Thank you, Senator Dodd

Senator Dodd,

Thank you, Senator. Thank you for doing what so few have these last few years: standing up for the Rule of Law. The Rule of Law doesn't have a big office on K Street, nor does it result in much juicy gossip. And though, for a while, it seemed to have become a partisan issue, with the Republicans working against it out of loyalty to an Imperial President and Democrats speaking up for it to show their opposition to him, we see now that it has few partisans, that few will man the barricades for it.

And yet there you stand, not in Iowa or New Hampshire, but on the floor of the Senate, speaking for the Rule of Law, the principle that if you violate the law, commit crimes, you must face justice in a court of law. There you stand, for the principle that the law of the land and not the whims and dictates of the Commander in Chief, the Sole Supervisor of the Unitary Executive, the man with "Inherent Executive Authority" that goes back to the Divine Right of Kings, is what rules us. There you stand.

And with you stand the ghosts of all our forefathers who gave their lives for the precious documents that enshrine that principle. How has it come to this that so few of our supposed leaders, our representatives, our senior statesmen stand by you? How is it that Senator Reid can give lip service to the principle, but bring to the floor the version of the bill that casts it aside, yet again? How can he not honor your "hold" and yet honor Senator Graham's that protects the power to torture from the application of the Army's Field Manual?

We hear much about supporting our troops. How does it support them to throw aside the practices of the Field Manual which prescribes principles of international law that we expect the world to apply to them. How does it support our troops to set aside the Uniform Code of Military Justice in favor of secretive ad hoc "Tribunals"? How does it serve them to tear down the principles that we insisted on at Nuremberg, that the rule of law and not of vengeance and power of the victor to do what he likes with the vanquished? How does it honor our dead to set aside the Constitution, Federal statutes and those of the several States, the laws and principles they fought and died for?

How have we come to the point where the ability to torture gets more respect from the leader of the Senate, the supposed head of the Opposition, than does the defense of the principle that those who break the law must face Justice in a Court of Law? It seems surreal. Routinely these days you hear people invoke Orwell's 1984, and less often Brave New World. Occasionally, Animal Farm is suggested as shedding light on where we are, or wry comments are made about the subtitle, "How I learned to stop worrying and love the bomb".

But this week I feel like I'm caught in the President's Analyst. You may remember the film that satirized spy thrillers and conspiracy theories, by making the ultimate evil force that threatened our country that villain that everyone could hate: TPC -- The Phone Company. I feel like Dr. Sydney Schaefer, the titular President's Analyst who becomes convinced that everyone is spying on him, that all the spy agencies, and at their heart The Phone Company are out to get him. Back in 1967 we laughed at the film. It was an absurdist spoof. Today we seem on the verge of making it real, of making The Phone Company immune to prosecution, immune to civil suit, immune to inquiry as they secretively spy on us at the whim of a President whose lawyers tell him he is above the law or perhaps he IS the Law..

But, there you are. There you stand. Son of an FBI agent, Senator and Nuremberg prosecutor. Dark horse in a Presidential race where one freshman senator criticizes another for lack of experience. And while they thump their tubs, you stand and speak and act for the Rule of Law. Thank you Senator. Thank you from the bottom of my heart. As the descendant of a Scot who came to this country in chains, condemned to indentured servitude for standing against a self proclaimed "Lord Protector", only to win his freedom and settle in your home state, I thank you.

Thank you for remembering how hard fought our freedoms and privileges are in this country, thank you for standing for the the Rule of Law. It's not glamorous. It will not win you friends. It probably does you little good on the campaign trail. It will not endear you to K Street or to the leaders of your party. But thank you, and may Providence bless you.

Jim Burrows
Vox Libertas
A free voice

In Concord, Cannon Law

In Concord, Cannon Law This is now the fourth posting in my "In Concord" series, in which I have been trying to capture the thoughts and reflections that occupy me when I go to the Old North Bridge in Concord, Massachusetts, a hallowed place that has served as my church for most of the 21^st Century. These postings have come in the order that their subjects arise in a typical visit, contemplating the enemy graves, the battle and fallen Minute Man memorialized there. We now follow the path to the Visitor's Center. After a short while it turns sharply to the right. The road used to fork here and the left fork continues on as a mowed path through the grass past the ruined foundation of Capt. David Brown's farm. I often stop here to contemplate the subject of this posting, but for a while there has been an even more concrete focus to be found further up the path.

In the Visitor's Center we find "The Hancock", one of the two remaining cannons from the cache that Gov. Gage had sent his men to confiscate. It is on loan from the Bunker Hill Monument in Boston (which commemorates the battle fought on Breed's Hill, but that is a story for another day). Like the other remaining cannon believed to be from the Concord cache, "The Adams", the Hancock is named after one of the two dangerous radical leaders that Gage was seeking. It sits on a recently made gun carriage not unlike the ones found and burned in downtown Concord resulting in the smoke that made the men of Concord fear their town was being burned. Together they represent the triggering causes of the "shot heard round the world", the outbreak of the War that would give birth to one great nation and begin the fall from power of another.

All that because Gage feared this weapon and its like in the hands of Hancock, Adams and the bands of insurgents and unlawful combatants who sided with them, to put it in the terms of my earlier postings. All this because rather than treat with men like Hancock and Adams, he and his superiors across the sea chose a preemptive military action, to interdict the radicals and their weapons of war.

But that formulation is all from the point of view of the British, their motives, their mistakes and the strategic failures that they led to. These are important in light of the analogy to our failure to apply the lessons of Concord to modern times, but now let us look at The Hancock and its fellows from the perspective of the Colonists. What does it tell us about their motives and beliefs, about the oft-cited Founding Fathers, their beliefs and assumptions?

To put it bluntly, the Battle of Concord was fought in part over the right of the people to bear arms, and not just pistols, and fowling pieces, but cannons—weapons of war. Gage moved precipitously and disastrously because he did not believe that the weapons of war belong in private hands, a view shared by many Americans today. But what Captain Davis and Private Hosmer died for on the North Bridge was their belief in the right and the need for the people to remain armed. Captain Davis was a gunsmith who drilled his Minute Company with bayonets and shot that he supplied them with, who died defending right of the men of a nearby town to possess cannons, powder, shot and the stores needed to field their militias against a government they found tyrannical.

When we write of Colonel Barrett, Captains Davis and Brown and the other colonial officers, it is easy to think of them as commissioned officers because of the titles of rank the bore, but there is an important distinction between Col. Barrett and Col. Francis Smith, the redcoat who lead his soldiers into Concord, between Capt. Davis and Capt. Walter Laurie who lead the troops on the other side of the bridge. Capt. Laurie, commander of the 43rd Regiment of Foot bore a King's Commission. He was a Captain in the King's army because the King said he was. His authority over his troops devolved to him because he and his superiors were appointed by the King or his appointees.

Capt. Davis was a captain because his fellow citizens in Acton said he was. Capt. Davis was elected. He served his town and his neighbors because he volunteered to and they elected him. His bravery, familiarity with firearms and willingness to supply and train his neighbors qualified him. Before the battle he and Major Buttrick, whose house is just beyond the Visitor's Center, and who drilled his men on the very field upon which the Colonials were gathered, and Capt. Brown, his next door neighbor, whose family watched the battle, and Col. Barrett whose field hid the cannons. They met to discuss and decide what to do because they were responsible not to a distant Governor or more distant King, but to the men who would die following their orders. The men, their neighbors, who elected them to make these decisions.

I stress the distinction between the commissioned officers of the King's army and the elected officers of the colonial militias and Minute companies because it is important in understanding who the cannons belonged to (ignoring for the moment the fact that they may very well have stolen them from the British). They belonged to the People. Even in 1775, before the Declaration of Independence, before the Constitution of the United States of America, these men gathered in Concord believed that political and even military power arose from the people.

The cannons were not Col. Barrett's, not Hancock's or Concord's. The cannon belong to the people. Barrett had them because he was the a senior officer in the people's militia, and was capable, as he proved, of protecting them until they were needed. He needed no authorization from the King, no commission as an officer. Rather he had the trust and respect of the men who elected and followed him, who were willing to die following his orders or those of Capt. Davis or Maj. Buttrick.

That this is so becomes quite clear a little more than a year later when John Hancock, the dangerous fanatic who fled Lexington with Sam Adams a few hours before the fight at the Bridge, and who would become the first Governor of the State of Massachusetts, seventh President of the United States in Congress Assembled, signed a document that declared that

... Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, ...

and

... But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, ...

And that is the importance of the cannon, since named after him, that lay concealed in the furrows of Col. Barrett's field, and the shot, powder and amassed provisions that were stored in his neighbors' houses. They enabled the people, the militia, to throw off British rule, to revolt against the government that they judged to be despotic.

These men did not believe in the inherent authority of the Commander in Chief and Supervisor of the Unitary Executive to ignore the law, whether he called himself the King and claimed Divine Right or President elected by a minority of the citizenry. They believed in retaining not only their rights, and the right and obligation to revolt. They also believed in the retaining the cannons, the weapons of war, to enable them to exercise those rights and duties to overthrow despots not merely foreign, but domestic.

