30 March 2011

When will we learn? Or, will we ever learn?

It should be abundantly clear to everyone now that the U.S. involvement in Libya is not limited to the creation and enforcement of a no-fly zone. "Adm. James Stavridis admitted that, while allied forces were not yet considering the deployment of troops on the ground in Libya, it was a possibility." Furthermore, the Washington Post reports that the U.S. is using planes to bomb Gaddafi's ground forces focusing their effort on "halting advances by government ground forces in and around key coastal cities". It would seem that the U.S., while not directly fighting Gaddafi, is in fact allied with his enemies, even going so far as to consider arming them despite reports that the rebels are comprised, at least in part, of members of Al Qaeda.

I'm reminded of this clip from The Daily Show a few years back:

As Glenn Greenwald points out this morning:
The real question is the wisdom of this escalated involvement. How many times do we have to arm one side of a civil war -- only for that side to then become our Enemy five or ten or fifteen years later -- before we learn not to do that any more? I wrote earlier on Twitter, ironically, that one good outcome from arming the Libyan rebels is that it will lay the foundation for our new war 10 years from now -- when Commander-in-Chief George Prescott Bush or Chelsea Clinton announce that we must wage war to stop the Libyan faction from threatening its neighbors and supporting Terrorism (with the weapons we provided them back in 2011). One of the most reliable ways that the posture of Endless War has been sustained is by our flooding the world with our weapons, only to then identify various recipients as our new (well-armed) enemy. Whether this is a feature or a bug, it is a very destructive outcome of our endless and always-escalating involvement in military conflicts around the world.

25 March 2011

The demise of the rule of law

After the U.S. and other nations attacked Libya this past weekend, I posted a portion of one of Laurence Vance's recent blog posts as my Facebook status:
But to American soldiers I would say this: Is there any country you won’t attack? Is there any order you won’t obey? Without a declaration of war or even a congressional authorization, you are just acting as the president’s personal army.
Having broken the first rule of American politics—never criticize the military—I expected a swift and vitriolic reaction to those words. Much to my surprise, none ever materialized. However, I did have to further explain that the purpose of those words, as I understood them, was not necessarily to criticize the military. While the question/statement does call into question the military oaths of enlistment/office, it was intended primarily to draw attention to the President's having sent troops to war without congressional authorization.

This, to me, was a clear violation of Article 1, Section 8 of the U.S Constitution which grants the Congress the power to declare war. It turns out that I wasn't alone in thinking that. Presidential hopeful Barack Obama, in 2007, when asked about the President's authority to send troops into action without congressional authorization said the following:
The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.
Since U.S. military involvement in Libya began, the President, via his staff, has gone to great lengths to assure lawmakers and the public that the U.S. is not at war. No less than Defense Secretary Robert Gates seems to disagree, and while he stopped short of using the phrase "act of war", others have not been so reserved in their descriptions of the actions. In fact, the President himself, who now believes he does not need congressional authorization, still took the step of notifying the Congress of military action, "consistent with the War Powers Resolution", anyway. (Wikipedia explains that the use of "consistent" instead of "pursuant" is because Presidents are loathe to recognize limits on their ability to wage war. The word "pursuant" implies that the President recognizes Congress's limit on his office. "Consistent" implies only that the President is following the law, not that he recognizes its legitimacy.)

It's curious, to say the least, that the President felt compelled to notify the Congress while, at the same time, arguing the U.S. isn't at war. Nevertheless, it would seem that the President has placed himself (back) within the law... such as it is. The question of whether or not the President has the power to send the military into action without congressional authorization is still ambiguous, at best, though. When exactly can the President wage war? According to James Madison's notes taken during the Constitutional Convention, the framers intended the President to have the authority to use the military without congressional authorization only in one specific case. During the convention, the legislative branch's power to "make" war was changed to "declare" war for the purpose of "leaving to the Executive the power to repel sudden attacks". However, since Libya did not attack the U.S., nor was it even threatening to do so, it would seem that the President's action is illegal, even considering his notification to Congress.

