Posted on 03/09/2013 5:03:48 AM PST by SeekAndFind
It was Wednesday, shortly before Senator Rand Paul’s bravura 13-hour filibuster, the Jimmy Stewart star turn in Paul’s crusade to have the Constitution ban a bogeyman of his own making: the killing of American citizens on American soil by America’s armed forces — a scandal that clearly cries out for action, having occurred exactly zero times in the 20 years since jihadists commenced hostilities by bombing the World Trade Center.
At a hearing of the Judiciary Committee, Senator Ted Cruz was grilling Attorney General Eric Holder. Cruz seemed beside himself — in the theatrical spirit of the day — over Holder’s refusal to concede that the imaginary use of lethal force conjured up by Paul would be, under any and all circumstances, unconstitutional. The attorney general preferred the fuzzier term “inappropriate” — at least until Senator Cruz finally browbeat him into saying that by “inappropriate” he meant “unconstitutional.”
Fuzzy was better. To be sure, Cruz is an accomplished constitutional scholar and a favorite of mine, and I can say neither of those things about the attorney general. Yet my sympathies were with Holder. I found myself wishing he’d stood by his equivocal guns.
I need to be careful here. To cross Paul admirers can mean being cast into the neocon darkness, along with all those other cogs in the military-industrial complex who dream of a global American empire — and that’s even when the offense is not compounded by suggesting that Eric Holder might have been right about something. So let me say outright: I am against using our armed forces to kill our citizens in our homeland.
That puts me in the same camp as about 99.9 percent of Americans. In part, that owes to our natural, patriotic predilection. But there’s another part of the explanation — just as important, but less well noticed: After 20 years, we understand the particular conflict we are in. We can confidently say that, in the war authorized by Congress a dozen years ago, we do not need to use lethal military force inside our country.
You see, there is a right way to do what Senator Paul says he wants to do, a way that does not involve messing around with the Constitution in a manner we will come to regret. Contrary to Senator Paul’s assertions, and those of senators Cruz and Mike Lee, who lent their voices and scholarly heft to Paul’s filibuster, the Constitution does not prohibit the use of lethal force in the United States against American citizens who collude with the enemy.
American history and jurisprudence teach that American citizens who join the enemy may be treated as the enemy: captured without warrant, detained indefinitely without trial, interrogated without counsel, accused of war crimes without grand-jury proceedings, tried by military commission without the protections of civilian due process, and executed promptly after conviction. That is because these measures are permissible under the laws of war, and the Constitution accommodates the laws of war — they are the rule of law when Congress has authorized warfare.
Under the laws of war, enemy combatants may be subjected to lethal force — that’s usually the idea. It makes no sense to conclude that the Constitution abides all the aforementioned departures from peacetime due process but prohibits the killing of American enemy combatants . . . particularly when the proponents of this novel claim are quick to concede that the government is free to use lethal force against American enemy combatants once they leave our territory.
The Constitution enables the government to marshal all the might necessary, under any conceivable circumstances, to quell threats to the United States. The Framers, with a humility that contrasts sharply with our certitude, understood that some threats could be existential in nature. While the senators busied themselves during the Paul filibuster with Alice in Wonderland and “Stand with Rand” tweets, it might have been worthwhile for someone to read Hamilton’s trenchant observation (from Federalist 23) that
it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.
Heedlessly, Senator Paul and his supporters figure they have a handle on the infinite. We can safely assume, they tell us, that the Constitution bars attacks in the U.S. on Americans who — if you can follow this — appear to be non-combatants, even if they may be working with the enemy, as long as they are not engaged in “imminent” violence.
Really? Let’s imagine something that, unlike Senator Paul’s speculations, is actually foreseeable — a scenario based on the way our enemies function, as remote from the Washington debate as that may be. Let’s suppose we have an American scholar of Islam fulfilling the role of the Blind Sheikh — i.e., a jurist schooled in sharia with sufficient academic depth to be qualified to issue fatwas approving terrorist attacks.
Ostensibly, our American sheikh might be sitting passively in a mosque, a café, or an apartment. He certainly doesn’t look like an enemy combatant — especially if, as was the case with the Blind Sheikh, various maladies render him incapable of building a bomb, carrying out an assassination, or doing most things of use to a jihadist cell. Yet in the enemy’s doctrine, attacks cannot happen until he green-lights them. Senator Paul says he’s fine with lethal force against imminent threats. So, when does our sheikh get imminent? When the phone rings? When some other innocent-looking young man comes into the café, sits down at his table, and starts whispering in his ear?
