September 11, 2013

President Obama delivered his speech on Syria [87] last night, as scheduled, but probably it was not the speech originally planned. Recent events, including resistance in Congress and among the public, and the possibility of a diplomatic solution, left him in an awkward position. He couldn’t simply demand support for an attack on Syria, but he couldn’t back down either. The result was a speech long on moral principal, laced with dubious claims about national security, leading nowhere.

"I have resisted calls for military action because we cannot resolve someone else's civil war through force, particularly after a decade of war in Iraq and Afghanistan." Apparently he means that, at some point in the past, he resisted; Assad’s alleged use of chemical weapons crossed a line he had set, and he came to think that someone else’s civil war is our affair: "The question now is what the United States of America and the international community is [sic] prepared to do about it, because what happened to those people, to those children, is not only a violation of international law, it's also a danger to our security." As to atrocities, some skepticism or at least caution is in order; (alleged) atrocities are too commonly an excuse for military action.

In what way is the situation in Syria "a danger to our security?" This appears to be the answer: "As the ban against these weapons erodes" — apparently due to our failure to attack Syria — "other tyrants will have no reason to think twice about acquiring poison gas and using them. Over time our troops would again face the prospect of chemical warfare on the battlefield, and it could be easier for terrorist organizations to obtain these weapons and to use them to attack civilians." I have some difficulty in connecting the situation in Syria to the use of chemical weapons in some future war or terrorist event. Even if such a connection exists, would that not mean that our use of drones against civilians has invited others to us drones against us?

Of course there was a reference to our permanent enemy: "al-Qaida will only draw strength in a more chaotic Syria if people there see the world doing nothing to prevent innocent civilians from being gassed to death." The theory, I suppose, is that Syrians will become desperate for an ally against Assad, and will be so cynical about American resolve that, even though they would have had nothing to do with al Qaeda before, now they will rush into its arms. Again, the logic seems strained.

"If fighting spills beyond Syria's borders, these weapons could threaten allies like Turkey, Jordan and Israel." Iran might be emboldened and so on; the domino theory lives.

Here’s the truly remarkable statement:

I'm . . . the president of the world's oldest constitutional democracy. So even though I possessed the authority to order military strikes, I believed it was right, in the absence of a direct or imminent threat to our security, to take this debate to Congress. I believe our democracy is stronger when the president acts with the support of Congress, and I believe that America acts more effectively abroad when we stand together.

We have a constitutional system but, although the Constitution provides otherwise, he can declare war. However, because he thought it would strengthen his position, he asked Congress to approve the plan of attack. There is no "direct or imminent threat to our security," so a delay is not a risk but, as he stated earlier, there is "a danger to our security," so eventually we must intervene.

People have asked "Won't this put us on a slippery slope to another war? No, this would be a limited action, so small no one would notice it, a mere pinprick — oops, no, the "United States military doesn't do pinpricks." It will be something larger than a pinprick, but smaller than "a prolonged air campaign like Libya or Kosovo." Maybe, if it works, if nothing goes wrong.

Mr. Obama agreed with critics that "we should not be the world's policeman." Does he mean that? "Over the last two years my administration has tried diplomacy and sanctions, warnings and negotiations. But chemical weapons were still used by the Assad regime." Therefore we must act; how does that differ from being the world’s policeman?

At that point, the speech caught up with recent events. We’ll wait to see what comes of the Russian proposal. We’ll rally support. Oh, and here’s a thought: "We'll also give U.N. inspectors the opportunity to report their findings about what happened on Aug. 21^st." As we’re going to have a delay, we may as well have the facts.

The President is on record that we have an obligation to do something, the something to be designated later. Those of us who think that, however awful the situation in Syria is, we should stay out, have been put in our place.

Am I too cynical, too sarcastic? Probably, but Mr. Obama has done everything possible to invite such a reaction. It’s really discouraging to be writing in 2013 something that sounds more like 2002 or 2003.

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87. http://www.huffingtonpost.com/2013/09/10/obama-syria-speech-full-text_n_3903500.html  

September 10, 2013

The President wanted to attack Syria. He may still want to, or may have changed his mind, or may be dissuaded, or a diplomatic solution may be found, but the prospect of military action has raised an issue, hardly for the first time, about presidential war powers. No one doubts that Mr. Obama could have launched an attack on Syria without consulting Congress. He’s even been criticized for not doing so. However, perhaps motivated less by fidelity to the Constitution than by political calculation, he belatedly asked Congress to concur in his plan.