It is all well and good to try to claim that

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

means something else, but as the men who laid down their lives in Concord on Patriot's Day, April 19, 1775, demonstrated, the men who hallowed this ground did so in defense of the right to bear cannon, and the right to revolt. And it was not merely the men of the Commonwealth who believed this. In response to Shay's Rebellion, a little more than a dozen years later the Virginian Thomas Jefferson wrote:

A little rebellion now and then is a good thing. …God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty. …And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure.

And here's the paradox of liberty. This country whose founding documents proclaim the right of revolution, the right of the populace to be armed enabling such a revolution, was the site of a singular event, as a man dressed in colonial garb at the foot of the Concord obelisk pointed out to me yesterday. Twenty two years after the Battle of Concord, John Adams, the cousin of the other dangerous radical who fled with Hancock, was after whom the other cannon is named was inaugurated as President, under the following history making conditions.

1. The outgoing Head of State was still alive
2. The incoming Head of State was not related to the outgoing
3. The turnover was entirely peaceful
   
4. The incoming and outgoing Heads of State disagreed about major policies
5. The military was not involved

The country that believed in and was based on the right of revolt—armed revolt—was the birthplace of the entirely peaceful and orderly change of government.

And so, I disagree with those who seek to keep assault rifles and other weapons of war out of citizen's hands, to confine them only to duly appointed representatives of the government. Men died hallowing the ground where I pray in defense of just the opposite.

I met another man on the path of this sacred place, one who disagreed with some of what I have said in this series, who quoted me an old Shi'ite proverb that Iblis, the devil, was the first to reason by analogy, and that underscores the admonition that I usually end my blog postings with: Don't believe me. Read and research for yourself. Think and pray. Discuss with those who not only agree with you, but those who do not. Make your own decisions and act to preserve your country.

Be a Free Voice, the Voice of Liberty
Cry "Freedom!"
Vox Libertas

In Concord, The Minuteman--Unlawful Patriot?

This is the third in my series of postings capturing my thoughts and reflections from my frequent visits to the Old North Bridge in Concord, the site to which I most often go to pray and meditate these last half dozen years. The course of this series has followed my usual path through the site. In the first, I started where each visit begins and ends, at the graves of the two British soldiers. In the second, I proceeded to the obelisk and contemplated the historic parallels between their mission to Concord and our invasion of Iraq. In this installment we proceed across the bridge to the monument that was the reason for my visit on September 12, 2001, the first time I came to the site explicitly to pray.

Today, we visit the Concord Minuteman. My prayer on September 12 was one of thanksgiving as well as one of mourning and remembrance. It seemed clear to me that just as the Minutemen defended their homes and neighbors in Colonial America, a number of the passengers of Flight 93 constituted the Militia in 2001. The details were sketchy, but it seemed clear from the reports of phone calls from the passengers that a group of men and women had gathered, determined that the hijackers had to be stopped from using their plane as a weapon, and charged the cockpit.

I came here to honor them, and their predecessors of the last 3 centuries, free citizens, volunteers who have stood to defend our Republic and Commonwealth. A few weeks later, in early October, I came here to pray before writing an essay entitled "9-11: America Victorious", in which I protested the portrayal of 9-11 as an American failure. This angered me because it gives too little credit to patriots like Beamer, Bingham, Burnett, and Glick who exemplify the Minuteman spirit.

In all the times that I have discussed this subject at the foot of the Minuteman statue, never has anyone disagreed with my contention that the Flight 93 heroes are the modern versions of Isaac Davis, and his fellows. Some have been surprised that they hadn't thought of it that way before, but none have taken issue.

Not so my other observation. You see, the Minuteman as portrayed in Daniel Chester French's statue is clearly an Unlawful Combatant, or more correctly, he is not in terms of the Geneva Conventions, a "Lawful Combatant". According to Article 4 of the Third Geneva Convention, in order to qualify as a Prisoner of War (a Lawful Combatant), one must fulfill the following requirements:

(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.

The colonial militias at the time of the Battle of Concord wore no uniforms, and displayed no fixed distinctive sign, though some did wear war paint and others cockades, but these were more designation of rank than of allegiance. It can also be argued that they did not conduct their operations in accordance with the laws and customs of war. Certainly it was so argued at the time. One of the fallen British soldiers at the North Bridge was described by a fellow as appearing to have been scalped. The militia fired from cover, retreated into civilian houses and blended into the civilian populace. There is reason to believe that the cannons that the Governor was looking for in Concord were stolen from the British in Worcester. In the months leading up to the Battle of Concord, the militia had been used to intimidate the Governor's appointed judges, and so on.

Please, dear reader, understand that I do not say these things to disparage the Minutemen or the militias in general. You will be hard pressed to find someone more proud of the history or citizens of the Commonwealth or the Republic. I vehemently support the revolutionaries and insurgents who were our founding fathers. They were free men who fought for Liberty and for us, their descendants. They founded one of, if not the, greatest countries ever to grace the pages of history.

Rather, I bring these things up because I am critical of the Geneva Conventions and even more so of our nation's relationship to them. You see, in direct contradiction of the policies and opinions of the current administration, I hold that the Geneva Conventions do not cover enough people, rather than too many. They are not quaint, should not be abandoned or narrowed. The should be expanded. As they stand they would not cover the very men who fought to create our country. They would not cover the farmer who sets aside his plow to take up his rifle.

Ah, but you say, what of paragraph 6? (At least those of you facile with GCIII Article 4, Section A.) What of

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

We were, however an occupied territory, a colony. Recall, if you will, that what had the Colonists up in arms (literally)—gathering the cannons, muskets and ammunition that Governor Gage sent his troops to find and confiscate were the "Intolerable Acts", including the Quartering Act, the reason that that the framers felt it was necessary to include in the Constitution the prohibition that

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Also, we had plenty of time. We had organized militias for more than a century. We did not "spontaneously take up arms". We chose the path of irregular militias rather than regular armies. No, paragraph 6 is not for us.

I'm no lawyer, especially not one versed in international law, so there may be something that I have overlooked, some way in which one might argue that the colonial militiamen might be covered by GCIII and GCIV, but at best, the matter is unclear. And so, if we were to be true to the history of our nation, we would be pressing the international community to extend the coverage of the Geneva Conventions, and not as the current administration has done, worked to restrict that coverage.

This country was founded by insurgents, by free men who banded together for self protection who believed that the government was "of, by and for the people", that it takes its legitimacy from the will and the consent of the governed. We reject monarchy based on divine right and the subordination of the people to the state. The restrictions in the Geneva Conventions are based on the premise that only a state may raise an army, that fighters who are part of a recognized army fielded by a legitimate state should be protected. Individuals who fight for their own liberty, for the defense of their neighbors without state blessing are not as valued and protected. Unlawful Combatants. Insurgents and other non-state sponsored individuals are not protected. This should not be surprising as the Geneva Conventions are agreements between states.

It is perfectly understandable, but in terms of what happened on April 19, 1775, and the years that followed it, of the principles of the Declaration of Independence and the Constitutions of the United States and of the several Sates, it is not very American. It is very Bush, however. The current administration believes very much in rule by a strong individual, a Commander in Chief who is the sole decider in a Unified Executive. They have advanced political theories that dismiss individual liberty for the good of the State and the nation. They have sought to limit the number of people protected by the Geneva Conventions, and by our laws. For them, States are more important than individuals, rights are granted to citizens by the state rather than the other way around, and of course all power in the state is wielded by the sole supervisor of the unitary executive.

The lesson of Isaac Davis, the Acton Minuteman immortalized in the Concord Minuteman statue is that the farmer, the gunsmith, the man who was convinced that if he took up arms he would die, takes up arms because it is the right thing to do, because a patriot protects his neighbor's town from being burned by an occupying army seeking to disarm honest farmers. Here is not a soldier, not a lawful combatant, but a gunsmith, a farmer, a free man, chosen by the common consent of his fellows, to lead the first charge.

This is America.

But as ever, don't believe me. Read the history of the Battle of Concord and the Intolerable Acts. Read of the life of Isaac Davis, and the owl he believed foretold his death but which did not hold him back. Read the story of Mark Bingham, the gay patriot from San Francisco and the words of his mother, Alice Hoglan regarding the ground that is hallowed by the bones of her son and the terrorists he died fighting. Decide for yourself what the memorials in Concord mean at their heart, what it means to honor the enemy dead, what it means to live in a Commonwealth and a Republic founded by insurgents, rebels and and citizen soldiers.

Be a free voice.
Be Liberty's voice.
Cry, "Freedom!"

Vox Libertas

In Concord, Cycles of History

This is the second of my postings, capturing my thoughts and reflections at the Old North Bridge in Concord, Massachusetts, site of the "shot heard round the world". In the first, I introduced the series with a consideration of the import of the memorial to the two fallen British soldiers. In this installment, I will consider how they came to be there and how those events echo our own time.

I go often to pray and ponder at the North Bridge, walk down the processional aisle between the twin rows of pines, stop to pay my respects at the graves of the two British soldiers and to pray not only for them but for all soldiers who fight and die in foreign lands, for our soldiers who are overseas and for our Republic. My next stop, is the obelisk, a few feet behind me.

I came to this spot, between the two monuments, one month short of the 208th anniversary of the Battle of Concord, on March 19, 2003 to contemplate what brought these two British soldiers to this spot.

