American self-governance: What is to be done
What is to be done when the system of checks and balances fail; and the executive puts himself above the law and international norms?
Either Americans can choose to impose the rule of law at home; or have that rule of law imposed from without.
The issue is whether American will freely choose to exercise self-governance [a] while they enjoy the chance; or [b] have that responsibility imposed on them through the courts; or [c] in the wake of a defeat on the battlefield.
What is to be done?
Obviously the problem is to define the problem – what is to be done when the leadership violates the laws of war, and the system of checks and balances fails.
Ideally, there could be some sort of oversight – calling the President to account. Perhaps a corporate board.
In theory, this is the purpose of checks and balances – where the Congress can withhold funds; and the dispute between the law and the Executive can be brought before the court.
But it appears, whatever the reason, this idealized system has failed.
The solution, self-evidently, is to explore whether it is defective; and what remedy is needed within the confines.
Arguably, behind the scenes the Fitzgerald Grand Jury is reviewing the matters. However, it would be curious if there were not a more open and visible system of checks and balances, especially when it comes to matters of the rule of law.
Before the war started, there were efforts to prohibit the combat. The court appeals failed.
In hindsight, with the evidence of the Downing Street Memo and larger pattern of abuse and misrepresentations, it is clear there was no imminent threat, as required under the just war theory.
Some assert that the US has the right to pre-emptively strike. If this is so, then so do all nations, in theory, have the similar right to pre-emptively strike the US. We do not support this approach.
Rice has asserted before the Heritage Foundation that the US will do what is lawful to fight terrorism.
There are two problems with this assertion:
The issue coming to the head is: What is to be done.
What is to be done when the US violates the laws of war; moves people without charging them; and engages in abuse.
The US has enjoyed, because of its military power and Cold War position, many years of unchallenged moral authority. In the wake of 9-11, the NATO alliance rallied.
Yet, NATO was not there when it came to the issue of Iraq, WMD, and the lies from Rendon and the MI6 Mass Appeal.
Rather than address the issues in Congress, and get specific answers, the US moved on the basis of “trust us” and “this is what must be done.”
Now, in 2005, the White House officials assert that they never said there was an imminent threat with Iraq, thereby showing they are unwilling to meet the just war criteria mandating such.
What is to be done when the laws against abuse are ignored in the name of something ambiguous.
The US in the Cold War had the excuse and convenience of the Communist ideology as the pretext for all sorts of actions. It would be foolish to presume the US, despite the waning political foes in the Eastern block, to have changed its approaches.
But the rule of law remains. As does a convenient enemy to justify the lawlessness.
Yet, it is the law and rules of procedure which give the UN Security Council the authority to find out what is going on with the Lebanese Prime Minister assassination.
What is curious is how quickly the world will start an investigation – on the false premise that Syria alone is the culprit – yet, the UN Security Council will take no action when it comes to investigating other abuses, murder, and crimes committed at the hands of US officials.
Why is it that the UN Security Council will rush to “find out” what is going on in Lebanon, but we here nothing over the abuses in Eastern Europe?
It is interesting to contrast the US position in two areas.
Both contrasts show that the US relies on moral standards that it can impose on others mandating action, information, and responses – even when the basis for those charges and investigations are unfounded, weak, and inadmissible.
At the same time, despite the US asserting it is not under the norms, and new rules apply, to the international arena, the US mandates that the world engage in dialog, openness to other views, and other ideal concepts – the very principles the US denies to others when it comes to Rendition, Syria, and Iraq.
What is to be done when the largest bully on the block is seen for what it is:
Arguably, the police are called in, the bully is taken away, charges are brought, and the culprit sent to reform school, exiting a compliant citizens.
But the White House, State Department, UN Ambassadors, and the legal community have other ideas. When they swear an oath to the Constitution – promising to preserve, protect, and defend it – what do they do when one of their own, -- their President – is a threat to that document?
The American Bar Association appears to offer instructive wisdom and guidance. If only they were noble enough to share it with the rest of humanity.
