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The Constitution in Wartime
Findlaw has an excellent essay discussing the history of law in wartime. The author makes the point very elegantly that inter arma silent leges (usually translated "in time of war the law is silent", but I prefer "in the face of arms, the law is silent"). Richard Stallman has an essay on a similar theme, not quite as good, but still worth reading.
The U.S. President has a variety of emergency powers, but none of them can in any way affect the rules set out in the Constitution. Congress, through the years, has expanded presidential power; these powers came with strings attached. In emergency, some of these strings come off, but the basic constitutional protections remain.
This is not to say that Presidents have not violated the Constitution. Lincoln suspended the right of filing writs of habeas corpus (as did Davis). The loyalty oaths and attendant disqualifications from office may have constituted ex post facto laws and bills of attainder, but the Fourteenth Amendment, in making such disqualifications part of the Constutition, resolved that issue. And let's not forget about internment camps during World War II.
Presidents may act unconstitutionally, but unlike Great Britain, unconstitutional acts, if they go unpunished, do not set a precedent for their constitutionality.
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under-paid karma whore
IAAA (I am an American), but I don't understand why we are at war--especially with Afghanistan. We were attacked by people who have never claimed responsibility. It is possible that all who were involved perished in the crashes. Our government and the major media want us to believe that Osama ibn Laden was responsible, despite the fact that he actually claims responsibility for his attacks. He is a guest of the Taleban, who has told us (since 9/xx) that they will turn him over upon receipt of conclusive evidence. The Taleban has offered to negotiate several times; meanwhile, Bush's claim that "we will use Diplomacy" remains untrue (he has rejected every offer). Bush refuses to turn over any evidence, citing "National Security"--does that mean that Americans would riot in the streets if they knew what was really happening? Now we are bombing the shit out of the poorest nation in the world because they are bound under their Holy Law to protect their guest. We slander them on TV with false stories about opium (which can't grow in a four-year drought...), while we are using neighboring Uzbehkistan--#2 worldwide in opium production--as an air base for our troop transports, just like we did with Laos/Cambodia during VietNam (search on google.com for Bo Gritz if this doesn't ring a bell).
Back to the topic, our politicians and lobbyists are shredding the Constitution with the full support of the misled American majority. This wasn't in the EULA. I wish to move to a country with more civil liberties, such as Germany.
"What is the sound of one belly slapping?"
This is called the Elastic Clause... Certain parts of the constitution can be ignored if it is used.
For example, it was used during WWII to send all those Japanese Americans to camps out in the midwest.
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Sig
Basically, now is when it's most important to have groups like the ACLU. Like most liberal groups, they're being attacked as unpatriotic, but considering we have cases like Korematsu on the books and not overturned, having groups that will watch out for violations of our rights and raise public awareness is important.
And it's not like it's only leftist groups fighting for these thigns, either. The article in the post didn't mention things like the Alien or Sedition Acts, but some of the languge in the bill Ashcroft is trying to ram through congress. There was a coalition of groups from the ACLU and gay rights organizatons to the NRA and anti-aborition activists all united in opposition, saying that we can find ways to protect the security of citizens *without* depriving them of rights.
FA Hayeck (bigtime libertarian dude) acknowledged that the law may be suspended in times of war. The basic idea is that if you lose everything, then what was the point of playing by the rules. This comes with a _VERY BIG_ but, namely that once order is restored, the government is held responsible for the laws it violated. This isn't to say everyone is put on trial, but they should be required to compensate (how they compensate is left vague) the citizens who were violated.
This is a very sensible view, IMO, but the compensation part is tricky. Especially because once peace is restored, tempers & public sentiment are still running hot and the public (read: voters and hence representatives) may not be in a compassionate mood.
-spRed
.sig Karma out the wazoo, better to spend points elsewhere if this is above 2 or below 0
Lincoln's justification of his abrogation of rights during the civil war is just another manifestation of the tired ends-justify-the-means-argument. Unfortunately, not everyone would agree with his ends, and certainly not many would agree with the means. In breaking law to save the union, he ultimately set precedent to fundamentally change that which he sought to save.
Law, even in its happy-faced, kinder, gentler democratically accountable form, is force. If it were unnecessary to compel one to act in a certain way or to not act in a certain way, there would be no need for law. Similarly, if it were unnecessary to compel Afghanistan or Somalia or Serbia or Vietnam or Germany, or any of the countries against which we have waged war to act a certain way, there would be no need for war.
