Constant's pations

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

Thursday, February 15, 2007

America's President On Unstable Political, Legal Footing With Iran

Rather than confront illegal warfare in Iraq, the US government is being asked to focus on uncertainty in Iran.

The open debate on Iraq isn't adding up. Members of Congress, regardless their position on illegal or legal warfare; or their support or opposition to the Geneva Conventions cannot explain the inconsistency between [a] funding illegal warfare; and [b] the lawful option of corporations to provide funds and arms to lawful opposition to that illegal warfare.

* * *

The President, in distracting attention from illegal warfare in Iraq, hopes to find a new excuse to expand illegal warfare with Iran. This is not news.

What is news is the Congress, despite [a] the lesson of Iraq WMD; [b] the failure to hold the President to account for war crimes; and [c] changing hands to a new party, remains complicit with the new illegal warfare. For the moment we can put aside the reasons why Congress is or isn't doing anything to physically, legally, and materially preventing the President from doing what he is not allowed to do.

* * *

The President is implicitly proposing expanding illegal warfare on a principle Addington knows, or should know is not legally stable: The "war of necessity" doctrine. The doctrine hinges on the core assumption which does not exist: That of an imminent, unlawful threat which does not exist in Iran.

The US, like Japan in WWII, may not use the prospect of lawful opposition to an illegal war of aggression as the basis to start, expand, and continue unlawful war.

* * *

Put aside, for the moment what is or isn't going on in Iraq or Iran. Focus on the American example of providing weapons to various insurgent movements around the globe. If the US, as it says of Iran, were to hold nations responsible for providing lawful, military assistance for insurgents and combatants, then the US would be subject to the same standard as it applies to US weapons to NATO.

The error for Congress when considering the President's arguments about Iraq is to narrowly focus on the US perspective, but ignore the legal reality: The original unlawful warfare does not give Congress free reign to assent to an expansion of that illegal warfare.

The President continues to focus on the issue of whether Iran is or isn't doing something, asking the Congress and public to believe that the ignorance and uncertainty over a question would, by inference, compel specific US actions. Lost in the President's focus, seemingly by design, is no discussion whether that action -- regardless it's reality, vagueness, or uncertainty -- is or is not legal.

Once we start with the Premise that the US action in Iraq is illegal, then the President's focus on Iran, and the vagueness of the answers about what Iran is or isn't doing is clear: Iran is legally doing something in opposition to the American illegal warfare.

The President, rather than focusing on the legal question -- that Iran may or may not be doing something lawful -- is shifting the attention to a narrow issue which, when taken in light of the lawfulness of Iran's actions, is not relevant. The President cannot credibly argue about Iranian lawful support of people fighting illegal US occupation:

Bush: "What's worse: that the government knew or that the government didn't know"

Reconsider the lessons of the Iraq WMD charade, where the President left the impression of one thing, but, he asserts, "he never said that." Let's apply that lessons to the quote -- We don't know what the President is referring to:

___ Which people is the President defining as the government;

___ What is he specifically referring to when he says "they knew" or "didn't know";

* * *

Notice the quote again does not focus attention on the legal issue, but diverts attention to what the Iranian government may or may not know.

Bush: "What's worse: that the government knew or that the government didn't know"

The President is asking Congress to believe that the appropriate focus for the debate is not on whether Iran is or isn't doing something which it legally can; to whether there is or is not uncertainty about whether the government knew or didn't know. That a classic smokescreen: Irrelevant.

* * *

The proper focus for the debate is to examine the core questions with the President's conduct in Iraq; and explore to what extent the President, as with the Iraq WMD issue, is or isn't doing something that is illegal in Iraq and Iran.

Before we get there, We the People have to examine, despite a change in US leadership in Congress leadership, what is permitting the President the free pass by a new Congress to essentially make the same type of non-sense argument, yet the Congress refuses to assert power, end this illegal activity, and put the President in a box.

Something that supposedly changed has not changed. We the People need to understand what is required to bring real change, not new faces doing the same thing.

It doesn't make any sense to talk about elections for two years with the hope of change, while the system and players continue with what they will not change. If the elections didn't bring the change that was needed; and the elections have no prospect of change, then We the People need to tell the American leadership to stop talking about the "next election" and confront the problem that continues. Today.

It's time to get the American leadership to stop talking, and start listening and responding. If the American leadership will not respond, then there need to be legal consequences for their failure to respond to war crimes.

There need to be lawful consequences on Members of Congress, despite Geneva and new leadership, for their failure to rely on competent counsel and fully assert the laws of war.

