Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Monday, November 14, 2005

Impeachment: Bush begins his preliminary defense strategy

Bush has started a public relations effort to not simply support his poll numbers, but to test the waters for which arguments will strike a chord with the jury.

Tyrants will rely on quotes to justify their lawlessness. Today, the RNC appears to be readying the Bush defense by relying on Jefferson.

It's important to dissect the quote, and illustrate how Bush's reliance on these ancient notes does more to undermine his defense than assert the rule of law.

This note outlines why Bush's reliance on Jefferson's letter to John B. Colvin [20 Sept. 1810; Works 11:146] does more to undermine Bush's defense than to credibly explain and defend his actions as commander in Chief.

[See: Comment #8: REB 84 said on 11/14/05 @ 10:42pm ET ]

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One thing people like to do is to find old quotes to justify lawlessness.

Here's a writing by Thomas Jefferson. I hope you'll take the time to consider it.

[ Pause, while you read it]

Welcome back, for the remainder of this blogspot, I shall assume that you've read Jefferson's comments.

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What's floating around is the second line,
A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.

The important thing to remember, however, is that is comment is in response to a specific question: A moral issue over whether officers should go beyond the law to prevail in combat
The question you propose, whether circumstances do not sometimes occur, which make it a duty in officers of high trust, to assume authorities beyond the law, is easy of solution in principle, but sometimes embarrassing in practice."

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The issue is not whether it is right or wrong to disregard the laws of war. The issue Jefferson is responding to is: Whether there are situations where one might have to make a decision, out of self-preservation, to serve the higher good.

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The issue is more than an ethical one. It is a function of time, meaning: We have the wisdom of Nuremburg to adjust whether Jefferson's comments are to be taken in blind faith.

Put another way, one cannot simply point to Jefferson's second sentence, and say, "Aha, we have the moral authority to justify supporting what the President is doing in Guantanamo."

On the contrary, after Jefferson made his comments in 1810, we've had 195 years of history and law.

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Note as you consider the actions in each of Jefferson's examples, that the issue relates to the laws of war: Can an officer destroy property in a time of war?

The laws of war already answer this: Yes, when that property is used by the enemy to wage war.

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However, the laws of war also prohibit looting the civilians’ property. Despite Jefferson's justification to the contrary, one cannot pillage a foreign nation's assets.

Goering in the Nuremburg indictment was accused of squandering the resources of the lands he occupied.

The issue is whether, in war, officers can command their troops to do what they must to survive. The answer is, "Yes, but they cannot violate the laws of war."

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Also, note Jefferson's use of the hypothetical ["Suppose it had been made known to the Executive of the Union in the autumn of 1805, . . . ]. The sentence is key in understanding Jefferson's comment in relationship to Bush.

If we take the hypothetical warning, but apply that to 9-11, Bush fails to satisfy Jefferson's requirement that necessity dictate action. On the contrary, Bush failed to act despite the warning of 9-11.

Bluntly, if we are to apply Jefferson's logic anywhere, then we must apply it universally. Thus, where Bush "should have" acted in re 9-11, he fails to meet the conditions Jefferson outlined; thus, Jefferson's argument justifying action out of necessessity cannot apply to Bush in giving him freedom to violate the laws.

Either the analogy must apply in all respects; or the analogy, when it fails, fails to support the underlying conclusory statement that the end justifies the means.

If there is an advantage to applying the analogy, then failing to apply that analogy would then not protect Bush from accountability. Indeed, failing to preserve the Union on 9-11, one does not then get a green light to wreak havoc with the law, nor do they get a green light to lie to Congress to "make up" for that "strategic blunder."

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We cannot blindly take a snippet of a quote from 1810, and use it to give a legal defense for Bush in 2005.

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We get into an issue of timing, and how Congress if given time, can be persuaded to act or not act. Jefferson writes:
suppose it foreseen that a John Randolph would find means to protract the proceeding on it by Congress, until the ensuing spring, by which time new circumstances would change the mind of the other party. Ought the Executive, in that case, and with that foreknowledge, to have secured the good to his country, and to have trusted to their justice for the transgression of the law?
This, if applied today, would imply that Bush, if he felt it appropriate to delay information could induct the Congress to make a more informed decision.

However, in re Iraq, we had the opposite: The situation was accelerated, and the goal wasn't to make a prudent choice, but to make a choice based on the absence of logic and facts. Bluntly, it would be a perversion of Jefferson's argument to then defer to Bush as if he were a Monarch, and contrary to the Declaration of Independence.

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Jefferson asks us to embrace something called cultural relativism in the following:
But those controlling powers, and his fellow citizens generally, are bound to judge according to the circumstances under which he acted
In short, this asks that we disregard the rule of law, whether in peace or war, and allow situations to dictate what is right or wrong.