The use of force on the domestic public in the form of law during wartime is ultimately no different than the use of force during peacetime. It is simply stripped of all its warm, fuzzy clothing that make it palatable come election time. Try it for yourself. Go up to the treasury and ask for your share of the War on Drugs budget back and see what happends.
>End Anarchist Rant
Somewhere, something incredible is waiting to be known. -- Carl Sagan
Supreme Court Chief Justice William A. Rehnquist has a book, All the Laws but One: Civil Liberties in Wartime that is about these issues. Here is a quote from a speach he gave at The Woodrow Wilson International Center for Scholars in 1999:
So, we can expect to lose 'rights', and we can expect to gain some of them back when the 'war' is over. The problem being, our current war has no defined ending, and it has already been explained to the American citizens that this will be a long drawn out war full of secracy. The longer a war goes on, the more rights that are taken in the name of that war. It is esp. damning that dissonates is being actively suppressed, with the Bush clan warning our media to 'act responsibly' and advising against such things as playing BinLaden's videos. At the end of wartime, we never regain back all that we have lost.
The Federal Emergency Management Agency (FEMA) that helps out natural disaster victims and so forth, is actually part of a martial law government in waiting. Under Jimmy Carter's 1979 consolidation of various related agencies into FEMA, it acquired the Defense Department's Defense Civil Preparedness Agency. With the end of the Cold War this aspect of its mission has probably taken a back seat to floods, earthquakes and huricanes. But the capability is still there.
"If our liberties are to be protected, it is up to us to protect them."
But what happens when the media is a toy that does not discuss these issues and that is the people's only source for information? Many of my friends have no idea about what is going on with DMCA and the major news organizations refuse to give any coverage from the people's POV. It will be a grim future where we have an uninformed populace who does not even know which issues to oppose.
"Every man is a God in disguise; a divinity playing the fool."
-R.W. Emerson
Of course, at that time, almost everyone was shell shocked, and it was not on the radar yet
In this situation, war has not been formally declared. Usually, in a war, such laws are "for the duration". Since we are not "formally" at war, there is no such limitation.
Freedoms lost may likely be a permanent loss, unless people strive to make sure otherwise.
"It is a greater offense to steal men's labor, than their clothes"
T: After this conflict, will we see that Bin Laden speech in full? Will we hear about all the other things that are being kept (rightly) silent now? Or will they be stamped "Top Secret - 25 years", and only released when many of us are collecting our pensions and don't give a damn?
We just have to make sure that the current conflict just keeps on with its original aims - combat terrorists, terrorism and supporters of terrorism, and doesn't morph early next year into a different beast (cheaper oil would be nice, wouldn't it?). There needs to be public accountability for the actions of the military within all conflicts, to ensure that they operate within the bounds of their mission, and that they should not become a pawn in some political game.
Which I don't think will happen this time, but though like pointing out.
CmdrTaco explain this one: Invalid form key: On9kApk2Hq ! and Invalid form key: GSQ8puWVyf !
Hattig :)
-- The price of Linux is support: Book Prices to Kill...
The Bill of Rights. The Bill of Rights and how they are being routinely ignored by the government.
Free Speech: Second thoughts on the First Amendment. Another very interesting read.
I have been lucky enough in the past few weeks to attend a couple of Howard Zinn's talks in Boston.
Miguel.
Why is the country so pro-government all of a sudden, when its so easy to prove that its exactly those in the elite that control its every move?
In the war against Iraq, many of those at the top of the pyramid (G.H. Bush, Cheney, Schwartzkopf, etc) were found GUILTY by the International War Crimes Tribunal. The war against Iraq was not about Saddam Hussein, but about oil interests. This was never covered in the media, and many United Staters today fully support the actions we used against the "enemy." Saddam is not crazy, not stupid, and was probably not wrong in his reacquisition of Kuwait. He even asked us if he could do it, and we didn't say no.
In Afghanistan, oil interests of our President and his cronies are the only thing at stake. The proof against bin Laden is thin at best, and the translations of bin Laden's video that everyone thinks he is accepting blame are off at best. But the 500 years of oil (at current consumption rates) that UNOCAL and the elite's friends want access to is currently controlled by the Taliban. Again, ignored by the government controlled media.