They were sent, you see, on a mission to seek out and confiscate or destroy Weapons of War in the hands of dangerous fanatics who were a threat to their homeland thousands of miles away, and to capture and arrest two of the most dangerous of the fanatics' leaders. They never found the weapons. They never captured the leaders. But the locals, fearing that their town was being burned down by the invading army, who by the way, were actually trying to save the town, took up arms, joined the militias in huge numbers and using tactics that violated the rules of war drove the invading army back to the capital city, where they remained besieged until they withdrew. The mission, the invasion, the occupation, emboldened the fanatics, allowed them to recruit huge numbers, and assisted by foreign fighters hostile to the invading army drove them from the area. In doing so, they set an example for fanatics, separatists and nationalists around the world and a globe-spanning empire declined and fell.

The next day, March 20, 2003, it was my fears and not my prayers that were answered. This time the Great Power was the United States and not Great Britain. The Weapons of War were chemical and biological weapons, and perhaps a nascent nuclear project rather than cannons and as we have subsequently learned, seem not to have existed—the cannons were only hidden. But the story was nonetheless familiar.

Of course, the analogy is imperfect. Saddam was undoubtedly a despot and had little in common with Adams and Hancock, and we were legitimately a British colony, and so on, but still, there are important lessons in terms of the strategy, the cost of tactical errors, and the like. To someone steeped in the history of the Battle of Concord, the siege of Boston and the American Revolution, some of these lessons are glaring. The soldiers buried here were their nation's first casualties in a series of conflicts that saw their homeland lose its influence in the area and its possessions and prominence throughout the world.

I had originally planned to give a more detailed account of the Battle of Concord and its analogy to our invasion of Iraq, but in keeping with my oft repeated urging that you not believe me, but rather inform yourselves and make your own decisions, let me refer you to the Wikipedia's article on the battle. You will find that the article is tagged as having its accuracy and neutrality challenged. The reason is that a couple of people feel that it is biased in favor of the British, and speculate this is due to foreign editors. As a matter of fact, the main editors are locals, and their understanding is quite like mine. But perhaps more importantly for my purposes here, since I am drawing an analogy between the colonials and modern Iraqis, and the the British and the modern US, that bias if it does exist works against and not in favor of my points.

I'll wait here while you go read the article.

Now that you're back, let me draw your attention to the following paragraph in the "Aftermath" section of the article (emphasis mine):

In terms of accomplishments and casualties this was not a major battle. However, in terms of supporting the political strategy behind the Intolerable Acts and the military strategy behind the Powder Alarms, the battle was a significant British failure because the expedition contributed to the fighting it was intended to prevent and because few weapons were seized.

This is the precisely the point I made to the tourists I discussed the Concord/Iraq parallels with back in 2003, on the eve of our invasion. Invading someone else's country, putting them in fear of their lives, and of the loss of their homes is not a way to keep the peace, is not a way to win world opinion. Rather it, in the President's words "emboldens the enemy". And anyone who knows about the birth of our country should have known that.

And the lessons go deeper than that. Governor Gage was on the one hand someone obsessed with secrecy, but clumsy in intelligence. His orders to Col. Smith were sealed, not to be opened until the troops were underway. His orders for reinforcements were sent only as single copies to keep them from falling into enemy hands, and yet the Colonials knew of his plans in advance and the failure to send duplicate orders created unnecessary and costly delays. When the reinforcements did move out, they went with inadequate supplies and when supplies were later sent to them they were waylaid and fell into enemy hands. Intelligence failures, a failure to adequately plan for contingencies, and an obsession with secrecy should all seem familiar to us today.

And yet, if we just study the first Battles of the American Revolution, we can see these lessons. If we study the last days of the Roman Republic as it became the Empire, or the fall of Republics into Empire after them we can find other, just as important, lessons.

I urge you, dear reader, as I have urged so many that I encounter by the Old North Bridge, to study our history, to think about these issues and most importantly, to speak out, to be a Free Voice, to be the Voice of Freedom, to Cry Freedom. Our Republic is a priceless treasure and it is under threat. It is under threat that is predictable and preventable. Those who forget, those who ignore, those who cannot learn from history are doomed to repeat it.

Vox Libertas.

In Concord, Meditations and Realizations

This is the first in a series that I plan to post, capturing the thoughts and reflections that I have when I go to one of my favorite and most sacred places, the Old North Bridge in Concord, Massachusetts. For most of this new millennium, the bridge and its environs has been my church and my retreat, the place I go to pray, to think, to find my balance. It has been such for a number of reasons. First, it was the site of pivotal events which shaped history for the centuries to come, and which resonate with the events that move us most profoundly today. Second, it is a place where men laid down their lives for their country. Finally, as a piece of nature, the arching bridge over the flowing river reminds me of the miracle of nature and creation.

Each of these articles should be short and focus on one theme, one line of thought of the several that I focus on when I go to the bridge. My time there, my meditations on nature, life, death and sacrifice, my ponderings of the history made there and its place in the larger fabric of American life and history have provided me with what I regard as important lessons and reminders, and so I'd like to share those with others.

The first spot, and the last that I always visit there will be the focus of this first reflection. I expect that it will be shorter and perhaps simpler than most of those that follow. But, as with my visits, I hope it will set the groundwork, the initial tone, of my postings, just as visiting the spot itself sets the context for my visits.

The spot is the graves of two British soldiers who were killed at the bridge on April 19, 1775. For those who have not vsited the site, let me set the scene. The bridge is not far from Monument Road, and you approach it down a broad path between rows of high arching pine trees, trees intentionally planted there to create something of a cathedral in the pines atmosphere. The path leads straight to the obelisk monument, and off to the left, by the inevitable New England stone wall, there is a small chained off area, with two Union Jacks and a large inscribed stone. Usually, there are flowers on the graves. If the pines create a cathedral effect, the graves are a small chapel to the side. They are small and unremarkable, at least physically.

But in another way they are most remarkable. All over the world you can find war memorials, grave sites, and markers to the fallen dead of past wars. But here, without much fanfare is one of the most unique. It is a memorial to the Enemy's Honored Dead. Think of that. Not to our nation's fallen heroes, not to the local boys who gave their lives, but to the fallen enemies, to those who were seen as invaders and a threat to the town, to two of the first casualties of the American Revolutionary War, even though they were on the other side.

This unique memorial says a lot to me about who we are as a people. Many of my ancestors are Celts, Irishmen and Scots, people who are renowned for their abilities to keep a feud alive for years, and generations. And so it is the world over, where wars are often fought over slights and insults generations or centuries old. But here, in America, "the Great Melting Pot", historical enemies have learned to live side by side, to hang together lest we hang separately. The first permanent colonists in the Commonwealth, the Pilgrims and the Puritans, came here seeking not religious tolerance, but the freedom to, in the case of the Pilgrims, create a separate community run by their own strict principles or in the case of the Puritans, to purify the Anglican church, according to very similar principles. Names like "Cotton Mather" are not associated with tolerance.

A century and a half later, as the United States emerged, Americans had learned that Quakers, Catholics, Protestants, Jews and Deists all had to set apart their differences, to live and work side by side with those with whom they disagreed upon the most fundamental truths and principles, that if freedom, democracy and the rule of law were rule in place of the King as joint head of Church and State then differences and old grudges must be set aside. Not surprisingly, once the Revolution and its echo, the War of 1812 were past, we tended to see Great Britain and Canada as perhaps rivals, but not real enemies.

And so, 130 years ago, the British graves were protected by pillars and chains donated by an English ex-pat, and we honor their deaths, and their role in the founding of our nation. We lay flowers on their graves, and mark it with their flag, and write words that praise their bravery. And that, is something not often seen now or through history. It is a small thing, but one of many that make me proud to live in my Commonwealth and my country.

And as I look at our present day conflicts, I start with a prayer that we can understand those on the other side and those caught up in the middle as we have come to understand those whom we fought 232 years ago. In part, these two soldiers died in a conflict that had been growing inevitably for years, and in part they died due to misunderstandings and confusions that arose in the heat of the moment. They died as a result of the folly of their superiors, immediate and ultimate, and helped to start a struggle that led to the fall of their Empire. I pray, each visit, that we can learn from them; that we can avoid similar follies; that we do not plunge our great Republic into a similar decline from greatness.

I visit their graves with both pride and humility. Only a great people can afford to honor their fallen enemies, and great nations can fall through hubris and folly.

In future installments, I will deal with such topics as the parallels between the Battle of Concord and the War in Iraq, the Minutemen and the Geneva Convention, and Concord's relationship to the Second Amendment, any one if which is likely to be a bit more controversial than this piece.

Until then, be a Free Voice.
Cry, Liberty.
Vox Libertas

Protecting the Republic

The Democrats are failing us, as the recent FISA Court vote clearly demonstrates. They are not protecting our Civil Liberties, they are cowering before the political threats of a "politically weak" president and worst of all they are allowing him to arrogate more and more power into the Presidency. We need to make them understand that we want political leaders who will stand up for the People, our Liberties and the Republic.

