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Monday, February 19, 2007

President's Saturn Invasion Plan Highlights Absurdity of Unitary Theory of Executive Power

The hypothetical "Presidential Saturn Invasion Plan" is a useful analogy to illustrate:

A. The flaws with the President's argument that Congress may not closely oversee the President during wartime; and

B. How the GOP attempts to shift attention from (a) the President's reckless war crimes; to (b) the messengers of his failures and illegal activity.

Congress is a messenger of real constraints the President refuses to confront: His plans and leadership need to be better supervised, controlled, and closely monitored; and his plans and resource allocation decisions need to be better reviewed.

Arguing over power is a deliberate smokescreen to avoid the needed review of, and attention on, the President's recklessness, incompetence, and war crimes.

We discuss the problem of asserting the Congress may or may not oversee the President during wartime; and illustrate the flaws with the Unitary Theory of Executive Power as it relates to Congressional oversight of the President during war time.


The GOP and DOJ Staff are waging a war crimes legal defense for the President in the media, hoping to keep the legal issues out of court.

The Executive Branch has shown, left to its own control, it is not able to effectively face reality, adjust, or solve problems. Congressional oversight, debate, and supervision is not only desirable but required as a matter of prudence.

Congress is sending a clear message: The President, despite his combat losses, does not appreciate he needs to adjust; nor does the President, on his own, have any idea what to do differently.

This real objective of the GOP debate about "war powers" is not to "define" issue of power or Presidential authority, but to divert attention from the President's maladministration warranting removal from office and lawful adjudication for war crimes. When the DOJ Staff cannot defend a war criminal, an option is to change the focus from [a] the President's war crimes and reckless maladministration; to [b] whether Congress can or cannot do something.

This President has well communicated he is not willing to comply with the laws of war. Congress can do something about it: It may legally charge him with a crime, and remove him from office. The President has no power to make the House not do what We the People expect: Meaningful consequences on war criminals.

We leave it for another day for the DOJ Staff to argue why Congressional oversight is illegal or a violation of the President's power. It is not illegal, but the opposite: Constitutional, required, and mandatory. The President has no discretion; and the DOJ Staff cannot credibly argue that the Constitution is debatable. What is debatable is how many war crime convictions are required to formally discredit the Unitary Theory of Executive Power in the eyes of the judicial branch and legal community.

* * *

Case Study: Hypothetical Saturn Invasion Plan

An absurd notion would illustrate the point. Suppose the President said today, despite no resources, that he was going to invade Saturn.

The prospect of an invasion is meaningless. He does not have the resources to do so; and it is physically impossible to create the resources, nor travel from Earth to Saturn to invade in one day.

The President, lacking the ability and means to invade Saturn, cannot blame the Congress for not supporting him in his absurd invasion.

Rather, the burden is on the President:

___ Explain, despite having no resources, why Congress should or should not be blamed for not having resources which cannot be created or exist?

* * *

Suppose the DoJ and White House counsel poodles were to appear on the scene, whining: "But the President is the Unitary Executive, and he cannot be stopped."

The truth is that reality and real constraints stop the President, not Congress. The only role Congress plays is in forcing the President to confront reality:

___ There are finite resources;

___ Plans must be credible;

___ It takes time to do things;

___ When a flawed plan is proposed, it needs to be adjusted.

In the President's Saturn-Invasion Plan-Scenario, it is a false argument to suggest that the President has "power" to invade Saturn, when he has no means to put that plan into effect.

Is Congress stopping him? No, reality is stopping him. Congress is merely the messenger:

___ The President cannot do what is not doable;

___ The President's track record of buffoon planning in one scenario is a reasonable basis to question whether his plans in another scenario -- the more difficult Saturn invasion plan -- will or will not work.