Merely asking Congress for support (and cover), and doing so only when it suits, isn’t exactly what the Constitution contemplates: "The Congress shall have Power . . . To declare War . . . ."[78]  There is no suggestion that this is a divided or qualified power. "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States . . . ."[79]  However, that says nothing about commencing hostilities.

One argument for bypassing Congress is that a military operation against Syria would not be a "war." That doesn’t pass the laugh test: firing missiles is an act of war, Secretary Kerry’s claim to the contrary notwithstanding. Indeed, when convenient, we are told that we are at war, permanently, though Congress hasn’t declared one since 1942.

There is the humanitarian theory: we cannot stand by while people are gassed. That justification (which assumes that the stories we have been told are accurate) simply overrides any constitutional quibbles: the President must act, so he has the right to act. However, even ignoring the constitutional issue, there is the problem that outrages occur all the time; what is our standard for intervention? This is an area where decisions should be taken internationally, but paralysis is built into the UN structure, and humanitarian warfare in the Middle East doesn’t quite fit the NATO model. If the UN were to act, American participation in any military operation would, in theory, be subject to congressional approval under the United Nations Participation Act of 1945.[80]

   However, that apparently is a nullity because the US never has entered into the agreement with the UN which is required to trigger the Act. Even if it had come into play, it might have been ignored; we entered the Korean War under the "aegis" of the UN, but without any action by Congress.

Another argument is that there may be situations in which an immediate response is required, and there is no time for consultation with Congress. A variation cites the remark made during the Constitutional Convention that assigning to Congress the power to "declare" war rather than to "make" war would leave the president with "the power to repel sudden attacks."[81]  The immediate-response argument has merit, and perhaps the "sudden attacks" discussion supports finding an implied power, but how often do such emergencies arise? None of our recent military adventures, with the possible exception of the early stages of the operation in Afghanistan, have fallen within this exception, and Syria does not. 

It can be argued that, in effect, war has been declared many times, through congressional resolutions. However, resolutions can be mere exercises in face-saving, taken with the knowledge that the president would proceed anyway; the 1991 Gulf War provides an example. In addition, resolutions can be vague and open-ended; how many times have courts been required to decide what the Authorization for Use of Military Force against Iraq means?

The resolutions in this case demonstrate the tendency to say too much. The resolution proposed by the President asks for authority

to use the Armed Forces of the United States as he determines to be necessary and appropriate in connection with the use of chemical weapons or other weapons of mass destruction in the conflict in Syria in order to --

(1) prevent or deter the use or proliferation (including the transfer to terrorist groups or other state or non-state actors), within, to or from Syria, of any weapons of mass destruction, including chemical or biological weapons or components of or materials used in such weapons; . . .[82]

He could use force "in connection with" the use of WMD in Syria, to prevent or deter their use or proliferation "within, to or from Syria;" that goes far beyond protecting innocent civilians from attacks by Assad and potentially extends to other countries. A declaration of war on Syria would be restricted by comparison.

The President’s draft resolution recites that

in the Syria Accountability and Lebanese Sovereignty Restoration Act of 2003, Congress found that Syria's acquisition of weapons of mass destruction threatens the security of the Middle East and the national security interests of the United States.

So it did; it declared that WMD in Syria threaten our national security "interests," which seem to be something broader than mere security. Whatever the meaning, Congress in effect invited any president to propose an attack.

The Senate Foreign Relations Committee has taken a step further down the path of handing over power to the president. The recitals in its draft resolution on Syria include the reference to the 2003 Act, and add this:

"Whereas the President has authority under the Constitution to use force in order to defend the national security interests of the United States . . . ."[83]

Considering that a national security interest can be whatever a president says it is, that recital, if adopted by the full Congress, would be an official and complete surrender of the war power.

Although given that recital, any limitations on the President’s power under the proposed resolution would be a contradiction and an exercise in futility, the committee draft pretends to impose some: force is to be used "in a limited and　tailored manner against legitimate military targets in Syria." Before resorting to force the President must certify that "the United States has used all appropriate diplomatic and other peaceful means to　prevent the deployment and use of weapons of mass destruction by Syria," and there must be "a military plan to achieve the specific goals. . . ." We might be excused for thinking that the committee members who voted for the resolution are not up to the task.