___ Staff Counsel in Congress need to be disbarred;

___ Members of Congress in leadership positions need to be prosecuted;

___ The refusal of US Attorneys to enforce the law needs to be punished;

___ DoJ Staff counsel who refuse to report peer misconduct to DoJ OPR on issues of war crimes and illegal memoranda usurping power should be lawfully punished, disbarred, and publicly ejected from the American legal and political landscape.

Impeachment prohibits the President from exercising the Pardon. The refusal to impeach is a reviewable legal matter, especially when there are grave braches of Geneva; and Members of Congress refuse to focus legal resources on Staff counsel to have them publicly disbarred.

Members of Congress, regardless their minority status, have the legal power to write a memo, compel the DOJ OPR or DOJ IG to review a legal matter. These fall under the Title 28 and Title 50 exception reports.

This is not being done, as it should. This is not a debatable issue. It is the law. If the US leadership will not enforce the law, then that leadership is not protectable under the laws of war: It may, in the mind of foreign fighters, be the basis for lawful combat to remove the American leadership from power, and replace it with something that is marginally more competent. Not that difficult to find people who can do the job, follow the law, and provide leadership.

* * *

The problem when we look at the Iraq and Iran issues -- taken both individually, and as part of the same problem -- is that despite the Constitutional shift in power, we have the same results:

- Absurd legal arguments

- Smokescreens

- Unstopped momentum for a reckless war

- A Congress that refuses to constrain power

- A President who is able to induce the public and Congress to agree to not focus on legal issues

* * *

I would encourage the American public to carefully examine the competence of the Congressional Staff Counsel; and the relationship they have with the Congressional leadership.

The recurring problem appears to be incompetence in the Congressional Staff Counsel office, especially as it relates to legal arguments related to military operations, Geneva Conventions, and the laws of war.

We’ve supposedly had new leaders; what hasn't changed is the legal community. Individually, there may be new staff counsel; what isn't new is that there is a body of legal knowledge which the staff counsel appears to not be fully asserting, as required, under Article 82 of the Geneva Conventions.

It appears the same flawed legal oversight, which Members of Congress permitted in 2003, is well entrenched. One explanation is that the legal community, as it is connect between the American legal academic community and the American leadership, remains in place as if it were 2003.

* * *

I would encourage WE the People, outside the lazy media and legal communities, to individually examine this issue and openly discuss:

___ Is there a cross flow of personnel from the Congress to the American legal scholarship communities;

___ Have the legal professions as they relate to Academia, crated a sense of Imperial Presidency, which Congressional Staff counsel have refused to challenge;

___ Is there something within the Executive Branch that depends on the legal community's apparent ability to persuade the Congressional Staff counsel not to challenge the President on issues of military law;

___ To what extent has the President and his legal advisors inducted Congress and the American legal community to embrace a warped sense of Separation of Powers.

* * *

TO suggest that there is no problem ignores the problem of Iraq and Iran: The President is illegally expanding unlawful warfare; and pretending that opposition to that unlawful war warrants expansion of the illegal warfare.

My concern is that it appears the President and his legal advisors have inducted the Congress and legal community to believe that the laws of war are debatable, uncertain, and only the President can guide us. This is incorrect.

There is no uncertainty with combat: You either win or lose. When people around the globe see injustice, they send money to what is just. If the principle of capital markets is true, then the fact that the President is unable to stop funding for lawful arms shipments to Iraq indicates one thing: The capital market is voting against the President.

* * *

I would encourage We the People to take a broad view of the American legal community. They derive great benefits from financial transfers in the form of capital allocations, stock gains, partnerships, and associations with various economic entities.

It would be very interesting to hear that the American legal community, out of one side of its mouth, assent to illegal Presidential warfare; while it privately says nothing about the arms shipments appearing in Iraq.

I suspect the American legal community -- taken as a whole -- would be willing to acknowledge there is an inconsistency. If we assume that there are two thrusts -- one being the legal, the second being military shipments -- the two are not reconcilable.

Put aside the legal reality that the laws do not support the President's position. Broadly, the American legal community in Academia, private practice, and government -- would have us believe, on the whole, that the scale tips to the President; while the financial market tips away from the President.

* * *

The American Congress needs to review the Staff Counsel Comments and legal memoranda and ask the legal advisors one thing:

___ If there is no legal option that permits Congress to end the President's unlawful warfare; then what is the legal means by which arm shipments are going to Iraq?

It is impossible to argue that the President is legally correct on issues of warfare, but there is no legal foundation to block all arms shipments to the Iraqi insurgency.

