By reading the Commander in Chief Clause too broadly, the [Bush/Cheney administration’s] general thrust is to support a form of martial law that is anathema to the principles of republican government, checks and balances, and separation of powers. The Framers’ rejection of executive power as promoted by Blackstone and other writers was rooted in their study of history and the needs of representative government. Joseph Story, who served on the Supreme Court from 1811 to 1845, wrote about the essential republican principle of vesting in elected lawmakers the control over the military.

[snip]

The conduct of war “is sometimes fatal to public liberty itself, by introducing a spirit of military glory, which is ready to follow, wherever a successful commander will lead.” The cooperation “of all the branches of the legislative power ought, upon principle, to be required in this the highest act of legislation.”

The Framers feared that Presidents, in their search for fame and personal glory, would have an appetite for war.

[snip]

What the Framers left solely in the hands of the President, as Commander in Chief, was the power “to repel sudden attacks.” All three branches understood that the President could exercise defensive, but not offensive, military powers. The reason for removing the war power from the President centers on the qualities associated with creating a republic, the right of citizens to rule through their elected representatives, and the fear of executive abuse and misjudgment.

[snip]

The same principle of civilian supremacy that subordinates military commanders to the President subordinates the President to statutory limits enacted by the people’s representatives in Congress.

[snip]

Toward the end of his concurrence, Justice Jackson identified the basic values that animate the U.S. Constitution: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.”

[snip]

The system of military justice was profoundly altered by the enactment of the Uniform Code of Military Justice (UCMJ) in 1950. The statute represented an effort to unify, consolidate, and codify the Articles of War, the Articles for the Navy, and the Disciplinary Laws of the Coast Guard. Underlying passage of the bill was the “precept that military effectiveness depends on justice and that, by and large, civilian forms and principles are necessary to ensure justice” in military trials.

[snip]

What the Court did in Hamdan was to recognize in Congress the constitutional authority it possessed under Article I but had declined to exercise in favor of the President. The decision also took from the backrooms of the Administration a military commission process that was supposed to assure “swift justice” but that in fact had been strikingly unsuccessful over a period of five years in ever prosecuting and convicting a single alleged terrorist.

[snip]

Members of Congress had not asserted their authority over military commissions in the five years after the terrorist attacks of 9/11. When asked by the Court to do so they showed little interest or confidence in exercising an independent constitutional role and providing life to the system of checks and balances. – Louis Fisher

Http://www.mcgeorge.edu/docume…..fisher.pdf

I highly recommend reading Mr. Fisher’s entire 51-page article. What a breath of fresh air it is to read an incisive, comprehensive, and principled defense of our Constitution that meticulously repudiates deliberate and insidious misrepresentations of it made by this Executive Branch (with the heedless indifference of our Legislative Branch), from someone interested in historical accuracy, not in cherry-picking and twisting facts in service to authority and authoritarian government. If we still had statesmen in Congress, every one would have this article near at hand for easy reference.

It’s time to put life back into our system of checks and balances. That means you, Members of Congress. If you want to perform the independent Constitutional role intended and designed for our federal legislature, please do so, ASAP. Otherwise, please resign your seat for someone who will.

LS @ 51

It is torture if a miner experiences it.
It is not torture if a prisoner experiences it.

Define torture.

“We do not torture.”

Define “We”.

Once you get to a point where you parse everything and read between the lines and read the tea leaves and you still don’t feel you know what they mean or what they’re up to, then it’s safe to say there’s absolutely NO trust left.

That’s when you say, “We’re done here. Time for ‘em to go.”

Actually, I believe in Arar, Comey also invoked some intenational relations Exec powers too – saying it would put a strain on our relationships with foreign countries to gab around about how we kidnap and conspire to torture and insure the torture of people.

Unfortunately, O’Connor was more interested in keeping everyone happy and writing about vague references to blank checks than she was in cancelling the account – so we got what we got.

Jane’s birthday ‘partisans’ post helped inspire these thoughts:

We are trying to stop this increasingly-powerful tyrant of a president and his lawless Executive Branch leadership, peacefully, politically, democratically before it gets worse. Yes, we failed to do so, with regard to Iraq, and now FISA. As a result, along with the horrors inflicted daily upon the innocent citizens of Iraq, American citizens going about their daily business increasingly appear to be the targets of their own government’s secret spying and police powers, while being threatened with hateful division into the Master White Race vs. Illegal Brown Aliens, as the racist Republican “political party” in government, and in the corporate power-serving media, is proving every day. Can we, should we, quietly wait to find out who, what, when, where, and how the next outrage against us and our Constitution will occur because we have yet to take to the streets with our rifles and shotguns, or pitchforks and torches?

The sociopath that is Bush – please understand America – gives not one damn about our American democracy, or any form of democracy. Our struggle is one of partisans for our nation as founded vs. partisans of political parties in pursuit of wealth, power, status, and privilege in the name of nation as empire – the sort of nation that our Founders specifically repudiated.

That is the distinction that must be drawn by the mediocrities in our Congress, or failing that, by us – we may not be able to shame the party partisans in our legislature, but we can help to educate the American people, and call on their and our better selves to defend the nation as founded, as proud American partisans – not in the name of a racist, nationalist, imperialist waving flag, but behind liberty for all and its wise and inspired mechanism of enforcement, our Constitution.

