Five American Foreign Policy Myths
Constitutional Lawyer and Author
Five American foreign policy myths are generated in the corridors of power to elicit popular support and lavish congressional funding for the multi-trillion dollar military-industrial-counterterrorism complex.
MYTH 1. We actively oppose non-democratic nations.
Not only does our foreign policy underwrite a cavalcade of dictatorial-authoritarian regimes, we often prefer them to democratic dispensations. Among other things, in 1953, we overthrew the democratically elected prime minister of Iran, Mohammed Mossadegh, in favor of the dictatorial Mohammed Reza Shah Pahlevi. In 1954, we overthrew Guatemalan President Jacobo Arbenz in favor of genocidal military dictators. In 1965, we intervened militarily in the Dominican Republic to block the restoration to power of democratically elected President Juan Bosch. In 1973, we intervened in Chile to orchestrate the overthrow and killing of democratically elected President Salvador Allende in favor of the murderous dictator Augusto Pinochet. From 1976-1983, we encouraged military dictatorship in Argentina featuring grisly human rights violations at the expense of democracy.
The United States routinely supports dictatorial or oppressive regimes with weapons sales or financial assistance. We have approved approximately $90 billion in weapons sales to the religiously bigoted, misogynistic, anti-democratic, anti-Semitic Saudi Arabian government since 2010 alone. We have also approved billions of dollars in weapons sales to the Persian Gulf statelets ofQatar, the United Arab Emirates, Bahrain, Kuwait, and Oman, all of which exhibit contempt for fundamental human rights. In 2011, Saudi Arabia dispatched troops to Bahrein to suppress a popular uprising against a tyrannical, sectarian Sunni regime while the Fifth Fleet of the United States Navy stood by.
We support the Jordanian monarchy, Egypt’s military dictatorship, an ousted Yemeni dictator, a growing authoritarian government in Turkey, a tribal tyranny in Ethiopia, and a military dictatorship in Thailand.
We support regimes that assist our foreign policy objective of global domination irrespective of their democratic credentials. The basic idea is well illustrated by two quotations. President Franklin Roosevelt reputedly said about Nicaraguan dictator Anastasio Somoza, “He may be a son-of-a-bitch, but he’s our son-of-a-bitch.” And French Prime Minister Georges Clemenceau acerbically remarked about President Woodrow Wilson at the Paris Peace Conference: “He speaks like Jesus Christ, but he acts like [British Prime Minister] Lloyd George.”
MYTH 2. The United States knows how to make countries embrace democracy; and, we will succeed in giving birth to democratic dispensations if we employ sufficient financial or military leverage.
The infinitely complex elements of democracy have been mastered by only a handful since the beginning of time. It took the unique mind, scholarship, and political experience of James Madison to produce a “Miracle at Philadelphia” in 1787, i.e., the United States Constitution. The British needed six centuries after Magna Charta before monarchy was replaced by responsible government.
Despite substantial financial or military leverage, we failed to introduce viable democracies or reasonable facsimiles in South Vietnam, the Arab Middle East, Somalia, Libya, South Sudan, Egypt, Afghanistan, Cuba, Haiti, and Azerbaijan, among other nations. We have been unable to prevent the loss of Turkey’s democratic trappings.
Democracy in post-World War II Germany and Japan do not disprove the myth. Prior to World War II, both countries had embraced building blocks of democracy and the rule of law during the Weimar Republic and Meiji Restoration, respectively. Both countries exhibited a homogenous culture and self-identity necessary before tribalism can be rendered subservient to national loyalties. The United States needed little leverage or genius to return Germany and Japan to their democratic paths after the war concluded.
Neither do the cases of South Korea or Taiwan contradict the myth. In the former, we supported three decades of authoritarian rule under Syngman Rhee, Park Chung Hee, and Chun Do Hwan before democracy was flowered at the demand of the South Korean people. We had delayed South Korea’s democratic flowering by approving of the military’s bloody suppression of the 1980 Kwangju uprising. In Taiwan, we supported the military dictatorship of Chiang Kai-Shek from 1949-1975. Taiwan slowly segued into a democracy by popular demand over the next two decades under the hand of the dictator’s son, Chiang Ching Kuo. The culmination was the direct election of President Lee Teng-hui in 1996. In the interim, the United States ceased recognition of Taiwan in favor of the more ruthless and dictatorial People’s Republic of China. The United States did not accelerate, but delayed Taiwan’s indigenous embrace of democracy by our unwavering support for the military dictatorship of Chiang Kai-Shek for twenty-five years.
MYTH 3. The United States is saddled with a moral or legal obligation to undertake “humanitarian” wars to prevent large-scale killings or genocide in foreign lands.
The only moral obligation of the United States Government is to advance the interests of its citizens who pay the taxes, obey the laws, and fight necessary wars in self-defense. The USG has no moral obligation to assist any foreigners unless we are responsible for their plight.
In the 1930’s alone, Soviet dictator Joseph Stalin killed at least thirteen to fifteen million opponents—more than twice the number of Holocaust victims. The United States stood idly by without provoking either moral or legal rebuke. Approximately 65-70 million Chinese were killed under Mao Zedong’s dictatorship while the United States like all other nations and the United Nations did nothing. It has never been suggested that a “humanitarian” war against Mao was a moral or legal imperative.
Not a word in the United States Constitution or international law that supports a United States obligation to send its citizens abroad to risk that last full measure of devotion to save foreigners from killing or abuse by their own governments or peoples. Foreigners owe us no loyalty and pay us no taxes. If there were such an obligation, we would be compelled to commence multiple wars immediately with Russia over Chechens, China over Tibetans and Uighurs, Burma over the Rohingya, the Democratic Republic of the Congo over tribal and ethnic killings which have surpassed 6 million, South Sudan for the massacre of non-Dinka tribes, Nigeria for brutalizing Christians and Biafrans, and North Korea for starving or otherwise oppressing its entire population. Humanitarian wars frequently kill more lives than are saved, as with our military interventions against Libya in 2011 and Somalia in 1992.