That is the problem for the American legal community -- not just in Congress, but the Executive Branch -- to solve.

* * *

The real answer is the following:

1. The President is engaged in illegal warfare;

2. Corporations are lawfully allowed to send arms to the Iraqi insurgency;

3. Members of Congress, despite doing nothing about illegal warfare, are also doing nothing about lawful opposition to that illegal activity.

* * *

The way forward is to examine: Until Congress is serious about punishing the President for illegal warfare; it cannot be expected to be serious about punishing those who are lawfully supporting lawful opposition.

That is the President's problem: If Congress will not act to end what is legal, why does he believe that he can induce Congress to act to continue what is illegal?

Congress is being manipulated to narrowly look at the issues, selectively ignore legal arguments, and pretend that the President is correct without adequate debate of the legal issues. As with 9-11, the President has inducted Congress to make argument not based on reason, but imprudence.

* * *

Kenny Boy of Enron would have had us believe in the power of Capital Markets. The lesson of Enron is clear -- when things continue, and they are not sustainable, they eventually collapse.

Enron’s was a disaster not just inside the building, but for those who were affected.

The Capital Markets are not supporting the President. This Congress needs to determine the means by which the corporate officers have legally done something the Congress refuses to do: Assert power.

Based on the tea leaves from Wall Street, Corporate officers around the globe have determined that the President is wrong; that arm shipments are legal; and that there is no legal method for the US government to stop this transfer.

Congress has the option to meet with corporate officers and provide direct funding to facilitate this opposition to the President. In so many words, it means accepting that the President is engaged in illegal warfare in Iraq, and Congress is not able to stop this; and that the Congress will work with other lawful combatants to lawfully defeat on the battlefield what the Congress refuses to end through the legal process or legislation.

* * *

Congress needs to be very clear with its legal arguments on Iraq and Iran; and decide whether it wants We the People to believe it is impossible to stop the President. It may be a choice not to openly confront the President, but that choice is recklessness, especially when Congress chooses to do nothing about arms shipments that are lawfully opposing the President.

This does not mean that the aim of Congress should be to end lawful arm shipments to Iraq to oppose the President; rather, it means the opposite: For Congress to credibly make a case that it is or is not with the President on the legal stage; then reconcile their apparent position with the inaction in Congress to prevent lawful opposition to illegal warfare.

Congress cannot be induced to have an inconsistent position. The inconsistency is a choice.

___ How many Members of Congress who are supposedly "upset" at the combat losses in Iraq, are silent about the lawful opposition to illegal warfare?

___ Why are Members of Congress not openly discussing the illegal warfare in Iraq; but they are discussing the prospect of advancing that illegal warfare in Iran?

* * *

It would not surprise me than in the smokescreen of Iraq, Members of Congress are refusing to pass legislation related to the arm shipments. It is likely the President has, in support of his illegal warfare, failed to fully implement an executive order which secretly hopes to interfere with all arms shipments.

The President’s problem is despite the NSA, he's unable to individually end what he knows is lawful opposition to his illegal warfare.

The Capital Markets have voted against the President. They are, as with Enron, moving funds to their favored position. Despite the vast resources of the US military and intelligence community, linked with covert operations, the capital markets have successfully supported what the President cannot legally prevent: Lawful opposition to illegal warfare in the form of arms shipments, capital flows, and other material support to forces opposing the President on his preferred forum for resolving his legal problems -- battle.

The issue is not whether Iran does or doesn't now something; the problem is the President doesn't know what to do when his secret military units are unable to defeat the overwhelming vote of the capital market: That of supporting lawful opposition in Iraq to illegal warfare.

The error is for Congress to believe it must come to the President's defense, or solve the President's problem.

Throw it back at the President. Let him comprehend that he needs help. Make him realize that his legal theory of Unitary Executive doesn't work.

This President has total control -- in his mind -- over all resources needed to win. Small problem: He's losing.

Congress should let him do more of what is his problem: Getting stuck.

Had the President come to Congress and sought legislation for a lawful war, Congress might be in a position to provide him the legal tools he needs to shut down the capital flows to the Iraqi insurgents. Congress has not done this for one reason -- Congress, in its wisdom, has chosen not to end all lawful opposition to this President.

As with the NSA and FISA issues, the problem was when the President, on his own, decided to violate the law; but when he got caught, attempted to pretend those rules did not apply. Congress was willing to work with the President. This President wanted to do it alone.

Today, the President, despite acting alone in Iraq to wage illegal warfare, he wants Congress to share the blame, responsibility, and the solution. No. Congress cannot be compelled to pass a law which creates a barrier to capital flows when that money is for a lawful purpose: Lawfully opposing the President's illegal warfare.

