Iraq and legality again Re: [extropy-chat]ProfessorBeingSuedOverAnti-Agi

[Brett Paatsch]

Mike Lorrey wrote:

> --- Brett Paatsch <bpaatsch at bigpond.net.au> wrote:
>>
>> Actually, in Article 2, Section 1, Clause 8, of my hardcopy printout
>> of the US Constitution, the link to which you provided earlier, it
>> says of the President:
>>
>> ' Before he enter into the Execution of his Office, he shall take the
>> following Oath or Affirmation:--"I do solemnly swear (or affirm) that
>> I will faithfully execute the Office of President of the United
>> States, and will to the best of my Ability, preserve, protect and
>> defend the Constitution of the United States." '
>>
>> I don't know in what other documents other oaths for lesser offices
>> of public trust might reside, perhaps it is even the case that the
>> oath for lesser offices are derivative of this one, which in itself
>> would be instructive? Nonetheless, I think it might well be
>> significant that the drafters and of the Constitution saw fit to have
>> a specific clause relating to the Presidential Oath. A Presidential
>> Oath, is, and must be, a personal Oath of honour of the most
>> powerful executive in the land to the people of that land.
>
> Of course, and every word of that oath when it is sworn to or
> affirmed is open to the understanding of the person making the
> oath or affirmation, i.e. "it depends on what the meaning of the
> word 'is'  is..."

The word 'is' doesn't occur in the Presidential Oath.

Until I see evidence to the contrary I am can't credit that the men
and women that are judges on the Supreme Court, and who are
Americans as well, would allow injustice to occur *purely* because
some 'slick-willy' word game defence might be tried out on them.

>> I wonder if the Supreme Court of the United States (SCOTUS),
>> like me, might take a particularly firm view in the case of a President,
>> and especially in the case of a President that actually did send in
>> the armed forces which should be the most serious and last choice
>> of such a Constitutionally empowered and people entrusted
>> Executive.
>
> The executive is the commander in chief of the armed forces, and has
> war powers of his own beyond the power to declare war that the
> Congress has.


> Primarily so the President can do his job when congress
> is not in session, it is also to prevent a treasonous faction from
> hamstringing the nation (as the southern states attempted by walking
> out of congress in 1860, leaving it in a rump state) by rumping or
> filibustering.
>
> How the President prosecutes his executive job is beyond the
> authority of congress to second guess.

At the time the President does it, I think that must logically and
logistically be so, military decisions *do* have to be made in real
time and by someone and that someone is the President and head
of the armed forces.

Yet the whole point of having a procedure for impeaching the
President is to give the people (the "we the people" people)
through the congress and/or the Supreme Court a way to check
a President that is either mentally off the rails or is, or has, acted
dishonourably and in bad faith thereby bringing the office and the
honour of the United States into disrepute around the world.

Impeachment can only be for something retrospective. Just like
a trial, to be part of a just process can only be retrospective.
That is all the more reason surely to use the impeachment tool
that the Constitution provides when it is appropriate to use it.

It cannot, be unpatriotic or un-American or un-Republican to
consider the case for impeachment dispassionately (or even
passionately) when the Constitution provides to it.

A soldier on the very front rank of battle may not easily or
often be in a position where it is *practical* with regard to his
own life and the lives of his comrades, to stop and say this is
just wrong, legally wrong, morally wrong, strategically wrong,
"please America impeach the man that is the President and give
me an honourable President under which to serve", but if he or
she should do so he would not be breaking his oath of
enlistment that I can see.

Do you agree?

> If they pass specific legislation that mandates specific things and he
> doesn't do them, or else they prohibit certain things and he does
> them (as was the case during the Iran-Contra issue in the Reagan
> era), the congress can then build a case against him.

