Leviathan and war license

The more we learn about the lead up to the Iraq war the more people are trying to get this "horrible taste" out of their mouths. Esp. those who voted for this President. This war, although we are all glad to see a dictator is gone, is out of control. Fron the treatment of prisoners of war to civilian / military casualities. And...there is no end in sight. One thing I have said from the beginning and we are just now hearing this from "some" politicians...this is a long, long conflict. We will be in support of the Iraq military for years to come. To be honest, this conflict has made me think about alot of things. I have be pro-choice for years, I am now anti-death penalty and am slowly becoming anti-war.

Irenaeus, I don't think you are at all wrong to draw that comparison, though I'd generalize it to a list of tyrants who cared little or nothing for the rule of law.

Make no mistake about my intention with that. The US is bound by laws even in wartime, and no president may break them. One need not even appeal to the Geneva Conventions.

I am appalled. Not that the President would authorise the use of stressful techniques against barbarians inspired by the manifesto of a diabolical and fanatical Arab merchant turned warlord bent on world enslavement, but rather that anyone could be so blinkered as not to see himself a potential slave.

It is the existential nature of republics to evolve organically or coercively into empires. This will happen with the United States. It must happen if the Pax Americana is to be brought to the world. The Peace that Christ brings must be preceded by the Sword he brings. To teach all nations requires that they first be disciplined. Had Spain not known this, our illegal immigrants would still be excising human hearts rather than worshipping the Sacred Heart.

Bush is feckless. He shirked military service. McCain was a soldier. He could be a step towards that organic evolution. If not, eventually someone who understands the how and the why of conquest will cross the Potomac and the die will have been recast.

Like every other country, America has done its share of dirty things to various peoples and nations throughout its history. Sometimes justly, sometimes unjustly, sometimes wisely, sometimes unwisely, but usually under some color of law. I suppose it's because the country was founded by so many lawyers. But they didn't let the hafalutin' posturing get in the way of dealing with the very malignant enemies, at least not until nowadays.

Who knows where the Gitmos will eventually end up? But if I had to choose between letting them go free while I preened myself about what fine laws we have, and making them disappear permanently, I wouldn't ponder long.

Some thoughts:

1. Regarding law & the executive: If Bush et al believed that various legal provisions hindered effective prosecution of a war against Al Qaeda, then they should've gone to Congress seeking a First War Powers Act redux. Had they done so, we (probably) wouldn't be having this discussion. Instead, as Jack Goldsmith relates, they apparently decided to deal with the aforementioned provisions by stretching the power of the executive. The Yoo memos are one aspect of that.

2. Regarding emergency powers: expansion of executive power during wartime is neither new - see the Civil War, WWI, WWII, and the Cold War for examples - nor necessarily problematic (ditto). Note, however, that all the aforementioned had a defined endpoint, with the result that whatever wartime damage done to liberty and checks & balances could be undone (or at least mitigated) postwar. What's new about the "terror war" is that it might _have_ no endpoint, since the threat from terrorism might never disappear entirely. It is this prospect of a never-ending emergency, when coupled with the idea that emergency powers are necessary in order to defend against terror, that is truly problematic. As Hamilton wrote in Federalist No. 8:

"The perpetual menacings of danger oblige the government to be always prepared to repel it [...] The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power."

I.e., the longer your war or emergency, the less accustomed the citizenry becomes to living as free men. Granted, Hamilton was discussing standing armies, but substitute "government" or "the executive" for "soldiery", and it still works.

I'm not convinced that emergency powers are necessary in order to fight terrorism, but if they are, then fear for the future of the Republic.

3. Roland - I hope that you are wrong (regarding the inevitable transformation of republic into empire), but worry that you are not. If America _is_ destined for empire, hopefully at some point we'll figure out how to do imperialism competently.

When Bill Clinton was president, conservatives worried that he would abuse all those old Executive Orders to increase his power and attack his political enemies. I'm not sure there's anything very new here. Militaries, police forces, intelligence services, bureaucracies, and corporations will all try to increase their power and control and set themselves up as the foxes guarding the henhouse as much as possible. To say "these people" as if the Bush folks are doing something new is to be naive about history.

There have been Executive Orders in place since FDR, renewed by presidents of both parties, giving the Prez the right in a declared state of emergency to seize your land and food, relocate your community, assign you to a work brigade, and probably change all your children's names to George. It's not a lack of paperwork, sneaky laws, megalomaniacal aides that's kept prospective tyrants in check here; those things have been in place for decades.

What's kept us more-or-less free is millions of guns in the hands of citizens, and a free press that keeps us informed (the mainstream media if the threat of tyranny is coming from the right, and the Internet if it's coming from the left). As long as we have those things, these wannabe tyrants can write their fantasy memos about absolute power all they want, and it won't mean that much.