It is a separate matter whether the President wants to come to Congress and make a law. The issue is that the President, through illegal executive orders, has attempted to do what he knows Congress refuses to do: End the arm shipments and capital flows to those lawfully opposing his illegal activity.

* * *

You can expect the following:

1. The President will attempt to impose legal consequences on firms who provide lawful support to groups opposing the President's unlawful warfare;

2. The President asking the public to believe that the Congress "is not supporting the troops" when they refuse to pass legislation that would block funds from corporations to the lawful opposition in Iraq.

The problem is: The President is alone, America is isolated, and the world financial reporting system and capital allocation markets have turned against American on the narrow issue of illegal combat in Iraq.

The President, despite his usurpation of all powers, is powerless to prevent one thing -- the decision by the capital market, a creature of the Constitution, to stop doing what it is legally allowed to do: Provide funds for lawful things.

* * *

The President needs help. We the People should, as with the lessons of Enron and Ken Lay, realize when the leadership is in an unsustainable position.

This President, as measured by the capital allocation flows to lawful opposition to his illegal war, is, as was Ken Lay, unable to ensure he will succeed.

Privately, the President believes that the surge-escalation plans are not likely to succeed.

As with Enron, the way forward is to glean the real lessons and apply them to this President:

___ Who inside his close circle, as was with Enron, are openly talking about the end of the US government, administration, and actions in Iraq?

___ Where are the audit reports of this activity in terms of reviews of the Executive Orders; and success or failure of the classified intervention activities to stop lawful shipments to Iraq;

___ Who, like Enron's auditor, is being inducted to remain silent about things that the public should openly know and have knowledge;

___ Which capital flows are linked with the false impression this President is leaving that there will or will not be arms transfers, warfare, or other requirements.

* * *

What would be amusing: For the insiders in companies like Boeing, Lockheed Martin, SAIC, and others who fully expect one military option in Iran to be surprised, and discover that their expected stock gains do not materialize; and that the leaders of these firms are lawfully prosecuted for having supported and been complicity with illegal war crimes in Iraq.

The President is not alone, as was Ken Lay, in putting this illegal activity into effect. The US Securities and Exchange Commission may not have much interest in examining corporations for their illegal support of Presidential war crimes; but the issue is: To what extent, when the truth about the illegal warfare is known, will the Securities and Exchange Commission have a hard time explaining its apparent inaction on these war crimes:

___ Once it was known in the wake of the 2003 invasion of Iraq that there were no WMDs, what effort did the SEC make to review to what extent US firms were complicity with illegal activity and war crimes planning;

___ Is the US capital market, despite claims it is regulated, unwilling to regulate and prevent transfers of assets to the President for illegal war crimes, Geneva violations.

* * *

Where there is illegal activity, and the US government is involved, Article 1 Section 9 applies: The provision that requires funds only be used for a lawful purpose.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by LawRef

___ Where are the appropriations for illegal warfare?

___ Who is arguing that the US budget is only for lawful things?

Now contrast that with the opposing capital flows going into Iraq:

If Congress has decided, rightly or wrongly, not to end [a] money for illegal warfare; and [b] makes no decision to make laws prohibiting capital and asset flows to the lawful opposition to the President, the question becomes:

___ Is Congress openly supporting the President's illegal warfare, but privately refusing to block capital flows to the opposition to his illegal warfare?

If that is the case, as it is in terms of [1] the law; vs. [2] what Congress is or isn't doing, then Congress is fooling itself to believe it is gong to have an open debate on escalation, while it refuses to openly discuss:

___ The failure of this President to employ covert units to block all arms and financial flows to the Iraqi insurgency;

___ The refusal of this President to fully coordinate, as he refused to do with the FISA-NSA violations, the needed legislation to [a] wage only lawful warfare; and [b] ensure all combat troops are safe.

* * *

The correct approach is to expand, as was not done with Enron:

1. the audits of the American military funds: How much money is Congress spending on unlawful warfare;

2. Review the covert operations designed to review these arms and financial flows: How much money has the President spent on unsuccessful covert operations to interference with arm shipments and capital flows to the Iraqi insurgents; and what were the reasons for the failure of these programs;

3. Evaluate the competence of Members of Congress in reviewing these legal matters: Are they merely a rubber stamp in approving illegal warfare, but unable to think through the legal implications of assenting to illegal warfare abroad [legal option of foreign fighters to impose like consequences on the US government];

4. Examine the specific decisions Members of Congress made in secret in the Intelligence Committee to support illegal warfare, unlawful executive orders, and other Presidential actions which advance illegal warfare.

