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Sunday, March 12, 2006

Lawful pre-emptive state action against individual US Federal Government officials

Pre-emptive war, pre-emptive war crimes. [Followup here ]

Harvard Constitutional Law Professor Alan Dershowitz argues jurisprudence is needed in the area of pre-emptive law. This notion asks us to permit an attack on another before they attack us. Dershowitz argues that there needs to be jurisprudence to define what is or is not appropriate conduct using the pre-emptive war doctrine.

[ There is a Constitutional Convention Archive [ Click ]

This note does not specifically take a position on Dershowitz’s arguments or the merits of the pre-emptive war doctrine. Rather, this note simply assumes that the doctrine may gain ground as a basis to justify pre-emptive war.

In turn, the purpose of this note is to look at the implications of this doctrine as it might apply to non-combat law. This note shall apply the concept of pre-emptive action against government malfeasance, as it relates to the issue of legislative immunity:

  • Are there situation when pre-emptive action can be taken against legislators for the potential threat they may pose to the Constitution;

  • What body of law should the states adopt and modernize the Constitution to ensure the Federal Legislators are pre-empted against violating the Constitution, or assenting to violations of the law.

    * * *

    Pre-emptive action is problematic. However, the Federal Government and American legal community make the case that pre-emptive action against state actors is prudent. Therefore, a similar jurisprudence must in parallel also be debated in the area of pre-emptive legislative immunity.

    Legislative immunity is unqualified. If the Congressional rules committee chooses to do nothing, and the Congressional oversight committees are persuaded to take no action on Presidential violations, the country is at a standoff: The court is forced to act as a referee, one which the court refuses to take as this would put the Judicial Branch over the legislative and executive. At present, legislators currently face no meaningful sanctions for violation of their oath.

    The problem with the current system of checks and balances is that there is no effective mechanism to mandate action should there be Congressional malfeasance, and Congressional assent to Executive war crimes or statutory violations. Unlawful conduct is not ratified when it goes unchecked; rather the Federal government merely gets a green light to engage in additional abuses. This is at odds with the intent of the Constitution.

    * * *

    Arguably, pre-emptive war, like torture, is contrary to civilized society. Some argue we cannot sit idly by waiting for the legal community, we must act. If this argument is true – as it pertains to pre-emptive war – then Congress must also apply this standard to pre-emptive action against corporate malfeasance and legislative immunity.

    If there are situations when torture is permissible, we need to discuss whether there should be statutes which permit the US Attorney to lawfully torture members of Congress for their potential threat to the Constitution. If members of Congress “cannot be subject to such a threat” then what is the basis to justify pre-emptive detentions of American citizens; and can we credibly justify the hypocrisy? Clearly no.

    But when faced with a long string of abuses and Congressional inaction, we need to discuss which specific changes to the Constitution are needed to lawfully permit pre-emptive action against members of Congress if it is lawfully adjudicated that they might do something.

    Pre-emptive war assumes that other nations will not change, and that they have no choice. If this premise is true, then it must also be applied to Members of Congress: Once the States decide that members of Congress may do something – even when there is no admissible evidence – there should be a way to lawfully take pre-emptive action against Congress.

    * * *

    Several questions suggesting Congress needs to face sanctions for assenting to an unlawful Presidential rebellion:

  • A. What is to be done when lawful means to check abused power fails?

  • B. What happens when the majority continues to support the abuse of power prohibited under the statute and Constitution?

  • C. How do the states deal with the potential threat of Congressional rebellion against the Constitution?

    * * *

    In 2006 the American President and JTTF argue that they have the “state interest” to take pre-emptive action against anyone. They say they do this in the name of the Constitution; curiously, the Constitution prohibits this conduct; their argument has no merit.

    Thus, if the States are forced to assent to a non-sense argument, then using the rule of lawful reciprocating, there would seem to be a requirement that the States have a similar power to also engage in pre-emptive action against the Federal Government. The Tenth Amendment gives the states the power to assert powers not delegated to the Federal Government. Nowhere do we see any specific delegation of pre-emptive sanctions against Member of Congress, so the Constitution has reserved this power to the States.

    Again, we do not advocate taking any violent action. Rather, we merely speculate what logical implications there are if Dershowitz’ pre-emptive jurisprudence were logically applied at all levels.

    * * *

    There are several scenarios warranting pre-emptive state action against federal officials to protect rights and prevent abuse of power.

    What happens if we have “potential evidence” that Congress may be engaged in rebellion or could do something in the future that may violate the Constitution?

    If we are to believe the President’s arguments about Iraq – that something may happen in the future, justifying unlawful invasions and action today – then surely jurisprudence would command us to create a body of law permitting the states to take the same action against the Federal Government.