What is to be done when the nation’s leadership continues to move without regard to the rule of law; lie to the public; make statements that are contrary to a reasonable belief they are adhering to the rule of law.
Contrast the US approach with Syria. Rice failed to explicitly deny the US had been involved in abuse in Eastern Europe; yet, the Syrians have denied they were involved in the assassination of the Lebanese Ambassador.
A reasonable person, when faced with something that amounts to an allegation f a crime, and would have a reasonable defense, would reasonably be expected to deny the charge. Yet, the Americans unlike the Syrians fail to deny something.
We judge the Americans are involved in both situations:
It would be interesting if the US, like the Syrians, were hauled before the UN Security Council and forced to explain themselves.
It is cuprous how quickly Mehlis was deployed to investigate – but we have no similar effort to investigate the US action. Rather, the world must wait until the Europeans, specifically the European Council, gets a response from their member states.
In short, the American Congress, when it failed to investigate, must now wait for the Europeans to provide an answer.
From this vantage point it appears the Americans are deferring their “fact finding role” to other countries. Ideally, we would presume the US still had sovereignty and might be interested in independently finding out what was going on with their own operations.
Given the glacial Senate Intelligence Committee approach to the 9-11 and WMD issues, it does not appear likely the American Congressional Committees will take much interest in matters of criminal law..
Ideally there should be a mechanism mandating some sort of review, investigation, or action.
Yet, we have an apparent situation of collective “deer in the headlights” – whereby the nation, leadership, and oversight are dumbfounded what to do.
In short, this is merely a symptom of a defective system.
Bluntly, we have self-evident problems, credible allegations of abuse, and a pervasive pattern of misconduct in re internal law and war crimes – yet, the momentum continues.
It is as if the US and world were on an escalator, unwilling to cut off the power, jump off, or take a broader perspective – what is to be done.
By way of analogy, it is as if the world was well aware of abuses in Africa, and stood by doing nothing.
All these years we heard, “Never again.” But here we are, once again:
Government, unlike a defendant, has the continuous burden of proof – to justify confidence that it should be believed.
Yet, this government takes the opposite view – that it can do what it wants, without regard to the law – and the burden of stopping it falls on the very victims – namely a party in civil lawsuit – to stop the action.
It is no wonder the US hides the defendants/detainees out of sight of the court – to prevent them from publicly discussing something that should be stopped.
There should be a system whereby a magistrate, a special master, or some intervener can interrupt this system.
It is not the role of the uninformed people to act on something they know nothing about – nor is it the role of the government to self-regulate itself – it has no interest in self-regulation.
Rather, what is needed is some way to ensure that when there are credible allegations, problems, and a pervasive pattern of abuse – that something is done to gather facts, compare the reality to the existing standards and get a lawful ruling.
We are far from that.
It would be ideal if the Fitzgerald Grand jury could expand its review, and look at the recurring patterns of abuse, misconduct and apparent war crimes.
Also, it would be useful if the Grand Jury review the Nuremburg defense of “unlawful orders” and carefully review to what extent the defense of “just following orders” and “apparent illegality of orders” is an issue.
Nuremburg taught us that the war crimes defendant, not the public, has the burden to show that the orders were not illegal. We fail to see how these orders could be so argued—
At every juncture we are told that the rules don’t apply. Yet, if they do not apply, why is the US in any position – when it comes to Global Warming – to demand that the world engage in dialog, debate, or embrace other views/
Bluntly, the US wants to have it both ways –
These are not simply issues of political curiosity and debate. The issue becomes: What is to be done when the United States government, and specific individuals within the executive branch, fail to assent to the standards which exist; but are not uniformly applied to other nations.
One cannot credibly argue the UN does or does not have a role when it comes to what appears to be US involvement in the Lebanese Prime Minister Assassination; while at the same time asserting nobody can review the matter when it comes to US abuse and killing of detainees.