Freedom of Speech is gone when it is regulated. With the FCC punishing anti-government sentiment from its beginning, its obvious there is no freedom of speech in the TV and radio media. Since the newspapers are now controlled by those same media mavens, they too should be ignored.
The Libertarian philosophy of non-intervention and free trade is more important than ever to focus on. Even lifetime Libertarians though are towing the government line and wanting revenge, even though the proof against Afghanistan and bin Laden is shamefully non-existant.
And the biggest kick is that we are not even at war. We can't be. If we are, it is illegal, as the Constitution REQUIRES Congress to declare it.
Want to stop terrorist militant attacks on our nation? Limit the powers of Congress as set forth in the Constitution. Create a new foreign policy of non-intervention by our government, remove all sanctions and embargos, tariffs and subsidies. Let good people trade with whoever they want, and stop subsidizing big business in every way.
I think many slashdotters would understand that 99% of the problems we complain about here is not Big Business' fault at all, but governments and the people's. We LET Congress give Big Business subsidies, so why are you complaining that M$ has a monopoly? If Congress couldn't subsidize, M$ wouldn't donate to their campaigns, and we wouldn't have such a monopoly-like fiasco. On the same hand, when we give Congress the power to subsidize business, we give the U.S. "interests" in other countries. This is the cause of almost all our problems, including terrorism!
Limit big government, and you will limit so many problems that we face in the world and locally each and every day. Give the government more power, and you only make it worse.
If you don't believe me, why not drop me an e-mail and lets debate it one on one. I, too, was a non-believer, until I spent just a few months researching the realities of "Big Government."
10990 -> 11612 -> 11807 -> REVOKED BY 12196
10995 -> REVOKED BY 11556
10997 -> REVOKED BY 11490
10998 -> REVOKED BY 11490
11000 -> REVOKED BY 11490
11001 -> REVOKED BY 11490
11002 -> REVOKED BY 11490
11003 -> REVOKED BY 11490
11004 -> REVOKED BY 11490
11005 -> REVOKED BY 11490
11310 -> REVOKED BY 11490
The interesting bit is that 11490 was itself revoked by 12656. PEO 12656, "Assignment of emergency preparedness responsibilities", is still on the books.
Of particular note is Sec. 102, which states in part:
As well it should... it's not within the Executive's powers to make law, only to regulate how its agencies carry out the execution of law defined by the Legislature.
I'm sick of everyone saying "bin Laden didn't do the WTC attack, and we shouldn't be attacking Afghanistan because we don't have proof." Okay, I don't really care at this point whether or not bin Laden did the WTC attack - we've been trying to extradite him for YEARS for crimes he ADMITTED he was responsible for.
So what if he didn't do the WTC attacks? He's guilty of plenty of other things. As for suspending the Constitution in time of war - it clearly allows suspension of the writ of habeous corpus in the event of war/military action. And as for Executive Orders - all it takes to override them is Congress passing a law with enough majority to overrule a veto, and they cease to have an effect.
As for Bush "not negotiating" - Afghanistan has made offers, sure, but none of them are sane. They want to try bin Laden themselves - yeah, that'll be a fair trial. They want to hand over bin Laden to a third country - as long as that country is one of Iran, Iraq, Syria, Lebanon, UAE, Pakistan, Indonesia, etc, etc. All countries whose populations (and probably judicial systems) are very bin Ladin-sympathetic. Once again, I'm sure he'd get a fair trial.
As for our "horrible" policies in the Middle East. Yes, I'll admit that some of the things we've done were horrible - but what about the other things that people so readily forget? Like the fact that Afghanistan's government's budget consists mostly of foriegn aid - and we provide most of that to them. And the sanctions in Iraq - they don't, as many people say, prevent food or medicine from getting in. They're deliver food and medicine to Iraq, and then have no idea if it's delivered to the appropriate places. Saddam was constructing weapons that could kill hundreds of thousands of people, in violation of international law, and then won't allow people in to see that he's complying with international law. Even though the US allows Russian and UN weapons inspectors in at least once a year to verify their chemical/bio weapons factories are shut down.
I'm sick of all these Americans deciding that America is wrong in this. I'm a freaking citizen of Luxembourg, and I think America's right in this. Why do its own citizens think that it's wrong to defend itself?
...but it's being eaten...by some...Linux or something...
