Tag Archives: Alexander Hamilton

SYNDICATED COLUMN: Breaking Bad

Obama’s Illegal War Against Syria

Barack Obama wants to fire cruise missiles at Syria. As president of the nation whose military possesses the most lethal firepower of any society in history, he obviously has the ability to start this war — his sixth major front, after Afghanistan, Iraq, Yemen, Libya and Pakistan — if he wants to. But does he have the legal right?

The answer is no. Not if the basic architecture of the Constitution, the separation of powers, remains in force. Not if the Founding Fathers’ originalist intent, and their understanding of English at the time, means anything. Not if America’s treaty obligations, which after ratification carry the full force of U.S. law, are more than pieces of paper.

Might makes right; the victor writes history. No doubt, in the perhaps-not-so-distant future, if the United States is formally constituted as an empire, with Syria one of its outlying provinces or a vassal state, no one will care how it went down back in 2013. Until then, however, it matters a lot. Attacking Syria without legal basis would have broad implications, and not just for the Syrians who will lose their lives, limbs and sanity.

Back here in what neofascist politicians and media mouthpieces call the Homeland, we Americans are watching our top officials and boldface notables brush off the basic legal underpinnings of the political culture with impunity.

Obama and his allies’ disdain for the law probably won’t spark much street protest, much less an uprising. (These days, you have to be a white Republican to provoke a demonstration against your wars.) Nevertheless, official lawlessness is corroding the system, hastening the coming rebellion just as surely as rust will eventually cause a bridge to collapse. When those at the top don’t follow their own rules — rules that they wrote, rules from which they benefit the most ­— why should anyone else? “They say I got to respect the system,” the Australian punk band the Saints sang, “but there ain’t no respect in that system for me.”

Obama and the other warmongers are counting on ignorance and confusion to make their case, but the rules of war are clear.

Attacking Syria would be illegal.

Obama and his surrogates keep saying that Obama has the “inherent power” to attack Syria (or any other country) in his role as commander-in-chief. He’s only asking Congress for approval, he says, because he’s a nice guy (and the political cover doesn’t hurt if and when the war turns sour, as they usually do).

In The Federalist Papers, Alexander Hamilton explained the thinking behind the new Constitution to 18th century newspaper readers. The president’s role as “commander-in-chief” was nothing close to the lofty Caesar-like rights Obama claim. So ceremonial as to be virtually insignificant, the commander-in-chief gig barely rated a mention: “While [the powers] of the British kings extends to the declaring of war and to the raising and regulating of fleets and armies,” Hamilton explained, “all which, by the Constitution under consideration, would appertain to the Legislature [Congress].”

In his book War Powers: How The Imperial Presidency Hijacked the Constitution, Peter Irons reminds us that under the U.S. Constitution, the president’s only military role is to repel an invasion — after it has occurred! — pending action by Congress. “The Framers,” writes Irons, “agreed that the president could act without a congressional declaration of war to repel an invasion but that only Congress could authorize the deployment of forces outside the nation’s territory in combat against foreign troops.”

The Founders were split on a number of issues. Slavery, for instance. On separation of powers and making war, they were virtually unanimous. Only a single delegate voted to vest the president with the right to wage war.

Obama has no “inherent right” to attack Syria or any other country.

Under the Constitution, Congress could do it. But the U.S. is also subject to treaty obligations that clearly block it from attacking Syria under present circumstances.

The Kellogg-Briand Pact of 1928, which the U.S. Senate ratified by an 85-1 vote, bans all acts of military aggression. Many of the Nazi leaders executed and imprisoned at Nuremberg were convicted for violating this Pact. It remains in force as international law.

The U.N. Charter mandates that all U.N. member states “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” The Charter does not make exceptions for the three principal arguments Obama makes in favor of attacking Syria: punishment (for using chemical weapons), preemption (it’ll send a message to other possible future chemical weapons users, such as Iran and North Korea) and deterrence (it will deter Assad from attacking Jordan or Israel). To the contrary, the Fourth Geneva Convention outlaws “collective punishment” in which civilians are targeted to suffer for the offenses of their government.

During George W. Bush’s propaganda offensive leading to the 2003 invasion of Iraq, Bush and his allies (many of the same figures pushing to attack Syria) successfully convinced the public to sign off on their “preemptive war.” But neither Iraq then, nor Syria now, comes close to fitting the bill legally.

“There’s a well-accepted definition for preemptive war in international law,” Joseph Cirincione, Director of the Non-Proliferation Project of the Carnegie Endowment, said in late 2002. “Preemptive war is justified by an imminent threat of attack, a clear and present danger that the country in question is about to attack you. In such a case a preemptive attack is recognized as justifiable.”

That’s a very high bar. Even troops massed on your border don’t automatically qualify as an imminent threat under international law. You have to let the enemy hit you first, or have strong reason to believe they’re about to do so.

Now Obama can argue — and others will — that Geneva, Kellogg-Briand, the U.N. Charter, and even the U.S. Constitution are quaint, outdated relics, written by naïve men whose 20th century attempts to outlaw war are irrelevant today. If that’s what they think, then they should convince us to amend or annul them.

As long as these laws remain in force, and as long as Obama and other members of America’s ruling class continue to ignore them, an ugly day of reckoning draws closer.

P.S. to Mr. Obama: Please, Sire, may we miserable subjects of your Benevolent Self kindly see proof that the Syrian government (and not the rebels) carried out that poison gas attack the other day? How about some evidence?

Anything?