This is a perversion of the law, and at the heart of the tyranny Jefferson opposed.

The problem Jefferson has in his argument is assuming that military choices will translate into military gain. This may be true on the battlefield, but it destroys the Constitutional system when the argument is then brought back to the civilian world.

We are not a nation at war; we are a nation that is at war with the rule of law. Nor are we as a citizenry at war, our military is at war. One cannot say that the fruit of WWII was the benefit of having massive armies with civilian involvement.

We have the opposite: A relatively small army with minimal civilian involvement.

Military necessity in Jefferson's argument is simply about battlefield; but it does not apply in today's world where the military, that is isolated and removed, is then used as the justification to bring the civilians into that convoluted mess.

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Jefferson's letter also includes a curious analogy in light of 9-11 and Iraq:
We knew here that there never was danger of a British fleet from below, and that Burr's band was crushed before it reached the Mississippi. But General Wilkinson's information was very different, and he could act on no other.

Jefferson suggests that commanders can only act on the best information they have. Yet, this argument ignores and fails to grasp the reality of two important things: Information can be confirmed; and the absence of information does not mandate action.

Bush's problem with Iraq isn't that he acted prudently based on the best information; rather, he acted imprudently, and arguably unlawfully despite the known problems with that information.

Yet, unlike the days of Jefferson, there is a UN Charter which requires there to be an imminent threat. To suggest that "one lacks information as the basis for war," turns the UN Charter on it's head and asks us to embrace absurdity: "That in the age of information, we shall presume that our ignorance is the justification for aggression."

This is imprudent, reckless, and it fails to build off the laws of war: Action must be based on certainty; and lacking certainty, we must find that there is imminence. One cannot rely on ignorance as the basis to assert an imminent threat.

Rather, the duty, under the laws of war, is for the aggressor nation to prove that the laws of war are met, not that the confusion justifies ignoring the rules.

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We are a nation of laws. The laws of war apply.

Prudence dictates that power be used on the basis of what is actually happening, not in what one hopes might happen in the future, as a pretext to justify lawlessness today.

Our hope and fears about the future cannot mandate we first violate the laws of war; this approach does not preserve the nation's Constitution, but merely inspires contempt for all it might safeguard.

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Jefferson argues that the laws may have to be ignored when the nation’s safety is at risk:
It is incumbent on those only who accept of great charges, to risk themselves on great occasions, when the safety of the nation, or some of its very high interests are at stake.
This is a calling for the individual to risk their lives in defense of the nation; but this analogy does not apply when the defense is against an enemy that does not exist nor is threatening the nation.

If we were to embrace Jefferson's approach blindly, then anyone and any nation that dares approach our power would be the target for a pre-emptive attack.

At that juncture, we are no longer preserving the nation, but putting it at greater risk of exposing it to sanctions, rebuke, and ultimate destruction. A nation cannot assert the rule of law with force which is at odds with the laws; to do so would ask that we claim to be divinely inspired, only to act as barbarians.

This is no different than the British Empire once was, and to which Jefferson penned the Declaration of Independence.

Yes, there are times when an individual in combat must make great sacrifices, but this is not a green light for a nation to sacrifice its laws, especially when the enemy it fights is inspired by those transgressions.

One cannot take the lessons of warfare and blindly apply them to civil discourse, especially when the civilian population expects lawful leaders, not lawless tyrants, to preserve the law, not simply speak of the law as a justification for lawlessness.

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The RNC, Bush, and Judith Miller have asserted that they were advancing principles for the sake of larger interests.

In practice, what they've done is assert the code of lawlessness and self-interest to justify putting themselves above the law. This is circular.

Bush and Miller would have us believe they are doing things out of the interests of the nation: One might fight for freedom of the press. In fact, she hopes to have freedom to have access without accountability for the consequences of the lawless action waged at home and abroad.

Bush's loyalty is not the rule of law or the Constitution as his oath commands, but to his own interests. He, like Libby and Miller, may find transient solace in Jefferson's words, but this does nothing to inspire the court founded on law.

Jefferson may have founded a nation, but he was not above the law, and the Sedition Acts did not stand. Thankfully, we still have an independent Judiciary which acts as a check on the Executive, as it did on Jefferson, and as it should on Bush. Anything else, and we have an absolute Monarch, wholly at odds with the reality of 1776 and the nation's founding document.

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Beware the leader who relies on long-dead prophets as solace and defense, when the real aim is not to assert prudence, but to find historical defenses when modern case law fails to sustain the needed shield.

Case law relies on what has happened since 1810 at Nuremburg and Watergate, not on what one might otherwise wish for -- the heart of the problem with Iraq -- the desire to find a justification does not make the solution to an illusion lawful.

The law is clear; one's desire is fleeting, especially when devoid of reality.