7 posts tagged “freedom”

This is now the fourth posting in my "In Concord" series, in which I have been trying to capture the thoughts and reflections that occupy me when I go to the Old North Bridge in Concord, Massachusetts, a hallowed place that has served as my church for most of the 21^st Century. These postings have come in the order that their subjects arise in a typical visit, contemplating the enemy graves, the battle and fallen Minute Man memorialized there. We now follow the path to the Visitor's Center. After a short while it turns sharply to the right. The road used to fork here and the left fork continues on as a mowed path through the grass past the ruined foundation of Capt. David Brown's farm. I often stop here to contemplate the subject of this posting, but for a while there has been an even more concrete focus to be found further up the path.

In the Visitor's Center we find "The Hancock", one of the two remaining cannons from the cache that Gov. Gage had sent his men to confiscate. It is on loan from the Bunker Hill Monument in Boston (which commemorates the battle fought on Breed's Hill, but that is a story for another day). Like the other remaining cannon believed to be from the Concord cache, "The Adams", the Hancock is named after one of the two dangerous radical leaders that Gage was seeking. It sits on a recently made gun carriage not unlike the ones found and burned in downtown Concord resulting in the smoke that made the men of Concord fear their town was being burned. Together they represent the triggering causes of the "shot heard round the world", the outbreak of the War that would give birth to one great nation and begin the fall from power of another.

All that because Gage feared this weapon and its like in the hands of Hancock, Adams and the bands of insurgents and unlawful combatants who sided with them, to put it in the terms of my earlier postings. All this because rather than treat with men like Hancock and Adams, he and his superiors across the sea chose a preemptive military action, to interdict the radicals and their weapons of war.

But that formulation is all from the point of view of the British, their motives, their mistakes and the strategic failures that they led to. These are important in light of the analogy to our failure to apply the lessons of Concord to modern times, but now let us look at The Hancock and its fellows from the perspective of the Colonists. What does it tell us about their motives and beliefs, about the oft-cited Founding Fathers, their beliefs and assumptions?

To put it bluntly, the Battle of Concord was fought in part over the right of the people to bear arms, and not just pistols, and fowling pieces, but cannons—weapons of war. Gage moved precipitously and disastrously because he did not believe that the weapons of war belong in private hands, a view shared by many Americans today. But what Captain Davis and Private Hosmer died for on the North Bridge was their belief in the right and the need for the people to remain armed. Captain Davis was a gunsmith who drilled his Minute Company with bayonets and shot that he supplied them with, who died defending right of the men of a nearby town to possess cannons, powder, shot and the stores needed to field their militias against a government they found tyrannical.

When we write of Colonel Barrett, Captains Davis and Brown and the other colonial officers, it is easy to think of them as commissioned officers because of the titles of rank the bore, but there is an important distinction between Col. Barrett and Col. Francis Smith, the redcoat who lead his soldiers into Concord, between Capt. Davis and Capt. Walter Laurie who lead the troops on the other side of the bridge. Capt. Laurie, commander of the 43rd Regiment of Foot bore a King's Commission. He was a Captain in the King's army because the King said he was. His authority over his troops devolved to him because he and his superiors were appointed by the King or his appointees.

Capt. Davis was a captain because his fellow citizens in Acton said he was. Capt. Davis was elected. He served his town and his neighbors because he volunteered to and they elected him. His bravery, familiarity with firearms and willingness to supply and train his neighbors qualified him. Before the battle he and Major Buttrick, whose house is just beyond the Visitor's Center, and who drilled his men on the very field upon which the Colonials were gathered, and Capt. Brown, his next door neighbor, whose family watched the battle, and Col. Barrett whose field hid the cannons. They met to discuss and decide what to do because they were responsible not to a distant Governor or more distant King, but to the men who would die following their orders. The men, their neighbors, who elected them to make these decisions.

I stress the distinction between the commissioned officers of the King's army and the elected officers of the colonial militias and Minute companies because it is important in understanding who the cannons belonged to (ignoring for the moment the fact that they may very well have stolen them from the British). They belonged to the People. Even in 1775, before the Declaration of Independence, before the Constitution of the United States of America, these men gathered in Concord believed that political and even military power arose from the people.

The cannons were not Col. Barrett's, not Hancock's or Concord's. The cannon belong to the people. Barrett had them because he was the a senior officer in the people's militia, and was capable, as he proved, of protecting them until they were needed. He needed no authorization from the King, no commission as an officer. Rather he had the trust and respect of the men who elected and followed him, who were willing to die following his orders or those of Capt. Davis or Maj. Buttrick.