Glenn Greenwald has written (here, here, here, here, here, and here) and spoken (here and here) extensively recently about how the Democrat-led Congress meekly deferred to the President and hastily revised the FISA laws, greatly expanding the government's power to secretly and without judicial or Congressional review tap any telephone or email communications that can be "reasonably believed" to be outside the US. Many others have taken up the cry and all of the Democratic Presidential hopefuls have distanced themselves from the action.

Most of the writing on this topic has spoken about the great harm done to our Civil Liberties, but as John Dean pointed out, in many ways, that is not the most important and dangerous aspect of the incident. Dean wrote in FindLaw's on-line journal, The Writ, an article entitled "The So-Called Protect America Act: Why Its Sweeping Amendments to the Foreign Intelligence Surveillance Act Pose Not Only a Civil Liberties Threat, But a Greater Danger As Well". In it he wrote,

The most stunning aspect of the Democrats' capitulation is their abandoning of their institutional responsibility to hold the president accountable. The Protect America Act utterly fails to maintain any real check on the president's power to undertake electronic surveillance of literally millions of Americans. This is an invitation to abuse, especially for a president like the current incumbent.

Greenwald and numerous others have written of the FISA fiasco, that congress capitulated to the "weakest President" in recent history. Witness:

It is staggering, and truly disgusting, that even in August, 2007 -- almost six years removed from the 9/11 attacks and with the Bush presidency cemented as one of the weakest and most despised in American history -- that George W. Bush can "demand" that the Congress jump and re-write legislation at his will, vesting in him still greater surveillance power, by warning them, based solely on his say-so, that if they fail to comply with his demands, the next Terrorist attack will be their fault. And they jump and scamper and comply.

-- Glenn Greenwald in Salon.com

Once again, the weakest president in the history of this country walks away a WINNER!!! Winning BIG TIME!

-- PinkytheBrain in a comment in Crooks and Liars

I do not understand how "Total Capitulation", jumping at the demand of the politcally weakest President in history, and craven betrayal of principle makes the Democrats "appear stronger".

-- LJean a comment in Balkinization

But if 41 Democrats lack the courage to stand up to the weakest president in decades at a time when every indicator they trust—polls, focus groups, pundits—is saying no to this man, when will they find the strength to stand?

-- Arlene Goldbard

By "weakest", of course, they mean that the President has extremely little support among the People, and after all the People are the source of power in our country and under our constitution. And so, lacking popular support the President should be weak, but in two very great senses, he is not. And therein lies the rub.

First of all, as they point out, the Democrats routinely, repeatably and predictably capitulate and give him pretty much anything he asks for. And secondly, what he has asked for is Power, and they have given it to him. They heap it on him and when they don't he just takes it and they stand by.

This President, this "weak" President has the authority to federalize the National Guard and deploy the US military within the borders of the US when, and I quote the new text of the insurrection act "as a result of ..., or other condition ... the President determines that ... domestic violence has occurred .. and such violence ... obstructs the execution of the laws ... or impedes the course of justice". It used to be that he could do so only to put down violent rebellion and insurgency, or to repel invasion. Now, natural disaster, terrorism or the unspecified "other condition" is sufficient. He used to be able to order insurgents to disperse, now he can issue a proclamation ordering "insurgents or those obstructing the enforcement of the laws to disperse". If he thinks peaceful protesters "obstruct enforcement", he can use the military to disperse them, once he has invoked this act. No other President has had this power.

With the FISA rewrite, it is not the Court but Attorney General Alberto Gonzales who oversees warrantless wiretaps. The same Alberto Gonzales who could not answer an opinion question asked of him in Congressional hearings without taking it back to "his principal"; who believes that the President as the sole supervisor of the "unitary executive" makes all decisions.

No, in terms of legal power, granted him and abdicated to him by the Congress, and his reconstituted Supreme Court, the current President has more pure executive and governmental power than any previous President. God help us if he were politically powerful as well.

So what are we to do about it? Well, we can turn out any Congressman who doesn't stand up to him. We can replace them with people who understand that their mandate is to protect our liberties, our constitutional government and the Republic. But what if there aren't enough. California has no Senator who voted against FISA. Only one did in Massachusetts. These are the supposed extreme liberal states. What if there aren't any Democrats with backbone in a senatorial or congressional primary? Well, I suppose you could vote for the John Bircher, or the Libertarian. But still, what if there aren't enough?

Well, at least, wrote people last weekend, none of the Democratic Presidential candidates voted for the FISA amendment. Perhaps the answer is to vote for a strong Democratic President who will whip Congress into shape and... wait a minute... Isn't that proposing that we turn to a Strong Presidential candidate to protect the Republic by weakening the Presidency? Is there, perhaps, just perhaps, a teeny little issue hiding in there?

This, boys and girls, ladies and gentlemen, is not going to be easy. The reason that power corrupts is that good people are tempted to use it--just for now--when it falls into their hands, for good purposes, and there are always good purposes that need power. And so power is seldom surrendered. The time to stop this isn't in the next election, it is now!

The FISA bill was only a temporary stopgap, with a 6-month sunset clause. Speaker Pelosi has sent a letter saying that when Congress returns next month, they'll need to reexamine it. But President Bush has also said that it needs to be revisited. It is, he feels only a first step, and the whole change needs to be made. Congress has to grant him and the executive branch, which as the sole supervisor of the unitary executive, means him, more power, more immunity from oversight, more protection from prosecution for him and those who go along with him, inside or outside the law.

The time to act is now. Make sure your voice, your free voice for so long as it remains so, is heard. Demand that your congressmen stand up for the Republic and against the concentration of ever more power into the President's hands.

Vox Libertas
A Free Voice, that cries Freedom!

Khalil, the Heretic

Sigh. It has been far too long since I wrote here, and my review of John Yoo's "The Powers of War and Peace" has sat incomplete too long. My apologies. It seems that life happens while you are busy making other plans. The Yoo review will, sadly, continue to be delayed. Reviewing and critiquing political and legal theory takes more concentrated research and thought time than I seem to be able to muster in a single lump of late. So, please forgive me if I fall back for a moment on a simpler task, and write about media fear-mongering and cultural ignorance.

I was reading this morning, a little piece over in Think Progressive regarding Fox News's fear mongering coverage of the Khalil Gibran International Academy (KGIA), a new school opening in Brooklyn that will teach the Arabic language (in a special 2 our session after normal school hours) and Arab culture. When I saw the article and the Fox video, I knew nothing about the KGIA, but it seemed a little surprising to to me to hear the phrases "Muslim school", "Islam 101?" , "Funding Fatwa?," and "Coming soon to a classroom near you, Al Qaeda!" used with regards to a school named after Khalil Gibran, a Lebonese Christian, excommunicated from his church and exiled from his Ottoman Turk-controlled homeland for his attacks on the corruption of the nobility and the church, so I did a little research,

On the one side I found a blog by Daniel Meeter, paster of the Old First Reformed Church, who along with Rabbi Andy Bachman had accepted the invitation of the school's designated principal, Debbie Almontaser to serve on tKGIA's advisory council, in which he described her as an American Patriot. On the other, I found an article by Daniel Pipes in the New York Sun entitled "A Madrassa Grows In Brooklyn", which described Ms. Almontaser as an extremist. This article and a whole series of articles at pipelinenews.org are echoed in blogs all over the Web.

As I said, I know nothing of the school or Ms. Almontaser, but was suspicious of claims that someone who invited a pastor and a rabbi onto the advisory council of a school named after an iconoclastic Christian was pushing a fundamentalist Islamist agenda. After a couple of hours Googling and reading, it seems pretty clear that Fox News, Pipes, Pipline and the others are either engaged in fear mongering or are its victims.

Take, for instance, the following description of the Ms. Almontaser from a hyscience.com article entitled "The Dangerous Islamist Leftism Of Dhabah (Debbie) Almontaser And The Proposed Khalil Gibran School In Brooklyn":

According to Dhabah Almontaser, the principal designee of the proposed Khalil Gibran School in Brooklyn, the 9/11 Attacks America's Fault, and "terror is the last resource of a desperate and oppressed people" (as in oppressed by America). Almontaser's views and objectives are so bizarre that the school will be a government funded madrassah...

and contrast it with this slightly longer quote from the interview:

Terror is the last resource of a desperate and oppressed people, but that does not mean that it is acceptable. People who do terrorist acts have lost the sense of right and wrong, each individual committing such acts should be punished with the maximum extent of the law. Only Allah is entitled to take lives.

Just a little bit of a difference. She sound less of a "Dangerous Islamist" when she disapproves of terrorism and killing. When asked, "How do you think terror can be combated?" her reply was

- At least not by bombing a country into pieces! We did not bomb the hometown of Timothy McVeigh to combat terror when he exploded the Oklahoma bomb in 1995. Great Britain does not bomb North Ireland to fight down the IRA, and Spain does not kill hundreds of civilians in their search for ETA terrorists. So which right do we have to kill Afghan women and children, old and young in the search for Al Qaeda?

- Terror is combated by finding the terrorist cells, break them down and bring the responsible to justice. I am sure that our intelligence can find them. With the technology of today they survey what ever they want and are infiltrated in all kinds of communities.

At the time she said this, a little more than a year after 9/11, it was a point of view that would have been shocking or hard to swallow for a great many, but today as an ever-growing majority of Americans turn against the President's "War on Terror" it seems more mainstream.