Either the rule of law does or does not apply.
But if the US denies the world and specific individual to the courts, what option does the world have, other than open combat, to resolve the dispute?
The US, when it comes to Iraq, argues the world “must embrace the justification for the action” – yet, when it comes to mandating the US comply with the law, the US asserts it can do what it wants, and that it remains outside the law.
We fail to see how the US can credibly argue, much lest survive on the political stage, when it blatantly argues one standard for the world, another for itself, and selectively mandates or ignores the rules of law.
Normally, at this juncture, the collective nations of the world would see that the US is no longer a disciplined neighbor, unwilling to assent to the rule of law.
Going forward, it remains to be seen what the world community does – either through state action, or lawful forms of retribution.
The US has violated the laws of war; it remains to be seen which state and individual actors rely on the laws of war which allow them to violate the same laws of war which the US has violated.
The issue isn’t simply whether the US servicemen and women are or are not engaged in combat, or what might happen to them by way of retribution.
Rather, the issue becomes to what extent states and individuals around the globe – in seeing the US violates the laws of war and faces no sanctions – feel they are free from those laws of war and take the fight directly to American civilians.
In other words, if the US puts itself above the rule of law, and denies civilians access to the courts, and detains them with out trial – and nobody does anything to remedy the deviation – then the world community may very well presume it is free to do the same.
The Congressional leadership has shed some crocodile tears over what may happen to American servicemen and women -- if the US engages in abuse – and other nations decided to violate the same laws of war the US has ignored.
But the issue isn’t simply one of what impact the US conduct may or may not have on uniformed personnel.
The issue is to what extent the US action and lawlessness – committed against foreign citizens, non-combatants – then becomes the lawful basis for other states and individuals to do the same.
The laws of war permit other parties to lawfully violate the laws of war when another party ignores those laws of war.
The issue the American Congress must decide: If they are unwilling to start a draft now, are they going to do nothing to investigate or reign in this apparent lawless ness – and thereby, through their failure to investigate – subject their constituencies to lawful retribution?
The rule of law is premised on agreements, standards, and rules. The idea of fighting terrorism, originally, was to reign in non-state actors who were in no specific location.
However, in 2005, it appears the US is just as guilty of engaging in the very conduct they assign to terrorists:
A nation can only credibly assert it has sovereignty – and remains a viable entity – when its system of governance simply does that – govern.
The issue before us isn’t whether the US has or has not violated the laws.
The issue is what is to be done when there are allegations of violations, but nothing is done, and the apparent violations continue.
It is one thing to assert, as Rice has done, that the US is or is not following the law.
It is quite another to let the world see, as the US would mandate in re Syria, that the US is able to meet its obligations.
One can assert, within a reasonable amount of time, that something must be prepared to let others see the US is following the rules.
But, let us consider what is going on in Eastern Europe. The US, at the time the detention centers were established – had a public relations problem in Guantanamo. If the US was not engaged in violations of the law, or treating people humanely in Europe – contrary to what the human rights watch were asserting – then the US would reasonably have opened the detention centers to the ICRC to show: “The US had no problem.”
This was not done.
Nor have the US satisfactorily addressed the issues.
The issue becomes: What is to be done when the US fails to meet its obligations – the same obligations it announces must apply to Syria – which Syria is assenting to.
It is one thing to say – on the eve of an invasion of Iraq – that the UN is defective. It is quite another to orchestrate the world stage so that regardless the outcome, the US position prevails.
We saw the same in Iraq. The US was intent on making the UN inspections fail.
The issue before us: What is to be done.
The courts and Congress have failed. The American government is unresponsive to questions from the Europeans. At best, the statements are nothing but meaningless words and assertions.
Given the pattern of conduct, it is not reasonable to embrace Rice or Bolton’s statements as credible.
The issue becomes: What is to be done.
The problem will either be solved within the existing system, or the Americans will continue.
At this juncture, there appears to be no end in sight; and the US does not appear to be responsive.