United States citizens who feel morally compelled to attempt the prevention of mass killings abroad are free to risk their lives or money towards that end in the manner of the 3,000 Americans who fought for the Loyalists against General Francisco Franco in the Spanish Civil War, 1936-1939 under the banner of the Abraham Lincoln Brigade.
“Humanitarian” war is an oxymoron. All wars make legal what would otherwise be first degree murder, which can never be humanitarian.
MYTH 4. The Nuclear Non-Proliferation Treaty is a moral or legal cornerstone of international peace and security.
The NPT reflects an international legal order in which the strong do what they can and the weak suffer what they must. It crowns five (5) nations with the exclusive rights to develop, possess, and deploy nuclear weapons: the United States, Russia, China, Britain, and France.
The five were not selected because of a demonstrated superiority in international morality or justice. The United States is the only nation that has ever used nuclear weapons. The United States and the Soviet Union brought the world to the edge of nuclear destruction during the 1962 Cuban Missile Crisis. China’s Mao Zedong blithely remarked in 1957: “I’m not afraid of nuclear war. There are 2.7 billion people in the world; it doesn’t matter if some are killed. China has a population of 600 million; even if half of them are killed, there are still 300 million people left. I’m not afraid of anyone.”
During the Korean War, General Douglas MacArthur requested authority to use atomic weapons. He explained that he would drop 30-50 atomic bombs across the neck of Manchuria, and spread a belt of radioactive cobalt from the Sea of Japan to the Yellow Sea to insure that for 60 years there would be no land invasion of Korea from the North.
The United States, Russia, Great Britain, China, and France were the only nuclear-weapons states when the NPT was negotiated. They wished to maintain that military advantage over the rest of the world. Under the NPT, all non-nuclear weapons states are forced to assume a risk of nuclear obliteration that nuclear-weapons states do not. That asymmetry emboldens rather than discourages adventurism by the latter.
The key peace provision in the NPT has been flouted. Article VI requires nuclear-weapons states “to pursue negotiations in good faith...on a Treaty on general and complete disarmament under strict and effective international control.” No such negotiations have been forthcoming for nearly 50 years.
The NPT as an instrument of international peace is further weakened by Article VII’s authorization to withdraw upon three months’ notice. North Korea exercised this option in 2003, and is currently estimated to possess 10-15 nuclear warheads. Moreover, Israel, Pakistan, and India never signed the NPT, and have developed substantial nuclear arsenals.
In sum, the NPT is only an ornamental barrier to nuclear weapons proliferation.
MYTH 5. The United States is an indispensable nation. We are compelled by providence to play the role of world leader.
This is national narcissism at its apex, a modern version of “Manifest Destiny” that ignited the Mexican-American War and the slaughters of Native American Indians.
In playing the role of “world leader,” the United States was responsible for millions of Vietnamese, Cambodian, and Laotian civilian deaths during the Vietnam War. We inflicted further devastation on millions more with indiscriminate use of Agent Orange.
In playing the role of “indispensable” nation” since 9/11, we have been responsible for at least 1.3 million Muslim deaths according to a study conducted the Physicians for Social Responsibility. On Hillary Clinton’s watch as Secretary of State, we turned Libya and South Sudan into Aceldamas. Our ongoing wars in Afghanistan, Iraq, Yemen, Syria, Somalia, and Libya have generated millions of refugees. On May 12, 1996, then Secretary of State Madeleine Albright, a soulmate of Hillary Clinton, callously declared on CBS’ “60 Minutes” sanctions against Saddam Hussein were “worth [the price]” of killing 500,000 Iraqi children.
Graveyards are filled with indispensable nations.
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Original: Huffington Post
August 29th, 2016
Constitutional Lawyer and Author
We should not be in the business of pledging to send our brave soldiers to risk that last full measure of devotion to defend Estonia, Latvia, or Lithuania from Russian aggression, or Croatia or Albania from Serbian attack. Their sole duty is to defend the citizens of the United States who pay their salaries and owe allegiance to the United States, which Estonians, Latvians, Lithuanians, Croatians, and Albanians do not. For that reason among others, the United States should invoke Article 13 of the North Atlantic Treaty Organization (NATO) to withdraw.
Our NATO membership contradicts the Constitution’s foreign policy of billions for invincible self-defense, but not one cent for Empire or entangling alliances. NATO was established in April 1949 not in self-defense, but to provide military protection to Europe (including the French colonial appendage in Algeria) and the world generally at the beckoning of the British Foreign Secretary Ernest Bevin. That Empire objective hearkened back to President Woodrow Wilson’s starry-eyed aim to make the world safe for democracy by employing United States military force under the League of Nations auspices to defend every border on the planet. President Harry Truman, in signing the NATO treaty, echoed Wilson: “By this treaty, we are not only seeking to establish freedom from aggression and from the use of force in the North Atlantic community, but we are also actively striving to promote and preserve peace throughout the world.” (Truman economized on the truth. Portugal, a founding member of NATO, was then governed by dictatorial Prime Minister Antonio Salazar.)
To reiterate, self-defense did not push us into NATO. In 1949, we were the most militarily and economically dominant nation on the globe. We enjoyed an atomic bomb monopoly, and Europe was militarily unified under the 1948 Brussels Treaty Organization. No invasion from any quarter was threatened—including from the Soviet Union. Even during the depths of World War II, neither the Wehrmacht nor the Imperia Japanese Army set foot on the continental United States. We joined NATO as part of a gratuitous, preoccupation with containing Soviet power no matter how irrelevant to protecting us from attack. It was no accident that our NATO membership was soon followed by President Truman’s unconstitutional Korean War, the overthrow of democratically elected Iranian Prime Minister Mohammed Mossadegh the overthrow of Guatemala’s President Jacobo Arbenz, executive agreements to defend Franco’s Spain, and the attempted assassination of Patrice Lumumba of the Democratic Republic of the Congo. These undertakings were calculated to check the Soviet Union.