On the other hand, her view on the causes of the 9/11 bombing are still not mainstream, and I can see how some, perhaps even many, would find them shocking or a little threatening. Asked "Why do you think terrorists attacked the USA?", she replied,

- A year ago I could not answer such a question. To me it was just impossible to comprehend how someone could do such terrible, totally sick atrocities. Many said they were not surprised that terrorists attacked the US. That hurt me deeply. Today I believe that the terrorist attacks can have been triggered by the way the USA breaks its promises with countries across the world, especially in the Middle East and the fact that it has not been a fair mediator with its foreign policy. It is not true that the people in the Middle East and Southeast Asia hate our lifestyle, our freedom and our democracy. What disturbs them is that we in order to secure our own well being, deprive them of the possibility of achieving the same high living standard and freedom of choice that we have in the western world.

[This is the point where she made the oft-quoted statement about terror being the last resource.]

This sort of candid criticism of American policy is the kind of thing that gets liberals and progressives accused of "hating America", and is an accusation that is hard for many of us to hear, but that makes it all the more important for us to listen to it and to understand where it comes from, rather than react with fear or anger. Rather than focusing solely on the extent that she holds her country responsible and not her faith or language, seeing it in a conext that starts and ends with a staunch disapproval of terror ("such totally sick atrocities... should be punished with the maximum extent of the law.") and on religious and ethical grounds in the context of her religion, can help us understand world culture and how it affects us all.

This brings me back to the thing that fist caught my ear, the fact that the Fox commentators and the critics in The New York Sun and the blogosphere all talk about the Khalil Gibran school and don't bother to mention that it was named after an anti-traditionalist Lebanese Christian, most likely because they don't even know. They fear and hate, but do not understand.

And that is not all that surprising. Gibran became quite popular in the late 60's but was generally viewed as a smaltzy poet, a source of pop aphorisms thanks to the popularity of The Prophet in both abridged and unabridged versions. In fact, though, he was really something of a radical and iconclast. Two of his works that I enjoyed while growing up were Spirits Rebellious, and Broken Wings. The first story in Spirits Rebellious, "Madame Rose Hanie" and Broken Wings address the same theme, a beautiful young woman in love with one man but in an arranged marriage with another older richer one. In Rose's case, Gibran argues explicitly that in leaving her rich husband to live with the poor one she loved, Madame Hanie was being faithful. Had she stayed, her motives and actions would be hardly different from that of a whore. Broken Wings is told from the perspective of the young man, whose beloved Selma dies in childbirth having stayed with her older husband. It was my favorite of his stories, even before I met and married my own Selma. How could I not appreciate:

In every young man's life there is a "Selma" who appears to him suddenly while in the spring of life and transforms his solitude into happy moments and fills the silence of his nights with music.

The final story in Spirits Rebellious, "Khalil, the Heretic", is of a young peasant man who stands up to a corrupt sheik and church. It's not a subtle story, but it is the one that got him exiled from his country and excommunicated from his church and the passion of its attack on church and state in the name of Jesus and the people helps one to understand his other works. (By the way, the title is not quite so self-referential as one might think, as Gibran's name was actually Gibran Khalil Gibran--Khalil Gibran was his father's name. His American publisher didn't think people would understand the double name.)

I bring up who and what Gibran was because, Anglo-Germanic Celt though I may be, his poetry, his faith, his art and his rebellion were all a part of my childhood, and it is perhaps due to that as well as all the other diverse influences that make me believe in this country and its E Pluribus Unum philosophy. The fear mongers would have us believe that the only part that matters is the "one", that foreigners should cast off their old languages and culture and become one, but that misses the great strength that there is in the "out of many". The great miracle of this country's founders was that Puritans, Anglicans, Catholics, Quakers, and Deists could all agree that their religion need not be the established one, that we could have many, or even chose none. Louisiana could join the Union with a legal code that owed more to French law than British Common Law. French-speaking enclaves could exist in New Orleans and northern New England, three Republics with Spanish traditions and histories and Spanish-speaking citizens could join the Union. We can be different and be Americans, love America.

A prayer offered by the title character of "Khalil, the Heretic" seems particularly appropriate to Vox Libertas.

Hear us, Oh Liberty;
Bring mercy, Oh Daughter of Athens;
Rescue us, Oh Sister of Rome;
Advise us, Oh Companion of Moses;
Help us, Oh Beloved of Mohammed;
Teach us, Oh Bride of Jesus;
Strengthen our hearts so we may live,
Or harden our enemies so we may perish
And live in peace eternally.

I cannot read them in the original Arabic, but the English version does nicely.

But, as ever, don't believe me. Read the works of Gibran. Read Debbie Almontaser's own words and think about them. Compare them to what is said about her. Learn something of the history of the Middle East, study from the Anglo/French, Turkish, Jewish and Arabic perspectives. See if you can synthesize a holistic view of that history from the varied versions.

Be a free voice, the voice of liberty, cry "Freedom!" till it rings.
Vox Libertas

Yoo: War-time powers NOT in effect

John Yoo Review, part II

In part 1 of my review of John Yoo's book, The Powers of War and Peace, I criticized him for his flawed understanding of history, and of how things today differ from from the last century or two. In this article, my focus is more his reasoning and analysis of history. I think that the inescapable conclusion of this review is that even if we accept his premises and his reasoning we find that he provides arguments that directly contradict the doctrines and actions of the Bush administration.

In a day when a professor of government at Harvard University can write a serious piece in the Wall Street Journal arguing that the country needs and the US Constitution allows for "one-man rule" in preference to the Rule of Law, I believe it is particularly important to carefully read, analyze, and where necessary rebut writers like John Yoo and Harvey Mansfield who are providing the theoretical basis for the turn towards authoritarian rule.

In part 1, I suggested that Yoo's misrepresentation of history had several possible causes. Among them, one of the most likely was that he was serving a political agenda. In chapter's 2-5, we some evidence for that agenda—Yoo focuses very strongly on showing that the fact that the Legislature has the power to declare war does not mean that the President requires their permission to initiate military actions or hostilities, and that likewise making, breaking and interpreting treaties is an executive function. By so focusing on these points, however, he ignores several implications of his reasoning that weaken the justification for a strong unified executive that is free of legislative interference.

The first example of this appeared in the introduction. There, while considering the implications of Article II of the Constitution granting the Senate the power to ratify treaties, he wrote:

the Senate's participation in treatymaking and appointments reflects an effort to dilute the unitary nature of the executive branch, rather than to transform these function into legislative powers. When the Constitution, for example, grants the executive a power that is legislative in nature, such as the veto power, it does so in Article II. Participation of the Senate in treatymaking does not transform treaties into legislative acts, just as its role in appointments does not make the appointment of officers legislative in nature.

Because the distinction between executive and legislative powers is critical to his argument that the President enjoys the power to engage the nation in military conflicts and to negotiate treaties without the Congress's permission, he must draw sharp distinction between the unenumerated executive power that is vested in him from the power of the legislature. Thus, he views the Senate as acting, in this case, in a role analogous to the privy council in Britain or the Governor's Council in Massachusetts and the like. But in so doing he must ascribe to the founders the desire to dilute the "unitary executive" of which we hear so much.

Either the Senate is exercising legislative oversight in the making of treaties and appointments or the Senate is in these instances acting with executive power. In either case the notion of the President as the sole supervisor of a unitary executive is weakened. In the choice that Yoo has made in his analysis, we see the President's executive power tempered by the oversight and approval of a part of the federal executive that he does not supervise. Thus, when he argues in signing statements that the executive branch need not follow the laws as passed by the legislature, and does so as the sole supervisor of the executive branch, he does so in direct contradiction to Yoo's analysis.

If we make the other choice, that the Senate is part of the legislative branch and any powers granted to it are legislative in nature regardless of which Article they appear in, then we have clear instances where the President is subject to direct legislative oversight and approval, and when the President argues in his signing statements that the executive need not follow the dictates of the legislature in order to preserve the separation of powers, again we have counter examples. No matter which choice we take in this dilemma, Yoo has supplied us with a counter-argument for the independent and unitary executive that the neo-cons wish to claim.

Moving to the chapters that I had explicitly targeted with this part of my review, we come to another major contradiction of administration and neo-conservative theory, this time in the area of the declaration of war. A large portion of Yoo's book focuses on countering the arguments of "pro-congress" scholars who assert that it is illegal or unconstitutional for the President to engage in warfare without Congress's formal declaration of war. To do so, he argues that at the time of the writing of the Constitution it was clearly understood that a declaration of war neither initiated nor authorized military action. He writes in the section on British law at the time of the revolution:

First, it [the declaration of war] notified the enemy that a state of war existed between them. If a nation warned its enemy of future hostilities, its later actions would receive the protection of international law. A declaration announced that hostile actions by its soldiers were taken under national aegis, and thus did not constitute piracy or robbery.

p. 33

Second, declarations played a domestic legal role by informing citizens of an alteration in their legal rights and status.

p. 34

Thus, a declaration of war served the purpose of notifying the enemy, allies, neutrals, and one's own citizens of a change in the state of relations between one nation and another. In none of these situations did the declaration of war serve as a vehicle for domestically authorizing war.

p. 34

In the section on the colonial constitutions, he explains even more explicitly:

The declaration of war's main purpose lay not in authorizing military operations, but in triggering the governor's exercise of his domestic powers, such as the authorization to impose martial law.

p. 61

If we follow Yoo's reasoning, we may find that we must concede that the President does not need a declaration of war in order to commit the nation to armed conflict, but we must also find that without a declaration of war, the powers that the President has been claiming as Commander in Chief to authorize warrant-less wire taps, hold "enemy combatants" indefinitely, and so forth, are not permitted to him. Every time the President tells us "we are at war, and extraordinary measures are necessary", he is exceeding his authority, unless there is a declaration of war, according to Yoo's own analysis.

