seven Machos said...

Robert -- I''m sure you don't realize this, but you just bolstered Rev's argument with your boldfacing. The issue in that part of the Constitution is U.S. federal law trumping individual state law.

You really should read carefully what you copied and pasted. You could gain some real insight into federalism.

Robert Cook said...

Sorry, SM, I don't see your point. Article VI, Paragraph 2 stipulates that treaties to which we are signatories become the law of the land. By signing on to the the UN Charter--which we have not formally voided or separated ourselves from--we are bound by its obligations, among them, that we will not engage in wars of aggression. (We are also signatories to the Geneva Conventions, which we have violated with our treatment of detainess, and we were instrumental in devising the Nuremberg Principles, which declare "wars of aggression" to be the supreme war crime, as all other war crimes proceed from the initial aggression.)

That there is apparently no mechanism in place at this time to enforce these prohibitions does not make our act of unprovoked aggression against Iraq any less a violation of the charter and of international law. (Legal experts are now pointing out the dangers to members of this administration to traveling abroad, as they may be subject to arrest and prosecution for war crimes.)

Do you propose that laws that cannot be practically enforced may be happily ignored? Do you find nothing wrong with our having murdered and imprisoned and grievously wounded thousands of Iraqi citizens in their own land, for no reason? Do you find no crime in our invasion having resulted in millions of Iraqis becoming homeless refugees? Do you feel no horror that, in the name of an undefined "war on terror" we have become terrorists and torturers?

Simon said...

Robert, let's try it this way: do you argue that the AUMF's authorization for the President to conduct military operations in Iraq is consistent with the United Nations Charter?

Revenant said...
"Wouldn't Biden's opinion carry a lot of weight in terms of Congressional intent, even if the man himself is a twit? I know you don't place much weight on intent, but it seems to me that the intended purpose of the resolution was VERY well understood at the time."

Well, the inquiry (to my mind, at least) is the one quoted in my 7:17 PM comment above - how would a reasonable person, in the context of the time, understand the text of the legislation? If we split the atom and privelege the understanding of a reasonable member of Congress over that of an ordinary person, we're still looking for an understanding that orbits the text rather than any private intent, so Biden's comments are only any use to the extent that they comport with what a reasonable legisltor would have thought. As it happens, I agree with you - it seems to me that the clear understanding of the text at the time was that it did exactly what it purported to do: it authorized the use of military force in Iraq.

Seven Machos said...

Robert -- We've been down this road before.

Yes, laws that cannot be practically enforced may be happily ignored. Without question. An apparatus for enforcement is the single most critical aspect of any law. The word "power" is another word for that aspect.

No power, no law.

Robert Cook said...

Simon said,

"Robert, let's try it this way: do you argue that the AUMF's authorization for the President to conduct military operations in Iraq is consistent with the United Nations Charter?"

No, it's in violation of the UN Charter, as it authorizes us to attack a nation that was not threatening us...there was no self-defense necessity. Morever, the UN Security Council did not approve our military aggression against Iraq. (Such approval is only unneccessary where compelling self-defense needs exist, which, to repeat, they did not in this case.)

As to SM's proposal that an extant law may be ignored without concern simply because there may be no practical enforcement mechanism, at least he's honest in his support for lawlessness. However, ignoring a law does not make it disappear, so, whether penalties may ever be imposed or not, we have violated international law in our attack on Iraq...we are an outlaw nation. (This doesn't even get into our crimes of torture and illegal imprisonment, etc.) However, as I pointed out, there are lawyers out there now pointing out that members of the Bush administration may potentially be subject to arrest and prosecution for war crimes if they travel abroad; Rumsfeld had to exit France rather swiftly a few months ago just to avoid that possibility.

Simon said...

Robert,
Okay, now we're getting somewhere. You concede that the AUMF is in irreconcilable tension with the U.N. Charter (the latter being applicable to the United States because of our ratification of a treaty). Treaties and federal statutes have equal authority under the Supremacy Clause, as you pointed out earlier.

I would hope you'll also concede that Congress can abrogate a treaty. Presupposed by all sides in the question of whether the President can abrogate a treaty without Congress, see Goldwater v. Carter, 444 U.S. 996 (1979), is the power of Congress to do so by statute. That power has been exercised since the early republic, see, e.g. 1 Stat. 578 (1798) (abrogating Franco-American treaties of 1778).

And, obviously, the AUMF is a more recent enactment than the treaty.

Now, with the foregoing in mind: It is long established that leges posteriores priores contrarias abrogant - when two legal texts made under the same authority are in irreconcilable tension, the more recent prevails. That is, if Congress makes two statutes, and they clash, the more recent will be given effect by courts. This is so even if Congress doesn't realize what it's doing.

