Watada mistrial

[tube_ee]

Slightly OT, but...

When the President gave to the Congress all the information he had (which he did)

This is provably false. There are far too many differences between the original assessments coming out of the intelligence services and the documents given to Congress for this statement to stand.

There are many, many cases in which doubts and qualifying statements were removed from intelligence information before it was presented to the Congressional oversight committees. Why information that tended to create doubt was removed I leave up to you to decide, but there is ample proof that it happened.

To say that "Congress had the same information the President did" is simply, provably untrue. They didn't. They had the information the President wanted them to have, and that appears to have been a subset of all the information. Specifically, a subset that would lead the reader to a conclusion that supported the Executive's proposed course of action.

--Shannon

 

[STAGE 2]

I didn't say it was self-terminating, I said that the Resolution specified why to apply the use of force. Use of force is NOT authorized for anything beyond the two points detailed (Remove Iraq as a threat and to enforce UN resolutions). Something beyond that, such as invading Canada would clearly not fall under this resolution and be unauthorized use of force by the President. The power is NOT unlimited.

This is pretty clear in the resolution isn't it?

Yes and no. Yes this specifically sets out the authorization for the President's use of force. No, the President's authority does not end once these conditions are allegedly met. That's why I asked about any self terminating provisions.

Again, once congress gives the ok, it is the president who decides when to pack up and go home.

That's it. That is all the President is authorized to use force for. When I said that if (1) and (2) are no longer valid, I wasn't saying that this authorization was null and void. I was saying that the President would be overstepping his authority with any further use of force, OUTSIDE of the authorization granted by this resolution, which would be illegal.

Please tell me where my logic is wrong here.

OK. This isn't meant as an insult, simply an observation. I'm not a certified mechanic nor a gunsmith. As a result, there are plenty of technicalities which I am not aware of that these professionals are. Thats why when I have a problem that I can't fix, I take it to them. The same applies to law. There are certian things that 99% just won't learn unless they get a formal education and practice law.

Statutory construction is one of these things. The argument you are making is an argument of statutory construction (for the most part). First, the presidents authority doesn't end if sub1 and sub2 are met. In order for this to happen the would have to be a provision specifically stating this. There isn't.

Secondly, the use of force is left up to the discretion of the president. HE is the sole decider of whether sub1 and sub2 are met. Not congress, not the american public, not anyone else. Its simply impossible for the president to overstep his authority under this resolution simply because if he thinks its necessary and appropriate, its not overstepping.

The only way to get Bush on the point you are trying to make is if somehow you mamages to tap his phone and caught him saying "I don't think this is necessary or appropriate but I'm doing it anyways". Thats not gonna happen.

 

[STAGE 2]

To say that "Congress had the same information the President did" is simply, provably untrue. They didn't. They had the information the President wanted them to have, and that appears to have been a subset of all the information. Specifically, a subset that would lead the reader to a conclusion that supported the Executive's proposed course of action.

--Shannon

Doesn't really matter. The constitution is concerned with process and not substantive matters.

 

[SecDef]

You may disagree with the legality of the war, but with respect to Watada, can you explain to me how he will be acquitted if the war is found to be legal? If the war is legal, then the order was legal and he had no justification to disobey. Where am I wrong.

I think I replied to this in a previous comment. It was in the context of limitations on the president's power, which is what Watada is arguing. Just because the war was legally initiated doesn't mean that all orders are legal. You chastised me for the "killing american civilians" comment but the point was merely to show that since there exists an order outside of the Authorization, there are limitations imposed by the authorization. Sorry that point was lost.

 

[SecDef]

OK. This isn't meant as an insult, simply an observation. I'm not a certified mechanic nor a gunsmith. As a result, there are plenty of technicalities which I am not aware of that these professionals are. Thats why when I have a problem that I can't fix, I take it to them. The same applies to law. There are certian things that 99% just won't learn unless they get a formal education and practice law.

Statutory construction is one of these things. The argument you are making is an argument of statutory construction (for the most part). First, the presidents authority doesn't end if sub1 and sub2 are met. In order for this to happen the would have to be a provision specifically stating this. There isn't.

Secondly, the use of force is left up to the discretion of the president. HE is the sole decider of whether sub1 and sub2 are met. Not congress, not the american public, not anyone else. Its simply impossible for the president to overstep his authority under this resolution simply because if he thinks its necessary and appropriate, its not overstepping.