That this is so becomes quite clear a little more than a year later when John Hancock, the dangerous fanatic who fled Lexington with John Adams a few hours before the fight at the Bridge, and who would become the first Governor of the State of Massachusetts, seventh President of the United States in Congress Assembled, signed a document that declared that

... Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, ...

and

... But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, ...

And that is the importance of the cannon, since named after him, that lay concealed in the furrows of Col. Barrett's field, and the shot, powder and amassed provisions that were stored in his neighbors' houses. They enabled the people, the militia, to throw off British rule, to revolt against the government that they judged to be despotic.

These men did not believe in the inherent authority of the Commander in Chief and Supervisor of the Unitary Executive to ignore the law, whether he called himself the King and claimed Divine Right or President elected by a minority of the citizenry. They believed in retaining not only their rights, and the right and obligation to revolt. They also believed in the retaining the cannons, the weapons of war, to enable them to exercise those rights and duties to overthrow despots not merely foreign, but domestic.

It is all well and good to try to claim that

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

means something else, but as the men who laid down their lives in Concord on Patriot's Day, April 19, 1775, demonstrated, the men who hallowed this ground did so in defense of the right to bear cannon, and the right to revolt. And it was not merely the men of the Commonwealth who believed this. In response to Shay's Rebellion, a little more than a dozen years later the Virginian Thomas Jefferson wrote:

A little rebellion now and then is a good thing. …God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty. …And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure.

And here's the paradox of liberty. This country whose founding documents proclaim the right of revolution, the right of the populace to be armed enabling such a revolution, was the site of a singular event, as a man dressed in colonial garb at the foot of the Concord obelisk pointed out to me yesterday. Twenty two years after the Battle of Concord, John Adams, the second dangerous radical who fled with Hancock, after whom the other cannon is named was inaugurated as President, under the following history making conditions.

1. The outgoing Head of State was still alive
2. The incoming Head of State was not related to the outgoing
3. The turnover was entirely peaceful
   
4. The incoming and outgoing Heads of State disagreed about major policies
5. The military was not involved

The country that believed in and was based on the right of revolt—armed revolt—was the birthplace of the entirely peaceful and orderly change of government.

And so, I disagree with those who seek to keep assault rifles and other weapons of war out of citizen's hands, to confine them only to duly appointed representatives of the government. Men died hallowing the ground where I pray in defense of just the opposite.

I met another man on the path of this sacred place, one who disagreed with some of what I have said in this series, who quoted me an old Shi'ite proverb that Iblis, the devil, was the first to reason by analogy, and that underscores the admonition that I usually end my blog postings with: Don't believe me. Read and research for yourself. Think and pray. Discuss with those who not only agree with you, but those who do not. Make your own decisions and act to preserve your country.

Be a Free Voice, the Voice of Liberty
Cry "Freedom!"
Vox Libertas

This is the third in my series of postings capturing my thoughts and reflections from my frequent visits to the Old North Bridge in Concord, the site to which I most often go to pray and meditate these last half dozen years. The course of this series has followed my usual path through the site. In the first, I started where each visit begins and ends, at the graves of the two British soldiers. In the second, I proceeded to the obelisk and contemplated the historic parallels between their mission to Concord and our invasion of Iraq. In this installment we proceed across the bridge to the monument that was the reason for my visit  on September 12, 2001, the first time I came to the site explicitly to pray.

Today, we visit the Concord Minuteman. My prayer on September 12 was one of thanksgiving as well as one of mourning and remembrance. It seemed clear to me that just as the Minutemen defended their homes and neighbors in Colonial America, a number of  the passengers of Flight 93 constituted the Militia in 2001. The details were sketchy, but it seemed clear from the reports of phone calls from the passengers that a group of men and women had gathered, determined that the hijackers had to be stopped from using their plane as a weapon, and charged the cockpit.

I came here to honor them, and their predecessors of the last 3 centuries, free citizens, volunteers who have stood to defend our Republic and Commonwealth. A few weeks later, in early October, I came here to pray before writing an essay entitled "9-11: America Victorious", in which I protested the portrayal of 9-11 as an American failure. This angered me because it gives too little credit to patriots like Beamer, Bingham, Burnett, and Glick who exemplify the Minuteman spirit.

