A Thinking Reed

The Republic may have some life left in her yet

Written by

Lee M.

in

I think it was Marvin who once said you gotta give ’em positive reinforcement on those rare occasions when they do something right. So, huzzah! and kudos to the Senate for voting 90-9 to approve a rider attached to a military spending bill banning torture.

Their measure would ban the use of “cruel, inhuman or degrading” treatment of any prisoner in the hands of the United States. It is a response to the abuse by U.S. personnel of Iraqi detainees at Abu Ghraib prison, which caused worldwide disgust.

McCain, who was a prisoner of war tortured by his captors during the Vietnam War, cited a letter written to him recently by Army Capt. Ian Fishback asking Congress to do justice to men and women in uniform. “Give them clear standards of conduct that reflect the ideals they risk their lives for,” Fishback wrote the senator.

“We owe it to them,” McCain said on the Senate floor. “We threw out the rules that our soldiers had trained on and replaced them with a confusing and constantly changing array of standards… . We demanded intelligence without ever clearly telling our troops what was permitted and what was forbidden.”

Graham, a former judge advocate in the Air National Guard, said: “We take this moral high ground to make sure that if our people fall into enemy hands, we’ll have the moral force to say, ‘You have got to treat them right.’ If you don’t practice what you preach, nobody listens.”

The nine bad guys who voted nay were Allard, Bond, Coburn, Cochran, Cornyn, Inhofe, Roberts, Sessions, Stevens (boo! hiss!). I note proudly that my two senators (Specter and Santorum) voted yea.(Sen. John Corzine of New Jersey didn’t vote.)

Still, the administration has suggested that Pres. Bush may veto it on the grounds that it would “tie the President’s hands.” Um, yeah; that’s kinda the point! That’s what laws do. Plus the final bill still has to worked out in conference with the House, but still a step in the right direction.

Comments

15 responses to “The Republic may have some life left in her yet”

  1. atiyah

    No actually the US Consitution has spoken on this point in an attempt not to bind the President unecessarily when it comes to issues of war. Try reading it.

    Reply
  2. Lee

    Yes, I’m sure the Founders, with their notoriously rosy view of executive power, intended to give the President a free hand in ordering the torture of prisoners.

    Reply
  3. atiyah

    Well actually surprise surprise one area that they thought required giving the President a reasonably free hand was defending the nation in times of war. Wisely they thought they would not be able to foresee the nature of future threats. It’s one of the factors you should think about when electing your President as I am sure you do as an informed voter. I suggest you research the war powers of the US Constitution. Regarding the proposed law I am but a simple soul so define for me “cruel, inhuman or degrading” whose standard, what is the burden of proof, which Courts, is there a right to representation. How can this possibly not be an evolving standard? You display a touching faith in the power of politicians to legislate away a problem. Usually passing laws makes situations worse not better.

    Reply
  4. jack perry

    “The Congress shall have power …To …make Rules concerning Captures on Land and Water; … To make Rules for the Government and Regulation of the land and naval Forces; …”

    Apparently the Constitution has spoken on this, but not in the way atiyah suggests.

    Reply
  5. jack perry

    (that’s article 1, section 8 by the way)

    Reply
  6. atiyah

    Here are a couple of articles on the War powers issue (of course you will remember there is a Congressional declaration)

    http://supreme.lp.findlaw.com/constitution/article01/41.html#2

    http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/warandtreaty.htm

    Reply
  7. jack perry

    I am addressing the issue of whether Congress should be doing such things in the first place. According to the plain language of the Constitution, however, Congress has the duty of regulating the treatment of prisoners of war and enemy combatants. In other words, Congress has the duty of tieing the president’s hands.

    Reply
  8. Joshie

    That was actually very well said Jack.

    Reply
  9. Atiyah

    Sorry the Supreme Court wouldn’t agree. Congress has no such duty (if fact it is prevented from doing such) it only arguably has the power to legislate. Should the proposal survive the HofR and a Conference and a possibly a Presidential veto the Administration must then decide whether the measure should be tested for constitutionality. As a generalization most Presidents vigorously defend their power to make war and the Supreme Court has tended to side with the Executive.

    As always the Constitution should be the starting point. The question is thus: Is the care of enemy combatants (non citizens who are not soldiers of state parties to the international conventions on war) a matter for Congressional action via legislation and does such legislation unduly interfere with the power to make war vested in the Executive Branch.

    The key constitutional interest is ability of the President as Commander in Chief in a time of declared war to wage that conflict as he sees fit subject to Congress making such a declaration in the first place and voting the money.

    It would seem to me that if legislation were to reach the Supreme Court it might well be struck down as unconstitutional as it is a major interference in the war making power (logically if it is not so then it must be a political sop).