Now, after 20 years, it is probably safe to say there is no need to have our armed forces on alert for this contingency. If the executive branch has enough intel to know who and where this sheikh is, the FBI can arrest him, just as the FBI arrested José Padilla as he disembarked from a plane in Chicago in 2002 — every bit the enemy combatant, though not yet acting on his mass-murder plot. That is how war power has always worked under the Constitution: Having the technical law-of-war justification to kill José Padilla does not require you to kill him. You do what is sensible under the circumstances.
In the ongoing conflict, the enemy does not have fortifications inside our territory that would enable its operatives to keep the police at bay. As long as we catch them in time, our enemies can be safely taken into custody. And if we catch them on the precipice of deadly action, ordinary law-enforcement principles allow for the use of lethal force to stop them.
But that may not always be the case. We could have enemies with much greater capabilities, enemies including traitorous Americans. The fact that we do not appear to need lethal military force in the homeland in this conflict does not mean we will never need it.
So leave the Constitution alone. The Constitution does not tell us what should or must be done in a particular situation. It tells us the outer limits of what is legitimate in all threat situations. To shackle our power to meet a threat, as Hamilton explained, is to put us in peril.
The goal, according to Senator Paul, is to shackle the president. That is done by trimming his sails in the Authorization for Use of Military Force (AUMF), not by trimming his constitutional power.
Senator Paul has the controversy he sought because the Obama administration arrogantly claimed nigh-limitless power to kill anyone, anywhere, at the president’s whim. There is no reason to believe the president actually intends to abuse such power — he has not done so to this point and, as National Review’s Editors point out, “the day an administration starts killing Americans with drones at cafés — to borrow one of Rand Paul’s hypotheticals — is the day impeachment proceedings begin.” So, assuming the administration is simply trying to protect the president’s institutional turf, it has made the error of conflating the theoretically limitless power the Constitution could potentially vest in the president if a threat were dire enough with the finite authorization Congress has actually given the president for the use of force in this conflict.
Senators Paul and Cruz have suggested that the constitutional claim they’ve posited — viz., presidents are not empowered to kill Americans on American soil absent an imminent threat of violence — is “easy,” “clear,” and “obvious.” I respectfully disagree. It is none of those things. What is easy, clear, and obvious is that if we do not need certain troublesome authorities to fight a war successfully, Congress can withhold them.
Why does it make a difference whether this curtailment comes from the AUMF rather than the Constitution? Because, absent a sudden-attack situation, the Constitution makes Congress the master of what force is lawfully authorized, while our tradition holds that the courts are masters of what the Constitution means.
Since 2004, courts have made themselves a part of the national-security equation to an unprecedented degree. When challenged to construe constitutional doctrines, they seek to impose logic. Senator Paul’s proposal of a Constitution-based no-lethal-force exception to the principle that an American who joins the enemy may be treated like the enemy is not logical.
To iron out the inconsistencies, the courts may well conclude that if Americans are not to be treated as enemy combatants for purposes of lethal force, they should not be treated as enemy combatants for purposes of capture, detention, interrogation, and military war-crimes trials. Furthermore, if they follow the trajectory of the Supreme Court’s 2008 Boumediene decision, courts may well conclude that any core constitutional protections extended to American citizens must also be extended to alien enemy combatants. That would be the end of the law-of-war approach to counterterrorism.
Is that Senator Paul’s objective? I do not know. Many of his libertarian supporters would welcome it. Most Americans would disagree, recognizing that the war paradigm has been instrumental in preventing a reprise of 9/11.
I do know this: If all the senator really has in mind is some curtailment of presidential overreach, the right way to do that is to limit the AUMF. If his ambition is greater, if he believes the country would be better off ending the war paradigm and returning to peacetime due process, the forthright way to do that is to repeal the AUMF. That would be a terrible mistake, but one we could withstand, however painfully. What we might not be able to withstand is the shackling of constitutional powers we may someday need to sustain the United States.
— Andrew C. McCarthy is a senior fellow at the National Review Institute and the executive director of the Philadelphia Freedom Center.
You will find very few authorities who disagree with me on this point.
While I understand your point, I think common ground between McCarthy and Rand Paul can be found.
That is because these measures are permissible under the laws of war, and the Constitution accommodates the laws of war — they are the rule of law when Congress has authorized warfare.
The above is a true statement, but the suthor bases on the presumption that Congress actually ever Declared war.
The constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject and authorized such a measure.
~George Washington
The executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.
James Madison
As war cannot lawfully be commenced on the part of the United States, without an act of Congress, such an act is, of course, a formal official notice to all the world, and equivalent to the most solemn declaration.