Legislation such as say, that which was included in the White House
statement of 2 October 2002, which you provided the link to earlier
and which is headed Joint Resolution to Authorise the Use of United
States Armed Forces Against Iraq, and says a lot of things but also
this:

"Whereas on September 12, 2002, President Bush [and no one else
or lesser in authority than President Bush himself - this brackets, my
addition for emphasis] committed the United States to "work with the
United Nations Security Council to meet our common challenge"
posed by Iraq and to "work for the necessary resolutions," while also
making clear that "the Security Council resolutions [*all* the relevant
one's not just those that seem good to George W Bush personally] will
be enforced [lawfully], and the just demands of peace and security will
be met, or action will be unavoidable",

then the legislation with the Short Title "Authorisation for the Use of
Military Force Against Iraq" follows including Sections 2, Support For
United States Diplomatic Efforts and 3 Authorisation for Use of United
States Armed Forces.

Sec 2. says

"The Congress of the United States supports the efforts of the
President to -

(a) strictly enforce THROUGH THE United Nations Security Council
all relevant Security Council resolutions to Iraq and encourages him
in those efforts; and

(b) obtain prompt and decisive action [but not unlawfully and
unconstitutionally !]  by the Security Council to ensure that Iraq
abandons its strategy of delay, evasion and non-compliance and
promptly and strictly complies with all relevant Security Council
resolutions.

Sec 3, Authorisation for Use of United States Armed Forces, says.

(a) AUTHORISATION. The President is authorised [but not required!]
to use the Armed Forces of the United States as he determines to be
necessary and appropriate [please note these words don't say as he
believes expedient or as a tool for foreign policy pursued unlawfully] in
order to

(1) defend the national security of the United States against the
continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council Resolutions
regarding Iraq.    [All, would include 1441 once it was made]

So Mike, it seems to me clear that at no stage did the Congress
do anything more than empower the US President to act lawfully
and constitutionally with respect to Iraq. They did not relieve him
of his Oath, they did not relive him of any obligation to obey
US law, including the US law concerning duly ratified treaties,
one of which is the UN Charter.

Do you agree with this? Are you still following or did the train of
legal stuff, all of which I've extracted from documents and links you
have provided me, get too hard to follow? (I am still building up
my skills in presenting legal arguments too you see :-)



>> Has the SCOTUS ever, to your knowledge, allowed the good
>> faith defence in a case such as this.(ie. a US President, having
>> deployed the armed forces to invade a UN member state for
>> weapons of mass destruction that were subsequently not found)
>> I, for one, cannot recall a case such as, or substantially like this,
>> but perhaps my understanding of US history is letting me down.
>
> There is no such case,

Thanks I didn't think that there was.

                                 ... however Vietnam comes very close in 
that
> the Tonkin Gulf Incident is widely regarded as a hoax, and
>furthermore, the congressional authorization of force clearly states
>one of the two goals of the use of force is to enforce all UN
> resolutions in Iraq (not just those having to do with WMD),

I did indeed notice that, see my comments above.

> so there really is nothing to dispute: Bush was doing what congress
> told him to do, not one bit more or less.

Ah, but he certainly would have been doing more if he broke his
oath and broke the law of the US as the Congress did not authorise
him to do that anywhere.  Don't you agree?

> If Bush was relying more on what his invisible friend told him
> more than the CIA when he advised congress that WMD was
> a problem (and given the CIA's record, I would rather believe
> a hallucination), the congress might feel they were snowed if
> Bush didn't clearly explain the true basis of his convictions, (sic)
> but the fact is that only some UN resolutions dealt with WMD,
> particularly the original resolutions dealing with the first Gulf
> War and the cease fire agreement.

There seems to be a non sequitor in your sentence at the place
where I put the sic.

Yes if Bush was relying on his invisible friend when he advised
congress that WMD's were a problem then, yes, Congress
probably would have felt snowed. Quite rightly.

And if Bush misrepresented or doctored or filtered what the
CIA told him to the Congress, same result.

Congress really must be able to rely on the President to uphold
his Oath in such serious times as he is the critical bottleneck
not the CIA director or anyone else.

>>
>> Well of course if they are innocent and did act in good faith
>> then they should walk.
>>
>> However, if they testify in the SCOTUS say, I'm not sure that's
>> the appropriate forum but whatever it is that's a detail,
>
> Yeah, you don't testify before the SCOTUS, they only hear
> arguments from party attorneys and amicus submitters, as well as
> overview the record of lower court rulings.