The reason that presidents no longer follow the Constitution is that Congress already has abandoned its right to demand that they do so. In effect, it has conspired in a silent Amendment. The War Powers Resolution of 1973 [84] was a recognition of that, but it also was an attempt to set some limits on presidential action. Presidents have ignored the limits. Congress also has allowed the executive to be the repository of secrets, and the sole judge of who may share them, so even when Congress is consulted, it may not be able to make an intelligent decision.

We have developed a national attitude which tolerates, and often encourages, military solutions to any perceived, or manufactured, crisis abroad, and which assumes for us a world-policeman stance. National Security Advisor Susan Rice set forth that position: if we do not "punish" Assad, it "could indicate the United States is not prepared to use the full range of tools necessary to keep our country safe." Safe from Syria? No, from others who will think we aren’t much of a policeman: "Rejecting limited military action that President Obama strongly supports would raise questions around the world about whether the United States is truly prepared to use the full range of its power." We mustn’t encourage bad guys: "Leaders in Tehran must know the United States means what we say. . . . If we do not respond when Iran’s close ally, Syria, uses weapons of mass destruction, what message does that send to Iran?"[85]

Some of Rice’s hyperbole was prompted by Obama’s threat to use force, followed by his decision to ask for congressional approval. In other words, he’s gone out on a limb, from which Congress must rescue him by authorizing an attack. However, the insistence that we use "the full range of our power" also is part of a pattern; we have adopted what Andrew Bacevich terms the new American militarism, which "manifests itself through an increased propensity to use force, leading, in effect, to the normalization of war. . . . The American public's ready acceptance of the prospect of war without foreseeable end and of a policy that abandons even the pretense of the United States fighting defensively or viewing war as a last resort shows clearly how far the process of militarization has advanced."[86]

The nation has pressing domestic problems, such as unemployment, poverty, the weakness of the economy, the capture of the polity by the wealthy, and the breakdown of responsive and responsible government. When we can govern ourselves effectively and justly, then perhaps we legitimately can consider whether and how to manage other countries.

Syria and humanitarian intervention are not the only situations which pose war-power issues; drone assassinations, indefinite detention, and domestic surveillance also require an inquiry into the extent of and justification for presidential authority. At some point, Congress needs to step back, look at the whole picture, reassert its constitutional rights, limit the situations in which the president can act on his sole initiative, and set out rules for those cases.

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78. Article I, Section 8.
79. Article II, Section 2
80. 22 U.S.C. § 287d
81. See Records of the Federal Convention:
http://press-pubs.uchicago.edu/founders/documents/a1_8_11s4.html
82. https://s3.amazonaws.com/s3.documentcloud.org/documents/782228/aumfresolutiontext.pdf  83. http://www.foreign.senate.gov/imo/media/doc/DAV13973.pdf
84. 5 U.S.C. § § 1541-48
85. http://www.washingtonpost.com/politics/obama-adviser-susan-rice-pushes-presidents-case-for-strike-against-syria/2013/09/09/92edd2e4-196f-11e3-a628-7e6dde8f889d_story.html?hpid=z9
86. Bacevich, The New American Militarism: How Americans Are Seduced by War, pp. 18-19

August 22, 2013

NBC News took another step yesterday. It was a small one, but it may be significant. On the Nightly News, there were two follow-up reports to the elementary school incident in Georgia. The first largely followed the usual cautious line but did include a clip in which a pertinent question was put to a police official: how did a man who was on probation following a death threat obtain an AK-47?

The other, again by Ann Curry, was an interview of parents who lost children at Newtown. They expressed their frustration on the failure of gun control at the federal level. One summed up the reaction to the Georgia near-tragedy: "Silence. We are a nation in denial."

August 21, 2013

Better late than never and better one out of four than none. That’s the scorecard for NBC Nightly News on August 20. NBC has managed to report, often, on shootings with no mention of the proliferations of guns, much less the need for control. It has reported, repeatedly, on weird weather with no mention of climate change, let alone of human responsibility for that, still less of measures to combat it. On Tuesday, that changed, only partly, but in that part rather dramatically.

The broadcast carried two stories in the former category, one about a man caught at an elementary school with an AK-47, the other about three teenagers who shot and killed a stranger simply for something to do. In line with its policy, practice, ideology, irresponsibility or simple cowardice, it again said nothing about the gun culture.