James Kent, Commentaries 1826
Congress never declared war, they passes a voice vote on a resolution.
declaration
n. 1) any statement made, particularly in writing. 2) a written statement made "under penalty of perjury" and signed by the declarant, which is the modern substitute for the more cumbersome affidavit, which requires swearing to its truth before a notary public.
resolution
n. a determination of policy of a corporation by the vote of its board of directors. Legislative bodies also pass resolutions, but they are often statements of policy, belief or appreciation, and not always enactment of statutes or ordinances.
A Declaration of War is a written, sworn testimony that the undersigned parties intend, in truth, to do something. It is a binding affidavit.
A Resolution of Force is an un witnessed statement, which truthfully, is just an opinion.
Once you let them have a war under their own definitions, all Constituional protections go out the window!
og course, ask Rubio, Sarah etc about when they make headlines the lap dog media comes out to attack and get rid of the threat from their dear messiah.
Ever noticed how the media does not attack for a couple of days, one would think the media gets their talking points from the radical left and then organise their attack as one.
Drones in the US have been happening for about 20 DAYS. It's new and scares crap out of me. That and warnings from Dear Janet of Homeland Security warning last year of the types of people they're watching...people who like guns, and don't like current politics. Prefaced by Waco, Ruby Ridge, Elian Gonzalez.
It's chilling.
Then according to you, the Founders should have written a Resolution of Independence and not bothered signing it, right?
“...the killing of American citizens on American soil by America’s armed forces... having occurred exactly zero times in the 20 years since jihadists commenced hostilities by bombing the World Trade Center....”
That just blows his column out of the water.
“Just because the Nazis had a conference at Wannsee about the “Final solution to the Jewish question” doesn’t mean they actually might *hurt* any Jews!”
The NDAA has authorized the military “detention” of American citizens, without indictment, trial, or appeal. The Posse Comitatus Act is effectively dead, meaning that the military can function as “police” in the United States.
And now the FAA has authorized the military, the hundred plus federal police agencies, and even private entities to fly drones all over the United States. While they insist that the drones will not be armed, that it an almost whimsical statement, since Obama has authorized the Just Us Department to decide if lethal force can be used against Americans in America, and Just Us is effectively immune from prosecution or lawsuit for wrongful death.
Of course Obama would never order the murder of his *major* Republican opponents, but do you think he would hesitate one second to order a drone strike in a Ruby Ridge or even Waco incident?
He likely considers such people as “insects”, “clinging to their guns and their god”.
You are ridiculous.
All the Constitution requires is for the Congress to authorize use of the military, in situations which are not emergencies. In an emergency the President can act without Congress.
You do realize that the Veterans Administration considers the Korean War, the Vietnam War, and the ENTIRE Iraq War and Afghanistan War to be DECLARED Wars for purposes of VA Benefits, don’t you?
Grenada is not recognized by the Veterans Administration as a Declared War.
“The Constitution does not prohibit the use of lethal force in the United States against American citizens who collude with the enemy.”
No person shall be...deprived of life...without due process.
In the context of criticizing Paul, who recognizes (1) a person can be deprived of life with due process and (2) a person who poses an imminent threat to others can, if necessary, be deprived of life, what could the writer from National Review be talking about?
Let’s see:
The President has determined that Jane Fonda colluded with North Vietnam. Upon her return to the U.S., while she is drinking coffee at a cafe and posing no immediate threat to anybody, the President has her assassinated.
Versus
The President has determined that there is reason to believe Jane Fonda colluded with North Vietnam. Upon her return to the U.S., while is drinking coffee at a cafe and posing no immediate threat to anybody, the President follows due process to have her arrested and subjected to trial by a jury.
Regarding immediate threats, the President in his capacity as Commander in Chief can act, as well as every law enforcement officer and even private citizens, can act, including can us deadly force if necessary.
There is and never was any question about this.
Under common law tradition, each person has an inherent right of self-defense. I’ll forego whether the government obtains the power to use force from the consent of the people or from God; and, simply state the government has this right as well.
Regarding immediate threats, the President in his capacity as Commander in Chief can act, as well as every law enforcement officer and even private citizens, can act, including can us deadly force if necessary.
There is and never was any question about this.
Under common law tradition, each person has an inherent right of self-defense. I’ll forego whether the government obtains the power to use force from the consent of the people or from God; and, simply state the government has this right as well.
Well said.
Starting the argument with an ad hominem attack, I see.
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All the Constitution requires is for the Congress to authorize use of the military, in situations which are not emergencies.
No, the Constituion authorizes Congress to Declare war. They have no authority to 'use' the military. There is no authroization for a standing military, period.
In an emergency the President can act without Congress.
Please show me the Constituional Article, Section AND Clause that grants the President such authority.