The error is for America to wrestle with the wrong: Whether the Congress has the power to stop the President from asserting his power. The real argument is whether the President, despite no resources, can be trusted with anything, despite the President, on his own, not comprehending he, as the President, has a problem comprehending:

___ Resources are inadequate;

___ Planning process is defective;

___ Leadership is not effective;

___ Resource allocation decisions are botched;

___ Leadership is not responding to reality;

___ Despite losses and feedback that things are not going well -- as evidenced by low troop morale, equipment shortages, combat losses, and rising enemy support among the civilian population -- the President is not adjusting.

Non-Existent Risk Management System

The error isn't simply in refusing to face the evidence of reality, but have ignored prospective forecasts of risks, and removing those planning factors from the ongoing indicators used to mintor, assess, and review decision points.

When the CIA, as late as 2002, formally briefed the Vice President of the known problems confronting him in Iraq, those risk areas should have been included in the planning. The risk areas, as applied to an oversight plan, should have triggered indicators, monitoring systems, and other reviews to assess how things were or were not progressing. As conditions ebbed and flowed relative to those known risk areas identified in 2002, the leadership should have adjusted.

The adjustment did not occur because the originally identified risk areas were ignored; not included in the plan; and were not adequately monitored. In error, the Executive Branch pretended that the originally identified risk areas were unclear -- they were clear; and pretended it had no idea -- it did know and was told.

Bad Presidents Embrace -- and Badly Implement -- Bad Plans

The problem isn't just ignoring the bad news of today; but to have failed to organize, before the plan was implemented, the known risks going forward, and having no plan in place to monitor those known risks, nor have options to timely respond as there was feedback that the known risk areas were not being managed.

Left to his own devices, this President would never have reviewed the original CIA issues and risk areas; nor developed a plan, going forward, to have fully applied those factors to his planning, decisions, and oversight.

* * *

These are things that Congress refused to comment on when the illegal planning first started; and as the war has expanded into more recklessness 2002-2006.

The President needs oversight not because Congress is being mean, but because the President, on his own, was unwilling to face reality.

The ruse is to pretend that the Congress is "taking away" something the President had no power to do: Deny reality.

* * *

Circular Unitary Theory of Executive Power

For a theory to be valid, it must work. The Unitary Theory does the opposite: It makes excuses to ignore reality, ignores needed feedback, and continues with reckless momentum.

A theory when it is invalid and contributes to reckless illegal activity needs to be revised. The error is for the President to ignore reality, pretend he has total control, but assert a theory which, when applied, is a failure.

The argument that the President is independent or oversees absolutely all the resources in the Executive Branch is a myth. The Unitary Theory of Executive Power is circular. It starts with a flawed premise -- that the President has total control, which he does not -- and ends where it started: That the President can ignore reality -- he cannot, yet claim success.

A flawed theory implemented is folly.

* * *

Notice the logic flaw of the GOP and White House. One of their recurring arguments about Iraq is

Congress cannot do ___ X ____ [Choose: A GOP excuse to stop action, oversight, or activity ] ___ because it will produce ___ Y ___ [Choose: A reality that GOP wants to avoid confronting ] ___.

Recall the reality of the President: He alone can transport troops. What Congress, in a law or as an idea, does or does not do is meaningless.

The myth of the Unitary Theory of Exeucive Power is that Congress can or cannot do something. It cannot: It can only write laws, hold hearings, and put people in jail, or remove them from office.

The ruse is for the GOP and White House to pretend that Congress or isn't doing something, or achieving results. No, on issues of combat, only the President has the power to move troops; Congress only has the power to define the resources and constrains.

Laws, treaties, and Congressional requirements are what the Congress must follow; and what are legal constrains on how the President uses his finite power. The error is to argue the President has "power", and is incapable of regulation in combat. If the President was no responsible to any constraints as it relates to combat, he cannot explain:

1. Why he must comply with the Geneva Conventions which are legal requirements, which Hamdan affirmed;

2. The President's decision to change the location of the prisoner detention centers in Eastern Europe.

If any law, rule, or Treaty which Congress enacts did not apply, the President should not be resonding to the law: But he is, and he therefore cannot argue that he is above the law; or that the Congressional power -- as it applies to the President's conduct of a war -- does not apply. It does.

