Bruce Fein
Constitutional Lawyer and Author

The United States Supreme Court should recognize the standing of citizens to challenge the constitutionality of presidential wars. It is our last best hope to regain the Republic. Over the past century, we have become dictatress of the world through a toxic combination of presidential usurpations and congressional derelictions. Our glory is no longer liberty, but domination and force.
In addressing war, the Constitution’s makers painted in prime colors, not pastels or chiaroscuro. Every participant in the drafting, debating, and ratifying of the document understood that under Article I, section 8, clause 11, only Congress was empowered to cross the Rubicon from a state of peace to war. The sole exception was presidential power to “repel sudden attacks.” Presidential wars were anathema for reasons James Madison, father of the Constitution, related to Thomas Jefferson, author of the Declaration of Independence:
“The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature.”
Even Alexander Hamilton, the most ardent proponent of a muscular presidency, in Federalist 69 applauded the Constitution’s exclusive entrustment of the war power to Congress.
Despite the constitutional clarity, Congress has yielded or surrendered its war power to the President. It began with the Korean War in 1950. The surrender has not divided the major parties. Both Democrats and Republicans in the House and Senate recoil from the responsibility for deciding on war or peace in the manner of a dog retreating to its kennel when danger appears. The Members are highly risk-averse professional politicians. They calculate that the safest political posture is to pass the buck to the President, but carp at the commander in chief if the war goes south—irresponsibility more to be marveled at than imitated.
At present, presidential wars are ongoing in seven countries: Somalia, Yemen, Libya, Syria, Iraq, Afghanistan, and Pakistan. There are additional presidential wars against the Islamic State of Iraq and Syria (ISIS) and al-Qaeda everywhere on the planet.
Congressman Walter Jones (R-N.C.), on behalf of himself and as many as three dozen other House Members, has written at least five (5) letters to the House Speaker asking for debate and votes on these presidential wars. Each and every letter has been completely ignored. Congressional leadership does not want a vote. Neither does the majority of the rank and file.
In 2013, Congress balked at President Barack Obama’s request for a vote to commence war against Syria over suspected use of chemical weapons. But in September 2014, President Obama unilaterally began bombing Syria anyway ostensibly to degrade and destroy ISIS in a war with no discernable endpoint. Congress did nothing about the presidential usurpation.
In 1999, Congress voted down a declaration of war and an authorization for the use of military force in Kosovo. President William Jefferson Clinton, nevertheless, conducted a 79-day bombing and cruise missile campaign. Congress did nothing to defend its war prerogative.
The eagerness of Congress to surrender its war power to the President does not cure the flagrant violation of the Constitution’s separation of powers. It constitutes a structural Bill of Rights to protect the American people from tyranny. The Supreme Court said as much in Boumediene v. Bush (2008). Justice Robert Jackson, chief Nuremburg prosecutor, also elaborated in Youngstown Sheet & Tube v. Sawyer (1952) that, “[T]he Constitution diffuses power the better to secure liberty.”
Since Congress is in pari delicto with the President, however, the best strategy for enforcing the Constitution’s prohibition of presidential wars is citizen suits against the President in federal courts. According to the Declaration of Independence, citizens have both a right and duty to throw off despotic governments. A citizen’s right to challenge the tyranny of presidential wars in federal court seems a lesser included right.
The life of the law, however, has been power rather than justice. Legal theories bend to accommodate the establishment—the power elite. Federal courts have generally denied citizens standing to challenge the constitutionality of presidential wars to avoid upsetting the multi-trillion dollar military-industrial-counterterrorism complex. Chief Justice Charles Evans Hughes lectured that, “The power to wage war is the power to wage war successfully.” It matters not that the war is more ill-conceived than Athens self-ruinous attack on Syracuse in 415 B.C.
But the precedents against citizen standing are unconvincing.
The United States Supreme Court declared in Flast v. Cohen (1968) that the gist of the question of standing is whether the party seeking relief has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.
Citizen-Plaintiffs clearly have deep personal stakes in escaping the calamities of presidential wars not in self-defense.
War impoverishes and oppresses the citizenry. Abraham Lincoln elaborated: “The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.”
The presidential wars in Iraq and Afghanistan alone have squandered a staggering $6 trillion in exchange for more upheaval and international terrorism—the worst investment ever made in the history of mankind. The lives of Americans would have been much improved if that sum had been dedicated to building or upgrading schools, roads, bridges, airports, water treatment facilities, or other infrastructure.
War aggrandizes executive power and crushes individual liberty. A nation is free to the extent the executive is removed from the war power. James Madison explained:
“In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man; not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered; and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.
Hence it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war: hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence.”
Alexander Hamilton added in Federalist 8:

“Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.”
And Alexis de Tocqueville echoed in Democracy in America:

“All those who seek to destroy the liberties of a democratic nation ought to know that war is the surest and the shortest means to accomplish it.”