    If the President’s arguments are accepted as true – that pre-emptive action is permissible as a means to protect the Constitution – then surely the jurisprudence must apply to one who asserts the doctrine. Bluntly, if the President and Congress assert and assent to pre-emptive action, then they are communicating that pre-emptive action may be taken against them over matters of war crimes, malfeasance, and potential future violations of the law.

    Some may assert that evidence is required to take action. If that is true, why was there no evidence in re Iraq? Again, relying on Dershowitz’ argument, we have to have a balanced and consistent to the law, not to a narrow actor in the law.

    * * *

    What if we have potential evidence that Congress or the President may have a bad motive?

    Under the laws of war, pre-emptive war advocates assert action must be taken. If that is true, then we must apply that standard to Congress and the Executive Branch.

    The issue is what is pre-venting the States from asserting this power not specifically delegated to the Federal Government? Apparently nothing.

    No where in the Constitution is there any delegated power that permits the President to violate the law; rather, when Congress and the President have engaged in joint rebellion against the Constitution, undelegated power – however fictional – are reserved to the states.

    Again, if the Federal government chooses to assert an undelegated power, then the States may lawfully assert a balanced power: Presidential power which does not specifically exist and has not been delegated belongs to the States – thus, there is no merit to the argument that the States cannot do what the President asserts he has the power to do.

    * * *

    Are there situations when we can look at risk factors and decide which situations would warrant Congress be stripped of legislative immunity?

    Indeed. If the Federal Government wants to argue that a body of law can be created to codify situations when it is or is not permissible to wage pre-emptive law, then surely we can do the same when it comes to pre-emptive legal action against Members of Congress.

    * * *

    The issue is that we can’t create standards that permit Congress to act like Stalin; while at the same time not giving any room for the states to assert the pre-emptive power which has not been delegated to the States.

    Some argue it is too difficult to change the Constitution. Indeed, that should be a hurdle to Congress and the Executive asserting powers not delegated. But this does not stop either branch.

    We can use Congress and the Executive as a template of “new powers asserted” that actually belong to the States. Each time the Congress or Executive assert a new power to do something not specifically delegated, the states should continue to assert that power against the Federal Government.

    * * *

    Power is not created and destroyed through an independent decision of any branch. Rather, the power must be delegated through the Constitution; and that power cannot be at odds with the Constitution.

    The problem is that pre-emptive war is at odds with the statute. The real crime is when pre-emptive war is waged on the basis of knowingly false and fabricated evidence as was done in Iraq. Dershowitz argues there needs to be jurisprudence in the area of pre-emptive law; the same should be said of pre-emptive state action against abuses of the Federal Government.

  • 1. What if we know for sure Congress plans to fund an unlawful war?

  • 2. What if we speculate that the President may use propaganda to mobilize the public for an unlawful activity?

  • 3. Is it OK to assert pre-emptive action against a Federal Branch and individual in Congress because they might do something in the future at odds with the Constitution?

  • 4. What is the risk if we do not strip legislative immunity?

  • 5. What if we know that the US Congress is actively engaged in rebellion – does that give the US Attorney the power to detain them as a potential threat to the Constitution?

  • 6. Should the US Congress be denied legislative immunity if they might engage in future rebellion against the US Constitution; what if this belief about what Members of Congress may speculatively do is based on an honest desire to protect the Constitution?

  • 7. When is it realistic to speculate that the Members of Congress may be doing something that is not consistent with their obligations to the Constitution?

  • 8. Are there times when it is permissible for the states to draw the line and permit the States to direct the US Attorney to take pre-emptive action against members of Congress to prevent a potential rebellion by Members of Congress against the Constitution; or action by Members of Congress to assent to Presidential violations of the law; or joint agreement to continue funding appropriations for unlawful wars?

  • 9. If Congress may be in rebellion in the future against the Constitution, why should we wait; would it not be reasonable for the States to take pre-emptive action against the potential risk that members of Congress might do something against the Constitution?

  • 10. What about pre-emptive action against lobbyists and CEOs: Is it not foreseeable that actions by those who ask for legislation might do something in the future that is unlawful – why wait, why not take lawful pre-emptive action against them to prevent them from doing something that might be a threat to the Constitution?

  • 11. Are there not situations when the states could pre-emptive fine auditors and state licensed personnel to force them to cease conduct that they might do in the future or what may happen should businesses support war crimes?

  • 12. What if actions in support of a political party might lead to something that may violate the Constitution – isn’t that a reasonable basis for the States to take pre-emptive action and prevent this potential future activity from occurring?

    * * *

    The RNC is in a no-win situation on pre-emptive war.