Incorrect. The Elastic Clause (also known as the "neccessary and proper" clause) only allows Congress (NOT the President; that's the executive, not legislative branch) to enact laws that help it execute its other powers defined in the Constitution (Article I, Section 8).
Here's the actual Elastic Clause (Article I, Section 8, Paragraph 18):
This power is pretty broad; Congress used it to establish (at the urging of the Secretary of the Treasury, Alexander Hamilton) a national bank. Although it was violently opposed by Jefferson and the Republicans as unconstitutional, its legality was upheld by the Supreme Court in 1819 in the case McCulloch v. Maryland under this Elastic Clause.
IANAL, but I am anal about the Constitution. ;)
Can I have some examples of increased civil liberties?
Lost Rights, a book by James Bovard, is long, thorough, dry, and depressing collection of the MANY losses and attacks on civil liberties.
I could go on, but the point I want to make is this: from what I can tell, we have been experiencing a net decrease in rights... If you could point to me to info that shows otherwise, I would happily read that, too.
I agree with one thing, there are big benefits at stake, and England, Germany and France very much like to be part of the game. Italy being the sulking outsider.
,Bondsteel, Cheney, Carlyse, Bush , Caspian oil, Unocal, Macedonia, KLA, NLA, MPRI, KPC, OSCE,William Walker, Afghanistan, heroin, drugs, Oliver North, Vinnell Corporation, Dyncorp, soros.
:)
Here is my homework :
The Caspian oil basin is a very important one.
Cheney , as CEO of Halliburton in 1998:"I cannot think of a time when we have had a region emerge as suddenly to become as strategically significant as the Caspian". Estimates have only been rising since.
but actually the whole of central asia is involved. I read that Wolfowitz is very much in favor of grabbing all of it and stripping Russia bare.
A big problem with the caspian and central asian resources is getting them out through a safe way. There are in several possible corridors.
- Iran is shortest, but boycotted in every possible way.
- The corridor to Turkey is difficult to secure.
- China is more than 2000 miles.
- The corridor to kosovo is an interesting issue, because the US has been very active in the Balkan conflicts, using NATO as a front, and secured the pipeline(see fort Bondsteel) and the public did not even notice what was going on. Macedonia is needed too in the plan, and underway. The US strategy in the Balkan deserves a lot of attention.
For one thing, the unrestrained free traffic of Afghan heroin through Kosovo increases financing of opposition in Russian border states like Chechnya.
- The Afghanistan-Pakistan corridor is best known for the Unocal line in construction, which has been interrupted in Afghanistan since i think 1998(that was the year they asked government for help).
But Afghanistan is also a starting point for moving north. Russian sources are afraid(well, to be honest , i only found one) that the US will try to drive a mass of refugees north, use it to destabilise the region and create an alibi to intervene with NATO. British and US diplomacy already requested Pakistan to keep the borders closed(I think, can't remember the source right now). I guess they did not need much pressing.
For this you need weak humanitarian aid inside Afghanistan.
The only mobile troops of Russia are being pinned down in Chechnya, and Bin Laden does not seem to have control there. Hoe much reason will US need to move north?
As is well known, not everyone thinks international approval is necessary.
If you feel like a very long google session, each time take 2 or 3 words at random from:
Halliburton, Brown and Root, AMBO
That bang you just heard is from a surveillance server that just blew up
The web, real educational at times. And addictive too
Milligan was arrested in 1864 under Congress' 1863 authorization of the President to suspend the writ of habeas corpus, not under the President's earlier declaration. As such, Ex parte Milligan, 71 U.S. 2, deals with the Congressional Act, not with the Presidential declaration.
Congress authorized the President to detain citizens and suspend writs of habeas corpus, but specified that his name be delivered to the court and that, if the grand jury adjourned without indicting him, he should be released. If his name was not furnished to the court within twenty days, he likewise should be released.
Milligan, however, was tried and sentenced to death by a military court. The question before the Supreme Court was whether this military court had jurisdiction to try Milligan (Milligan was a resident of Michigan, which was not in rebellion). Not only had Congress not given the military court such jurisdiction, but the Constitution forbade it.
The Court did not, however, rule that the Act of 1863 suspending the writ of habeas corpus was unconstitutional, nor the President's use of it. Nor did it rule on the President's earlier suspension of the writ by executive order.
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under-paid karma whore