 
There was the usual lack of comment in a story about forest fires. However, in a report on melting Arctic ice, NBC apparently no longer could ignore the elephant in the room (pun intended) and therefore allowed a report by Ann Curry to mention, forcefully, global warming, its effect on weather systems and the major human contribution through the burning of fossil fuels. There was nothing about solutions, but still, this is progress.

August 13, 2013

On June 23, I referred to a bill introduced in the New Hampshire legislature which was based on fantasies about a false "corporate" federal government created some time in the 1860s or 1870s. (In some iterations, it is a foreign-owned corporation). The groups which spread, and apparently believe, this nonsense are instances of the "sovereign citizen" movement. There seem to be two branches of the movement, those who think that everything about the "corporate" government is illegitimate and awful, and those who agree but think that they have somehow replaced it with a new regime.

One of the latter began life as The Guardians of the Free Republics, famous — if that is the word — for delivering eviction notices to the governors in 2010. A falling out among its founders led to its rebirth that year as the "Republic for the united [sic] States" (RuSA) The President of this imaginary entity is James Timothy Turner, who had been a founder of the Guardians. RuSA has declared: "De Jure Government is Restored! The re-inhabited Republic for the united States of America has been Restored circa 1791 Constitutional Law[.]"[68] (Jargon and peculiar syntax are marks of this movement). However illusory all that may be, when drafting manifestos the sky is the limit for the RuSA:

We no longer give our consent for the "UNITED STATES" corporation or any of its . . . representatives of any type to use any of the lands, national parks, . . . resources, . . . air, water, . . .public buildings, . . . roads, . . . lakes, rivers, . . . military men and equipment, . . . technologies, . . . vehicles, ships, . . . aircraft, . . . trains, . . .or any other thing within our national and/or territorial borders that was purchased, developed or leased with funds that were derived from any assets within our territorial borders or from revenues received from our people within our borders.[69] 

(Within the ellipses are listed still more things the false federal government must abandon). 

In their saner moments, the RuSA folk recognize that, although "the Republic for the United States of America has been the only lawful de jure government in America" since 2010, the evil corporate government has, for some reason, not gone away. Therefore RuSA will exist "as a parallel provisional government in America while the UNITED STATES municipal corporation collapses."[70] Imminent collapse is expected, from "failed economic/financial policies," or so they pretend.

The other branch of the sovereigns, apparently having no new entity, simply tells us how awful things are under the false government. Again, this is all fantasy; here are a few samples:

• America is a British Colony.
• A 1040 Form is for tribute paid to Britain.
• Britain is owned by the Vatican.
• The Pope can abolish any law in the United States; but somehow,
• The U.N. also holds all of the land of America in fee simple.
• The IRS is not a US government agency.
• The U.S. Treasury is now the IMF (International Monetary Fund).
• Social Security numbers are issued by the U.N. through the IMF.
• Social Security is not insurance or a contract, nor is there a trust fund.[71]

In practice, "sovereign citizens" concentrate on schemes to avoid paying taxes or other debts, a program which is somewhat less noble than remaking the world, but more revealing of their true impulse. An FBI report noted that they also "create false license plates, driver’s licenses, and even currency."[72] According to the Southern Poverty Law Center, they also don't like child support obligations.[73] The RuSa proposes to end the use of "covert contracts" such as Form 1040, car registrations, birth certificate applications, and bank signature cards; deeds and marriage licenses will go as well.[74]


The despised federal government has, not surprisingly, disapproved of their tax-avoidance schemes. James (Tim) Turner and Sam Kennedy,[75] another Guardian founder, were indicted last year on charges of tax fraud; Turner has been convicted and sentenced. Other sovereign citizens have had the same fate, including two locally.[76]  Though most sovereign citizens are peaceful, there have been several armed confrontations with police, as documented in the FBI report.

