Letters to the Editor
Frankly, my dear, ...
Published Letters: 579
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Not so much (Part 2)
[Read the article: The U.S. military's role in preventing the bombing of Iran]
[Read more letters about this article: Here]That sounds a lot like the Bush theory of executive power -- he is free to violate Congressional law whenever he decides that the law encroaches on his Constitutional powers, because his ultimate duty is to the Constitution.
That sounds a lot like a straw man argument: First invoking the Constitution where the Constitution is not invokable and then saying it parallels other abuses of the Constitution.
Again, you're intereving into a discussion with an argument completely different than the one that was being discussed, and then accusing me of raising "strawmen" because I responded to ondolette's constitution-based arugment but not to your international-law or organic-law based claims.
Again, you ignore the fact that ondelette voiced his argument based on both the Constitution and international law (in the same sentence):
And I believe that because all governments under the U.N. Charter and in particular the U.S. government under the Constitution derive their power and authority from the consent of the governed, that he has the right to air his grievance before the American People.
This is the only place that ondelette explicitly mentioned the Constitution. He may have implied constitutional arguments about Congress' power of raising armies, of oversight, of making rules governing the land and naval forces, and of declaring war, but none of this has any bearing on obeying orders. It has to do with the justification for a top military commander to request a hearing before Congress and that the hearing be public.
Moreover, the analogy isn't about constitutional claims but about who decides. Bush does not say that where he views a law as unconstitutional, he will take it to court to obtain a ruling that it is. He just arrogates unto himself the power to decide unilaterally that he can ignore the law. The analogy is to those who want U.S. Generals to do the same with regard to orders they receive in the chain of command.
Then the analogy fails. If Bush wants to challenge a law then he should subject it to judicial review. In any instance of Bush lawbreaking that you care to name he has used every trick in the book to avoid judicial review. US generals have no need for court decisions (assuming one could get an injunction against carrying out a military order). Ondelette's argument was that the proper procedure was to report to Congress as the body charged with oversight of the regulation of the armed forces. In one case the president is not following proper channels; in the other, the general is.
Bush's attempts to garner powers not granted to the president by the Constitution while claiming that the Constitution gives him these powers cannot be compared to a US general acting according to international precedents and conventions outside of and without referring to the authority of the Constitution.
They're both acting unilaterally and arrogating unto themselves the power to violate otherwise valid rules whenever they decide the rules aren't valid. That's the comparison.
Then it's not a valid comparison. The president is violating the Constitution's requirement that he "shall take care that the laws be faithfully executed", the Constitution that he took an oath to "preserve, protect and defend". The general is not violating the Constitution; he is, if you concur with ondelette's argument, following its principles.
I see no difference between participating in an illegal war started by the president and one authorized by Congress.
If both Congress and the President approve of the war, how is it "illegal"? Under treaties? How about if Congress and the President abrogate those treaties? Is there some universal law that can never change and that American citizens are bound by even though their representative institutions have no ability to change it?
If there is a conflict between US law and a duly ratified treaty, especially one that involves the Constitution, then it is for the courts to decide. I would assume that no treaty obligation would be allowed to countermand the Constitution but that's just my opinion, not the Court's.
Yes, treaties are easily abrogated, even without a casus foederis, just like the ABM treaty that was ditched in 2002. Of course we didn't know then that there was a plan afoot to locate ABM sites in Poland and Czechland.
Finally, I doubt that there is any "universal law" that everyone is bound by (unless you want to consider the highly-touted "laws of nature and nature's God" that got such prominent play in the Declaration of Independence). Personally, I'd rather stick with "Thou shalt not kill".