The only way to get Bush on the point you are trying to make is if somehow you mamages to tap his phone and caught him saying "I don't think this is necessary or appropriate but I'm doing it anyways". Thats not gonna happen.

Now why in the world would those sub clauses be there if they can be completely ignored? This is a legal question outside the scope of Watada. Subclauses are used to provide context and better define clauses.

Its simply impossible for the president to overstep his authority under this resolution simply because if he thinks its necessary and appropriate, its not overstepping.

Our founding fathers must be spinning wildly in their coffins at that statement

Long live the King!

 

[LawDog]

Our founding fathers must be spinning wildly in their coffins at that statement

Last I checked, Thomas Jefferson was a founding father. I believe he had a great deal to do with the writing of the Constitution.

As President, he also engaged the United States in a war -- without approval of Congress -- with the Barbary states, none of whom was any sort of direct threat to the continental United States.

President Jefferson -- founding father -- dispatched warships to the Mediterranean with direct orders to blockade the Port of Tripoli, deploy troops as was thought fit and to sink, burn or destroy ships of the Barbary states whereever they should be found -- none of which orders were seen by the Congress prior to the start of festivities, because Congress was in recess.

Once Robert Dale and his fleet had blockaded the Port of Tripoli (and the Enterprise had attacked and stripped a Libyan ship), President Jefferson informed Congress of what he had ordered.

LawDog

 

[SecDef]

Jefferson was responding to a declaration of war by Tripoli at the U.S. Consulate. Congress later authorized Jefferson to instruct the commanders to seize vessels and goods of the pasha of tripoli and to "cause to be done all such other acts of precaution or hostility as the state of war will justify."

Not really sure how this disputes my disagreement with the statements that the President's powers are unlimited. He also definitely wouldn't have taken the same course of action if congress was in session. It's not like they had telephones or the inter-tubes you know.

Maybe you are suggesting we can bomb tripoli since we are again "in a state of war"?

 

[STAGE 2]

I think I replied to this in a previous comment. It was in the context of limitations on the president's power, which is what Watada is arguing. Just because the war was legally initiated doesn't mean that all orders are legal. You chastised me for the "killing american civilians" comment but the point was merely to show that since there exists an order outside of the Authorization, there are limitations imposed by the authorization. Sorry that point was lost.

So since we agree that the war was legally initiated, how can an order for deployment be illegal? If Bush ordered troops to kill civillians that would be illegal, but he didn't give that order. He, through the chain of command, told Watada to report for duty in Iraq.

It is entirely conceivable that Bush could have given an order that was immoral, illegal, or overstepping his authority. The fact however, remains that he didn't. This is what will be analyzed and this is was is going to sink Watada.

Now why in the world would those sub clauses be there if they can be completely ignored? This is a legal question outside the scope of Watada. Subclauses are used to provide context and better define clauses.

I didn't say they were to be completely ignored. I said that Bush can act as long as he believes his actions are necessary and appropriate to accomplish those 2 tasks.

People that are going to challenge his actions, such as yourself, have the burden of showing that the president did something which HE THOUGHT weren't necessary and appropriate. How in the hell ar you going to do that. Its a subjective standard. Like I said earlier, unless you caught him on tape making a statement, there is no way you would be able to prove this.

Our founding fathers must be spinning wildly in their coffins at that statement

Long live the King!

Quite the contrary. The founding fathers would be fine. The checks and balances were met here. I find it ironic that so many people are pissed at Bush when it was CONGRESS that authorized force. It was CONGRESS that drafted this resolution. It was CONGRESS that decided to give him this expansive power.

If they wanted to they could have written a host of things limiting his power. They could have put a time limit on use of force, or limited it by specific objectives. They didn't. Your beef is with them, not the president.

 

[tube_ee]

Plenty of beef to go around

This ain't a Wendy's commercial.

Given that the President's party controlled both houses of Congress when the AUMF was drafted and passed, there was no way that he wasn't going to get everything he wanted. I could have wished that more Democrats had voted "no", but in practical terms, it wouldn't have mattered.

As to Lt. Watada, he's perfectly within his rights to make this defense. If he believed that the order was illegal, he had a duty to refuse to obey it. That's going to get you hauled up in front of a court, and everyone who's worn a uniform knows that. Even officers. It's my understanding, although I never saw one of these cases when I worked in the Navy legal system, that the actual legality of the order is important to the court's decision regarding guilt or innocence. If the order was, in fact illegal, the accused is not guilty. If it was, he is.

If that's really how it works, then the question of the legality of the war is in fact material to Lt. Watada's defense, and is a fit subject for the court to consider.