    All of the above questions related to pre-emptive action against Federal officials over potential violations of the Constitution – if answered negative by the RNC or Federal government – would mean that the same rejected argument would not support pre-emptive war jurisprudence.

    Can’t have it both ways: No system can credibly argue that pre-emptive jurisprudence applies to all other entities but itself.

    No government may credibly assert that pre-emptive jurisprudence is needed related to undelegated powers or conduct that violates the Constitution. Rather, the power to take pre-emptive action in violation of the Constitution is unconstitutional. Period.

    Any Federal government assertion that pre-emptive action is lawful commands that we have a similar power – at the discretion of the states – to lawfully assert pre-emptive action against Members of Congress for potential violations of their oaths.

    * * *

    The way forward is simple. Jurisprudence for pre-emptive war has to be balanced and developed in harmony with jurisprudence for pre-emptive action against Federal Government violations of the Constitution.

    The pre-emptive jurisprudence cannot simply apply to the branch or ministerial duties; rather, the pre-emptive jurisprudence has to also apply to the power of that branch.

    There is no merit to the argument that pre-emptive State action is not lawful; rather, there is nothing in the Constitution that delegates this power to the Federal Government – the 10th Amendment says that all powers not delegated are reserved to the state.

    The Constitution does not recognize any implied power. Rather, the power has to be specifically delegated. No branch and no individual in any branch may lawfully condone or support war crimes.

    If this Federal government chooses to continue to assert it has the power to ignore the law; then the States may lawfully revoke that power, and they may do so pre-emptively.

    Any argument that says the States can or cannot do this also applies to the Federal Government: The Federal Government does not have the exclusive power to create, enforce, and ignore the laws.

    * * *

    Anyone asserting we need jurisprudence incorrectly implies there exists a vacuum of law. Indeed, there is a vacuum because the law does not recognize – and cannot recognize – action taken where there is no reasonable basis to assert the conduct.

    The Federal government’s arguments are absurd and frivolous. They would have us believe that jurisprudence is needed.

    Rather, what’s needed is a Constitutional Convention to lawfully revoke the powers which are being abused.

    There needs to be jurisprudence to lawfully strip members of Congress of legislative immunity when it comes to issues of:

  • Malfeasance
  • War crimes
  • Unconstitutional conduct
  • Corruption
  • Assent to Presidential rebellions
  • Refusals to tame Presidential violations of the law

    If we are going to discuss pre-emptive war jurisprudence, then we also need to talk about pre-emptive jurisprudence related to malfeasance.

    The standards which would “permit” pre-emptive war mandate that we have a similar set of standards applicable to Members of Congress: Which set of conduction would permit pre-emptive action against Members of Congress.

    There needs to be a pre-emptive Code of Congressional Conduct.

    * * *

    Pre-emptive action is based on speculation. If we are going to speculate about “big scary things” that are imagined, then the same standard of speculation must also apply to Members of Congress when it comes to issues of legislative immunity.

    There should be pre-emptive injunctions against government officials when there are issues of war crimes, violations of the Constitution.

    There can be 42 USC 1983-like statutes created that specifically identify which situations and conduct Members of Congress would lose absolute immunity. Some of the areas which would require balanced jurisprudence include:

  • 42 USC 1983 changes
  • Malfeasance
  • Treason
  • War crimes
  • Impeachment
  • Rebellion
  • Violation of the oath

    Any and all justifications for pre-emptive war apply to the President and Members of Congress.

    * * * *

    Professor Dershowitz would have the world develop jurisprudence related to pre-emptive war. If pre-emptive action is permitted based on speculation and mistaken belief, then the same standard should also apply to the States in their ability to pre-emptively prevent Members of Congress and the President from engaging in rebellion against the American Constitution.

    There are options to tame abusive power.

    If pre-emptive war jurisprudence assumes that state actors cannot change, then the same standard should also apply to Members of Congress and the President: Once the states determine that they might engage in rebellion, the States should have the lawful power to pre-emptively act to protect the Constitution.

    * * *

    The way forward is to notice any and all intermediate steps the Federal Government offers as an excuse not to have pre-emptive jurisprudence apply to the American government officials. This is bargaining.

    This American government knows it asserts powers not delegated; that this assertion of power is not lawful; and that a balanced assertion of similar principles would compel the Congress to do things others refuse to do.

    This government abuses power. It makes up information. It refuses to assent to the rule of law. And it then does nothing to check the abuse.

    The only thing that can be done is to lawfully revoke the power of the Federal Government. The States have the power to act to lawfully pre-empt the Federal Government. The issue is whether Congress will wake up to this potential loss of power, or require the States to move on the basis if additional abuses.