This line of reasoning finds it full conclusion in the following passage in the section where he analyzes the Constitution itself, which somehow the administration and the neo-cons don't seem to ever cite:

Textually, a declaration of war places the nation in a state of total war, which triggers enhanced powers on the part of the federal government

p. 151

A paragraph later, he expands on the type of enhanced powers that require a declaration of war.

Congress has recognized the distinction between declared total wars and nondeclared hostilities by providing the executive branch with expanded domestic powers—such as seizing foreign property, conducting warrantless surveillance, arresting enemy aliens, and taking control of transportation systems, to name a few—only when war is declared.

p. 151, (emphasis mine.)

Most remarkably, a few pages later, Yoo distinguishes the declaration of war from the "Authorization of the Use of Military Force" (AUMF) and other similar Congressional acts, when he writes:

With both Iraq and Afghanistan, a supporter of the Declare War Clause theory of war powers may well have felt the Constitution satisfied because of the two statutes authorizing hostilities—even though these scholars have never explained why authorizing statutes satisfy the requirement for a declaration of war.

p. 157

This is in very stark contrast with Yoo's own argument that "because the United States is at war with al Qaeda, the President possesses the constitutional authority as Commander-in-Chief to engage in warrantless surveillance of enemy activity." By his very definitions, this authority only applies in a declared war.

Conclusions

And so, we find that the very theories that John Yoo uses to argue for the strengthening the powers of the President, contain within them very powerful arguments against the way that the the Bush administration has exercised his supposed authority. Yoo, himself argues that the founding fathers wish to dilute the unitary nature of the executive by granting executive powers to the Senate, acting as an independent executive council, approving appointments and treaties.

More significantly, Yoo writes explicitly that the use of extraordinary war-time powers, such as warrantless surveillance require a declaration of war, and that the authorization of of military action in Afghanistan and Iraq does not qualify as a declaration of war.

If one of President Bush's own theoreticians and Justice Department appointments, a man credited with providing the foundation for doctrine of the unitary executive and the view of the President as wielding unenumerated executive powers, tells us that the founding fathers wish to dilute the unitary executive and that warrantless wire-tapping requires a declaration of war, how can we avoid drawing the conclusion Bush has exceeded his authority, violated the law, and violated the Constitution?

As ever, don't believe me. Investigte for yourself. Read the Constitution. Borrow Yoo's book from the library. (I find it hard to recommend buying it.) Peruse The Founders Constitution, an excellent collections of historical documents related to the Constitution. Read the "John Yoo says surveillance illegal" in the Daily Kos, for another conflict between his reasoning and administration practice.

Be the Voice of Liberty!
Cry Freedom! Uphold the Rule of Law!
To Be Continued...

What Is Wrong with CNN?

Video availble at YouTube

Crooks and Liars recently featured a story entitled "What the hell is wrong with CNN?". I thought of it immediately while watching "The Situation Room" last night. After covering the President's denial that Iraq is in a civil war, but rather the grip of "pure evil", they turned to a "developing story" regarding the so-called "showdown" between Congress and the President over war funding. Wolf Blitzer was off for the night, so Suzanne Malveaux stood in to give the following melodramatic reading:

Suzanne Malveaux:

Secretary Robert Gates sounding the alarm about the Iraq mission. He is predicting very serious consequences for US forces, in just a matter of days if a new cash infusion doesn't come through.

CNN Pentagon correspondent Barbara Starr has more. Barbara, of course when we hear the President sound those alarms, his critics question his reliability, but now you are getting this from the Pentagon, tonight.

Barbara Starr:

"Suzanne, Defense Secretary Robert Gates had a very dire prediction today. If there isn't an agreement with Congress for additional war finds, maybe the war would have to end."

As you can see from the picture above, the caption read "Gates: No Money, No War, Iraq Nightmare Scenario." So, after we hear that somewhere between 2/3 and 3/4 of the American people want an end to the war, and the administration repeatedly asserting that Congress's only role in war is the "power of the purse", we now learn from CNN that "the war would have to end" constitutes a "nightmare scenario", a "dire prediction" of "serious consequences". What is the world coming to? In this democratic Republic, the populace might get what they want! Shameful.

OK, now that I've used sarcasm, maybe I'm not giving them enough credit. Maybe CNN was doing the same thing. Maybe I just missed it. Maybe all that's wrong with CNN is that they think I'll recognize sarcasm. Maybe I can't. Maybe their delivery stinks. I don't know. But my jaw certainly dropped.

It certainly doesn't sound like that legendary "Liberal bias" one hears the non-Fox News mainstream media accused of. Note that the two journalists quoted above are the show's anchor and their Pentagon correspondent, and not partisan commentators, and yet Barbara cites the "very dire prediction... maybe the war would have to end." There's no indication at all that there is any contrary view, that ending the war might not be a "nightmare scenario".

As ever, don't believe me. You decide. Watch the video on YouTube, read the transcript. Judge or yourself.

Cry Freedom! Be the Voice of Liberty!

John Yoo: Historic Flaws

Part 1 of a review of John Yoo's
The Powers of War and Peace

I have been reading The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 by John Yoo, and my reactions to it are strong and complex enough that I've decided to critique it here on on Vox Libertas. This page is the first in a planned series. I have not finished reading the book yet, and so the course of this series is not planned out, but so far, I see three major classes of difficulty with the book. They are:

1. His assumptions about history and the state of the world today are wrong.
2. His arguments are fallacious, often based on cherry-picking his evidence to suit some agenda or preconceptions.
3. Even if you buy in to his reasoning and conclusions, the actions of the Bush administration are often in conflict with the results.

Flawed From the Start

Yoo, himself, points out that his views are in sharp contrast with the prevailing views on the Constitution:

This book proposes a constitutional theory of the foreign affairs powers that differs, at times sharply, from the conventional academic wisdom but that describes more accurately the actual practice of the three branches of government.

p. viii

Others have also noticed this difference, but have a different explanation. See, for instance, Andrew Napolitano's book, Constitutional Chaos: What Happens When the Government Breaks Its Own Laws. Where Judge Napolitano sees the government breaking the law and violating the Constitution, and warns that we are becoming a government of men, and not laws, Yoo urges us to revise our understanding of the Constitution in light of what may appear to be unlawful practice. This difference is crucial and perhaps critical, and so Yoo's revisionist reasoning should be examined closely.

Yoo recounts some of the last two or three decades of political theory in the area of treaties and war powers, and contrasts the historical context in which they were written with what he sees as our current circumstance.

At the time such leading scholarly works as those mentioned above were written, the nature of war continued to be thought of as occurring solely between nation-states. The Persian Gulf War had just witnessed an American-led coalition's defeat of Iraq's grab for Kuwait—a traditional war over territory fought by the regular armed forces of nation-states. Nation-states were presumed to be both rational and susceptible to various levels of coercion, with force often being used only as a last resort.

p. ix

Thus, he claims, the theories of the day were based on this view of current events.

The disappearance of the threat of a war that could directly harm American national security allowed policymakers and intellectuals the luxury to envision a future in which they could reduce the overall level of armed conflict.

p. ix

Please notice that while this is possible, it should be remembered that Yoo himself is proposing that current practice should serve as a basis for political theory, and that his predecessors in general did not claim to work this way.

The Myth of Post-9/11

In his preface Yoo presents a view of recent history that will be familiar to anyone who has heard the Bush administration and their neo-con theoreticians defend their policies and actions:

The World after September 11, 2001, however, is very different. It is no longer clear that the United States must seek to reduced the amount of warfare, and it certainly is no longer clear that the constitutional system ought to be fixed so as to make it difficult to use force. Rather than disappearing from the world, the threat of war may well be increasing. Threats now come from at least three primary sources: the easy availability of the knowledge and technology to create weapons of mass destruction (WMD); the emergence of rogue nations; and the rise of international terrorism of the kind represented by the al Qaeda terrorist organization.

pp. ix-x

At the heart of this passage is the argument that three new developments provide us with justification for extreme actions and a change of course. Specifically, he cites:

1. availability of knowledge and technology for WMD
2. emergence of "rogue" nations
3. rise of international terrorism

Weapons of Mass Destruction in the hands of dangerous radicals are the reason given for the invasion of Iraq, for isolating the "Axis of Evil", and for finding ourselves on the brink of adding a third war to our collection in the Middle East. I go regularly to pray at the grave site of other soldiers sent on a similar mission more than two centuries ago. You see, Concord, Massachusetts is the next town over and at the Old North Bridge there is a memorial to the British soldiers who died there in the Battle of Concord. It starts,

They came 3000 miles and died to keep the past upon its throne.