Our NATO and post-NATO quest for Empire and global domination made a mockery of the bravery and sacrifices of Lexington and Concord in 1775. Our glory had previously been liberty, not world leadership whatever that means. Our march had previously been the march of the mind, not the march of the foot soldier. Our greatness had previously been a fair opportunity for every citizen to develop his faculties and to pursue his ambitions free from domestic or foreign predation. Our summum bonum had never previously been a multi-billion dollar military-industrial complex bestriding the world like a colossus chanting, “We are the chosen people.”
Suppose the Soviet Union had invaded Western Europe without NATO despite the BTO military alliance. That would not have disturbed the safety and security of the United States. Indeed, the invasion would have been a blunder which would have accelerated the disintegration of the Soviet Empire and weakened its ability to threaten us in the interim.. Conquests or occupations of hostile peoples weakens rather than strengthens the conqueror or the occupier, for example, Napoleon in Haiti or Spain, or the United States South Vietnam, Iraq or Afghanistan. .
The point may seem counterintuitive, and requires elaboration. Colonization, conquest or foreign occupation loses money for the national treasuries of the colonizer, conqueror, or occupier, although particular individuals or companies may be enriched by state-created monopolies or crony capitalism. The military costs of occupation and control of hostile populations dwarf any offsetting expropriation of property. Thus, post-World War II decolonization in Africa and Asia lifted economic albatrosses from Britain, France, and the Netherlands, among other nations. The fall of the Berlin Wall and the disintegration of the Soviet Union were precipitated substantially by the prohibitive costs of subsidizing and militarily occupying and controlling its Eastern and Central European satellites. The USSR was required to suppress a 1953 Uprising in East Germany, the 1956 Hungarian revolt, Prague Spring in 1968, the 1970-71 Uprising in Poland, and the Polish Solidarity Movement in 1981, among other manifestations of chronic foreign restiveness or resentment.
The costs of ruling over a hostile population are staggering. Russia, for instance, spent $30 billion from 2000-2010 to prop up its rule in the Muslim North Caucasus, including Chechnya Another $80 billion will have been forthcoming by 2025 for a population of only 9 million.
The Eastern and Central Europe and North Caucasus examples demonstrate that Soviet aggression against Western Europe after World War II would have weakened it and probably failed. In 1949, Western Europe was far stronger militarily than was the mujahideen that thwarted Soviet aggression in Afghanistan in 1979 or the North Vietnamese who defeated the United States in Vietnam. At that time, Europe had already united militarily under the BTO to defend itself. If the Soviet Red Army secured temporary victories, the military resources expended in the endeavors would nevertheless have lessened its ability to attack the United States in the same way that Operation Barbarossa in World War II lessened Hitler’s threat to Great Britain by squandering Third Reich military resources in fighting the Soviet Union.
Notwithstanding these truths, our overwhelming military victories in World War II fueled a psychology of Empire that found expression in NATO membership. The chief earmark of that psychology is world domination for its own sake—even when it promises self-ruination. NATO enabled the United States to dominate Western Europe. We were NATO’s torso, while the Europeans were NATO limbs. The Supreme Allied Commander in Europe has always been an American. At present, the United States pays 75 percent of NATO’s budget, and deploys 65,000 to 70,000 troops in Europe.
But domination for the sake of domination is treasonous to the Declaration of Independence and Constitution. The United States was an anti-imperialist creation. The exclusive purpose of government, according to the Declaration, is to secure unalienable rights to life, liberty, and the pursuit of happiness, not to race abroad in search of monsters to destroy. The Constitution repudiated the global projection of force or wars not in self-defense—no matter how benignly motivated—because the results would subordinate liberty and transparency to coercion and secrecy by concentrating limitless power in the executive. The Roman Republic had been destroyed by endowing dictators with limitless power to fight wars.
The Constitution’s war powers were entrusted to Congress, not to the President, to prevent the emergence of a warfare state underwritten by a military-industrial complex. James Madison explained in a letter to Thomas Jefferson:
“The constitution supposes, what the History of all Govts demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl.”
Abraham Lincoln echoed:
“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.”
Then Secretary of State John Quincy Adams made the case against wars not in self-defense no
matter how glorious the immediate objective in a July 4, 1821 Address to Congress:
“[The United States] well knows that by once enlisting under other banners than her own, were they even the banners of foreign independence, she would involve herself beyond the power of extrication, in all the wars of interest and intrigue, of individual avarice, envy, and ambition, which assume the colors and usurp the standard of freedom.
The fundamental maxims of her policy would insensibly change from liberty to force....
She might become the dictatress of the world. She would be no longer the ruler of her own spirit....”
NATO marked an unprecedented break in American history. Not only was it the first peacetime alliance ever, but it was the first time promoting and preserving peace everywhere in the world became a United States objective. NATO flouted President George Washington’s Farewell Address warning against entangling alliances or dividing the world between angles and devils. The treaty tied our fate to the vicissitudes of West European politics and played favorites among nations. But the Farewell Address admonished:
“[N]othing is more essential than that permanent, inveterate antipathies against particular nations, and passionate attachments for others, should be excluded; and, that in place of them, just and amicable feelings towards all should be cultivated. The nation which indulges towards another a habitual hatred or a habitual fondness is in some degree a slave. It is a slave to its animosity or to its affection, either of which is sufficient to lead it astray from its duty and interest.”
President Washington also warned that any military engagements or alliances with
Europe would impair our safety and other national interests:
“Europe has a set of primary interests which to us have none; or a very remote relation. Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns. Hence, therefore, it must be unwise in us to implicate ourselves by artificial ties in the ordinary vicissitudes of her politics, or the ordinary combinations and collisions of her friendships or enmities.”