* * *

If the American leadership wants to support the troops, you need to do the following:

1. End illegal warfare;

2. Lawfully, openly discuss the support Members of Congress are privately giving to the opposition forces to directly engage and defeat the President on the battlefield;

3. Get a straight story from the American legal community why, despite legal arguments that supposedly support the President, there is no body of law that will end what is permissible: Capital flows and arms for the lawful opposition to the President's illegal warfare;

4. Shut down funds for the illegal warfare in Iraq, and planned for Iran;

5. Prosecute the President for war crimes, with the knowledge that the trials and evidence review may implicate Members of Congress.

* * *

It's one thing to talk about American national security, quite another to use all lawful options to protect the Constitution.

It would please me if Congress openly discussed:

1. The President's illegal warfare in Iraq, not just the merits of adding or not adding troops, or the option to withdraw troops: How did we get there; what needs to change; what will be done to punish those who assented to illegal warfare.

2. The President's failure to prosecute the war: Despite claiming all power to wage illegal war, this President messed this up. Despite the option to use covert forces to interfere with arms shipments, the President has been unable to end all opposition to his illegal activity.

3. The President's reported reservations with this proposed surge-escalation in Iraq: If he's privately got reservations, what are the private hopes of Congress in permitting additional arms and weapons supplies to Iraq.

4. The Decision of Congress to "support the troops" while it proves incapable of ending lawful opposition, arms shipments, and capital flows to the lawful opposition to this illegal warfare: Is Congress planning on imposing punishment on all world nations who permit lawful transfer of funds for lawful purposes; what is the foreseeable consequences of the US interfering with lawful activity?

* * *

Congress may ultimately be inducted to assent to illegal warfare and block all funds for lawful opposition to that illegal warfare. If that is where the Congress is going, be clear: That is a subsequent action by the legislature which is evidence of their complicity with Geneva violations.

Congress does not have the lawful power to support, endorse, or permit violations of Geneva; nor in blocking lawful activity which is legally opposition what is a war crime. This is a violation of heir oath of office, and not consistent with the requirement for Members of Congress to fully assert, protect, and defend all US treaty obligations which are the law of the land.

Congress needs to decide whether it will or will not fully assert the Geneva Conventions. Attached with that decision is the following:

___ A decision to permit capital flows and arms shipments to lawful opposition to the President;

___ A decision to accept there is an inconsistency between [a] the so-called "support for the troops" with [b] the Geneva Conventions duty to permit, through the capital markets, combat forces which will lawfully oppose the President.

If Congress, as it says through Treaty, suggests the Geneva Conventions are important -- but it ignores the Geneva Conventions with its support for illegal Military Commissions procedures, and the Geneva requirement to end illegal warfare -- Congress has fair notice through Hamdan that the Conventions are requirements, but Members of Congress are individually doing something illegal.

Congress can either agree to adjust; or, by its expansive support of illegal warfare, accept that it may face like retaliation for its assent to war crimes.

There is new leadership. The DNC is in control. The DNC, the more it drifts from the November 2006 election and January 2007 assumption of control, has a shrinking legal foundation to argue that it is different than the RNC; or that it is more on the side of the Geneva Conventions.

Foreign fighters, when they digest the prospect that the DNC, like the RNC, will not end what is illegal, will conclude that despite the Will of the People to demand change, the leadership refuses to do what it must under international law.

Leaders who refuse to remain connected to the people, and defy the law, are arguably not legitimate and may, under the laws of war, be legally attacked to restore order, especially when the prospect of illegal activity is not speculative or imminent, but ongoing, pervasive, and a course of normal business practices.

Foreign fighters, as was with NATO in Yugoslavia, have a credible basis to assert that they have a legal duty, right, and obligation, to restore order to the District of Columbia. The problem the US government has is that this legal argument is not a speculative issue, but one that drives a wedge between We the People and the US government. The problems which surfaced in the November 2006 were merely small fissures compared to the political divide that is spreading. It is not a partisan issue, but one of the legitimacy.

Enron's leadership did not survive legally or financially. America's leadership similarly does not have a guarantee that it will prevail or endure.

* * *

We the People need to see evidence and memoranda related to the following:

A. Audit reports about the classified Presidential efforts to block shipments to Iraq;

B. Discussions Members of Congress have about the President’s illegal warfare;

C. Reviews of Presidential war crimes;

D. Decisions Members of Congress and the President, in concert with lawful opposition to war crimes, to permit funds and shipments to the Iraqi opposition.