    This Congress and Executive refuse to assent to the rule of law. They do not have the power to do this. Rather, the states have the power to lawfully revoke the powers that are abused, and apply any jurisprudence the Federal Government says may justify taking pre-emptive action.

    The American government officials must individually be subject to the same absurd argument used to justify pre-emptive war. If pre-emptive war and jurisprudence are the standard and way forward, then the States may lawfully organize themselves to pre-emptively discuss lawful methods to lawfully revoke the powers this Federal Government pre-emptively abuses.

    * * *

    The world has not changed. We do not go around attacking others and violating the law. Rather, the problem is the American Constitution does not have a robust system in place to guide the States of what to do when the Congress and Executive are in rebellion against the Constitution.

    Congress and the President need to face sanctions when they induce war crimes based on false information.

    If this Congress says there can be prior-restraint on action that may or may not be related to threats, then there should be methods to use prior-restraint to lawfully mitigate any chance the President and Congress may engage in rebellion against the Constitution.

    Some assert that we just “know for sure” that something is going to happen, but they give us nothing as the basis for that assertion. Such as standard of “just knowing for sure” should also apply to pre-emptive State action against the Federal Government over issues of potential conduct in violation of the Constitution.

    If we change the standards on what is or is not acceptable, then we simply descend into anarchy. This is at odds with the notion of law and order. The debate about pre-emptive jurisprudence needs to look at the entire spectrum of pre-emption. Any argument saying the Congress may not be subject to such a standard would also logically apply to other states in the international community.

    One cannot credibly decide when war crimes are or are not acceptable. However, any argument proffered and accepted as probative, must be balanced by a similar argument mandating that Congress and the President similarly be subject to a similar pre-emptive power asserted by the states.

    Perhaps there are times when Congress and the President should have their civil liberties lawfully suppressed by the states because they might engage in rebellion against the Constitution. Just to be safe, the States could draw the line in a new place without letting either Congress or the President know – that will keep them on their toes, never knowing for sure whether they might face lawful pre-emptive action by the States for what either branch might do in the future to threaten the Constitution.

    If the States fail to assert their “rightful power” of taking pre-emptive action against the Federal Government, they do not lose that right or power.

    There need to be rules which let the states pre-emptively take action against the Federal Government, no mater how far removed that evidence and conduct might be. You never know. Even if the States have to rely on information gleaned from torture, perhaps there should be times when the States use that information to lawfully take pre-emptive action against the potential rebellion by the Congress and the President.

    It is clear this President cannot be controlled by the existing law. It is imprudent to redraw the line in order to accommodate that misconduct.

    The world has changed: The Americans have assented to barbarism, all in the name of asserting power. They are using circular reasoning.

    The States know there is no delegated power to violate the law. Relying on the 10th Amendment appears to be a lawful way for the States to lawfully pre-emptive potential Congressional and Presidential rebellions against the Constitution.

    * * *

    It is time to see what exists. The American government is out of control. It abuses power. It asserts power without regard to the laws.

    Members of Congress know well what is going on. They continue to fund unlawful wars.

    Their conduct shows their real motive: To assent to abuse, not check power. The Congress and President of the United States remain threats against the Constitution.

    They are reckless. They are negligent. They are war criminals. They refuse to remove themselves from the continued support and ongoing unlawful activity.

    They do not care if the information is valid or incorrect. Nor do they care if the laws are enforced or violated. They use absurd standards to assert that someone has or has not violated some arbitrary basis to take pre-emptive action. After the violations, they write rules ratifying the abuse.

    The misconduct and unconstitutional conduct is well known and pervasive. This Federal government is not serious about the rule of law.

    The American Federal Government moves without regard to reason or prudence.

    It is time the states lawfully convene a Constitutional Convention to tame this Congress and President’s rebellion. Unless the states lawfully act, the list of abuses and violation of rights will simply grow longer.

    We do not need an endless list to tell us what is self-evident: This Constitution has failed to ensure there are mechanisms in place to prevent these abuses from occurring. The way forward is to lawfully meet and peacefully discuss the methods to lawfully revoke the powers this Federal Government is abusing.

    The purpose of the Constitution is to protect rights and prevent abusive power. This Constitution has failed.

    If the Federal Government is serious about pre-emptive war, the States will be stuck with the debt. This leadership relies on non-sense.

    The states need to discuss these issues, otherwise we are no longer in harmony with the intent of the Constitution: To protect our rights and prevent the abuse of power. This Federal government, through its abuse of power, is putting our rights at risk.

    The Constitution needs to be preserved by lawfully revoking the powers this Federal Government abuses and unlawfully asserts. The states need to lawfully assert pre-emptive action against the Federal government to lawfully strip members of Congress of their absolute immunity.