Adhering to Washington, Madison, and John Quincy Adams, the United States prospered and spread across the continent for 70 years. We uniformly refrained from foreign entanglements. Among other things, we remained aloof from the Central and South American rebellions against Spain and Portugal, the Greek War of independence against the Ottoman Empire, and Hungary’s 1848 revolutionary ambitions against Russia. As regards the latter, Senator Henry Clay explained:
“Far better is it for ourselves, for Hungary, and for the cause of liberty, that, adhering to our wise, pacific system, and avoiding the distant wars of Europe, we should keep our lamp burning brightly on this western shore as a light to all nations, than to hazard its utter extinction amid the ruins of fallen or falling republics in Europe.”
The cornerstone of national security is the willingness of citizens to fight and die for their country in self-defense. We enjoy that patriotism in abundance. Moreover, we confront no existential or other threats that could arguably justify NATO or any other defense treaty. What Abraham Lincoln said in 1838 before the Young Men’s Lyceum of Springfield, Illinois is equally true today:
“At what point shall we expect the approach of danger? By what means shall we fortify against it?—Shall we expect some transatlantic military giant to step the Ocean, and crush us at a blow? Never!—All the armies of Europe, Asia and Africa combined; with a Bonaparte for a commander, could not by force, take a drink from the Ohio, or make a track on the Blue Ridge, in a trial of a thousand years.
At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.”
NATO is more ill-conceived at present, having expanded to 28 members, than it was in 1949. Among other things, we are committed to defending the Baltic States, Hungary, the Czech Republic, the Slovak Republic, Poland, Romania, and Bulgaria from Russian aggression. The previous occupation or domination of these nations by the Soviet Union during the Cold War weakened it financially and militarily. Why should we seek to prevent Russia from repeating that blunder? We are also absurdly committed to defending Slovenia, Albania, Greece, and Croatia—none of which have relevance to our self-defense.
NATO advocates argue that the spread of democracy makes the United States safer; that we know how to spread democracy; and, that tyranny anywhere is a threat to our security. They substantially echo President George W. Bush’s counterfactual Second Inaugural gospel:
“Across the generations we have proclaimed the imperative of self-government, because no one is fit to be a master, and no one deserves to be a slave. Advancing these ideals is the mission that created our Nation. It is the honorable achievement of our fathers. Now it is the urgent requirement of our nation’s security, and the calling of our time.
So it is the policy of the United States to seek and support the growth of democratic movements and institutions in every nation and culture, with the ultimate goal of ending tyranny in our world.”
The NATO-Bush doctrine is unconvincing. The United States was born and has flourished amidst tyrannies. They include the French Empire, the Romanoff Empire, the Ottoman Empire, the Chinese Empire, and the Austrian-Hungarian Empire. Today, tyranny in Belarus or Zimbabwe, among other nations, is no danger to the United States. Our peaceful co-existence with tyrannies has been the rule, not the exception.
Additionally, we can no more create democracies from cultures and institutions with no democratic DNA hostile than we can build a perpetual motion machine. We have failed spectacularly attempting the impossible in South Vietnam, Afghanistan, Iraq, Libya, Somalia, and Yemen despite a staggering investment of resources. South Sudan is conclusive proof of our impotence to give birth to democratic dispensations. We midwifed its 2011 independence from Sudan, but It quickly succumbed to a grisly ethnic civil war between President Salva Kiir and the Dinka against Rick Machar and the Nuer featuring tens of thousands killed and millions displaced. South Sudan was a failed state on arrival, and remains so today. Our efforts to collaborate with its leaders and people to steer a democratic course were predictably futile.
The evidence is mixed as to whether democracies are inherently less threatening to the United States than are authoritarian or tyrannical nations. Hamas was popularly elected in the Gaza Strip, but is listed as an international terrorist organization by the United States. Egypt’s former President Mohammad Morsi was a greater danger to United States interests than is his less democratically elected successor Abdel Fattah el-Sisi. The United States has refrained from clamor for free elections in Saudi Arabia for fear of the results, i.e., victory for Wahhabism. Tyranny by the majority is tyranny nonetheless. In any event, the evidence is far too inconclusive to assert that wars against non-democratic nations are, ipso facto, justifiable wars of self-defense.
In leaving NATO, the United States would dramatically lessen tensions or conflicts with Russia and strengthen our security against external aggression. Among other things, the stage would be set for a new treaty to reduce the nuclear arsenals of the two countries. Russia would probably claim a sphere of influence over its neighbors, but that would be unalarming. The United States has acted in the same way for more than two centuries, including the Monroe Doctrine, the Mexican-American War, the Spanish-American War, the Panama Canal, and military ventures in Cuba, Haiti, the Dominican Republic, Mexico, and Nicaragua. To maintain that all nations are equal, but that the United States is more equal than others is to encourage war.
To make the nation more secure in its safety, wealth, and liberty, NATO should be made a museum piece along with other artifacts of the American Empire.
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Original: Huffington Post
5 Myths About The Constitution’s War Powers Propagated By The ‘New York Times’ And The ‘Washington Post’
Constitutional Lawyer and Author
The Constitution’s architects unanimously agreed on the allocation of war powers. They unanimously agreed that only Congress should be entrusted with decisions to initiate war under Article I, section 8, clause 11. (The President would retain authority to “repel sudden attacks”).
The architects made Congress the exclusive steward of the war power because legislators have nothing to gain and everything to lose by gratuitous belligerency. No war monument has ever been erected to immortalize a legislator; and, the powers of Congress recede during wartime.
The opposite is true of the executive branch, whose personality salutes Mars and scorns Minerva. James Madison, father of the Constitution, elaborated:
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.
Future Chief Justice of the United States, John Jay, similarly remarked in Federalist 4:
[A]bsolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.
The reasons advanced by Madison, Jay, and others against presidential wars did not pivot on the state of weapons technology or speed of travel, but on eternals of human nature, including the incorrigibility of the executive branch in craving war for the sake of war with ulterior motives pernicious to liberty.
In serving as megaphones for an extra-constitutional American Empire and multi-trillion dollar permanent global presidential wars, the New York Times and the Washington Post propagate myths about the war powers worth more than two carrier battle groups to the Pentagon.