It remains to be seen what efforts, in hindsight, the world community will have to demonstrate before a court – to show that it exhausted all reasonable options.
It remains a matter of law whether the US – through its power, economic influence – has engaged in unlawful efforts to interfere with lawful investigations.
But things cannot continue forever.
What is to be done when the rule of law is ignored; and those charged with exercising their lawful authority, refuse to exercise their power, obligations, and authority?
The US can either voluntary come into compliance, or the US can be forced to comply with the rule of law.
Curiously, the same argument was made with Iraq.
It will be no surprise to see the US do the same things as Saddam – engage in games, but all the while asserting it is within the law.
The US had the burden of proof to show that Saddam was an imminent threat – it failed.
The US had the burden of proof to show that Iraq had weapons of mass destruction – the US failed.
The US now has the burden of proof to justify why the world should believe it is treating people in a manner consistent with the rule of law. Most likely, the US will – as it has already done -- fail.
The issue becomes: What is to be done.
Congress can either do something, or it cannot.
The world can either do something, or it cannot.
But what happens when a nation – in its self appointed role as liberator – becomes the very source of abuse, mistrust, and arrogance they say they are fighting.
The Romans feared the truth about their conduct. There was a lone man who dared to challenge their power. For that end – his work to stand up to what was wrong – remains with us.
Yet, there are others who dare to say what must be said.
In today’s world it is as if the rule of law only means what the US approves – but the same standards are not to be applied to America. That is lawlessness.
What is to be done when the existing mechanisms fail; when the US denies people access to the judicial system; and the US refuses to assent to the rule of law.
How long will this go on?
What is to be done?
The impeachment of Andrew Jackson is noteworthy. It outlines the specific unconstitutional conduct.
The US may focus on the Downing Street Memo. But this is only one anecdote.
The misconduct continues.
Americans who are within the ranks of the government need better information on what the US Attorney needs to prosecute.
The citizens who are doing the work of the President must have the information and indicators of what the US is willing to take action on.
But it appears the Congress, even if it gets the evidence, is not willing to vote.
The nation, it appears, has to wait until the 2006 elections. But that is just an excuse.
The misconduct continues. The public needs to know what they need to watch for so they can collect the evidence – or at least recognize what is going on and be ready to be a witness.
The American citizens within the Executive Branch need to take a prospective approach to impeachment. Rather than looking at the past and what did or didn’t happen relative to the statutes; the public needs to be aware of the types of behavior, and stand ready to refuse to engage in unlawful conduct – as it happens in the future.
The public also needs within Congress a responsive system that will take that information and do something with it. The current statutes against whistleblower retaliation are ineffectual.
Those within the Executive Branch have to be quiet, or face retaliation – and once they leave the service, they then become one that is “no longer part of the system.” It is unfortunate that the very people in the position to know what is going on, may have to subject themselves to more abuse simply to gather evidence.
But where will the evidence go, will Congress do anything with it, and will the Grand Jury review the matter?
The rule of law is clear, but at this point there is much in the air.
There have been some interesting discussions lately. The American Psychological Association [APA] has discussed the “ethical way” of participating in interrogations.
This is a non-starter.
In a similar vein, former CIA officials have been asked whether the rendition policies are effective in fighting terrorism.
The point is that, just as the APA was asked “how to do something that was not legal,” so too are the Americans asking “How to engage in illegal movement of people without charges in an ethical way.”
Indeed, it may be effective – but the issue is whether it is lawful.
The UK’s approach, as was Sergeant Schultz, is more of the, “We know nothing.” This is imprudent.
What’s needed is a system that will mandate answers, not blind deference to ambiguity.
The Council of Europe, it appears, is the only body willing to take the lead. Not the American Congress.
Rice before the Heritage Foundation wants to give the US self-absolution when it comes to matters of abuse, asserting, “We do not torture.” Yet, the burden of proof, as always rests with the government – prove it – but they have failed.