In all the times that I have discussed this subject at the foot of the Minuteman statue, never has anyone disagreed with my contention that the Flight 93 heroes are the modern versions of Isaac Davis, and his fellows. Some have been surprised that they hadn't thought of it that way before, but none have taken issue.

Not so my other observation. You see, the Minuteman as portrayed in Daniel Chester French's statue is clearly an Unlawful Combatant, or more correctly, he is not in terms of the Geneva Conventions, a "Lawful Combatant". According to Article 4 of the Third Geneva Convention, in order to qualify as a Prisoner of War (a Lawful Combatant), one must fulfill the following requirements:

(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.

The colonial militias at the time of the Battle of Concord wore no uniforms, and displayed no fixed distinctive sign, though some did wear war paint and others cockades, but these were more designation of rank than of allegiance. It can also be argued that they did not conduct their operations in accordance with the laws and customs of war. Certainly it was so argued at the time. One of the fallen British soldiers at the North Bridge was described by a fellow as appearing to have been scalped. The militia fired from cover, retreated into civilian houses and blended into the civilian populace. There is reason to believe that the cannons that the Governor was looking for in Concord were stolen from the British in Worcester. In the months leading up to the Battle of Concord, the militia had been used to intimidate the Governor's appointed judges, and so on.

Please, dear reader, understand that I do not say these things to disparage the Minutemen or the militias in general. You will be hard pressed to find someone more proud of the history or citizens of the Commonwealth or the Republic. I vehemently support the revolutionaries and insurgents who were our founding fathers. They were free men who fought for Liberty and for us, their descendants. They founded one of, if not the, greatest countries ever to grace the pages of history.

Rather, I bring these things up because I am critical of the Geneva Conventions and even more so of our nation's relationship to them. You see, in direct contradiction of the policies and opinions of the current administration, I hold that the Geneva Conventions do not cover enough people, rather than too many. They are not quaint, should not be abandoned or narrowed. The should be expanded. As they stand they would not cover the very men who fought to create our country. They would not cover the farmer who sets aside his plow to take up his rifle.

Ah, but you say, what of paragraph 6? (At least those of you facile with GCIII Article 4, Section A.) What of

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

We were, however an occupied territory, a colony. Recall, if you will, that what had the Colonists up in arms (literally)—gathering the cannons, muskets and ammunition that Governor Gage sent his troops to find and confiscate were the "Intolerable Acts", including the Quartering Act, the reason that that the framers felt it was necessary to include in the Constitution the prohibition that

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Also, we had plenty of time. We had organized militias for more than a century. We did not "spontaneously take up arms". We chose the path of irregular militias rather than regular armies. No, paragraph 6 is not for us.

I'm no lawyer, especially not one versed in international law, so there may be something that I have overlooked, some way in which one might argue that the colonial militiamen might be covered by GCIII and GCIV, but at best, the matter is unclear. And so, if we were to be true to the history of our nation, we would be pressing the international community to  extend the coverage of the Geneva Conventions, and not as the current administration has done, worked to restrict that coverage.

This country was founded by insurgents, by free men who banded together for self protection who believed that the government was "of, by and for the people", that it takes its legitimacy from the will and the consent of the governed. We reject monarchy based on divine right and the subordination of the people to the state. The restrictions in the Geneva Conventions are based on the premise that only a state may raise an army, that fighters who are part of a recognized army fielded by a legitimate state should be protected. Individuals who fight for their own liberty, for the defense of their neighbors without state blessing are not as valued and protected. Unlawful Combatants. Insurgents and other non-state sponsored individuals are not protected. This should not be surprising as the Geneva Conventions are agreements between states.

It is perfectly understandable, but in terms of what happened on April 19, 1775, and the years that followed it, of the principles of the Declaration of Independence and the Constitutions of the United States and of the several Sates, it is not very American. It is very Bush, however. The current administration believes very much in rule by a strong individual, a Commander in Chief who is the sole decider in a Unified Executive. They have advanced political theories that dismiss individual liberty for the good of the State and the nation. They have sought to limit the number of people protected by the Geneva Conventions, and by our laws. For them, States are more important than individuals, rights are granted to citizens by the state rather than the other way around, and of course all power in the state is wielded by the sole supervisor of the unitary executive.

The lesson of Isaac Davis, the Acton Minuteman immortalized in the Concord Minuteman statue is that the farmer, the gunsmith, the man who was convinced that if he took up arms he would die, takes up arms because it is the right thing to do, because a patriot protects his neighbor's town from being burned by an occupying army seeking to disarm honest farmers. Here is not a soldier, not a lawful combatant, but a gunsmith, a farmer, a free man, chosen by the common consent of his fellows, to lead the first charge.