Before 2001, I'd only been there a couple of times, but since going there in remembrance of the modern Minute Men who died on Flight 93, I return regularly, so the story of the Battle of Concord may well be more familiar to me than to many of you, my readers. Let me recap.

The British had heard that the colonial militia had canons, long arms, shot and gunpowder stored in Concord, and between 700 and 800 troops were sent out under the command of Lt. Col. Francis Smith to retrieve these weapons to prevent them from being used by radical insurgents who objected to the occupation of nearby Boston by British troops. By the time they arrived in Concord there were few weapons to be found, but they burned a few gun carriages on the common near the meeting house. The militiamen gathered nearby saw the smoke and charged the British troops that were stationed near the North Bridge. They outnumbered the British more than 4-to-1, and the Red Coats took their first fatalities, the aforementioned soldiers whose memorial is there today.

The British withdrew, and were joined by a slightly smaller force, and though they now numbered about 1300, the militias grew even faster and the British routed and retreated to Boston. The militias gathering around the city turned into the Siege of Boston, which turned into the American War of Independence, which was the first of a number of secessionist wars that resulted in the collapse of the British Empire, the first power upon whom the sun never set.

The point of recounting that bit of history is that fear of dangerous weapons of war, and mass destruction is not new. Ah, but you say, cannons and gunpowder are not weapons of mass destruction of the calibre that we face today. That is true, but they were serious enough to threaten the largest cities of the day and cause sufficient destruction to threaten a city or a nation's economy.

And they were not the only WMDs. Think of the smallpox-infected blankets used in the Siege of Fort Pitt. Think of the terror of mustard gas in The Great War—WWI. Recall, if you will, that when we speak of Saddam using WMDs, mustard gas was what he used on the Kurds and the Iranians. The same WMD used by the Germans on Canadians 90 years ago.

Every era has its terror weapons, in the light of which all that came before always seem like child's play. Familiarity breeds contempt. New technology is scary.

The Emergence of Rogue Nations is no more a new thing than WMDs, or the dangers of new technology and knowledge. Take, for instance the so-called "Barbary States", home of the Turkish Corsairs or "Barbary Pirates", the area the Islamic world calls the Maghreb. From the Western perspective, this area has long been ruled by strongmen and pirates since the days of the Crusades, much of the time under the aegis of the Ottoman Empire, financed by tribute, ransom, slavery and plunder.

(Note that all of the European powers also commissioned privateers, and that the early economy of the United States was closely tied to slavery, and that the people of North Africa and the Middle East, like my celtic ancestors are a tribal people, basing their power structures on familial ties rather than territory and lines on maps.)

To the extent that the term "rogue nation" means anything it means outlaw nations that don't obey what we recognize as the civilized international law. Besides the Barbary States of the Maghreb which the US has fought since it gained its independence from England (see the "Shores of Tripoli" reference in the marine hymn), our early history with the French and "their" indians (not to be confused with "our indians" who harassed the French, and the demonized "wild indians" of the American West), is full of nations that fit that definition. And just as the indians learned to scalp their enemies from Europeans, it was after all, the US that helped build the Afghani Mujahideen up to fight the Russians.

No, the United States has dealt with deadly enemies whose culture was way outside of our notion of civilized international relationships since before the country was founded. Which brings us to the terrorist threat.

International Terrorism isn't a new development in the world, nor unfamiliar to Americans.

I've already mentioned the "French and Indian War", but conflict between the French and British colonies, was much longer lived than that one war. Both sides harassed the other through their surrogate allied native tribes. As mentioned above, one of the things the European powers taught their Indian clients was the taking of scalps to as proof for the awarding of bounties. Beyond scalping, fire and kidnapping were frequent tactics in the guerilla and terrorist struggle along the colonial boundaries.

As the conflict turned from British vs French to colonist/Americans vs Indians, the intentional depletion of game animals, disease infected blankets and the distribution of addictive drugs in the form of alcohol were added to the repertoire of terrorist tactics. Make no mistake about it, early American history involved terrorism and state-sponsored terrorism. Biological weapons and a drug trade in the hands of terrorists were all known, and practiced by the British, French, Native Americans and the United States.

Although Yoo doesn't explicitly mention "Ethnic Cleansing" among his list of modern ailments, it is worth considering that the New World knew it not only in the treatment of Native Americans, but also in the form of the expulsion of the Acadians from Nova Scotia to, among other places, New Orleans, where we know them as the "cajuns". And speaking of New Orleans, there was also piracy and privateering familiar to the denizens of New Orleans and those along the Anglo/Spanish frontiers.

Returning to terrorism, and moving on to the 19th century there was the wave of revolutions that swept through Europe in the 1840s. In America, we had Bloody Kansas leading up to the Civil War, and during it, the guerilla warfare of Quantrell and Bloody Bill Anderson, and Sherman's march to the sea, all of which could legitimately be described as terrorism, at least by those on the receiving end. Anarchist terrorism grew through the last decades of the 19th century and into the 20th, where, it was the spark that ignited World War I, with the assassination of Archduke Franz Ferdinand of Austria.

It makes great propaganda to talk about how "the whole world changed" after 9/11, but it does not accurately reflect history or the American experience. We may have had a few illusions dispelled, but WMDs, rogue nations, international and state-sponsored terrorism are all familiar, or should be, to Americans with any historical perspective.

And Flawed to Its Heart

This historical weakness, unfortunately, strikes to the very heart of Yoo's book because one of its main thrusts is to use history as a basis for his constitutional theory. For his theory to be sound, the understanding of history upon which it based must be sound.

Yoo's claims that everything has changed after 9/11 are, however, not historically sound, and that he makes them in the introduction to what is presented as a scholarly reconsideration of fundamental Constitutional issues, raises the question of where they come from. Some of the possibilities are:

• He is terribly misinformed.
• He has gotten swept up in the popular mythology.
• He is blinded by his own biases and preconceptions.
• He is cherry picking his facts to suit his theory.
• He is intentionally misleading us to sell his theory.

Any of these weaken the book. The later ones carry more blame, and given that he contributes substantially to the Bush Administration's theoretical basis for strengthening the centralized authority of the Presidency, give us good reason to be wary.

In the historical chapters that follow, Yoo appears to be cherry picking his history, to be seeking out those pieces that suit his theory, so perhaps that's what is happening here. Perhaps he is just blinded by his assumptions, biases and loyalty to the President.

Several of Yoo's claims make assumptions that he does little to prove,

These new threats to American national security, driven by changes in the international environment, should change the way we think about the relationship between the process and substance of the warmaking system....

If, however, the nature and level of threats are increasing and military force unfortunately remains the most effective means for responding to those threats, then it makes little sense to commit our political system to a single method for making war.

p. x, (emphasis mine.)

I have already provided numerous counter examples to his claimed new types of threats are emerging or increasing. The new claim that he interjects in these passages that military force is the most effective response to these threats, is also unsubstantiated, and should be questioned. It is, for instance, that US military forces has been entirely effective in Iraq.

As ever, don't believe me. Study history yourself. Check out The Powers of War and Peace from the library. If the book is too long for you, sample the memoranda he wrote as part of the Bush Administration. There are examples available at the DoJ and FindLaw. An interview with Yoo at the University of Chicago, includes both comments and quoted passages. The Harvard Law Review includes it in a broad review of 4 books. The Founders Constitution is an excellent collections of historical documents related to the Constitution.

Be the Voice of Liberty!
To Be Continued...

Issues Demanding Action

It's been a while since I posted to Vox Libertas. Most of that time has been spent reading and watching congressional hearings and small symposiums. This posting will attempt to pull together some of what I've learned and to point out both specific and general sources that I think will be of interest and use to you, dear readers.

Ambassador Freeman Tells It Like It Is

Perhaps the strongest piece I read was a speech made by retired ambassador, Charles W. Freeman, Jr. to a gathering of DACOR (Diplomats and Consular Officers, Retired). The speech is long and rich, as you might expect when a highly skilled and experienced diplomat addresses his peers. I will therefore excerpt and summarize, but please read the whole thing. It is available at the Middle East Policy Council web site. Freeman was Reagan's translator on his trip to China and the ambassador to Saudi Arabia during the Gulf War, among other things. He has served in China, India, Thailand, Africa, the Middle East and Europe.

The man clearly loves the country he has served so well, and after a glowing summary of our successes and contributions to world civilization in the 20th century, he says baldly,

Since 9/11 Americans have chosen to stake our domestic tranquility and the preservation of our liberties on our ability – under our commander-in-chief – to rule the world by force of arms rather than to lead, as we had in the past, by the force of our example or our arguments. And we appear to have decided that it is necessary to destroy our constitutional practices and civil liberties in order to save them.

He then, quickly summarizes the same Robert Harris account (see "The 'war on terror' that ruined Rome" in the Herald Tribune) of the beginning of the end of the Roman Republic that inspired some of my rhetoric in The Real Tragedy of 21st Century America. The parallels between Rome's reaction to piracy and kidnapping in Ostia in 68 BC, which ultimately led to the Republic falling into Empire, and our reaction to 9/11 is a sobering cautionary tale.