Thus, presidential wars against which Madison warned have crippled liberty. The President plays prosecutor, judge, jury, and executioner to kill any person on the planet the Commander in Chief decrees is an imminent danger to national security based on secret, unsubstantiated evidence. On his say-so alone, the President spies on the entire population to gather foreign intelligence. Military commissions supersede Article III civilian courts in the prosecution crimes that are not international war crimes. Persons are detained indefinitely without accusation or trial. Secrecy displaces transparency in the conduct of public affairs. The President invokes state secrets to frustrate judicial redress for the constitutional wrongs of government, including assassinations, torture, and kidnappings.
Cicero was right. “In time of war, the law falls silent.” Perpetual presidential wars signal the end of the rule of law and the reduction of citizens to serfs.
War further endangers citizens by risking lethal blowback. The 9/11 international terrorist murders can be traced to President George H.W. Bush’s war in 1991 war to expel Iraq from Kuwait. The President’s ulterior motive was to protect Saudi Arabia and its oil from the clutches of Iraq’s Saddam Hussein. Thus, our troops remained in Saudi Arabia after Saddam had surrendered.
Osama bin Laden’s two fatwas before 9/11—in 1996 and 1998—threatened the United States with jihad because we were occupying Mecca and Medina in Saudi Arabia, the two holiest places of Islam, and we were strangling Iraq. The fatwas said nothing about hating the freedoms American citizens enjoy.
The Orlando Pulse nightclub murderer suggested at several points in communicating with the police that his motivation was to stop the United States from killing Muslim women and children in Syria and Iraq.
The most convincing evidence of blowback fueled by our multiple presidential wars in the Middle East and South Asia derives from exchanges between United States District Judge Miriam Cederbaum and convicted Times Square bomber Faisal Shahzad, a Pakistani-American.
Judge Cedarbaum asked whether Mr. Shahzad intended the bombs to explode. Oh yes, Shahzad told her. He explained that he chose Times Square on a Saturday night so he could maximize the mayhem: “Yes. Damage to the building and to injure or kill people. But again, I would point out one thing in connection to the attack, that one has to understand where I’m coming from, because this is... I consider myself a mujahid, a Muslim soldier. The US and the NATO forces, along with 40, 50 countries, has attacked the Muslim lands. We...”
Cedarbaum interrupted: “But not the people who were walking in Times Square that night. Did you look around to see who ‘they’ were?”
Shahzad: “Well, the people select the government. We consider them all the same. The drones, when they hit...”
Cederbaum: “Including the children?”
Shahzad: “Well, the drone hits in Afghanistan and Iraq, they don’t see children, they don’t see anybody. They kill women, children, they kill everybody. It’s a war, and in war, they kill people. They’re killing all Muslims.”
Cederbaum: “Now we’re not talking about them; we’re talking about you.”
Shahzad: “Well, I am part of that. I am part of the answer to the US terrorizing the Muslim nations. I’m avenging the attacks because the Americans only care about their people, but they don’t care about the people elsewhere in the world when they die.” 

Recognizing citizen standing to challenge presidential wars and entering a declaratory judgment against one or more presidential wars would end the Supreme Court’s role in holding the President accountable for the usurpations. If voluntary compliance with the Court’s decree was not forthcoming, the responsibility would lie with Congress to impeach and convict the President of the high crime and misdemeanor of defying the ruling, and remove the President from office.
We can ask no more or less from the judicial branch.

Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq

Original: Huffington Post

Bruce Fein
Constitutional Lawyer and Author

Whoever wins the presidency on November 8, Congress should shut down the government, except for essential military or law enforcement personnel, on the first day after the 2017 inaugural unless and until the new President restores the Republic by doing the following:
1. Immediately end multi-trillion dollar presidential wars that have not been declared by Congress as required by Article I, section 8, clause 11 of the Constitution. That means, among other things, ceasing the offensive use of the military to fight wars in Afghanistan, Iraq, Syria, Yemen, Libya, Somalia, and against the Islamic State of Iraq and Syria (ISIS).
All United States military personnel should be withdrawn from these war zones for redeployment back home to protect Americans against foreign aggression as the Constitution envisions. To demonstrate that fighting wars only in self-defense does not subtract from our respect for the military, all rank-and-file soldiers should be given pay raises concurrently with the ending of all presidential wars.
James Madison, father of the Constitution, explained: “The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature.” Congress has declared war but five times in 227 years, and only in self-defense when the United States had been attacked or believed it had.
2. Immediately renounce the claimed and exercised limitless presidential power to play prosecutor, judge, jury, and executioner to kill American citizens suspected of endangering the national security based on secret, unsubstantiated evidence shielded from external review. We fought the Revolutionary War to overthrow a lesser tyranny practiced by King George III.
3. Immediately revoke Executive Order 12333, which authorizes the warrantless surveillance of Americans for foreign intelligence purposes. The Foreign Intelligence Surveillance Act, 50 U.S.C. 1809, makes criminal electronic surveillance under color of law except as authorized by statute. An executive order is not a statute. The privacy of citizens is too important to be left to the President alone.
4. Immediately submit the Joint Comprehensive Plan of Action (JCPOA), which seeks to restrain Iran’s nuclear ambitions, to the Senate as a treaty requiring a two-thirds majority for ratification. At present, the JCPOA is an unconstitutional executive agreement. The sole reason it was not submitted as a treaty, according to Secretary of State John Kerry’s testimony before the House Foreign Relations Committee, was “[b]ecause you can’t pass a treaty anymore.” Alexander Hamilton explained in Federalist 75 that the President cannot be trusted with international commitments: “An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.”
5. Immediately renounce the giving of diplomatic, economic, military, or other assistance to foreign countries in exchange for their funding international endeavors that Congress has not approved. Such cynical maneuvers evade the congressional power of the purse—an invincible instrument for preventing or remedying executive abuses. James Madison amplified in Federalist 58: “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”
The United States stands at the precipice of executive tyranny. If Congress fails to arrest limitless presidential power, the Minutemen sacrifices at Lexington and Concord will have been in vain. History is watching Members of Congress to separate the courageous from the cowardly. A Member who recoils at defending shutting down government as a justified price for restoring the Republic will be execrated by posterity.

Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq

Original: Huffington Post

Bruce Fein
Constitutional Lawyer and Author

House Speaker Paul Ryan should be removed for dereliction of constitutional duty and should be replaced by Congressman Thomas Massie (R-Kentucky). 
He has prevented and continues to prevent Members of Congress from discharging their constitutional obligation to decide under Article I, section 8, clause 11 whether the nation should resort to war against the Islamic State of Iraq and the Levant (ISIL).
The President’s unconstitutional unilateral belligerency against ISIL currently spans seven nations— Syria, Iraq, Yemen, Afghanistan, Nigeria, Pakistan, and Libya. It is approaching its second anniversary with not even a glimmer of light at the end of the tunnel. It might last forever.
On November 6, 2015, 35 House Members wrote Speaker Ryan urging him to direct committees of jurisdiction to draft and report out an Authorization for the Use of Military Force (AUMF) against ISIL for debate and a floor vote. The Members elaborated: “Congress can no longer ask our brave service men and women to continue to serve in harm’s way while we fail in carrying out our constitutional responsibility in the area of war and peace.”
Speaker Ryan sneered at the request, and did nothing. On June 14, 2016, another letter was sent by four Members to the Speaker reiterating the constitutional urgency of an AUMF debate and floor vote on a two-year old war already implicating seven nations. Speaker Ryan again has refused to act.
He prefers playing carping spectator to President Barack Obama’s unconstitutional war against ISIL than to take responsibility for sending our armed forces abroad to risk that last full measure of devotion on a fool’s errand—-like the Vietnam War. There may be better examples of contemptible Speaker cravenness, but if there are, they do not readily come to mind.
The Constitution’s crown jewel is the exclusive entrustment to Congress of the power to authorize the initiation of war—a decision that dwarfs all others in national importance. War not only makes mass murder legal, but endows the President with limitless power dangerous to the Republic. James Madison, father of the Constitution, explained:
“In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man; not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.”
During the constitutional convention and the state ratification debates, only South Carolina delegate Pierce Butler questioned Madison’s profundity. But he quickly recanted his doubts. Chief Justice John Marshall thus authoritatively wrote in 1804 without dissent: “[I]t is for Congress alone to decide for war.”
The Constitution’s architects were long-headed. Presidential wars— invariably fueled by inflated fears—are either ruinous or otiose. The Korean War, the Vietnam War, the ongoing wars in Afghanistan, Iraq, Syria, Yemen, Somalia, Libya, Pakistan, and against Al Qaeda and ISIL are exemplary. After spending trillions of dollars on warfare since 9/11, our intelligence “experts” maintain that the international terrorist danger to the United States is undiminished if not greater.
Presidential wars might be likened to searching abroad for hornets’ nests to burst open and then demanding trillions in military spending to fight the furious hornets we provoked. Depend upon it. If Congress remains pusillanimous and idle, Presidential wars against China and Russia will be initiated within a decade or two.
Speaker Ryan has acquiesced in if not encouraged President Obama to steal the Constitution’s crown jewel from Congress. He has blocked Members seeking both to prevent the President’s theft, and to restore the stolen goods. These are crimes against the Constitution which compel a House Resolution declaring the Speakership vacant.
Congressman Massie is made of sterner and wiser stuff than Speake Ryan, and should be elected to replace him.

Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq

Original: Huffington Post

Bruce Fein
Constitutional Lawyer and Author

House Speaker Paul Ryan, Wisconsin Republican, should resign.
He has flouted his constitutional oath to defend the Constitution of the United States. He has surrendered the supreme national security and oversight powers of Congress to President Barack Obama without fighting a single battle.
Exemplary was the speaker’s embrace of the House Republican Task Force Report on National Security released on June 9, 2016. The report concedes limitless presidential authority over national security.
It concedes unchecked executive power to initiate gratuitous trillion dollar wars; to play prosecutor, judge, jury and executioner to kill American citizens based on secret, uncorroborated evidence; to conduct dragnet surveillance of the entire population for foreign intelligence purposes; to circumvent the Treaty Clause through executive agreements; to thwart congressional oversight by classifying congressional documents; and, to prevent judicial redress for unconstitutional executive branch assassinations, torture, or kidnappings.
The limitless executive power endorsed by Speaker Ryan is more alarming than King George III’s oppressions that provoked the American Revolution in 1776.
Philosopher George Santayana instructed that, “Those who do not remember the past are condemned to repeat it.” Speaker Ryan, like most members of Congress, is clueless about the past — and thus is facilitating its repetition.
In 44 B.C., the Roman Senate surrendered its constitutional powers to Julius Caesar, making him a dictator. Domestic convulsions, permanent war, bankruptcy, the death of liberty, and the sacking of Rome by the Visigoths ensued. The decline and fall of Republics triggered by limitless executive power has repeated itself for thousands of years. James Madison, father of the Constitution, wrote in Federalist 47 that the combination of legislative, executive and judicial power in a single official was the “very definition of tyranny.” Thomas Jefferson amplified, “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”
The Executive Branch sports a kinetic, belligerent personality that dominates the personality of any White House occupant. The executive constantly concocts justifications for war by logarithmically inflating danger for ulterior motives: to aggrandize power; to substitute secrecy for transparency to evade accountability; to bloat military and intelligence budgets; and, to leave a legacy of world domination or control. The result is a foreign policy that routinely employs bayonets to smash hornets’ nests abroad and then expends trillions to fight the angry hornets the military attacks created.
The Executive Branch’s perpetual, global war against radical Islam is illustrative. For two centuries, the United States and the Muslim world enjoyed at least peaceful co-existence. The Barbary Wars over the payment of tribute to Muslim rulers as a condition of trade in the Mediterranean was the exception.
Chronic conflict emerged after World War II when the United States sought to manipulate Middle East or North African Muslim nations in furtherance of an American Empire. Our gratuitous interventions over decades in supplying material support to hated regimes provoked popular anger and resentment in the Muslim world that we are now witnessing, i.e., blowback.
We orchestrated the overthrow of Iranian Prime Minister Mohammed Mossadegh in 1953. We helped organize the Central Treaty Organization in 1955 whose members included Iraq, Iran, Pakistan, Turkey, and Great Britain. We sought to undermine Egyptian President Gamal Abdel Nasser in 1956 by withdrawing support for the Aswan Dam. We dispatched troops to Lebanon in 1957. We sided with Libya’s King Idris over Col. Muammar Gaddafi in 1969. We became an arsenal of Muslim dictators, including the Shah of Iran and Saudi Arabian Kings.
We aided Iraq’s Saddam Hussein in his 1980-1988 war against Iran. We deployed marines to Lebanon in 1982. We fought the first Persian Gulf War in 1991 to reinstate a dictatorial Kuwaiti dynasty. We maintained troops in Saudi Arabia until 2003 to fortify a religiously bigoted and tyrannical regime. At present, we are engaged in military conflict in Libya, Somalia, Syria, Iraq, Yemen, Afghanistan, and against al Qaeda or the Islamic State of Iraq and the Levant (ISIL).
Speaker Ryan’s task force report ignores this arrogant and belligerent history of Executive Branch provocations in the Middle East and North Africa which Congress could end at any time through the power of the purse or otherwise.
All that is necessary for the triumph of executive tyranny is for Congress to do nothing. That is why Speaker Ryan needs to depart.

Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq
Original: Huffington Post