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Madison, again

Your Humble Blogger has kept his pixels shut about the latest report of illegal activity by Our Only President and his cronies. I can’t say I am surprised that Our Only President authorized warrantless wiretapping. After all, aren’t warrants a sort of judicial activism? I would, however, like to explicitly state something that has been talked about a lot since the invasion of Afghanistan, and is, I think, at the heart of the whole issue. And that’s the Congress’s abdication of its Constitutional responsibility under Article 1, Section 8.

You see, there was a purpose behind splitting the war powers of the national government. Under James Madison’s little system, the President can’t simply decide that we are at war, and then grant to himself wartime powers. All of the arguments I have seen (and I haven’t bothered looking much, I must admit) in favor of Our Only President’s warrantless wiretaps have said, essentially look, we’re at war, and we have to do what we have to do. And that’s actually fairly compelling. But who said we were at war? The President. Who decided that our war aims outweight the constitional requirements for warrants? The President. Further, who decided what information to pass along to the Congress, for them to make their allocation decisions? The President.

Now, none of this is new. We’ve been arguing war powers in this country for long enough to have come to some sort of conclusion. On the other hand, it is fairly new that non-government entities, stateless states, can have enough resources to do minor but significant damage. Clearly it would make very little sense for the Congress to have passed a Declaration of War against, say, Al-Qaida, an organization that may not even actually exist. On the other hand, since our expressed aim was invasion to overthrow the sovereign governments of Afghanistan and Iraq, it’s hard to see that this brave new world is significantly different that it relieves the Congress of its responsibility. But concentrating on this matter of a stateless organization operating under different names, schedules, and organizational models, I see that it is, in some sense, difficult to fit all of that into Article 1, Section 8.

Digression: Of course, one of the foreign policy failures of Our Only President and his cabal of incompetents and crooks was the Bush Doctrine, which said that a response to state support of non-state action was that we would overthrow the sovereign governments of those states. This was a mistake, a bad doctrine. However, the one advantage of the doctrine was that although it did not model the current universe as it can be perceived, it did model the Constitutional provisions. The real problem should have required real thinking, but the Bush Doctrine should only have required that the President ask the Congress for a declaration of war, receive such a declaration, and proceed sending the world to hell. End digression.

Whatever new response our government should come up with for war against stateless states, and I admit that I don’t know how that should be formalized, the important thing surely is to keep that aspect of the constitution that provides for good government (and, incidentally, was what the Founders wanted). That is, the decision to go to war-like-thing against these stateless states must be made by Congress, which answers to the states and the citizens thereof. I don’t know that we would need to amend the Constitution to address the issue; perhaps a statutory device stating that we are not at war, and that the Executive cannot use wartime powers, in the absence of a Joint Resolution of a kind defined within the statute, with certain specific provisions for withdrawing those wartime powers, and an understanding, preferably explicit, reserving to the Senate its exclusive Constitutional authority to end the war by ratifying a Treaty (under Article 2, Section 2). This is, by the way, quite a different matter from the sort of Resolution that was actually passed by Congress authorizing the Iraq invasion. That Resolution, which was itself a flawed and dangerous precedent, did in some sense act as a Declaration of War, that war being against the Ba’athist government of Iraq. I’m talking about a Resolution that allows the Executive war-time powers in the absence of a sovereign government to overthrow.

Look, the worst situation, and this is obvious, and was obvious to Mssrs Jefferson, Madison, Hamilton and Adams (all in agreement on this one, which isn’t usual, so perhaps we should pay more attention than usual to their opinion), the worst situation is where one man, President or King or Caesar, can grant to himself war powers, for a duration to be decided by himself, to an extent decided by himself, and within limits only known to himself. Now, I understand that, as with warrants, certain war powers may have to be used immediately and without warning, and whoever is the Commander-in-Chief will have to take those war powers on himself on his own authority. But the system needs to be set up so that will never happen. It can remain hypothetical. And as long as those hypothetical powers are bound around with limits, they will be likely to remain hypothetical. You see? But once that particular door is open, it’s going to stay open unless somebody closes it.

We’ve had bad presidents before. We will, I hope, survive as a nation to have bad presidents again. Previous bad presidents have, for the most part, been restricted in their badness by Mr. Madison’s straightjacket. The worst actions by US Presidents have been inactions, rather than aggressions, and that’s probably best. Now, though, we need to worry about the next president, and the one after, and the one after that, implementing a total police state. If what we have in the Constitution is no longer sufficient, then we have to amend it. I think it is, though, but we have to have a Congress that will insist on it. And, of course, we have to have an electorate that will insist on a Congress that will insist on it.

It’s not enough to blame Our Only President (although he is to blame). We have to make sure it doesn’t happen again.

chazak, chazak, v’nitchazek,


i became incoherently angry with the new york times when i realized that they sat on this "we don't need no stinkin' judges" story all the way through roberts's confirmation and 2 more nominations to the supreme court. they'd already had months to think about the story. i mean, really angry, as in wishing them horrible misery in the future, bad luck, grave stomping, everything.

Your anger is certainly justified, although I observed that the timing did just happen to coincide with the Patriot Act vote in the Senate, and clearly had the expected impact there. That doesn't mean you should forgive them, but it is something to think about.

I have the memory of, uh, a thing with a pretty bad memory, but I thought I recalled Congress authorizing some sort of war against Afghanistan and/or Iraq. Haven't there been a bunch of Democrat Senators saying "we would never have voted to authorize this war if we had known thus and so"?

That's separate from the War On Terror, which seems to me more like the War On Drugs, i.e. obviously not something Congress has to (or can) Declare War Against.

Well, and the Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq just authorized the use of the Armed Forces, and says nothing about other war powers, such as, oh, warrantless wiretaps on American citizens. And, of course, that policy predates the invasion of Iraq.
Further, Public Law 107-40, the Resolution to Authorize Our Only President to Kick Ass, passed on September 18, 2001 does not, as I read it, specifically authorize the President to make his own determination on War Powers matters, but to use "all necessary and appropriate force" against, very specifically, the people who "planned, authorized,
committed, or aided the terrorist attacks that occurred on September 11,
2001." It's hard to see how suspending habeus corpus, warrantless searches and wiretaps, censorship, and all the various it's a war, dammit powers fall into that category.
That said, that 11/18 resolution is exactly what I'm talking about when I talk about the pathetic and horrifying abdication of responsibility by our Congress. Although it clearly states that it is about the use of the Military Force, it leaves unsaid the rest of the war powers, rather than explicitly denying them, or provisionally allowing them, or restricting them in any way.
The issue, in my mind, is that an aggressive executive will assume that any war power is justified at any time, particularly if military force is being used somewhere (as it has been pretty nearly continuously for more than a generation). That's one of the problems with a strong executive. That's why we (in theory) don't let the executive decide when war powers are justified; that's why we didn't allow the President to declare war.
And if Congress doesn't have to (or can't) declare war on Terror, or Drugs, or Poverty, or Adverbs, that's fine—but then the Executive can't claim that he is justified in using war powers because of a war that can't be (or doesn't need to be) declared.

Ah, the War on Adverbs. Good times, good times. Can't compare to the War on Pluralization (the War to End All Wars), though.

since executive power derives from its prosecution of military action, this administration could be said to be waging a war on peace.

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