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Wednesday, Nov 4, 2009
steven andresen
Published Letters: 87
I suspect that the argument that whatever the government has done to Mr. Padilla is beyond the reach of any court got its first success back when courts, including the Supreme Court, I believe, refused to rule on the constitutionality of the Vietnam war, saying that our involvement was a political decision, and thus, should be resolved by political means.
I take it the courts will continue to rule that when the U.S. government snatches people off the street, throws them in a dark hole, and tortures them to insanity, or death, the courts will refuse to rule on its constitutionality because, they will say, doing such things is a political decision.
I know the ruling on Mr. Padilla's conviction will be appealled, I hope, but I suspect, given the way the SCOTUS ruled on challenges to the Vietnam war, they will refuse to feel the force of the Bill of Rights.
The argument that war, habeus corpus, or the use of torture, is a political decision and not a judicial one, means, for me, that the Bill of Rights is only something to make us feel secure against our government's extremisms, when in reality, it has no force.
I commented before that the government's argument that habeus corpus, international laws against torture, and so forth should not be applied to Mr. Padilla, that is, that he is not worthy of the protections of law, is another development going back to the Vietnam war decisions.
It was pointed out to me that yes, going to war is a political decision. The court's refusal to consider arguments about that war were based, as I understood it, on the idea that it's the role of the political parts of government, in the Executive and legislative branches that decide these things, and so the judicial has no role.
Well, they were wrong about that. One claim, I believe, was that we were at war with Vietnam and since there was no declaration from Congress that we were in a war, the draft and other activities of war were unconstitutional and hence not in accordance with the will of the people. The SCOTUS refused to rule on this issue.
There was the argument that even if there was a declaraction of war by the Congress, the invasion and killings going on in Vietnam, Cambodia, and Laos were not justified by relevant international laws. That is, none of these countries ever attacked the United States or posed any threat, despite the events referred to in the Gulf of Tonkin resolution. The argument was made that North Vietnam was set up and so the war was based on a lie. The SCOTUS refused to rule on the issue of whether the US governemt was in violation of its treaty obligations.
Many people were interested to make the U.S. military obey relevant laws regarding the carrying out of that war. That is, they weren't wanting to stop the war, they just wanted to stop the carpet bombing, chemical weapons use, indiscriminate killings, Mai lai type atrocities, and so forth. The Scotus refused to rule on the U.S.G. responsibility for atrocities.
Yes, it's a political decision to go to war, but there are certain restrictions which the courts have refused to recognize. My argument is that for the same reasons they refused to recognize that we just can't just go out killing and stealing to our heart's content, they will refuse to uphold the idea that we can't just throw people in jail and torture them to insanity or death.
They will not protect the American people from the powers that be who want to go to war or torture people despite what the laws say.
response to Jebbie,
You asked whether the Gulf of Tonkin Resolution, or any of the Gulf war resolutions, could fulfill the constitutional requirement that Congress "declare" war.
I am not so sure that there is not a higher expectation about what constitutes a war declaration. I suspect the bill passed about war with Germany and Japan said something like, "this is a declaration of war with..." But, let's say that there is no set standard of what declarations of war include, doesn't this show that Congress, the President, and the Courts are negligent on this issue and that any challenge brought by the people about this fact should end with the government ceasing it's unauthorized if not illegal activities, i.e., the war, the draft, the expenditure of tax money, etc.
The arguments made, as I understood them, were that the Gulf of Tonkin resolution, was based on false information, and hence the actions based on it should have been reviewed and perhaps revoted.
I am curious to know why neither Johnson nor Nixon, nor Reagan, nor any Bush has asked not just for some "authorization for the use of force," but went for the "declaration of war" instead. I suspect the reason would be that there is a significant difference between the two and they felt they did not want to ask for a vote on such a declaration for those reasons.
No, I don't think half ass resolutions fulfill the constitutional requirements.
You also asked about who was going to challenge any of the claims made upon which the wars have been based. Who's going to challenge the Gulf of Tonkin resolution and the arguments behind it?
Well, we had two Senators who voted against that resolution. My understanding of Morse was that he was not convinced of the evidence and he needed a better argument to let the Government run roughshod over a small country.
Senator Morse believed Congress had the responsibility to figure these things out on its own so that it could make a reasoned and independent decision about questions of war, and so on. I believe the Congress has generally given up on that responsibility.
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