So, what about the U.N. Charter to which the U.S. is a signatory? On March 17th, 2011, the Security Council adopted Resolution 1973 authorizing a no-fly zone over Libya, and Chapter 7 of the charter allows the Security Council to act with force to enforce its resolutions. Thus, the President claims he is "acting under a mandate issued by the United Nations Security Council" which is binding on the U.S. presumably under Article 6, Paragraph 2 of the U.S. Constitution which gives treaties made by the federal government the force of law. There are two problems with this claim. First, Chapter 1, Article 2, Paragraph 7, of the U.N. Charter specifically prohibits U.N. involvement in "matters which are essentially within the domestic jurisdiction of any state", e.g. civil wars. (Some might argue that the text that follows, "this principle shall not prejudice the application of enforcement measures under Chapter VII" allows for the actions now taking place. I disagree for two reasons: 1) not prejudicing the application of enforcement measures is not the same as allowing enforcement measures in violation of the preceding "principle", and 2) if my first reason is incorrect, then the second half of the paragraph contradicts, essentially nullifying, the first which makes no sense since the section would basically then read "the U.N. has no jurisdiction in domestic affairs unless it does".) The second problem with the President's claim is that Article 6, Paragraph 2 of the U.S. Constitution declares that the Constitution is the supreme authority when it and a treaty made pursuant to it are in conflict. That is, the President's authority to use the U.S. military cannot be increased by any treaty beyond what the Constitution allows.

It should be clear now why the President is working so hard to portray the U.S. involvement in Libya as anything but a war. Based on notes taken during the Constitutional Convention, it is plain that the framers never intended for the executive branch of the U.S. government to have unilateral authority to send the military into action except when timely consultation with Congress was infeasible due to a sudden, unforeseen attack. Since many (but not President Obama as evidenced by his own words in 2007) have forgotten this intent of the framers, President Obama is focusing on this (not) being a war in order to deflect any accusations of usurpation of Congress's authority. Much like the use of "consistent" vs. "pursuant", the meaning of "torture" vs. "enhanced interrogation", and the meaning of "is", the debate will revolve around what exactly constitutes "war". Ultimately government lawyers (the Supreme Court, if the debate ever reaches that level) will decide what "war" is. No longer is the U.S. government subject to the rule of law.

The rule of law is, in part, the idea that no person is above the law. This is in contrast to "ancient" times when the king or ruler of a nation or people was him or herself the law and, in many cases, above or not subject to it. When this nation was founded, Thomas Jefferson wrote in the Declaration of Independence that "all men are created equal", and it is this idea that gives rise to the notion that all people, therefore, should be subject to the same laws. Other writers at the time also argued for this idea. Thomas Paine, in Common Sense, wrote that "in America, the law is king" in reference/contrast to earlier ideas that the king was the law. The Massachusetts Constitution also contains this ideal, using the phrase "government of laws and not of men".

In order for the law to be king, however, it must "possess the characteristics of [...] certainty". And this is where the problem lies. The law is (no longer) certain. Can the government listen to your phone calls without a warrant? Can it see you naked when you try to board an airplane? Can it abridge your right to free association as it is attempting in Wisconsin, among other places? Can it force you to buy healthcare? Can it imprison you indefinitely without trial? Not only are existing laws not certain, but new ones are constantly being added. It has been estimated that "the average busy professional commits three felonies every day", and the government, via its police forces, decides, on its own, which crimes to prosecute and which to ignore. And in cases where the law is unclear, a government lawyer will twist the words of the law to suit his or her purposes, or the case will ultimately end up in front of a judge, employed by the government.

In this way, we are no longer a nation of laws, but of men. The government decides what the law is and when to enforce it. In the case of the federal government, it has become the arbiter of its own power, in contrast to the tenth amendment to the U.S. Constitution. There used to be a fairly well organized and loud opposition to this violation of the rule of law. During the (George W.) Bush administration, the political left was up in arms about the President's usurpation of power. It was constantly demonstrating against his "illegal" war in Iraq. It wanted him to pull troops out of Afghanistan. Now that a Democrat is in the White House, though, opposition to those wars, as well as the current one in Libya, has all but disappeared.