From the first few seconds that I heard George W. Bush speak, long before I knew what his politics were, I was dead set against the man for the simple reason that he set off the "Beware! Lying arrogant bully!" alarm that a childhood featuring broken bones developed in me. Thus, Freeman's comment that

There has been little room for such measures – for diplomacy – in the coercive and militaristic approach we have recently applied to our foreign relations. Much of the world now sees us as its greatest bully, not its greatest hope.... Thus, the neglect of both common courtesy and diplomacy fosters violent opposition to our global preeminence in the form of terrorism, nuclear proliferation, and war.

struck a particularly painful cord with me. He goes on to point out with clarity how little the current administration and the public that they mislead understand war or diplomacy:

The common view in our country that diplomacy halts when war begins is thus worse than wrong; it is catastrophically misguided. Diplomacy and war are not alternatives; they are essential partners. Diplomacy unbacked by force can be ineffectual, but force unassisted by diplomacy is almost invariably unproductive.

He's too wise to use dreaded "died in vain" phrase, but he does point out how the lives of our troops are doing little to actually achieve our national priorities and why,

Every death or crippling of an American on the battlefields of the Middle East is a poignant reminder that, in the absence of diplomacy, the sacrifices of our soldiers, sailors, airmen, and marines, however heroic, can neither yield victory nor sustain hegemony for the United States. A diplomatic strategy is needed to give our military operations persuasive political purposes, to aggregate the power of allies to our cause, to transform our battlefield successes into peace, and to reconcile the defeated to their humiliation.

He moves through a laundry list of our foolish and dangerous military and diplomatic mistakes and takes us from the devaluing of our diplomatic currency to the weakening of the power, respect and desirability of our actual currency, the dollar and the devastating impact that that can have on our mortgaged future.

He ends with a list of principles which should guide us in recovering our nation. His full text is very well worth reading, but here I have summarized, taking just the first sentence or two from each point:

First, an America driven by dread and delusion into the construction of a garrison state, ruled by a presidency claiming inherent powers rather than by our constitution and our laws, is an America that can be counted upon to respect neither the freedoms of its own people nor those of others.

Second, it is time to recognize that freedom spreads by example and a helping hand to those who seek it. It cannot be imposed on others by coercive means, no matter how much shock and awe these elicit.

Third, credibility is not enhanced by persistence in counterproductive policies, no matter how much one has already invested in them. The reinforcement of failure is a poor substitute for its correction. Doing more of the same does not make bad strategy sound or snatch successful outcomes from wars of attrition.

Fourth, we must recover the habit of listening and curb our propensity to harangue. We might, in fact, consider a war on arrogance to complement our war on terror.

And finally, he exhorts us to change with the following,

Guantánamo, AbuGhraib, the thuggish kidnappings of "extraordinary rendition," the Jersey barrier, and an exceptional aptitude for electronic eavesdropping cannot be allowed permanently to displace the Statue of Liberty and a reputation for aspiration to higher standards as the symbols of America to the world. To regain both our self-respect and our power to persuade rather than coerce the world, we must restore our aspiration to distinguish our country not by the might of its armed forces but by its civility and devotion to liberty. The best way to assure the power to cope with emergencies is to refrain from the abuse of power in ordinary times.

But please don't trust my poor powers of summary and explanation. Please, read the words of this man who has so long and so capably served our country, who knows the arts of diplomacy, law and governance so much better than our current leaders. And then talk to your friends and family. Get out the word and save the Republic.

JAGs Judge the Military Commissions

In the Jurist, University of Pittsburgh's on-line law journal, two retired lawyers from the Judge Advocate General's corps, now law professors, wrote an analysis entitled "Military Commissions: War Crimes Courts or Tribunals of Convenience?". This article is shorter than Freeman's, and more focused, but still strikes at the heart of what's going wrong in this country. Geoffrey Corn served as a tactical intelligence officer, chief prosecutor and finally the Special Assistant for Law of War Matters to the U.S. Army Judge Advocate General, and so is highly qualified to address the issues raised by the MCA and the Manual for Military Commissions. He and Prof. Hansen specifically address the following question:

What is the purpose of creating these tribunals? Are they intended to serve the legitimate purpose of leveraging the unique competence of the profession of arms to sit in judgment of alleged violations of the laws of war? Or are they intended to serve the much less credible purposes of simply providing a more “convenient” forum to adjudicate crimes that do not fall into this category, or even worse did not even exist when the commissions were created?

and come to a very unfortunate conclusion.

They start by citing the MCA's own declared purpose: to “codify offenses that have traditionally been triable by military commissions” and contrast that with the actual offenses enumerated and how they differ from those in the Uniform Code of Military Justice, the Manual for Courts-Martial and the international law of war. While it is worthwhile reading their analysis, one example in the simplest of terms will illustrate.

One of the crimes explicitly punishable by death is the intentional killing of a "protected person". The way that the new Manual for Military Commissions differs from the UCMJ, MCM and international law is that whereas they require proof that the defendant knew that the victim was a a protected person (innocent civilian, basically) the new manual merely requires that he "should have known". This raises negligence rather than actual intent to the level of capital crime.

The conclusion of their article reads:

The nature of the offenses established by the MCA and the apparent use of the MMC to modify the nature of these offenses is both telling and troubling. By disconnecting the realm of available offenses from a solid mooring to the laws of war, the military commissions are invariably disconnected from the pragmatic foundation that has historically justified such tribunals. No matter what procedural changes may have been implemented by the MCA, this most fundamental question about the legitimacy of these tribunals will persist until the charges genuinely reflect that law from which the authority for such tribunals is derived. Until then the military commissions will be rightly viewed as a tribunal implemented for the convenience of the government.

This is a stinging indictment of the purposes of the MCA, its military commissions and manual, made not by liberal civilians, but ny experience JAG lawyers, one of whom was the Corp's expert on the Law of War. Again, read their article, tell your family and friends.

The MCA and Habeas Corpus

An interesting contrast of opinions can be seen by comparing another Jurist article and one that appeared in the Writ, with a recent discussion held at the Duke University Law School of the outstanding legal issues arising from the MCA.

In her article "Why Boumediene Was Wrongly Decided", Marjorie Cohn concludes that the recent ruling by the DC Circuit Court of Appeals upholding the stripping of habeas corpus under the MCA was erroneous and is likely to be overturned by the US Supreme Court. She bases this on specific Supreme Court case law. The two main grounds are that the Court has indicated that the US has sole jurisdiction over Gitmo, and the Combatant Status Review Tribunals and other MCA processes are not an adequate substitute for habeas corpus, as demanded by existing precedent.

In contrast, the participants in the February 12 Duke discussion "The Military Commissions Act of 2006: Outstanding Legal Issues", which is available on video, and audio versions, seem a lot less certain that the MCA will be overturned, given the complexity of the issues and Congress's fairly obvious intent in its passage. The video is well worth watching and is moderately clear and accessible. The discussion took place before the DC court ruled on
Boumediene, but their analysis does not seem to preclude much of the reasoning of the Court. One panelist suggests that the ultimate decision on the applicability of Constitutional protections at Gitmo will depend on how Justice Kennedy, as the swing vote reasons, when the cases get to the Supreme Court.

Even more recently, Michael Dorf has stepped into the question in a commentary in The Writ. Like Prof. Cohn, and the Duke participants, Dorf says that it is up to the Supreme Court to determine the extent of habeas corpus. He is less certain of the outcome but offers substantial reasoning as to why he hopes that they will finally address the core Constitutional issues and do so in light of modern circumstances and law. He says,

Those who favor reading the Constitution to mean exactly what it was generally understood to mean at its adoption frequently complain that, if judges depart from the original understanding, then they have no fixed standard by which to ascertain constitutional meaning. The charge, however, is doubly misleading.

First, as the disagreement in Boumediene itself illustrates, discerning guidance for modern controversies from Eighteenth Century sources that were contested even in their day, is hardly a determinate exercise that leads to a single incontrovertible result. Second, one can find functional guideposts for modern understandings that also effectively constrain conscientious judges' decisionmaking.

Collectively, these three sources provide an excellent understanding of the issues that Freeman so passionately tells us is of vital importance. They can be a bit challenging at times, but are well worth the attention of the informed citizen, and if we are not going to just allow politicians with increasingly unlimited power to make all our decsions for us, we must become well informed.

General References

I often urge Vox Libertas readers not to believe me, but to inform themselves. Let me suggest here a couple of resources that I find very helpful in this:

• The Jurist, The University of Pittsburgh's on-line legal journal and news feed. Specific resources there include:
• The Jurist Forum, op-ed pieces by law professors and Jurist editors
• Paper Chase - "Serious law. Primary sources. Global perspective".
  
• The FindLaw site, including:
  
• FindLaw News, legal news in their "for legal professionals" section.
  
• The Writ, FindLaw's on-line legal journal, with excellent commentaries, and a discussion forum.
• FindLaws' Annotated Constitution - The full text, with copious commentary and references
  
• The Founders Constitution, an excellent collection of the historical documents that informed the decisions of the authors of the Constitution and shed light on their reasoning.
• Thomas, the Library of Congress's searchable database which contains the text of bills and resolutions and their history as they move through Congress.
• The White House's news page – the full text of all the Decider's signing statements and press releases, videos of many of his speeches and appearances. One way or the other, an important site.
  

Keep informed. Discuss the issues with family and friends. Be the Voice of Liberty.