* * *

The myth of the Unitary Executive relates to power. The President has no power to make the House do or not do anything; nor can the President ignore the House when the House chooses to not provide resources. That is what the President is stuck with by design as intended by the Founders.

The myth of the Unitary Executive relates to rules. The President has no power to make rules which defy the law; nor can the President make rules which block Congress from overseeing the President and Executive.

If the President had total control, as he would like people to believe he has under the Unitary Theory of Executive Power, then the President would not have an interest, nor need to be concerned with Congress. This President is concerned with Congress because Congress has the power to punish him and anyone else; remove him from office; and then thrust him before the war crimes Tribunal at The Hague.

Once the President -- in a single instance -- assents to any law -- he is, by implication reminding himself, hist staff, and the DOJ Staff counsel that he is under the laws in all things. It is an illusion for DOJ Staff to argue that the Laws do not apply in some cases. No, the law applies in all cases to all people at all times. To argue otherwise is contrary to the judicial and attorney standards of conduct which compels the legal community to affirm the rule of law.

America has seen what legal "experts" have deluded their peers to illegally assent to, not challenge, and not forecfully oppose as required under the Attorney Standards of Conduct. The problems with the GOP and White House are related to the reckless arrogance the American legal community has shown toward the principle of "rule of law."

The way forward is to keep an open mind to the means by which the legal community shall be better regulated, more swiftly punished; and how the absurd legal thinking must be more quickly rebuked, rejected, and lawfully destroyed before the court system, not left unchallenged, permitted to reward war crimes and illegal activity.

* * *

On matters of war, when the President bungles an operation, he's well communicating he needs help.

For the White House counsel's office to assert that the President -- under the Unitary Theory of Executive Power -- cannot be overseen, the counsel has a problem:

___ What is the plan of the counsel to correct what is a problem?

___ Why is there a deference to what is recklessness?

___ Why is counsel not fully asserting its Article 82 requirement to fully enforce Geneva?

___ When there is reckless combat which violates the laws, what is the evidence Staff counsel have to show that they have removed themselves from this illegal activity?

___ What action did Staff counsel take in putting this illegal policy, unlawful warfare, and grave breaches of the laws of war into effect?

* * *

War crimes are not things that Congress needs to assent. There is no excuse for an attorney to have not fully asserted their Article 82 requirement under Geneva to ensure that all laws of war were fully asserted, especially the requirement that there be an imminent threat, not one devised using fraud.

The frauds and illgalactivity were known inside the White house counsel's office to exist before Sept 2001 and the AUMF existed. The problem for the White House counsels' office -- which Rice as National Security Advisor; and Gonzalez as White House counsel are linked -- was for them failing to end illegal NSA monitoring before Sept 2001 which they knew, or should have known, was illegal and unrelated to any lawful purpose.

* * *

For the President to argue that he needs latitude to do things, suggests incorrectly that he has insufficient latitude to do things.

The opposite is true. The Congress has given the President wide latitude to operate, but the President has failed. NSA had legal tools to do what the President wanted; this President before Sept 2001 and the AUMF refused to use the lawful options.

The solution is not to continue giving the President wide latitude, but to better provide guidance.

* * *

For anyone to suggest the President has "expert" that he can consult, or that Congress cannot provide input misses the obvious: The President, despite having access to experts, ignored the exerts.

Some may suggest that the President can choose to ignore the experts. Not if the results are reckless.

Congress has the power to raise and support an army; but this does not mean that it will support something that is reckless; or permits the President to squander the finite resources the Congress alone has the power to decide to raise.

* * *

Sand In Hour Glass: Allocating Resources Congress Alone Provides

Think of Congress as being at the top of a pyramid or an hour glass. Visualize Congress, at the top, letting sand drop to the bottom, and the President, in the middle, moving the sand as it falls, to various corners of the bottom chamber.

Congress alone decides how fast the sand falls; the only job of the President is to move the sand and place it where it needs to go.