Leaving aside any criminal activities, several themes run through the tales by various members of the sovereignty movement: the illegitimacy of the federal government; extreme independence, free of government tyranny; a strange (and ludicrously false) view of American history; a general detachment from reality; a desire to turn the clock back to an earlier and largely imaginary time; a sense of mission; paranoia. Like nullifiers, they think that they can decide which federal laws to obey, but take it a step further and apply that theory to state and local laws as well. The sovereigns clearly are around the bend, but it is estimated that there are about 300,000 people who subscribe in one degree or another to their notions, not an inconsiderable number. More importantly, sovereign themes bear considerable resemblance to those found on the far right edge of the GOP, and have some specific influence within the Party, as shown by the New Hampshire bills.[77]

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68. http://www.republicoftheunitedstates.org/introduction/

69. http://www.morningliberty.com/2010/12/20/tim-turner-republic-of-the-united-states/  

70. http://www.republicoftheunitedstates.org/message-from-leadership/executive-summary-final-pdf/

71. Provided by Winston Shrout, identified by the Southern Poverty Law Center as a leader of the sovereignty movement. The full list is at http://www.wssic.com/updates.html.

72. http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/September-2011/sovereign-citizens  

73. http://www.splcenter.org/get-informed/intelligence-files/ideology/sovereign-citizens-movement  

74. http://www.republicoftheunitedstates.org/restored-american-history/
75. "Sam Kennedy" is an assumed name of Glenn Unger.

76. http://www.fbi.gov/seattle/press-releases/2013/ (U.S. Attorney’s press release 6/14/13) and http://www.seattlepi.com/local/article/Sovereign-accountant-admits-to-bilking-IRS-2257140.php

77. The 13^th Amendment bill was introduced by Republicans, as was the bill to mandate following Magna Carta.

August 10, 2013

On June 25, the Supreme Court gutted the Voting Rights Act. On the same day, Texas announced that it would proceed with voter-ID and redistricting changes which would have required preclearance. Within a month, the North Carolina legislature passed a repressive voting law, and Florida announced this week that it will resume its voter purge. All of these actions are likely to suppress minority voting. They were taken with such speed that they mock the Court’s pretense that those states and others covered by the Act do not now discriminate. Texas was covered by the Act (except for two utility districts), along with forty counties of North Carolina and five in Florida. Those states have made clear that the Act should cover them entirely.

Nothing can be said in defense of the states’ actions, but the greater blame must be assigned to the Court, which not only made a bad decision — both in terms of reasoning and result — but extended a string of decisions which raise doubts about its competence and integrity.

In a system such as ours, respect for the decisions of the Supreme Court is crucial. This is so because we have a written constitution, which tends to convert political issues into matters of Constitutional interpretation. It is so because we are a litigious society, and tend to think of all issues as legal issues. There must be genuine respect, not merely acquiescence or resignation, if there is to be political peace, confidence in legal outcomes and stability of government. No such respect is possible now. The Court has become philosophically polarized, its conservative wing — Roberts, Scalia, Thomas and Alito, often made a majority by the addition of Kennedy — has become politically oriented and activist, and its legal reasoning would embarrass a first-year law student. Consider District of Columbia v. Heller (guns), Citizens United v. Federal Election Commission (money in elections) and Shelby County v. Holder (the Voting Rights Act). Consider the strange Roberts opinion in Nat’l Fed. of Ind. Business v. Sebelius (health care).

Three of the present Justices — Scalia, Thomas and Kennedy — have had little credibility since Bush v. Gore .[66]  That decision was so blatantly political, so clearly result-driven, that the Court’s opinion had to note that it was "limited to the present circumstances."[67]  In other words, it was so indefensible that it had to be labeled "good for this day and trip only," not to be cited as precedent. Justice Stevens summed up the issue in his dissent in that case:

It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. . . . Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

He added that "[t]ime will one day heal the wound to that confidence that will be inflicted by today's decision." Time certainly hasn’t restored confidence yet, and probably won’t until there is a change in the Court’s personnel.

We can’t blame Roberts and Alito for that decision, but the converse is true: Bush v. Gore put Bush in the White House and he put the terrible twins on the Court. 

8/12/13: The N. Carolina governor signed the voting bill today

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66. They were joined by former Justices Rehnquist and O’Connor.
67. Bush v. Gore, 531 U.S. 98 (2000), per curiam opinion

August 9, 2013

Two evenings after listening to Faust, I played Rigoletto. This again was a CD remastering of my favorite recording, of 1968, with Cornell MacNeill, Reri Grist and Nicolai Gedda. It had the same effect as before, leaving me so mellow that I hadn’t the necessary indignation to ramble on about the myriad ways in which the world is not sorting itself out as I would like. However . . . .