Ave Bush Imperator!

Yes, this administration's unprecedentedly expansive notion of Article II powers needs to be ratcheted back.

Considerably and post-haste.

Sadly, I have every confidence a Democratic administration will do little more than to prune at the edges. Power is intoxicating.

285 days left, but who's counting?

Let's see. We have one person who believes that the Peace of Christ will come when America becomes an Empire, and the good soldier, John McCain, could take us one step closer to getting there. And another who believes that millions of guns in our homes are the only things keeping Americans safe from power grabbing politicians.

I guess you won't be voting for Obama in November.

armchair pessimist would fit right in with the Chinese.

Posted by: Joel | April 2, 2008 10:14 AM

Perhaps so. But it's a ugly and bloody old world we inhabit and the best you can do is to be a gentleman among gentlemen and the most vicious ape among vicious apes. This is a plain and simple code of conduct that translates well between nations and cultures. So I suppose the Chinese, an old and experienced nation, and I would understand one another.

I do think that this way is less dangerous to the world's peace and quiet than our narcissistic bouts of self-reproach and doubt, which far from making us more lovable to others only encourage the loons and axe murderers.

So, lawyers, go gussy this up in your legal jibber-jabber, and can I have it by Thursday?

MI, I've learned to count on you for logic supported by excellent fact checking.

Mhoram, if those millions of guns run out to blindly support a tyrannical president, and the media bends over when told to, I doubt there will be much of a transition from republic to empire.

Pessimist, keep telling it. We should all consider the wisdom of master Yogi: in theory, theory and practice are the same; in practice, they're not. ;-)

Z: the desire for Empire only ever extends from a lust for power

Not all empires begin in the lust for power. For republics they begin in the defense of their life, land and institutions from enemies without (and traitors within). An enemy may transit the snow-capped mountains on elephants or a sunny autumn sky in hijacked planes. Delenda fuerat Carthago deletaque quidem fuit. But it took over a hundred years: McCain predicts a hundred years of war.

The present Fabian skirmishes will not save us; whence will come our Scipios? Had Rome not fought and won, today there would be the temple and tophet of Moloch where the basilica of St. Peter stands, the immolation of children to appease the cruel idol, the submission to the false Punic faith rather than the liberation of the true Christian one.

Hae tibi erunt artes: pacique imponere morem,
Parcere subiectis et debellare superbos.

As a wandering Jew with a simple message once boasted, "Civis Romanus sum." That message was propagated throughout an empire born from a republic.

There have been Executive Orders in place since FDR, renewed by presidents of both parties, giving the Prez the right in a declared state of emergency to seize your land and food, relocate your community, assign you to a work brigade, and probably change all your children's names to George.

If you're talking about EO's 10997 to 11005 (and their successors)...my (possibly-incorrect) reading of these is that they merely direct various executive agencies to draft contingency plans for dealing with the aftermath of a nuclear war (or the like). Admittedly, such plans may include actions such as you mention - I plan to look at the Code of Emergency Federal Regulations sometime soon - but the orders themselves don't appear to authorize anything more than brainstorming & paperwork generation.

I agree that an armed citizenry is important for maintaining freedom, but not necessarily because it makes tyranny impossible. For example...armed or not, I suspect that many Americans would accept tyranny when confronted with threats to their family or neighbors - and would act to restrain those who didn't. Collective punishment has worked before, and Americans are no less human than foreigners. There's also the "bread & circuses" approach: citizens voting themselves subsidies from the public through...and a tyrant turning the resultant economically-dependent citizens into serfs.

I've made no assumtions, fallacious or otherwise. In a chain of command, when a lawful order is issued, they get obeyed.

One may speculate freely about this without prejudice. Our military traditions are very strong, and personally I would expect a less than 100% blind obedience to immoral orders... but I am also the son of a professional soldier who fought on the losing side of a civil war. Ideology works both ways, in his experience.

So, speculation permits the following train of thought: upon the establishment of martial law, and the first order being the suspension of the 2nd Amendment, what would be the expected reaction? Don't forget, the NRA has been "protecting" assault weapons all along. I find it a bit ridiculous to cite a few million hand guns and .22s.

dad29,

I don't fallaciously assume that at all. I am pointing out that we are very lucky (and not because of puny handguns) that our Government hasn't tried to use the military against its citizens. It is because of the cultural (in the military and in the citizenry) value we place on the rule of law and on the Constitution that it hasn't happened. Those are things, frankly, that this President has undermined. The Geneva conventions aren't just a treaty we ratified are are obliged to either follow or break, they are also US law.

As to the 8th amendment, I think the founders were pretty clear, back in the Declaration of Independence when they stated, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,..". Emphasis mine.