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You do realize that the Veterans Administration considers the Korean War, the Vietnam War, and the ENTIRE Iraq War and Afghanistan War to be DECLARED Wars for purposes of VA Benefits, don’t you?
Since the VA is part of the federal government, I would expect othing less.
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No, the FACT is the American people are being played for patsies by a government which has been mucking around inside the borders of other soverign countries. Between the oil conntracts and the defense contracts, the 'players' enrich themseleves while the inalienable Rights of the People are slowly strangled under the guise of keeping them safe.
The Founders warned us, but our sound-bite society has no desire to listen.
If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.
~James Madison
To declare that the end justifies the means, to declare that the government may commit crimes, would bring terrible retribution.
~Justice Louis D. Brandeis
We Americans have no commission from God to police the world.
~Benjamin Harrison
"War is the common harvest of all those who participate in the division and expenditure of public money, in all countries. It is the art of conquering at home: the object of it is an increase of revenue: and as revenue cannot be increased without taxes, a pretence must be made for expenditures. In reviewing the history of the English Government, its wars and its taxes, a bystander, not blinded by prejudice, nor warped by interest, would declare, that taxes were not raised to carry on wars, but that wars were raised to carry on taxes."
Thomas Paine, Rights of Man, Part 1
Drones are just a tool, the next popular boogeyman.
The real problem is a government willing to kill citizens without warrant, which happens easily enough without drones.
Senator Paul already answered a very similar question on what to do if Flight 93’s passengers hadn’t staged a counterattack and the Muslim terrorists had flown it to Washington. Since it would have been actively involved in an attack it could be shot down by the military.
From reading your posts, you tend to decided what YOU want, then you attempt to turn your wishes into “Constitutional” arguments. To do so actually weakens the Constitution that you claim to respect.
Not every argument is a Constitutional argument. Your knee-jerk insistence to push every disasgreement into that framework is what makes you a kook.
Agreed. I think the right to move freely about secure in your person means free from fear of a govt drone strike. :-)
I’m expecting any day now to start seeing stories in the news of “Right Wing Extremist” blowing themselves up while making a bomb.
Maybe “an explosion caused by a gas leak” will become common for those that oppose the lefts agenda.
LOL! So now the president's power is not limited by the Constitution, but by what ever powers Congress and the Courts tell him he DOESN'T have? LOL!
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The War Powers Act clearly DOES give the President emergency powers.
Please show me the authority Congress has to 'grant' the Office of President anything outside the already delegated Constitutional limits.
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Any Act of Congress, such as an “Authorization for use of military force” does carry the full weight of Constitutional Authority.
Why? Because they SAY it does? So you think government gets to be the sole arbitrator of what powers it does or does not possess?
James Madison disagreed.
The terms of article eighth are still more identical: "All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury," etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!
FEDERALIST No. 41
General View of the Powers Conferred by The Constitution
Since 'attaching themselves to these general expressions, and disregarding the specifications' speaks of the Constitution's requirement for formal and LEGAL procedures, I DO believe I'll be taking his word over yours.
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A Treaty is the “Supreme Law of the Land”
No, the Constitution is the Supreme law of the Land and Treaties made UNDER it must adhere to it as well.
That a law limited to such objects as may be authorised by the constitution, would, under the true construction of this clause, be the supreme law of the land; but a law not limited to those objects, or not made pursuant to the constitution, would not be the supreme law of the land, but an act of usurpation, and consequently void.
St. George Tucker View of the Constitution
and in the case of Iraq, United Nations Treaties and Treaties with other countries WERE impacted.
So? Nations 'impact' each other all the time. When Kuwait was invaded, we would have had every right under the Law of Nations to wipe Iraq off the map had we declared war.
NOWHERE is the federal government given the authority to take military action on one nation because a treaty with another nation was 'impacted'.
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Not every argument is a Constitutional argument. Your knee-jerk insistence to push every disasgreement into that framework is what makes you a kook.
PSST!- the subject of the thread IS Constitutional authority, but maybe all your spittling bluster about how ca-RAZY I am blinded you to that fact.
Have a nice day.
This is how you deal with communists:
On 26 May 1973, Chile’s Supreme Court unanimously denounced the Allende régime’s disruption of the legality of the nation in its failure to uphold judicial decisions. It refused to permit police execution of judicial resolutions that contradicted the Government’s measures.
Chamber of Deputies’ resolution
On 22 August 1973, with the support of the Christian Democrats and National Party members, the Chamber of Deputies passed 81–47 a resolution that asked “the President of the Republic, Ministers of State, and members of the Armed and Police Forces”[18] to “put an immediate end” to “breach[es of] the Constitution . . . with the goal of redirecting government activity toward the path of Law and ensuring the Constitutional order of our Nation, and the essential underpinnings of democratic co-existence among Chileans.”