(Ted Rall’s website is tedrall.com. Go there to join the Ted Rall Subscription Service and receive all of Ted’s cartoons and columns by email.)

COPYRIGHT 2013 TED RALL

SYNDICATED COLUMN: Men of Dishonor

A Congress of 21st Century Cynics Dodges 19th Century Rules

People are calling the recently adjourned 112th Congress “the most dysfunctional ever” and the least productive since the infamous “do-nothing Congress” of the 1940s. There’s lots of blame to go around, but one cause for congressional gridlock has gone unnoticed and unremarked upon: we no longer have a sense of honor.

Back in the late 18th and 19th centuries, when our bicameral legislature and its rules were conceived of by a bunch of land-owning white males, a gentleman’s word was his most precious asset. Integrity and the lack thereof were literally a matter of life and death; consider the matter of Alexander Hamilton and Aaron Burr. As Thomas Jefferson and his de facto wife Sally Hemings could attest, civility was far from guaranteed under this old system. It certainly could have worked better for Charles Sumner, the abolitionist Massachusetts senator who was nearly beaten to death by a proslavery colleague on the floor of the Senate in 1856. (He was avenging what he considered libelous rhetoric against his family.)

Though less-than-perfect, there was a lot to be said for a culture in which a person’s word was his bond, legalistic quibbling was scorned, and a legislator was expected to stake out and defend a principled position, even in the face of political and personal adversity.

It’s hard to imagine the “fiscal cliff” showdown unfolding in the 1800s or even the first half of the 1900s for two simple reasons. First, the general fiscal health of the country would have come ahead of partisanship. Second, and more importantly, members of the two political parties would have stuck to the deal that they struck a decade earlier. When George W. Bush and his Republicans pushed for a set of income tax cuts that primarily benefited the wealthiest Americans in 2001, they argued the standard GOP trickle-down economics talking point that the tax cuts would pay for themselves by stimulating the economy so much that revenues into government coffers would more than make up for the cost. In order to get enough Democratic support for passage, the Republicans agreed to a five-year time period, after which taxes would revert to their Bill Clinton-era levels.

By 2006 there was still no evidence to show that the tax cuts had stimulated the economy. In fact, by many measures, things were worse. The housing bubble was beginning to burst; unemployment and underemployment had increased. If this had been the 19th century, Republican legislators would have acknowledged that their experiment had failed and that would have been that. A gentleman didn’t run away from the facts or his mistakes.

Voters seemed to agree. Unhappy with the invasion of Iraq as well as the state of the economy, Americans returned Democrats to control of Congress in 2006. Republicans had a pretty good idea—the polls were damning—that their unpopular policies were driving them toward a decisive defeat in the midterm elections. For men and women of honor, this would have been a time to reassess and back off.

Nevertheless the GOP jammed through an extension of the 2001 Bush tax cuts for the wealthy months before the midterm election. No honor there.

Here we are nearly 12 years later, and the verdict is in: the Bush tax cuts failed miserably. No doubt about it, it’s absolutely ridiculous that President Obama and the Democrats agreed to extend them for all but the richest one-half of one percent of American income earners. But the debate should never have gotten this far in the first place. Had the Republicans who proposed it in the first place possessed an iota of good old-fashioned 19th-century honor and integrity, this misbegotten legislative abortion would have died in 2006.

Robert’s Rules of Order and other quaint traditions of parliamentary procedure don’t translate to a quibbling little time like ours, when White House lawyers torture widely understood words like “torture” and “soldier” or claim that a US military base in Cuba is in no man’s land, neither in Cuba nor under US control, and that members of both major political parties say anything in order to get their way. Consider, for example, the current push to reform the filibuster, in order to clear the logjam on judicial nominations and other business that used to be considered routine.

The Senate, the only house of Congress that permits a filibuster, draws upon a tradition of principled minority protest that goes back to Cato in ancient Rome. Until the 1970s, filibusters were a rarity, averaging one a year. Senators viewed them as a bit of a nuclear option and only considered deploying a one-man block on debate of a bill a few times during a long political career, to take a stand on an issue where he felt it mattered most. Now the filibuster is not only a daily routine but gets deployed in an automated way so that the Senate has effectively become a body in which nothing gets done without a 60% vote in favor.

Everyone in the Senate understood what filibusters were for. No one abused them. It was a matter of honor.

But honor is too much to ask when even the most basic of all political considerations—ideology and party affiliation—bend like a reed in the winds of change.

Last week the Republican governor of New Jersey and a Republican congressman from Long Island, New York were so incensed by their party’s refusal to approve disaster relief funds for their states after hurricane Sandy that they went public with disparaging remarks about the Republican leadership in Congress. Fair enough. Standing up for your constituents against rank parochial self-interest is what integrity is all about.

On the other hand, the immediate willingness of some so-called liberal and progressive Democrats to welcome Chris Christie—a Tea Party favorite—and Peter King—a notorious nativist and anti-Muslim bigot—into their party’s ranks indicates a willingness to overlook basic principles that would have startled most self-described gentlemen of a century or two ago, much less those who’d entered public service. Back then, of course, the American political party system wasn’t as settled as it is today, so there were mass changes of party affiliation as parties appeared, metastasized and vanished. Still, it wasn’t acceptable behavior to change parties over a minor spat like the hurricane aid or for a party to accept members who didn’t adhere to its principles.

It’s almost enough to make you wish for a duel.

(Ted Rall is the author of “The Book of Obama: How We Went From Hope and Change to the Age of Revolt.” His website is tedrall.com.)

COPYRIGHT 2013 TED RALL