This is America.

But as ever, don't believe me. Read the history of the Battle of Concord and the Intolerable Acts. Read of the life of Isaac Davis, and the owl he believed foretold his death but which did not hold him back. Read the story of  Mark Bingham, the gay patriot from San Francisco and the words of his mother, Alice Hoglan regarding the ground that is hallowed by the bones of her son and the terrorists he died fighting. Decide for yourself what the memorials in Concord mean at their heart, what it means to honor the enemy dead, what it means to live in a Commonwealth and a Republic founded by insurgents, rebels and and citizen soldiers.

Be a free voice.
Be Liberty's voice.
Cry, "Freedom!"

Vox Libertas

John Yoo Review, part II

In part 1 of my review of John Yoo's book, The Powers of War and Peace, I criticized him for his flawed understanding of history, and of how things today differ from from the last century or two. In this article, my focus is more his reasoning and analysis of history. I think that the inescapable conclusion of this review is that even if we accept his premises and his reasoning we find that he provides arguments that directly contradict the doctrines and actions of the Bush administration.

In a day when a professor of government at Harvard University can write a serious piece in the Wall Street Journal arguing that the country needs and the US Constitution allows for "one-man rule" in preference to the Rule of Law, I believe it is particularly important to carefully read, analyze, and where necessary rebut writers like John Yoo and Harvey Mansfield who are providing the theoretical basis for the turn towards authoritarian rule.

In part 1, I suggested that Yoo's misrepresentation of history had several possible causes. Among them, one of the most likely was that he was serving a political agenda. In chapter's 2-5, we some evidence for that agenda—Yoo focuses very strongly on showing that the fact that the Legislature has the power to declare war does not mean that the President requires their permission to initiate military actions or hostilities, and that likewise making, breaking and interpreting treaties is an executive function. By so focusing on these points, however, he ignores several implications of his reasoning that weaken the justification for a strong unified executive that is free of legislative interference.

The first example of this appeared in the introduction. There, while considering the implications of Article II of the Constitution granting the Senate the power to ratify treaties, he wrote:

the Senate's participation in treatymaking and appointments reflects an effort to dilute the unitary nature of the executive branch, rather than to transform these function into legislative powers. When the Constitution, for example, grants the executive a power that is legislative in nature, such as the veto power, it does so in Article II. Participation of the Senate in treatymaking does not transform treaties into legislative acts, just as its role in appointments does not make the appointment of officers legislative in nature.

Because the distinction between executive and legislative powers is critical to his argument that the President enjoys the power to engage the nation in military conflicts and to negotiate treaties without the Congress's permission, he must draw sharp distinction between the unenumerated executive power that is vested in him from the power of the legislature. Thus, he views the Senate as acting, in this case, in a role analogous to the privy council in Britain or the Governor's Council in Massachusetts and the like. But in so doing he must ascribe to the founders the desire to dilute the "unitary executive" of which we hear so much.

Either the Senate is exercising legislative oversight in the making of treaties and appointments or the Senate is in these instances acting with executive power. In either case the notion of the President as the sole supervisor of a unitary executive is weakened. In the choice that Yoo has made in his analysis, we see the President's executive power tempered by the oversight and approval of a part of the federal executive that he does not supervise. Thus, when he argues in signing statements that the executive branch need not follow the laws as passed by the legislature, and does so as the sole supervisor of the executive branch, he does so in direct contradiction to Yoo's analysis.

If we make the other choice, that the Senate is part of the legislative branch and any powers granted to it are legislative in nature regardless of which Article they appear in, then we have clear instances where the President is subject to direct legislative oversight and approval, and when the President argues in his signing statements that the executive need not follow the dictates of the legislature in order to preserve the separation of powers, again we have counter examples. No matter which choice we take in this dilemma, Yoo has supplied us with a counter-argument for the independent and unitary executive that the neo-cons wish to claim.