Every day that the Democrats keep to their political party boundaries and games (just like the Republicans), and ignore the needs of the nation as founded and its Rule of Law that created the seats they occupy, the job of reclaiming our legacy only becomes more difficult, less easy to achieve by peaceful means, as ever more damage is done, and enforcing and living within our Constitution becomes an increasingly more difficult and distant proposition. [Howard Dean’s contributions in this area seem to have been successfully sidelined by the powers that be in Congress who prefer to keep party interests above the nation’s. He (and we) may need to start considering how to speak for a group in Congress whose voices are now suppressed by their leadership, to make any further progress toward “taking back our country.”]

No, the bullies will not simply disappear into thin air in 2009 if we just wait them out – they will only move into new positions and new avenues of corporate-funded power (AEI is already effectively a shadow imperial presidency) – but we, as a nation, will be much further down that slippery slope to tyranny by then, if action isn’t taken now.

Thanks to the unConstitutional FISA legislation, and the obvious deception practiced on the American people [and on many of their colleagues in the Congress??] by the leadership of the Congressional Democrats as they ensured its passage, I can see now why the very idea of attempting to assert the inherent Article I, Section 8, Clause 11 Constitutional war powers of the Legislative Branch of government to end our occupation of Iraq by majority vote – without presidential approval or involvement – is the furthest thing from the minds or hearts of people like Nancy Pelosi, Harry Reid, Dick Durbin, Steny Hoyer, John Conyers, et al. Those people are so soaked in the decades-long practice of political party loyalty, subservience, and public deception in pursuit of party power, that the ideals of our Founders have long since been disregarded and discarded by them, except for the usefulness to which such ideals can be put when used for PR sound bites and in the rhetoric of empty, insincere floor speeches.

We need and the Constitution deserves a Supreme Court ruling to ascertain the true balance of war powers in this country today [and of course, to ascertain the status of the Fourth Amendment - BLESS those who are already challenging the new FISA law via the Judicial Branch]. The good faith of prior presidents and Congresses is being abused today to promote the tyranny of the current bad faith president in the waging of war. Ideally, Congress long since ought to have moved to test the limits of its own war powers to settle this state of affairs, and to put a stop to this abuse either by SCOTUS intervention, or by Constitutional amendment if need be.

Http://www.washingtonpost.com/…..v=hcmodule

In short, the current war is a war without legal warrant and if Congress so declares the President cannot legally continue to conduct it. This, again, does not constitute legislation subject to presidential veto but flows directly from Congress’s powers under both the War Powers Act and the Constitution. Finally, regardless of the WPA and the 2002 Iraq war resolution, Congress can, under its sole constitutional authority over war, declare the Iraq war to be over. As stated above, the President has no power to veto such a declaration, and no law other than the Constitution itself is required to be enacted to give the declaration effect – so, the presidential veto power over legislation simply is not implicated at all here.

Nonetheless, it is important to understand that de-authorization of the Iraq war would almost certainly produce a legal and constitutional stand-off between the President and the Congress, which ultimately would have to be decided by the courts. I have no doubt that the courts would uphold the Framer’s original intent in vesting Congress with the sole authority to declare and limit the nation’s war-making. But regardless of the legal arguments the Bush Administration may try to mount in response, a de-authorization vote undoubtedly would greatly increase the pressure on President Bush to end the war, and that alone is a step forward.

Http://wa4richardson.blogspot……ation.html

A parallel approach to forcing that court ruling on the extent of its inherent Clause 11 war powers, could be for Congress to start planning for a Constitutional amendment that would add the words “and peace” after “to declare war” in Clause 11 of Article I’s Section 8. The Congressional power to declare war is absurdly dangerous and ominous in the modern age without the (clear and unequivocal) reciprocal ability to unilaterally return the nation to peace against the wishes of an authoritarian Commander in Chief (especially with today’s industrialized military might) who can veto any legislative attempts to do so (or threaten to hold troops on a foreign battlefield hostage to a reduction of funding), and use his political party’s factional loyalty in Congress to sustain such a veto. War must not be more difficult (and ought to be easier) to end than it is to begin, at least in terms of authorization.

Members of Congress may have as much contempt for their Clause 11 war powers as they do for our Fourth Amendment privacy rights, but that is by no means an excuse for us to follow their “lead” away from our founding ideals and the plain language of our Constitution.

I think I have been too hard on Shields. It is clear that he is going senile… Gee, if he had wanted to work for a living he would never have become a pundit.

His puns are terrible too.

jayt @ 78

Even if he is convicted, he still, as a citizen of the U.S., has the right to bring a civil suit (from jail, if necessary) against the government which tortured him.

Are you sure of that. Joe and Valerie Wilson didn’t have much luck suing the government.

They ran into dubious claims of immunity; that they had used their offices to play political hardball, and that there was nothing illegal about their having done so. It was an horrendous ruling, because the judge was required, at that stage, to treat everything the Wilsons alleged to be true, for the purposes of ruling on a motion for summary judgment. I’ll never understand how the deliberate betrayal of a covert C.I.A. agent can be said to not be illegal, and there may be problems on that front on appeal, imo.

On this matter, however, there is no way torture can found to be within the lawful scope of an executive office.

State Secret claim is what I would expect as a defense.

I think I have been too hard on Shields. It is clear that he is going senile. Addressing people in your party, actually transmitting some information (however limited) on issues that are important to them, yeah, somehow I have problems seeing this as a bad thing. But for Shields it is an entirely different matter. He has to stay up past his bedtime for these long affairs where candidates talk. He might even have to take some notes or pay attention. This is not what he signed up for. Gee, if he had wanted to work for a living he would never have become a pundit.

No Draft. It will take 10 years and 10 wars to stop it.