Okay.

> In an impeachment, the Chief Justice of SCOTUS presides over
> impeachment trials, but it is the Senate that is the jury and the
> House's chosen representatives who are the prosecutors.

Okay. I remember some of this now from reading the Constitution,
I do apologise if I am slow coming up to speed on the US constitution,
it is hard to keep the details in one's head. Thanks.

>>
>> All of this would be an excellent process to go through in my view
>> to underscore the immense importance that the United States
>> supreme court places in oath taking and in justice being done in
>> any case, even if the President, Vice President and Secretary of
>> Defense "walk", their characters will have been examined and
>> shown to be clean if they are.
>
> This is questionable. As partisan as things are today over court
> appointments, and the Bush v Gore ruling, the left is convinced that
> whenever they lose, it is the 'conservative majority' being partisan,
> while the right calls any loss legislating from the bench (which in
> most cases it is, such as the eminent domain ruling the other day).

Well, I'd like to continue considering the mechanics of impeachment
here with you because its a great way to learn and an important
topic.  I do realise that politics is of course going to be a part of
any potential impeachment as a President is either going to come
from the Republican party or the Democrats and the party faithful
are not going to ever like seeing their party disgraced, and yet of
course that isn't what impeachment is about at all.

>> > Sure, but that was a can of worms that was opened by Clinton, and
>> > every Democrat in congress chose to cover his ass, so the damage
>> > is already done, there is no public trust right now to defend or
>> protect.
>>
>> Is that a fact? I don't really understand the impeachment process
>> quite well enough obviously, as an Australian I confess I wasn't
>> paying all that much attention to the legal consequences of Clinton
>> deciding to US the Presidential office as an adjuct to gained sexual
>> favours from an intern, but I suppose I should have, it is pretty
>> unsavory when one thinks of it.
>
> At the time, Clinton and his allies were prosecuting executives and
> military officers all over the country for having workplace
> relationships. Some were consensual relationships, others were
> coerced.

I can see how that would have particularly rankled. Hypocrisy is not
something people anywhere like in others.

> The Clinton Administration policy was that any personal relationship
> between a superior and persons below them was 'sexual harrassment'
> because of the disparity of power between the two. Clinton even went so
> far as to drag a retired admiral out of retirement so that he could be
> prosecuted under the UCMJ for a consensual relationship with a
> subordinate while on active duty years before.

Okay.

> All of this is immaterial to what Clinton was impeached over, except to
> illustrate the atmosphere that the Clintons promulgated in the American
> workplace in the 1990's.

Yes.

>Given this policy, when it was found that
> Clinton may have violated this policy himself with a consensual
> workplace sexual relationship with a subordinate, it was clear to many
> that excuses that Kennedy, Roosevelt, and other past presidents had
> affairs was immaterial to the fact that Clinton held others to a higher
> standard than he held himself to.

Okay. But my thought is that in any system where oaths are taken it is
at the highest level, where most is at stake, that oath breakers need to
be hit with the full measure of the law and the scrutiny of the people,
so that the message not to break oaths can trickle down.

> This hypocrisy (the only valid crime,
> according to liberals) was obviously something to check into, but, like
> many other allegations of Clinton behavior over the years, it was
> covered up, except in this case, someone had it on tape. Linda Tripp's
> taping of conversations with Lewinski put the lie to Clinton's denial
> on nationwide television.

>While it was not court testimony, it was a
> slap in the face to many. What was court testimony was when he
> testified in the investigation of his coverup and treatment of Tripp,
> and made the ill advised equivocation about the meaning of the word
> 'is'.

What was the forum in which he gave that equivocation on the meaning
of the word "is". That episode seems to have embedded itself in the
American psyche and seems to remain there as a jading influence making
people distrustful of being able to use their own institutions to hold high
office bearers to account.

>This testimony was something that nobody could cover up, nobody
> could deny rationally. The GOP had the goods as much as any Perry Mason
> courtroom episode. It was the perjury before the grand jury, televised,
> that he was impeached on.

Right the perjury.