Moving to the chapters that I had explicitly targeted with this part of my review, we come to another major contradiction of administration and neo-conservative theory, this time in the area of the declaration of war. A large portion of Yoo's book focuses on countering the arguments of "pro-congress" scholars who assert that it is illegal or unconstitutional for the President to engage in warfare without Congress's formal declaration of war. To do so, he argues that at the time of the writing of the Constitution it was clearly understood that a declaration of war neither initiated nor authorized military action. He writes in the section on British law at the time of the revolution:

First, it [the declaration of war] notified the enemy that a state of war existed between them. If a nation warned its enemy of future hostilities, its later actions would receive the protection of international law. A declaration announced that hostile actions by its soldiers were taken under national aegis, and thus did not constitute piracy or robbery.

p. 33

Second, declarations played a domestic legal role by informing citizens of an alteration in their legal rights and status.

p. 34

Thus, a declaration of war served the purpose of notifying the enemy, allies, neutrals, and one's own citizens of a change in the state of relations between one nation and another. In none of these situations did the declaration of war serve as a vehicle for domestically authorizing war.

p. 34

In the section on the colonial constitutions, he explains even more explicitly:

The declaration of war's main purpose lay not in authorizing military operations, but in triggering the governor's exercise of his domestic powers, such as the authorization to impose martial law.

p. 61

If we follow Yoo's reasoning, we may find that we must concede that the President does not need a declaration of war in order to commit the nation to armed conflict, but we must also find that without a declaration of war, the powers that the President has been claiming as Commander in Chief to authorize warrant-less wire taps, hold "enemy combatants" indefinitely, and so forth, are not permitted to him. Every time the President tells us "we are at war, and extraordinary measures are necessary", he is exceeding his authority, unless there is a declaration of war, according to Yoo's own analysis.

This line of reasoning finds it full conclusion in the following passage in the section where he analyzes the Constitution itself, which somehow the administration and the neo-cons don't seem to ever cite:

Textually, a declaration of war places the nation in a state of total war, which triggers enhanced powers on the part of the federal government

p. 151

A paragraph later, he expands on the type of enhanced powers that require a declaration of war.

Congress has recognized the distinction between declared total wars and nondeclared hostilities by providing the executive branch with expanded domestic powers—such as seizing foreign property, conducting warrantless surveillance, arresting enemy aliens, and taking control of transportation systems, to name a few—only when war is declared.

p. 151, (emphasis mine.)

Most remarkably, a few pages later, Yoo distinguishes the declaration of war from the "Authorization of the Use of Military Force" (AUMF) and other similar Congressional acts, when he writes:

With both Iraq and Afghanistan, a supporter of the Declare War Clause theory of war powers may well have felt the Constitution satisfied because of the two statutes authorizing hostilities—even though these scholars have never explained why authorizing statutes satisfy the requirement for a declaration of war.

p. 157

This is in very stark contrast with Yoo's own argument that "because the United States is at war with al Qaeda, the President possesses the constitutional authority as Commander-in-Chief to engage in warrantless surveillance of enemy activity." By his very definitions, this authority only applies in a declared war.

Conclusions

And so, we find that the very theories that John Yoo uses to argue for the strengthening the powers of the President, contain within them very powerful arguments against the way that the the Bush administration has exercised his supposed authority. Yoo, himself argues that the founding fathers wish to dilute the unitary nature of the executive by granting executive powers to the Senate, acting as an independent executive council, approving appointments and treaties.

More significantly, Yoo writes explicitly that the use of extraordinary war-time powers, such as warrantless surveillance require a declaration of war, and that the authorization of of military action in Afghanistan and Iraq does not qualify as a declaration of war.

If one of President Bush's own theoreticians and Justice Department appointments, a man credited with providing the foundation for doctrine of the unitary executive and the view of the President as wielding unenumerated executive powers, tells us that the founding fathers wish to dilute the unitary executive and that warrantless wire-tapping requires a declaration of war, how can we avoid drawing the conclusion Bush has exceeded his authority, violated the law, and violated the Constitution?

As ever, don't believe me. Investigte for yourself. Read the Constitution. Borrow Yoo's book from the library. (I find it hard to recommend buying it.) Peruse The Founders Constitution, an excellent collections of historical documents related to the Constitution. Read the "John Yoo says surveillance illegal" in the Daily Kos, for another conflict between his reasoning and administration practice.

Be the Voice of Liberty!
Cry Freedom! Uphold the Rule of Law!
To Be Continued...

I have been reading The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 by John Yoo, and my reactions to it are strong and complex enough that I've decided to critique it here on on Vox Libertas. This page is the first in a planned series. I have not finished reading the book yet, and so the course of this series is not planned out, but so far, I see three major classes of difficulty with the book. They are:

1. His assumptions about history and the state of the world today are wrong.
2. His arguments are fallacious, often based on cherry-picking his evidence to suit some agenda or preconceptions.
3. Even if you buy in to his reasoning and conclusions, the actions of the Bush administration are often in conflict with the results. 