Given that it's incontestable that Congress can abrogate a treaty, and given that, by your own concession, the more recent AUMF is inconsistent with the earlier U.N. Charter, how do you propose to escape the dictate of the last in time rule? Do you have a way to Charming Betsy your way out of this - an alternative reading of the AUMF that is reasonable but which doesn't conflict with the U.N. charter? If not, what's your argument - or what authority can you cite - that the last in time rule doesn't apply?

Robert Cook said...

Simon,

As I pointed out earlier, the United States has not disavowed--or formally abrogated--our treaty obligations with the UN Charter. That would involve, I presume, our removing ourselves as a member nation of the United Nations. We certainly cannot remain and pretend to be a lawful member of the UN if we decide unilaterally when we are going to abide by its charter and when not.

Rather, Bush has put forth the argument--only AFTER failing to get UN Security Council approval for his war of aggression against Iraq--that Res. 1441 gave him the authority to invade Iraq, which, of course, it did not. In short, Bush recognizes, and thus pretends to observe, the authority of the UN Charter as it relates to the military actions of its member nations.

Simon said...

Robert, I should note at the outset that, while I continue to disagree with you, I appreciate your willingness to hang out and throw this fascinating subject back and forth. With that said:

"Rather, Bush has put forth the argument--only AFTER failing to get UN Security Council approval for his war of aggression against Iraq--that Res. 1441 gave him the authority to invade Iraq, which, of course, it did not."

The President didn't need authority from Res. 1441 to use the Armed Forces of the United States against Iraq: he has it from § 3 of the AUMF (i.e. Pub. L. 107-243). Since the President was acting "pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. ... If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A[n action] ... executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it." Youngstown v. Sawyer, 343 U.S. 579, 635-7 (1952) (Jackson, J., concurring) (footnote ommitted).

Two questions, then, present themselves: did the AUMF authorized Bush's actions? And, did Congress had authority to pass the AUMF?

Stipulating the former (it'd be hard to argue that it didn't), it seems to me that you're left to claim that Congress lacked authority to authorize the President to use military force against Iraq because of the requirements of the U.N. Charter. The assumption that must underpin that argument, I would think, must be the surprising claim that treaties have superior force to statutes. And I don't know whence you draw authority for that; certainly not the Supremacy Clause, which establishes a vertical hierarchy between state and federal law, not a horizontal hierarchy between sub-constitutional federal law. Is it your position that Congress can't abrogate a treaty by statute?

Similarly surprising is what I take to be your proposition that, even though we both agree that the U.N. Charter and the AUMF are in irreconcilable conflict, the last in time rule doesn't apply because AUMF does not explicitly "disavow[] ... or formally abrogate[]" the earlier treaty. It's true that the canon of construction that "repeals by implication are not favored" approaches the status of a "cardinal rule" of statutory construction, Posadas v. National City Bank, 296 U.S. 497, 503 (1936), and that "[i]nferring repeal from legislative silence is hazardous at best," Cook County v. United States ex rel. Chandler, 538 U.S. 119, 132 (2003), nevertheless, even at its zenith, that rule amounts only to this: "[w]here there are two acts upon the same subject, effect should be given to both if possible." Posadas, supra at 503. It is "well-settled ... [that, w]here provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one...." Ibid.

You stand by your earlier acceptance of the irreconcilable conflict between what the AUMF authorizes and what the U.N. Charter forbids, I presume. If so, it seems to me that you're left to argue one of two points, both of which would seem novel: either the traditional rules of statutory construction are wrong, or that those rules are inapplicable because treaties are of superior rather than parallel (at best) authority to federal statutes. Whatever else it does, the Supremacy Clause certainly doesn't support that result, for reasons noted above. I'd like to hear your argument for whichever you're advancing, or if there's another argument I've missed, I'd sincerely like to hear it.

Robert Cook said...

Simon,

That's not much more I can add here...I stand by my last post. The AUMF, in my view, is not an abrogation or termination of our obligations under the UN Charter, but simply a violation of it.

If Congress or the President wish to take the position that the AUMF is a formal abrogation of our treaty requirements under the UN Charter, they should--and I believe they would--state so. I imagine, as I said, this would require that we withdraw from the United Nations, as, our maintenance of membership implies continued agreement with all obligations placed upon member nations.

Given that prevention of war among world nations was one of the principle motivations driving the organization of the UN, we can hardly "abrogate" this essential obligation on us as a member nation and yet pretend to be in accordance with the organization as a whole. In short, we're either a member nation of the UN, and we must abide by all obligations of the charter, or we are no longer a member nation of the UN.

Michael said...

Game, set, match Simon.