> Despite the claims of his apologists, it wasn't "about sex", it was
> about perjury. There was no chance of a 'good faith' equivocation.

Okay.

>> Not, however, anywhere near by a country mile, as wrong
>> though as sending one's nations armed service men and women into
>> harms way on a pretext or a lie.
>
> Yes and no.

I still say yes.

>Clinton, you may recall, chose to bomb alleged al qaeda
> bases (including a pharmaceutical plant) in order to deflect news
> attention from the increasing allegations of his affair (the act of
> using military force conflicted with his administrations long standing
> policy of treating terrorism as a crime to be prosecuted).

I don't recall.

>Killing
> innocent people in order to avoid a PR scandal, versus Bush acting in
> good faith to defend the nation, and the argument can be made that
> Clinton's actions were the more despicable and craven.

Only if Bush was acting in good faith though, don't you agree?

>>
>> > Any attempt by Democrats to impeach Bush would just be seen as
>> > partisanship.
>>
>> As a matter of fact I am not a Democrat. You are not a Democrat
>> so far as I know so if we can countenance it as a possible path for
>> a higher purpose then I am sure others, probably including card
>> carrying Republicans might too, especially once the thing got
>> rolling.
>
> President Johnson led the nation through some six years of Vietnam,
> using terrible tactics and strategy, refusing to win, and using heinous
> rules of engagement that hamstrung the troops. Johnson got us into
> Vietnam based on the fraudulent Tonkin Gulf Incident. Some say it was a
> hoax, others say it was honest mistakes, but the fact stands it got us
> into a war that the American people were not prepared to win, or at
> least were not prepared to resist the propaganda of the enemy.


>>
>> >Those in his own party most likely to support such an
>> > attempt are regarded as RINOs - Republicans in name only, so
>> > they are generally democrats in conservative states.
>>
>> I first saw the term RINO only recently in The Australian,
>> interestingly
>> it was used in relation to the new US Ambassador to Australia and
>> in relation to Senator John McCain, both Republicans, and both men
>> who have served their country in battle as I understand it.
>
> Yes, McCain is a RINO. Bush Sr. was generally regarded as one until the
> Gulf War, Arlen Specter is another, as was William Weld of
> Massachusetts.

Ok, actually, lest I unintentionally mislead you, I read today in the
Australian that Australia is currently without a US Ambassador in
Canberra.  The "RINO" whose name escapes me was not apparently
an actual appointment.

What impresses me though, according to the chief political editor
of the Australian, is that Ambassadorial appointments are usually
political appointments by the President, this makes sense as the President
would want to have good lines of communication with his allied
countries, however it also points out a danger.

John Howard and Tony Blair, that lined up with the Bush administration
over the Iraq invasion probably did not have a great deal of access
to the US President in order to know his mind. They would have had
to rely on him, and on his speaking to them in good faith.

A US President determined to use a pretext to go to war could, given
the way the system is set up, mislead and draw his allies into a war
with him, if he was in bad faith.

That is another reason why I really, really want to see whether the
US President was acting in good faith at the critical junctures.

My countrymen go into harms way with the US when the cause is
right and that is right, but I do not want them going into harms way
when the cause is not right. We do not have the protection of the
US Bill of rights. We cannot impeach our Prime Minister, even if
he deserves it, like the US can impeach its President.

Though a legal case could be made and has been considered
against the Prime Minister if he broke the law our constitution is
not as strong on this point as the US.

>>
>> > Impeaching Bush would only
>> > deepen the rancor and divisiveness in this nation.
>>
>> I wonder about that.
>>
>> I certainly have no doubt that the US could find many capable
>> men and women for that matter to hold the Presidency, the
>> Vice Presidency and the Secretary of Defence positions.
>
> I am sure as well, but that isn't the point. The point is that the
> polarizing partisanship here today keeps pushing things to the
> extreme. Impeachment is about as extreme as you can get.

I don't think so. No blood is lost in an impeachment.

You and I know that one cannot take the politics out of life.
People have strong feeling on things. We need the law to be
upheld or there is no law that citizens can rely on and that
means that when there is a case for impeachment we need
to do it.

Brett Paatsch