Myth 1: Article II of the Constitution empowers the President unilaterally to initiate war—including nuclear war—without a legislative mandate enacted by Congress.
Article I, section 8, clause 11 of the Constitution unambiguously entrusts to Congress—not the President—exclusive responsibility for deciding to take the nation from a state of peace to a state of war. Every participant in the drafting, debating, and ratifying of the Constitution shared that understanding, including George Washington, Alexander Hamilton, James Madison, father of the Constitution, future Justice of the Supreme Court James Wilson, United States Chief Justice John Marshall, Thomas Jefferson, and John Adams. James Madison expressed the national consensus in a letter to Jefferson: “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.” That consensus was neither disturbed nor violated for 163 years. Beginning in 1802, for instance, Congress enacted ten statutes expressly authorizing military action by Presidents Jefferson and Madison against the Barbary States. That consensus also shipwrecked President Woodrow Wilson’s League of Nations’ treaty, which would have obligated the United States to defend the boundaries of other nations without congressional declarations of war. To obtain Senate ratification of the United Nations Treaty, Article 43, paragraph 3 specifically requires a congressional declaration of war before the President may use our armed forces to implement a U.N. Security Council resolution. From Potsdam, President Harry Truman cabled Senator Kenneth McKellar: “When any such agreement or agreements are negotiated [to use the United States Armed Forces under Article 43 of the United Nations Treaty] it will be my purpose to ask Congress for appropriate legislation to approve them.”
In sum, there is no intellectually respectable support for the theory that the Constitution authorizes presidential wars.
Myth 2: Treaties ratified by the United States Senate can constitutionally obligate the United States to conduct war on behalf of foreign nations without a congressional declaration of war.
Treaties are subordinate to the United States Constitution, including Article I, section 8, clause 11. Justice Hugo Black elaborated in Reid v. Covert (1956):
“Article VI, the Supremacy Clause of the Constitution, declares:
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; . . .
There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates, as well as the history that surrounds the adoption of the treaty provision in Article VI, make it clear that the reason treaties were not limited to those made in “pursuance” of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution...to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions.
Accordingly, Article V of the 1949 North Atlantic Treaty Organization (NATO) which purports to require to the United States to defend all 28 NATO members from attack, including Estonia, Latvia, and Lithuania, is unconstitutional. The House of Representatives is excluded from the treaty process, and its concurrence is necessary for a congressional declaration of war. James Wilson, future Justice of the United States Supreme Court, underscored the importance of that requirement to the Pennsylvania ratification convention:
“This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress, for the important power of declaring war is vested in the legislature at large;—this declaration must be made with the concurrence of the House of Representatives; from this circumstance we may draw a certain conclusion, that nothing but our national interest can draw us into a war.”
Article V of NATO marked the first occasion in 163 years in which a treaty purported to require the United States to conduct war on behalf of other nations without congressional declarations.
Myth 3: Unconstitutional presidential wars have become constitutional by dint of longstanding practice beginning in 1950 with President Harry Truman’s war in Korea without a congressional declaration.
Constitutional transgressions are not excused because they have been repeated for long years. The United States Supreme Court held in Erie Railroad v. Tompkins (1936) that for a century since Swift v. Tyson (1842) federal courts had been unconstitutionally creating federal common law to govern lawsuits between citizens of different states. The Court similarly held unconstitutional the use of the legislative veto to invalidate executive action in INS v. Chadha (1983), notwithstanding hundreds of such provisions enacted during the previous 54 years with the consent of the President.
The Court explained in Myers v. United States (1926) that great weight is to be given to the practices and understandings of early administrations and Congresses populated by many who had participated in the 1787 constitutional convention. They were uniformly against presidential wars. President George Washington, who presided over the 1787 convention, voiced the standard view: “The Constitution vests the power of declaring war with Congress. Therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.”
Myth 4: Presidential wars are constitutionally permissible because Congress repeatedly acquiesces.
It is true that presidential wars without congressional declarations have been chronic since 1950, including but not limited to: President Truman’s war in Korea; President Lyndon Johnson’s Vietnam War; the Secret War in Laos conducted by Presidents Johnson and Richard Nixon; President George H.W. Bush’s war in Panama; President William Clinton’s wars in Bosnia and Serbia; and, President Barack Obama’s wars against Libya and the Islamic State of Iraq and the Levant (ISIL) anywhere on the planet. And it is equally true that Congress has generally acquiesced in these usurpations because terrified of being held politically and morally accountable for matters of supreme significance to the nation and our armed forces. But the Supreme Court has held that the Constitution’s separation of powers does not permit one branch to surrender its powers to another branch, for instance, a line-item veto invalidated in Clinton v. New York (1998). Chief Justice John Roberts elaborated in Wellness International Network, Limited v. Sharif (2015): “[W]e have emphasized that the values of liberty and accountability protected by the separation of powers belong not to any branch of the Government but to the Nation as a whole. A branch’s consent to a diminution of its constitutional powers, therefore does not mitigate the harm or cure the wrong.”
Myth 5: The President is entitled to flout the Constitution’s allocation of war powers and conduct presidential wars because changes in technology and the obligation of the United States to exercise world leadership have made the Constitution obsolete in foreign affairs.
The Constitution’s authors were long-headed. They knew experience and unforeseeable changes in circumstances might dictate a need for constitutional alterations or adaptations. Thus, Article V was written to authorize amendments supported by two-thirds majorities in Congress and three-fourths of the state legislatures. The very first Congress proposed the Bill of Rights, which was ratified by the States. No amendment has ever been proposed, however, to disturb the Constitution’s assignment to Congress of exclusive responsibility for decisions to cross the Rubicon from peace to war.
Justice Black denied that the mushrooming United States role in international affairs since the Constitution was ratified in 1787, simpliciter, authorized the exercise of extra-constitutional powers in Reid v Covert:
If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes. But we have no authority, or inclination, to read exceptions into it which are not there.