The US would have us believe that it is fighting terrorism. But when the US engages in abuse, violations of the law, and fails to hold their own to account – arguably, the US officials are acting as are unlawful combatants:
Arguably, the US officials are acting no better or worse than the terrorists – without regard to the laws of war – but worse, in that they assert, because they wear a uniform, or hold a position – that we are to presume that they are in compliance.
We judge the burden of proof has not been satisfied.
The US’s problem is that it engages in unlawful conduct in re treatment of people they have accused without trial:
We judge the US is no longer a lawful combatant.
The issue is: What is to be done.
Going forward, rather than focusing exclusively on the Downing Street Memo – prospectively we need to look at the larger pattern of conduct by the White House and US.
This conduct is deteriorating. Yet, it is a pattern – to define itself as being able to do what it wants.
The issue will be – how to teach others to recognize these problems – and help them preserve, protect, and defend the evidence they may come across.
It is not the world’ role to teach the citizens how to gather evidence – but the world may have to do this.
What is clear is in the absence of US freely assenting to the rule of law, or doing what the Syrians have done – being responsive – the conduct will worsen.
And this means the evidence will stack up.
The issue is: What is to be done. The US no longer can credibly argue it is for or against a principle – it simply asserting principles as a defense to war crimes.
This is not probative.
Rather, the US, by its actions alones, has blurred the line between its conduct and those it is fighting.
No longer can the US assert that it is fighting anything – rather, it is simply fighting its own principles – the rule of law.
What is to be done when the US officials refuse to assent to oversight; fail to provide information; and do not act in a manner that demonstrates they are willing to assent to the rule of law, or conduct their affairs in a way that would allow them to call themselves lawful combatants.
The American Congress, courts, and internal investigators appear reluctant to act – just as the US accused the UN in re Iraq.
The US asserted that the Iraqis were unresponsive. Now we know otherwise.
The issue is: What is to be done.
If the US denies detainees access to the courts, what option other than the battlefield do those so detained have to remedy this wrong?
If the US denies detainees access to the courts and the US engages in abuse – the laws of war say the enemy is allowed to do the same.
If the US choose to wage war than assent to the rule of law – the laws of war say the enemy is allowed to do the same.
What is to be done: When the US government, Congress, and international legal scholars sit dumfounded, refuse to act, and simply go along with what is unacceptable.
What is to be done: When there is no effort for the US to freely come under the rule of law, investigate, or review the matter to ensure the conduct is within the law?
It is one thing to assert, “We are doing what we lawfully can.” It is another – despite evidence to the contrary – to prove that standard of conduct is real.
We judge the US has failed in its burden of proof and is not longer demonstrating that it is capable of exercising sovereignty.
We have approximately 11 months until the November 2006 elections.
The issue is: What is to be done to ensure the rule of law, however it is ignored, is in full place.
Or must the world slide along this escalator – for the next 11 months – on the off chance that the US voters might choose, if the weather cooperates, to ensure the rule of law prevails, and vote in officials who are willing to investigate.
The track record of Americans exercising independent thought is poor. They’ve shown that they can be quickly lulled into assenting to non-sense.
Even the President, relying on this blind dereference, openly brags that the Constitution is but a piece of paper. Yet we hear nothing from Congress over mandating this President to assent to the rule of law.
The Americans have shown their disdain for the rule of law. Have no regard for dialog.
Yet, when it comes to matters of global warming – they want the world to practice the conduct the US refuses to engage in international affairs: Dialog, open debate, consideration of other views.
Yet, it is clear the American approach is without regard to the “other views” of the law.
Look at what is done with the Patriot Act – the executive has conferred on itself the power to violate the Bill of Rights – something the founders initially said were not needed.
Today, despite the existence, they are ignored as if a trifle.
What is to be done: The American citizenry, by default and unwillingness to assert the rule of law over their own – have abdicated sovereignty to the European Union Council of Monitors – on the hope that “someone else” might look into a matter which the Americans are primarily responsible.