While small government types and libertarians (note the little 'L') continue to oppose war no matter who is in office, it would seem that they constitute a rather small portion of the population. Eric Posner, writing for the Volokh Conspiracy, agrees arguing that "[t]here is no constituency for reforming the executive". There do exist constituencies for limiting executive power when the "other team" is in power, but since the team occupying the White House changes rather frequently, each team ultimately gets to exercise the very powers that they railed against when they were out of power. Thus, no one is really interested in reforming the executive branch, itself.

Posner continues:
arguing that we should return to the original Madisonian design is tilting at windmills [...] these arguments are on the fringes—not because they violate the rules of logic but because they have no constituency—and that is where the Madisonian argument belongs as well.
[...] Arguing that our current system of government is unconstitutional is like arguing that the original Constitution was unconstitutional because it violated the amendment procedures of the Articles of Confederation. It is a logical argument that makes no difference in the real world because ultimately what matters is popular sentiment [...].
I can't tell you how dismaying it was for me to hear, correct as it may be, that arguments for a return or adherence to Madisonian design, that the people should be ruled by laws and not men, are on the fringe, but there you have it. The rule of law is dead.

01 March 2011

Why democracy? (continued)

After my last post, I received a few replies decrying what some saw as my advocating of gay rights. Looking back on that post, it doesn't seem to me an unreasonable inference on the reader's part to make that leap. I admit that the misunderstanding is probably, at least partially, my own fault for using the word "rights". These responses missed the point of the post, though. The point was not to advocate for legalization of gay marriage or marijuana use. Rather, it was to point out that democracy is not the cure-all that people believe it to be. Democracy will always be a tool by which a majority will oppress a minority and ultimately the individual. The particular issue(s) in which this phenomenon occurs is not relevant. That said, let me expand on the issue of gay rights, marriage in particular, further to answer the questions I received.

First, there seems to be a lot of hoopla surrounding the word "marriage". Some believe that a marriage can only be between a man and a woman. Some believe that it is the union of a man and a woman, blessed by God (these people, by and large, seem to have no problem, though, with a state performed marriage absent any church). Others believe that it can be the union between two people of the same sex inside or outside of a church. Still others believe that it is not limited to two people at all. I have no particular affinity for the word "marriage", and I use it fairly loosely in the following paragraphs. If the use of the word marriage in this post offends you in this context, please feel free to replace it with "civil union" or whatever other phrase best suits your ideology.

Marriage is, or should be, from the state's perspective, nothing more than a contract, a property arrangement. Obviously, marriage means much more to the actual participants, but the state has no business beyond the property arrangement. For example, the state doesn't penalize one spouse for failing to sufficiently love the other spouse(s). However, the state does have laws for how property transfers occur between spouses when they die or dissolve their marriage, pre-nuptial or other agreements, notwithstanding. Not only that, but marriage also confers special privileges upon spouses like receiving benefits of various kinds, tax deductions, making medical decisions on behalf of an injured spouse, and protection from being compelled to testify against a spouse in court.

In the U.S., these privileges are only applicable to male/female unions under the Defense of Marriage Act, passed in 1996. Under this act, our democracy has, for all intents and purposes, discriminated against a significant portion of the population by denying them the ability to form a marriage contract between themselves and their chosen partners. To my earlier point, the majority has oppressed the minority by denying a specific group of people the ability to voluntarily engage in a specific type of contract and receive the benefits afforded by that contract.

It seems obvious, then, that the solution is to legalize gay marriage. However, doing so would only grant more power to and further legitimize the state. To argue for legalization would legitimize the act of having made it illegal in the first place. It would give credence to the idea that one person has the right to impose his views on another via the coercion of law; it would legitimize the idea that that the government (or the majority via the government) has the authority to grant or deny permission for private parties to voluntarily enter into a contract. So we are left with a Sophie's Choice of sorts. Either, let the majority continue to oppress the minority or grant ever more power to the state. Let me suggest a third alternative: the state should cease involvement in all marriage and stop granting benefits on the basis thereof. People should be free to marry whomever they choose without having to ask permission from anyone or pay for the privilege, and the state, to the extent that it exists, should simply honor the contracts.