All Empires create myths to conceal or expiate lawlessness, cruelties, or double standards. Thus, the Roman Empire turned enemy territories into wilderness and called it peace. The American Empire turns the Constitution’s war powers into a jumble of political calculations with ulterior motives and calls it law. The more things change, the more they stay the same.
Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq
Original: Huffington Post
Constitutional Lawyer and Author
Democratic presidential nominee Hillary Clinton more threatens the Constitution’s separation of powers and celebration of liberty than does her vulgar Neanderthal opponent, Republican Party nominee Donald Trump.
Justice Louis D. Brandeis explained in Olmstead v .United States (1928): “Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.”
Mr. Trump is a would-be, evil-minded ruler. Among other things, he has embraced torture, the extermination of families of suspected terrorists, concentration camps for American Muslims and their demotions to second-class citizenship, punishment of Trump detractors, vigilante justice, warrantless military spying on American citizens, and bigotry towards Americans with Mexican heritage. But Trump’s notoriety has awakened a figurative Paul Revere against himself. If he is elected president, the media, Congress, the judiciary, and the public would be eagle-eyed watchdogs to frustrate Trump’s wish-list to further pulverize the Constitution.
Ms. Clinton is a woman of “zeal, well meaning but without understanding.” She would be more dangerous to liberty and the Constitution in the White House than Trump would be. The first woman President would provoke less scrutiny and media or political opposition to her counter-constitutional convictions and actions because she is less overtly feral than Trump and presumptively less ruthless or megalomaniacal because she is female.
During her acceptance speech in Philadelphia, the Democratic presidential nominee warned: “Remember: Our Founders fought a Revolution and wrote a Constitution so America would never be a nation where one person had all the power.”
True enough. But coming from Ms. Clinton, the statement was as risible as would have been Napoleon during his 1804 self-coronation as Emperor warning the audience against the French Bourbon dynasty because it lusted for too much power.
Clinton’s words and public actions for more than two decades as First Lady, United States Senator, Secretary of State, author of Hard Choices, and presidential candidate betray a conception of the presidency as an elected monarchy endowed with more unchecked authority than was exerted by King George III. It was that power that provoked the American Revolution which she purportedly celebrated.
Ms. Clinton champions multi-trillion dollar unconstitutional presidential wars or other offensive uses of the military without congressional declarations or authorizations required under Article I, section 8, clause 11. Examples include Bosnia, Haiti, Kosovo, Somalia, Libya, Afghanistan, Yemen, Iraq, Syria, Pakistan, and against Al Qaeda and the Islamic State of Iraq and the Levant (ISIL) everywhere on the planet. During her 2008 presidential candidacy, Ms. Clinton declared that if she were elected president she would unilaterally “obliterate” 80 million Iranians if Iran attacked Israel.
She salutes unconstitutional United States treaty commitments to fight wars on behalf of scores of other nations without required congressional declarations.
Speaking through Justice Hugo Black, the Supreme Court declared in Reid v. Covert (1956) that treaties cannot override constitutional prescriptions: “There is nothing in this language [of the Supremacy Clause] which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result.” Justice Black added that if unforeseen developments in weapons technology or otherwise argued in favor of constitutional change, the remedy would be a constitutional amendment, not constitutional lawlessness: “If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes.”
The Constitution’s authors would have impeached Ms. Clinton as Secretary of State and removed her from office for complicity in high crimes and misdemeanors against the Constitution, which Lord Gladstone acclaimed as “the most wonderful work ever struck off at a given time by the brain and purpose of man.”
President George Washington, who presided over the constitutional convention, repudiated Clinton’s claim of presidential power to wage war without congressional authorization. He elaborated: “The Constitution vests the power of declaring war with Congress. Therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.” Every delegate present at the creation of the Constitution agreed.
Alexander Hamilton, who was a delegate to the constitutional convention, underscored in Federalist 69 that the Constitution had denied the President power of a monarch: “The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.”
James Madison, renowned as the father of the Constitution and Bill of Rights, secretary of state, and twice President of the United States, explained in a letter to Thomas Jefferson: “”The constitution supposes, what the History of all Govts demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl.”
James Wilson, delegate to the constitutional convention and future Justice of the United States Supreme Court, emphasized to the Pennsylvania ratification convention that neither the President alone or in conjunction with treaties ratified only by the Senate could embroil the nation in war: “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war.”
United States Chief Justice John Marshall, who served as a delegate to the Virginia ratification convention, Member of Congress, and as secretary of state, lectured in Talbot v. Seeman (1801): “The whole powers of war being, by the constitution of the United States, vested in Congress, the acts of that body alone can be resorted to as guides to this inquiry.”
Nothing Ms. Clinton has ever written or spoken is worthy of a semicolon in the writings or speeches of these constitutional giants. They brought forth a Miracle at Philadelphia, in the words of Catherine Drinker Bowen. We know Clinton is a constitutional ignoramus from her own testimony and past lawyering. Among other things, her reading list excludes not only Aristotle, Plato, Thucydides, Pericles, Cicero, Plutarch, Marcus Aurelius, Dante, Machiavelli, Erasmus, Locke, Gibbon, Voltaire, Hume, and Rousseau, but also James Otis, Benjamin Franklin, Samuel Adams, John Adams, Adam Smith, the Federalist Papers, and George Washington’s Farewell Address.
Additionally, Ms. Clinton wrote a brief as a House Judiciary Committee lawyer arguing that President Richard Nixon should be denied legal counsel to oppose articles of impeachment. She ignored or concealed the then-recent precedent regarding Supreme Court Justice William O. Douglas, who was permitted a lawyer during the impeachment attempt against him in 1970. The Committee’s chief Republican counsel, Franklin Polk, recalled, “Of course the Republicans went nuts. But so did some of the Democrats—some of the most liberal Democrats.” Jerry Zeifman, general counsel and chief of staff to the Judiciary Committee and lifelong Democrat, called Ms. Clinton a “liar” and an “unethical, dishonest lawyer.” He fired Clinton from the staff when the Watergate probe concluded.