    As to whether such legislative action is wise or necessary the simple answer is no. A law is worth noting if it is not enforceable. Who can enforce this legislation and by what means. It is food for worms….. I mean Attorneys. The issue is not whether the enemy combatants are covered by normative rules governing their captivity and requiring humane treatment – they are. The question is who should make these rules in a rapidly changing asymmetrical conflict the President or Congress.

    As to practical concerns regarding treatment of captured US and Coalition forces no one should be under any illusion about the fact that any law passed by Congress will have no affect on the treatment of those captives. As to issues of reputation – the US should learn from experience, treat captives well but most importantly be seen to succeed in its stated objectives.

    As an aside the idea that matters unrelated to the primary purpose of the legislation can be tacked on is terrible. It makes for some of the worst legislation in the civilized world. It also encourages pork barreling. The US legislative Branch should be more disciplined with itself.

    Reply
  10. Joshie

    “The Congress shall have power …To …make Rules concerning Captures on Land and Water; … To make Rules for the Government and Regulation of the land and naval Forces”

    So what about this? Address it directly please. Does this not mean that congress has the power to regulate, via legistlation, the treatment of prisoners captured on land or sea? I’m not as smart as you, clearly. Please enlighten me.

    Reply
  11. atiyah

    Joshie you may well be smarter that me – far be it for me to instruct Americans on the meaning of their own Constitution.

    The argument is in short that the Congressional role is one of providing the basic infrastructure of war making – funding for capital purchases, salaries, the code of military justice etc and other measures its regards as prudently necessary in peace time to provide the US with the capacity to wage war. At times of war the role is to formally declare it and to fund it and not to second guess operational decisions or be a backseat proxy CinC. Waging war is the role of the Executive that is why you think carefully when voting in Presidential elections.

    The critical point is that the US is in a state of declared war thus the President is war making as a result of Congressional authorization and ongoing funding. Therefore the question would be whether the McCain measure unduly hampers the ability of the CinC to wage that war successfully. While the law is drafted to apply to servicemen that is really a drafting device to lessen the chances of challenge, in reality it is aimed at providing some objective standard of good treatment of enemy combatants. By necessity it must reduce the flexibility of the President in relation to such combatants. It raises a number of definitional issues, enforcement and jurisdiction issues. The Supreme Court has tended to view the war making power expansively (post Congressional declaration) and tends to side with the Executive Branch in favouring flexibility.

    Remember the combatants we speak of are not covered by the international conventions of war (as ratified by the Senate) as they are not uniformed soldiers nor are they US Citizens. The US is still really working its way through the issue of how best to deal with them in order to succeed in Afghanistan and Iraq and against international terrorism. To me this seems to be a consequence of this new type of conflict which differs considerably from the previous cold war conflict. I’m just no convinced that Legislation is either constitutional or helpful.

    Reply
  12. Joshie

    But there’s the problem. The U.S. is NOT in a state of declared war against Iraq or Al Quaeda. The president is not officially waging war against anybody, he is only engaging in military action. Congress alone has the power to declare war, and to my knowledge it hasn’t declared it, it has only authorized military action, NOT the same thing. But even if war had been declared, the president does not become dictator once a war starts, he is still subject to the courts and the congress.

    Plus the constitution says, that congress has the right to regulate the captures on land and sea, so the bill seems to me to be perfectly constitutional, unless the supreme court judges it otherwise.

    Your point about enforcibility is a valid one, but if the executive refuses to abide by a law congress has enacted, if it has not been struck down by the courts then what you have is a constituional crisis where one branch is in revolt against the other two.

    This is, imho, the fatal flaw of the U.S. constitution, that the president is commander-in-chief over the armed forces and can order them to do whatever he wants, including using military force to coerce congress, the courts and the states into doing his bidding.

    To my knowledge there has not been a situation where the president has used the military to directly attack or coerce congress but it is bound to happen eventually. Holes in constitutions are always revealed over time, I just hope the the American people wake up in time to realize this and give our constitution a thorough revision before its too late and we fall into military dictatorship.

    Reply
  13. atiyah

    Read it here

    http://www.c-span.org/resources/pdf/hjres114.pdf

    Reply
  14. Joshie

    Like I said, that is an authorization for the use of force not a declaration of war.

    Reply
  15. atiyah

    Good spotting Batman you are a shape tack. You are right. There is no declaration. Instead there is a specific statutory authorisation for the war. However for the purposes of constitutional analysis it makes no difference whether it’s a declaration of war, a specific statutory authorization, or a national emergency created by attack upon the United States, its territories or possessions, or its armed forces, the same questions of the role of the President as CinC in making war and the role of Congress apply. In particular does the measure unduly hinder the CinC in the prosecution of the war.

    In my above comments simply read “declaration” as “ongoing specific statutory authorization.”

    Reply

Leave a comment

More posts