The US cannot control the EU. But the US has shown it is inclined to influence, subvert, undermine, and otherwise destroy those who do not assent to unquestioned American dominance.
Under these situations, is it not reasonable to presume the US, in its effort to remain above the law – will simply do more of that – take action outside the law.
We judge the Americans will continue with their bullying, dissuade investigations by the EU and UN; and change the subject.
Yet, this does nothing to address the US.
It is curious to contrast the US approach to renditions – filled with ambiguity – with the American’s mandates on Syria in re the Lebanese Assassination – demands for clarity.
What is to be done when the US fails to immediately open itself to the same intrusion it mandates on Syria, and fully cooperate with a lawful inquiry over war crimes, abuse, and unlawful movement of people without required charges?
It is interesting to notice how quickly the US will embrace Mehlis’ claim that the Syrians are not cooperating and things will take a long time – possibly 1 or two years.
Yet, the real record is that the witnesses before Mehlis have been pressured, later recanting their testimony.
Why isn’t the Mehlis investigation looking also at the Americans?
The American citizenry safety is at risk. The American leadership continues to fail to cooperate.
Those who apply the same standards of “requirements for lawful combatants” on the Americans might reasonably conclude the US has violated the laws of war, and the US citizenry remains a legitimate military target.
The American Congress appears to have abdicated its oversight role.
The parties to the dispute – the detentions, alleged abuse, and unlawful kidnapping – are not in a position to bring their case to the court.
The issue is: What is to be done?
What needs to be done:
It remains unclear why the Congress has failed – and why the Congressional staffers and committees have not acted.
It is clear the Senate Intelligence Committee is more interested in assigning blame to the intelligence community than in ensuring the Executive Branch – which moved without regard to the information from the intelligence community – remains in compliance with its obligations.
What is to be done when the system of checks and balances fail, and the world continues down an escalator to more lawlessness?
If America and the world are not willing to compel the US to assent to the rule of law – and all options and measures are exhausted – then there is little difference between what the US said about Iraq and Saddam and what the US is actually doing:
It is one thing to fight for freedom. It is quite another to set aside slogans and assert the rule of law and preserve the Constitution.
At this juncture, it appears all are willing to assent to lawlessness, and do nothing to preserve the Constitution.
If you are not wiling to assert the rule of law – then the current momentum can reasonably be expected to spill over into wider lawlessness.
Eventually, the world will reach a threshold and decide, just as the Americans did – that a pre-emptive strike is the only option to bring the US into compliance with the rule of law.
At that juncture, it will be self-evident that the constitutional system of checks and balances has failed; and that all lawful options to peacefully resolve this issue will have been exhausted.
If that is what you wish to have happen, then do nothing.
If you would like to preserve the American Constitution then it must, self-evidently, be preserved.
The oaths of office have already been given.
It is time to ask your elected officials whether they remain in compliance with that oath.
We see little evidence the President, given his apparent disdain for the Constitution, can credibly assert under penalty of perjury that he intends to assent to the rule of law, or remain in compliance with his SF-171 statements.
If you require additional evidence of wrong doing, or the timing is not right – so be it.
But if this momentum continues to build, the fundamental issue is whether the November 2006 election can be relied upon to credibly check a system that refuses to check itself.
What is to be done?
These are not simply issues of politics. These are matters of criminal law.
It is one thing to fight for freedom abroad. It is quite another to assert that rule of law on your fellow citizens.
Now is the time to assert the rule of law on the Executive.
If you fail to act, the Executive will do more of what has already been done – move without regard to the rule of law.
If that continues, more than a Constitution will have been lost. A way of life.
If that is what you want – then do nothing – there are others willing to step in and assert the rule of law, even if the American officials and courts refuse to assent to that rule of law.
Americans must choose the rule of law. Otherwise, they will, by default, be choosing to have this dispute adjudicated in the last option available – the battlefield.
That battle may soon begin.
posted by Constant @ 5:16 PM
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