Ms. Clinton champions the use of executive agreements in lieu of treaties to circumvent the constitutional requirement of a two-thirds Senate majority for ratification. A recent example was the Joint Comprehensive Plan of Action to contain Iran’s nuclear ambitions. It was fashioned as an executive agreement because, as Secretary of State John Kerry told the House Judiciary Committee, “you can’t pass a treaty anymore.” In other words, if the President can’t get his way by complying with the Constitution, then the Constitution must be tortured to accommodate the President, i.e., to borrow from President Nixon to David Frost, “When the President does it, that means it is not illegal.”
In flagrant violation of constitutional due process, Ms. Clinton also supports limitless presidential power to play prosecutor, judge, jury, and executioner to kill American citizens anywhere on the planet not engaged in hostilities that the president decrees based on secret, unsubstantiated information threatens national security. In exercising this awesome power, according to Clinton, the president is not accountable to any other person, branch of government, or to the public. But Justice Black explained in Reid v. Covert:
“[W]e reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.”
Candidate Clinton supports presidential use of the military to spy on American citizens in the United States without warrants to gather foreign intelligence under Executive Order 12333 in violation of the Fourth Amendment and the Foreign Intelligence Surveillance Act. She supports presidential authority to classify congressional documents and to prohibit their publication. She supports presidential signing statements tantamount to unconstitutional line-item vetoes according to the Supreme Court’s decision in Clinton v. New York. She supports presidential power to spend in violation of limits established in appropriations bills. She supports presidential invocations of state secrets to frustrate congressional oversight or judicial review of government assassinations, kidnappings, or torture. She supports presidential power to refuse to take care that the laws be faithfully executed to advance a political agenda not shared by Congress.
If elected president, Donald Trump might wish to better the instruction of Hillary Clinton’s past constitutional vandalisms and imperial convictions, but his chances of success would be remote. The media, Congress, and the public would be on high alert. A President Clinton, on the other hand, would confront little resistance to her constitutional transgressions. She would be our first female commander in chief, and thus detractors would risk stigmatization as misogynists. Further, she would have her lawlessness accompanied by disarming and dulcet string instruments rather than brass or percussion associated with Trump.
We have already witnessed this phenomenon. President Barack Obama took the constitutional abuses of President George W. Bush to new levels while the media, Congress, and the public slumbered. Mr. Obama was our first black president, he speaks eloquently, and his style is non-gladiatorial. Mr. Bush had none of this armor.
Two potential calamities for the United States are looming on the horizon: wars with China or Russia over spheres of influence in Asia and Europe thousands of miles away from our borders and irrelevant to the Constitution’s foreign policy of invincible self-defense.
The candidate most likely to embroil the United States in unconstitutional presidential wars against either or both is Hillary Clinton.
Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq
Original: Huffington Post
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
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
Empires Heighten Dangers
Constitutional Lawyer and Author
They are all begotten from the DNA of the species that craves power for the sake of power—an evil that has persisted unchanged since Adam and Eve.
The United States has predictably followed the model of its Roman precursor. First we fought in self-defense against the British. Then we fought in defense of allies in World War I. Then we invented allies to defend, for example, Vietnam, Kuwait, or Somalia. And then we began to fight for the sake of fighting unable to define victory over international terrorism or otherwise beyond Justice Potter Stewart’s memorable definition of obscenity, “I know it when I see it.”
Like its predecessors, the American Empire refuses to entertain the idea that our endless, gratuitous foreign interventions have created enemies that would not otherwise have attacked us. Upton Sinclair explained the fierce resistance to the truth: “It is difficult to get a man to understand something, when his salary depends on his not understanding it.”
Trillions of dollars of wealth, great power, and social status lie behind our military-industrial-terrorism (MIT) complex. It thrives on perpetual war and concocted fears of danger and existential threats. Since the Americana Empire took hold after World War II, none have dared to insinuate that our chronic, objectless, military interventions in the Middle East in support of brutal, corrupt, oppressive regimes have provoked retaliation by the oppressed. We have provided material assistance to state’s featuring repression, torture and extrajudicial killings, for example, the Shah of Iran, the House of Saud in Saudi Arabia, or Egypt’s President Hosni Mubarak. Two fatwas issued by Osama bin Laden before 9/11 protested the presence of our troops in Saudi Arabia near the Muslim holy cities of Mecca and Medina, not our freedom of speech or religion, elections, due process, or gender equality.
Think of the analogy of a bayonet and a hornet’s nest. The nest will not harm you if you leave it undisturbed. But if you smash it to bits with a bayonet, the hornets within will sting you.
The United States would be vastly freer, wealthier, and safer if we withdrew all our troops from the Middle East for redeployment at home to protect our borders, our shores, and our skies. Israel commands more than enough power to fend for itself. With vastly less military might in 1948, Israel handily defeated Egypt, Iraq, Syria, and Palestinian Arabs combined. And we should cease selling arms or providing non-humanitarian aid of any type to the region.
Our warfare state, nursed and fueled by the military-industrial-terrorism (MIT) complex, is the great destroyer of liberty. Its malignant children have been the surveillance state, national bankruptcy, secret government, and the evisceration of constitutional checks and balances.
Abraham Lincoln said it best in 1838 as we began our descent into Empire riding the militant wave of Manifest Destiny:
“At what point shall we expect the approach of danger? By what means shall we fortify against it?— Shall we expect some transatlantic military giant, to step the Ocean, and crush us at a blow? Never!—All the armies of Europe, Asia and Africa combined, with all the treasure of the earth (our own excepted) in their military chest; with a Buonaparte for a commander, could not by force, take a drink from the Ohio, or make a track on the Blue Ridge, in a trial of a thousand years.
...If [danger] ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.”
Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq
Original: Huffington Post
The president's incredibly imperialist wielding of executive power.