The resolution declared that the Allende Government sought “. . . to conquer absolute power with the obvious purpose of subjecting all citizens to the strictest political and economic control by the State . . . [with] the goal of establishing a totalitarian system”, claiming it had made “violations of the Constitution . . . a permanent system of conduct.” Essentially, most of the accusations were about the Socialist Government disregarding the separation of powers, and arrogating legislative and judicial prerogatives to the executive branch of government.
Specifically, the Socialist Government of President Allende was accused of:
ruling by decree, thwarting the normal legislative system
refusing to enforce judicial decisions against its partisans; not carrying out sentences and judicial resolutions that contravene its objectives
ignoring the decrees of the independent General Comptroller’s Office
sundry media offences; usurping control of the National Television Network and applying ... economic pressure against those media organizations that are not unconditional supporters of the government...
allowing its socialist supporters to assemble armed, preventing the same by its right wing opponents
. . . supporting more than 1,500 illegal ‘takings’ of farms...
illegal repression of the El Teniente miners’ strike
illegally limiting emigration
Finally, the resolution condemned the creation and development of government-protected [socialist] armed groups, which . . . are headed towards a confrontation with the armed forces. President Allende’s efforts to re-organize the military and the police forces were characterised as notorious attempts to use the armed and police forces for partisan ends, destroy their institutional hierarchy, and politically infiltrate their ranks.[19]
By 7:00 am on 11 September 1973, the Navy captured Valparaíso, strategically stationing ships and marine infantry in the central coast and closed radio and television networks. The Province Prefect informed President Allende of the Navy’s actions; immediately, the president went to the presidential palace, La Moneda, with his bodyguards, the Grupo de Amigos Personales (GAP) (Group of Personal Friends). By 8:00 am, the Army had closed most radio and television stations in Santiago city; the Air Force bombed the remaining active stations; the President received incomplete information, and was convinced that only a sector of the Navy conspired against him and his government.
President Allende and Defence minister Orlando Letelier were unable to communicate with military leaders. Admiral Montero, the Navy’s commander and an Allende loyalist, was rendered incommunicado; his telephone service was cut and his cars were sabotaged before the coup d’état, to ensure he could not thwart the opposition. Leadership of the Navy was transferred to José Toribio Merino, planner of the coup d’état and executive officer to Adm. Montero. Augusto Pinochet, General of the Army, and Gustavo Leigh, General of the Air Force, did not answer Allende’s telephone calls to them. The General Director of the Carabineros (uniformed police), José María Sepúlveda, and the head of the Investigations Police (plain clothes detectives), Alfredo Joignant answered Allende’s calls and immediately went to the La Moneda presidential palace. When Defence minister Letelier arrived at the Ministry of Defense, controlled by Adm. Patricio Carvajal, he was arrested as the first prisoner of the coup d’état.
Despite evidence that all branches of the Chilean armed forces were involved in the coup, Allende hoped that some units remained loyal to the government. Allende was convinced of Pinochet’s loyalty, telling a reporter that the coup d’état leaders must have imprisoned the general. Only at 8:30 am, when the armed forces declared their control of Chile and that Allende was deposed, did the president grasp the magnitude of the military’s rebellion. Despite the lack of any military support, Allende refused to resign his office.
By 9:00 am, the armed forces controlled Chile, except for the city centre of the capital, Santiago. Allende refused to surrender, despite the military’s declaring they would bomb the La Moneda presidential palace if he resisted being deposed. The Socialist Party proposed to Allende that he escape to the San Joaquín industrial zone in southern Santiago, to later re-group and lead a counter-coup d’état; the president rejected the proposition. The military rebels attempted negotiations with Allende, but the President refused to resign, citing his constitutional duty to remain in office. Finally, Allende gave a potent farewell speech, telling the nation of the coup d’état and his refusal to resign his elected office under threat.
Annoyed with negotiating, Leigh ordered the presidential palace bombed, but was told the Air Force’s Hawker Hunter jet aircraft would take forty minutes to arrive. Pinochet ordered an armoured and infantry force under General Sergio Arellano to advance upon the La Moneda presidential palace. When the troops moved forward, they were forced to retreat after coming under fire from GAP snipers perched on rooftops. General Arellano called for helicopter gunship support from the commander of the Chilean Army Puma helicopter squadron and the troops were able to advance again.[32] Chilean Air Force aircraft soon arrived to provide close air support for the assault (by bombing the Palace), but the defenders did not surrender until nearly 2:30 pm.[33]
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