Me, I think he's gonna get convicted. And this war is, tragically, legal. There's no law against making incredibly stupid decisions.

--Shannon

 

[Danzig]

This denial of defense occurs very often..too often. Persons who are charged with violating tax laws are forbidden to question the law even if the legality of the law is their defense. Same with persons charged with drug "crimes" and firearms violations. Scary how often the government refuses to hear challenges to it's edicts. If that's not a mark of totalitarianism then I don't know of anything more that would qualify.

 

[SecDef]

So since we agree that the war was legally initiated, how can an order for deployment be illegal?

I didn't say they were to be completely ignored. I said that Bush can act as long as he believes his actions are necessary and appropriate to accomplish those 2 tasks.

Your second quote answers the first: If the deployment is NOT to accomplish either of those 2 tasks (since they have been accomplished already) it would be illegal.

And certainly under the logical argument you have presented, it would even be perfectly legal to order civilians killed as long as Bush deems it necessary and appropriate.

People that are going to challenge his actions, such as yourself, have the burden of showing that the president did something which HE THOUGHT weren't necessary and appropriate. How in the hell ar you going to do that. Its a subjective standard. Like I said earlier, unless you caught him on tape making a statement, there is no way you would be able to prove this.

See, I suspect that this is where the court system comes in, the heretofore unmentioned 3rd branch in your argument. Legislation was passed, the president is executing it, and a soldier has challenged it. A judge will get to determine the extent of authority the Congress has granted the President and whether it applies here. I.e. checks and balances occur amongst all three branches. The judicial unfortunately doesn't really get a chance all that often.

Yes, I know that this is where you say that all a judge could do is declare a law unconstitutional or not, which you have exhaustively argued. However, judges can say pretty much what they want (see Roe v. Wade for a "constitutionality" decision that pretty much had nothing to do with the constitution) as you well know.

Watada may not be doing what is legal, but has instead chosen a path that he thinks is right. I have no problem with that, even though you obviously do. There will also be a lawyer vigorously defending his position to the best of his ability. That's what they do.

 

[SecDef]

Secondly, the use of force is left up to the discretion of the president. HE is the sole decider of whether sub1 and sub2 are met. Not congress, not the american public, not anyone else. Its simply impossible for the president to overstep his authority under this resolution simply because if he thinks its necessary and appropriate, its not overstepping.

The only way to get Bush on the point you are trying to make is if somehow you mamages to tap his phone and caught him saying "I don't think this is necessary or appropriate but I'm doing it anyways". Thats not gonna happen.

The questions of Is Iraq a threat? and Have the 13 UN Resolutions been enforced? should be asked. I'm not sure that the President is the only person who can answer these.. Well, maybe the first is up in the air, but certainly the second can be decided by the UN?

I'm shocked SHOCKED that you would even imply I tap his phone. The only one allowed to tap phones without a warrant is the President. (who never oversteps his bounds )

 

[Danzig]

quote: "Secondly, the use of force is left up to the discretion of the president. HE is the sole decider of whether sub1 and sub2 are met. Not congress, not the american public, not anyone else. Its simply impossible for the president to overstep his authority under this resolution simply because if he thinks its necessary and appropriate, its not overstepping."

The main purpose of the Constitution is to LIMIT the power to government. The founding fathers didn't want a King rising in America to replace the King George of that time. Do we agree on this point?

If, indeed that is that case, that the Constitution is meant to limit the power of the government, is not not a logical conclusion that any resolution that effectively grants the President unlimited power is in violation of the Constitution?

 

[STAGE 2]

The main purpose of the Constitution is to LIMIT the power to government. The founding fathers didn't want a King rising in America to replace the King George of that time. Do we agree on this point?

Sure.

If, indeed that is that case, that the Constitution is meant to limit the power of the government, is not not a logical conclusion that any resolution that effectively grants the President unlimited power is in violation of the Constitution?

No. And the simple reason is because the constitution grants the president himself the unlimited authority over the military. As commander in chief he is not subject to any review nor does he require any permission to command the military.

This resolution does not expand his powers. It simply states that he may use his power in the context of accomplishing these two objectives. And it leaves the decision of how to accomplish these two objectives up to him.

Danzig, all the constitution requires is that congress ok the president's use of force. Thats it. Nothing more. Once that happened the president can go tear-assing all through Iraq to his hearts content because as commander in chief its his right to do so. If congress doesn't like it then all they can do is cut funding.