By Bruce Fein
President Barack ObamaPresident Barack Obama's claim to czarlike powers in a perpetual global war against international terrorism has been blunted by a judicial appointee of former President George W. Bush. Last week, in the case Fadi al Maqaleh, United States District Judge John D. Bates denied that President Obama could make suspected "enemy combatants" disappear into the Bagram Theater Internment Facility at Bagram Airfield in Afghanistan without an opportunity for exoneration. (While President Obama has abandoned the term enemy combatant for Guantanamo Bay detainees, he has retained the label for detainees held elsewhere.)
Bates' ruling is a welcome check on an emerging pattern of mightily expansive claims of executive authority by the new administration. In early February, President Obama sought another imperial power before the United States Court of Appeals for the 9th Circuit in the case Mohammed v. Jeppesen Dataplan. The complaint alleged that the plaintiffs had been seized by American personnel, taken to airports, stripped, blindfolded, shackled to the floor of a Gulfstream V, and taken to destination countries for torture and harsh incarceration. The District Court dismissed the complaint because then-President Bush and Vice President Cheney argued that state secrets would be exposed if the case were litigated. During oral argument before the 9th Circuit, Obama echoed the state-secrets argument made by Bush and Cheney. Similarly, the president who promised "change" is wielding the tool of state secrets in aiming to dismiss, without the gathering of evidence, challenges to the National Security Agency's Terrorist Surveillance Program, which entailed warrantless phone or e-mail interceptions of American citizens on American soil in contravention of the Foreign Intelligence Surveillance Act of 1978. This defense has failed before Judge Vaughn R. Walker in early rounds of the litigation. And, again, the state-secrets privilege is the administration's response, if ancillary to a defense of retroactive immunity, in a brief filed last week to the efforts of the Electronic Frontier Foundation to sue Bush administration officials for the NSA's wiretapping.
In principle, President Obama is maintaining that victims of constitutional wrongdoing by the U.S. government should be denied a remedy to prevent the American people and the world at large from learning of the lawlessness perpetrated in the name of national security and exacting political and legal accountability. Thus Mahar Arar, who was tortured by Syrian agents, allegedly with the complicity of U.S. intelligence or immigration agents, has been denied a judicial remedy, again based on the state-secrets rule, to hide the identifies of his U.S. government persecutors. Similarly, victims of torture authorized by the president or vice president would encounter the state-secrets bar if they sought redress. Disclosing the methods of torture, the government has argued, might enable al-Qaida detainees to prepare better psychologically or physically to resist the criminal abuse! Such reasoning more befits the pages of Alexander Solzhenitsyn's Gulag Archipelago than the U.S. Supreme Court opinion in ex parte Milligan: "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government."
In the Bagram Prison litigation, Judge Bates summoned the observation of Alexander Hamilton writing in The Federalist 84: "[C]onfinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." Accordingly, he held that enemy combatant detainees at Bagram who were captured outside Afghanistan and who were not Afghan citizens could challenge the constitutionality of their detentions in federal courts through writs of habeas corpus.
If President Obama had embraced the principles of a republic (which cares about injustice) instead of the arrogance of empire (which admires swagger), neither the habeas corpus nor state-secrets litigation would have been necessary. In the former case, four detainees held at Bagram for six years or more filed petitions in the United States District Court for the District of Columbia assailing the legality of their incarcerations based solely on the president's assertion that they were "enemy combatants." That concept—as defined by President Obama—sweeps far beyond persons accused of directly aiding or participating in hostilities against the United States. It includes persons who "supported hostilities in aid of enemy forces," which might encompass the provision of food, medicines, or trousers. The detainees had been captured in Tunisia, Thailand, Dubai, and an unknown location outside Afghanistan. One was an Afghan citizen, two were Yemenis, and one was Tunisian.
President Obama ratified the following charade to make "enemy combatant" determinations at Bagram, which can be the equivalent of life sentences. The initial judgment is made "in the field." It is reviewed within 75 days, and then at six-month intervals. The reviewing body is the Unlawful Enemy Combatant Review Board, a panel of three commissioned officers. It examines "all relevant information reasonably available." The detainee is denied access to a personal representative or lawyer. He is denied access to the government's evidence. He is denied an opportunity to respond in person. He is limited to submitting a written statement without knowledge of either his accusers or the allegations that must be rebutted. After its sham hearing, the UECRB makes a recommendation by majority vote to the commanding general as to whether the detainee is an "enemy combatant."
The Bagram procedures are descendents of the Spanish Inquisition. The executive branch decrees that "enemy combatant" status justifies detention, enforces the decree through executive detentions, and decides whether its enforcement decisions are correct. That combination was what the Founding Fathers decried as the "very definition of tyranny" in The Federalist 47. In addition, the incriminating evidence and accusers are secret. And the judges are military persons the detainee is accused of hoping to kill, which probably compromises their putative impartiality.
President Obama's claim of wartime necessity as justifying constitutional shortcuts is unpersuasive. The United States granted accused war criminals captured in the China Theater a particularized statement of charges and a rigorous adversarial process, noted by the United States Supreme Court in the 1950 case Eisentrager v. Johnson. As regards state secrets, the government can always accept a default judgment, meaning an acceptance of liability for alleged injuries, if it wishes to preserve vital intelligence sources and methods. The government confronts the same choice in criminal cases—i.e., either to disclose classified information necessary for a fair trial or to drop the prosecution.
President Obama pledged to restore the rule of law. But the state-secrets-privilege wars with that promise. It encourages torture, kidnappings, inhumane treatment, and similar abuses, all carried out in the name of fighting international terrorism. That encouragement is compounded by the president's adamant opposition to criminal prosecution of former or current government officials for open and notorious abuses—for example, water-boarding or illegal surveillance. His stances on habeas corpus and state secrets flout twin verities of Justice Louis D. Brandeis: Sunshine is the best disinfectant; and, when the government becomes a lawbreaker, it invites every man to become a law unto himself.