The President, below Congress, manages the resources Congress alone decides what tto provide or not provide.

If there is no sand, the President cannot make sand; if there is no flow of sand, the President cannot make the sand flow. When Congress chooses to increase or decrease the rate the sand falls, the President must adjust.

Think of the President's squandering of those resources: It's as if the Congress is expected to continue providing and supporting resources that are being wasted.

The game doesn't work that way: Congress cannot be expected to eternally provide resources for the President to burn, abuse, mistreat, squander or waste.

It is the job of the President to properly use what he has been given by Congress; and he cannot blame Congress for their having refused to provide him sand to keep spilling. The real crisis, problem, and disaster is for the GOP and President to clean up: Explain why they refused to seek expertise earlier; and why it took this long for them to confront reality: They not only recklessly managed the war, but even when abusing power and ignoring the law, they still couldn't figure things out.

The law, in this case, is a signal that the President isn't able to do his job. The law is the legal basis for Congress to inject itself and say, "We need to adjust things."

The law is the instrument by which the Legislature legally injects itself into the President's branch, and compels him to respond. The President has no legal power to ignore the Legislature; legislative power is solely asserted through statute.

When the President ignores the law, and continue his recklessness, he's done several things incorrectly:

A. Defied the law, the instrument of Congressional power;

B. Recklessly managed a ware; and

C. Refused to consider other approaches.

Some approaches are not more of the same. Rather, to adjust, there may or may not be an improvement,increase, stop, or start of what was or wasn't going correct.

When the President refuses to manage a war, and he has violated the law, Congress has the Constitutional authority to inject itself.

However, on the issues of power and funding -- Congress alone has the power to pass rules which define how those resources shall be used, especially when the President, despite other rules, proves incapable of complying with simple suggestions and hints of how to succeed. The law exists as a guide to assist the President in succeeding. The DOJ and White House would like some to believe that the law is there as a constraint: Indeed, it is a line that the President shall not cross because to cross that line -- whatever it is -- Congress has deemed to be imprudent, reckless, and punishable. Don't do it. The error was for the President to not have rallied support for other laws and rules; and his failure to prevent the Legislature from making a rule through law.

When the President, despite combat losses, points to suggestions as a "problem," he misses a fundamental principle of self-government: We the People share ideas to improve things. The opposite is incorrect: To absurdly suggest that new ideas are making things worse. Ideas are just ideas, and have no effect on reality. Real power and responsibility lies with those who can translate ideas into action, and physical changes. The responsibility for making things worse rests with those who refuse to adjust, but absurdly assert they have an unreviewable right to continue with what is folly, recklessness, and ineffectual.

Power may not be asserted as an idea which is not reviewable. It is a smokescreen of the DOJ Staff and Addington to pretend that the President has unreviewable power. No, the reality is that the President has reviewable results: Good, bad, or indifferent. Arguments about power is the illusion to dissuade examination of reality, facts, bad results, and botched combat operations.

The problem this President has is when he pretends that Congress is responsible for something Congress refused to review; but this President, on his own, chose to do. Responsibility can be shared when Congress is shown to have been complicit with not doing what he it should have done -- reviewing reality, and compelling better management. The idea of the President notifying Congress of something isn't to crate a checklist, but to ensure that those with other views to better solve problems are given the opportunity to inject their views. The President's problem is when he shuts out the other views; then embarks on reckless wars; and fails, despite the evidence of failure, to adjust.

We leave it for the DOJ Staff counsel to defend their President for his war crimes and reckless violations of Geneva.

* * *

When someone is using the resources of another, as the President is doing when he uses the resources of We the People, he needs to mange them.

This President, despite the law compelling him to work with the Joint Staff, refused; and recklessly abused the troops.

The way forward is not to buy into the fiction that the President has total control, or that he cannot be stopped from doing what is reckless.

The question is whether the President, despite the oversight of Congress, is able or willing to adjust. The President has no legal authority or power to refuse to comply with the finite constraints Congress alone decides or does not decide to support.