 

[Danzig]

Interesting interpretation of the U.S. Constitution, Stage 2. I've read it many times and honestly cannot find anything to support your statements.

The Constitution does say that the President is the Commander In Chief of the Army, Navy, and the militias (when called into actual service to the United States. I don't see anything there which gives him unlimited power to use the military as he sees fit. I suppose you could argue that such power is implied or intended but I could quote you evidence that the founding fathers feared even a standing Army. Surely, if a standing military is to be feared then a Commander In Chief who could us them without limit would be even more feared. I'm pretty sure that's the case.

"Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people.... [There is also an] inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and ... degeneracy of manners and of morals.... No nation could preserve its freedom in the midst of continual warfare."- James Madison.

"A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence agst. foreign danger, have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people."- James Madison

http://www.fff.org/freedom/fd0409a.asp
http://www.foundingfathers.info/federalistpapers/fed08.htm

With the distaste the founding fathers had for a standing army how can it be argued that they would have given the President the power to use the military in any fashion, and for as long as, he wished? How can you say that that was EVER the intent of making the President the CIC?

Two different issues? Yes. But intrinsically linked. If a permanently standing military is to be feared then indeed a president with unlimited power to use that standing military is to be even more feared. The founders would never have intended that.

 

[STAGE 2]

Two different issues? Yes. But intrinsically linked. If a permanently standing military is to be feared then indeed a president with unlimited power to use that standing military is to be even more feared. The founders would never have intended that.

Show me something in the constitution that limits the power of the president in his capacity as commander in chief and I'll happily concede.

As far as the president's power being limitless, it is with respect with how to fight the conflict. It is not with respect to starting other conflicts. The theater of this war has been specified. Iraq is the playground and the president gets to do what he will within Iraq. Why? Because the commander in chief gets to command. Thats the whole point.

 

[SecDef]

If you can't limit the scope of war even when you specify what the military is authorized to use force FOR, then how can you turn around and say that the president is limited as to WHERE?

Your own argument for what the President deems necessary and appropriate supports the President do both whatever he wants and wherever he wants. If Canada /Iran/Cuba is supplying money/arms/support to Iraq, then they are fair game, but it doesn't matter, because it is whatever the President says is appropriate.

Show me something in the constitution that limits the power of the president in his capacity as commander in chief and I'll happily concede.

Show me where he can't use the military to detain "traitorous" senators because they are giving aid and comfort to the enemy by supporting a withdrawal from Iraq. The theater was definitely not defined at all.

Or agree that he has that power and keep your argument consistent.

 

[STAGE 2]

If you can't limit the scope of war even when you specify what the military is authorized to use force FOR, then how can you turn around and say that the president is limited as to WHERE?

Your own argument for what the President deems necessary and appropriate supports the President do both whatever he wants and wherever he wants. If Canada /Iran/Cuba is supplying money/arms/support to Iraq, then they are fair game, but it doesn't matter, because it is whatever the President says is appropriate.

The resolution specifies Iraq. Iraq is the theater. Within this theater the President can do as he likes. He CAN'T attack Iran or Syria simply because they are providing weapons. The resolution only gave him authority to go into Iraq. This is the limitation. Within this limitation (i.e. the physical borders of Iraq) the president can do as he pleases. Why this is so hard to understand I don't know. Its not that difficult.

Show me where he can't use the military to detain "traitorous" senators because they are giving aid and comfort to the enemy by supporting a withdrawal from Iraq. The theater was definitely not defined at all.

Bogus and ridiculous and completely unrelated example. If you want a serious discussion use serious examples.

Or agree that he has that power and keep your argument consistent.

My position is perfectly consistent, supported by statute and SCOTUS.

 

[SecDef]

The resolution specifies Iraq.

No it doesn't.

"The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate"

Doesn't say where.

Instead of continuing, I'll just refer you to your own arguments. Dogs of war have been unleashed and whatnot.

Bogus and ridiculous and completely unrelated example.

Just like going into Iraq.

Not unrelated at all. You have posited that we are at war. How is enforcing the constitutional law against treason not related during a time of war?

Fact is, the President has shown himself not trustworthy, and has already done things WAY beyond any farcical thing I can think of.

 

[STAGE 2]

Secdef, the freaking resolution is titled authorization for use of force against Iraq. You can't get much more specific than that. Furthermore the clause you just specified was limited by both subsections. It CLEAR this was only intended to be for Iraq. Both you and I know this is the case so why are you arguing ridiculous examples that don't have any bearing in the real world.