Franklin,

Unlike other parts of the world (where are military is currently operating), most gun owners don't own assault weapons. Most own hand guns or hunting rifles. You put the weaponry of those citizens again our modern military, and they would be absolutely crushed. That isn't to say that our military would attack our citizens, but it is to say that the world has changed A LOT since the 18th century. The second amendment doesn't, in practice, protect us the way it once did.

Unlike other parts of the world (where are military is currently operating), most gun owners don't own assault weapons. Most own hand guns or hunting rifles. You put the weaponry of those citizens again our modern military, and they would be absolutely crushed. That isn't to say that our military would attack our citizens, but it is to say that the world has changed A LOT since the 18th century. The second amendment doesn't, in practice, protect us the way it once did.

You'd be astounded how much firepower the average American town or community could muster. The science fiction authors Steve Stirling and Eric Flint, in their best-selling novels of small US communities (Nantucket and fictional Grantville, WV, respectively) thrown back in time warps to the distant past (1250 BC and AD 1632, again respectively), had to engage in all sorts of hand-waves of reality because in their researches they had trouble finding small towns in American that don't have at least one or two working machine guns. And that's just on the private ownership level. Forget citizen-soldiers--we still have citizen-police officers, and practically every force for any community over 100,000 has a SWAT team armed to the teeth with advanced tactical weaponry.

Sounds like the Pentagon's lawyers have been reading Cicero: Silent enim leges inter arma ("In time of war, the law falls silent"; often misquoted as Inter arma enim silent leges.) (Pro Milone iv.11)

Civis Romanus sum is also from Cicero (In VerremII.v.162). The phrase does not actually occur, in those words, in Acts 22, though it was later applied to Paul's claim that he was a Roman citizen.

***

I had a friend in graduate school who was pretty much an absolutist on the Second Amendment. Once, under questioning, he admitted that according to his interpretation of the Second Amendment, private citizens should be allowed to own nuclear weapons, precisely so that they could be a credible deterrent to the power of the government.

And of course, it has long since been established that it is for the President alone to decide when we are at war. As Descartes said in his letter to the professiorate of the Sorbonne, "If I were not a believer, I might think that this was a circular argument."

What's the circularity? Congress declares war. The President wages it. Pretty straight-forward to me, so I guess you have to be deeply steeped in the musings of Wendell Berry and Rod Dreher to be utterly confused by that formula.

This isn't new. The entirely revolutionary experience taught the Founders that having a Congress breathing down the neck and second-guessing the C-in-C of the forces was a recipe for significant risk of defeat and disaster. So come Philly in 1787, they wisely cut them out of the war-waging picture. Now Congress gets to decide when we are at war, which they do--be it through formal declarations (legally dubious since 1945), authorizations of the use of force, or simple budget appropriations to pay for the bullets and bombs that are clearly indicated as going to theatre X. And the President gets a free hand to wage war, because 535 generals would end any military effectiveness of the federal union.

Re the Sherman tank: go to the Discovery Channel website and look at the Military Channel listings.

A resolution authorizing the use of military force is being used to wage an undeclared war and occupation. I submit that Congress has failed its duty.

A resolution authorizing the use of military force is being used to wage an undeclared war and occupation. I submit that Congress has failed its duty.

No, just acting within the parameters of current international law. You could make a good case that since adoption of the UN Charter in 1945, formal declarations of war are ipso facto illegal. Yet obviously the need for the war power continues. So now Congress "declares" war and exercises the declaration clause of Article I via other instruments, i.e., force authorizations. It's not like they don't have a long history either.

Check out An Act Further to Protect the Commerce of the United States approved by Congress on 9 July 1798. An illegal undeclared war against France! Quick, someone impeach President John Adams! Someone tell the 5th Congress they can't read the Constitution! Oh wait, most of its drafters were actually in that Congress. Never mind...

Trivia time: what was the last country the US declared war on, and what was the last country to declare war on the US?

A: Bulgaria (1942) and Panama (1989).

In wartime, it is for the President alone to decide what methods to use to best prevail against the enemy.

We have lost too much of the checks and balances that make our system work. The presidency has come to be viewed as a 4 year monarchy. Congress is certainly part of the problem here. However, it is amazing to me how much this president has been able to keep secret. How can Yoo's memos be seen as a security issue for the country? Does the president as C-in-C get to unilaterally break treaties? I havent read the constitution in about 2 weeks now but I dont remember that being in there.

There are many things that only the president can decide. That doesnt mean he is above the law. It also means that he gets to make all these decisions in secret from the rest of government.

Steve

Ooops. Meant to say he doesnt get to make etc.

Steve

Thanks MI. Have seen references to first, I think, and think there is room fro the idea of leaving a treaty thats broken anyway. Will look for second after I finish spading the garden.

Steve