Flawed From the Start

Yoo, himself, points out that his views are in sharp contrast with the prevailing views on the Constitution:

This book proposes a constitutional theory of the foreign affairs powers that differs, at times sharply, from the conventional academic wisdom but that describes more accurately the actual practice of the three branches of government.

p. viii

Others have also noticed this difference, but have a different explanation. See, for instance, Andrew Napolitano's book, Constitutional Chaos: What Happens When the Government Breaks Its Own Laws. Where Judge Napolitano sees the government breaking the law and violating the Constitution, and warns that we are becoming a government of men, and not laws, Yoo urges us to revise our understanding of the Constitution in light of what may appear to be unlawful practice. This difference is crucial and perhaps critical, and so Yoo's revisionist reasoning should be examined closely.

Yoo recounts some of the last two or three decades of political theory in the area of treaties and war powers, and contrasts the historical context in which they were written with what he sees as our current circumstance.

At the time such leading scholarly works as those mentioned above were written, the nature of war continued to be thought of as occurring solely between nation-states. The Persian Gulf War had just witnessed an American-led coalition's defeat of Iraq's grab for Kuwait—a traditional war over territory fought by the regular armed forces of nation-states. Nation-states were presumed to be both rational and susceptible to various levels of coercion, with force often being used only as a last resort.

p. ix

Thus, he claims, the theories of the day were based on this view of current events.

The disappearance of the threat of a war that could directly harm American national security allowed policymakers and intellectuals the luxury to envision a future in which they could reduce the overall level of armed conflict.

p. ix

Please notice that while this is possible, it should be remembered that Yoo himself is proposing that current practice should serve as a basis for political theory, and that his predecessors in general did not claim to work this way.

The Myth of Post-9/11

In his preface Yoo presents a view of recent history that will be familiar to anyone who has heard the Bush administration and their neo-con theoreticians defend their policies and actions:

The World after September 11, 2001, however, is very different. It is no longer clear that the United States must seek to reduced the amount of warfare, and it certainly is no longer clear that the constitutional system ought to be fixed so as to make it difficult to use force. Rather than disappearing from the world, the threat of war may well be increasing. Threats now come from at least three primary sources: the easy availability of the knowledge and technology to create weapons of mass destruction (WMD); the emergence of rogue nations; and the rise of international terrorism of the kind represented by the al Qaeda terrorist organization.

pp. ix-x

At the heart of this passage is the argument that three new developments provide us with justification for extreme actions and a change of course. Specifically, he cites:

1. availability of knowledge and technology for WMD
2. emergence of "rogue" nations
3. rise of international terrorism

Weapons of Mass Destruction in the hands of dangerous radicals are the reason given for the invasion of Iraq, for isolating the "Axis of Evil", and for finding ourselves on the brink of adding a third war to our collection in the Middle East. I go regularly to pray at the grave site of other soldiers sent on a similar mission more than two centuries ago. You see, Concord, Massachusetts is the next town over and at the Old North Bridge there is a memorial to the British soldiers who died there in the Battle of Concord. It starts,

They came 3000 miles and died to keep the past upon its throne.

Before 2001, I'd only been there a couple of times, but since going there in remembrance of the modern Minute Men who died on Flight 93, I return regularly, so the story of the Battle of Concord may well be more familiar to me than to many of you, my readers. Let me recap.

The British had heard that the colonial militia had canons, long arms, shot and gunpowder stored in Concord, and between 700 and 800 troops were sent out under the command of Lt. Col. Francis Smith to retrieve these weapons to prevent them from being used by radical insurgents who objected to the occupation of nearby Boston by British troops. By the time they arrived in Concord there were few weapons to be found, but they burned a few gun carriages on the common near the meeting house. The militiamen gathered nearby saw the smoke and charged the British troops that were stationed near the North Bridge. They outnumbered the British more than 4-to-1, and the Red Coats took their first fatalities, the aforementioned soldiers whose memorial is there today.

The British withdrew, and were joined by a slightly smaller force, and though they now numbered about 1300, the militias grew even faster and the British routed and retreated to Boston. The militias gathering around the city turned into the Siege of Boston, which turned into the American War of Independence, which was the first of a number of secessionist wars that resulted in the collapse of the British Empire, the first power upon whom the sun never set.

The point of recounting that bit of history is that fear of dangerous weapons of war, and mass destruction is not new. Ah, but you say, cannons and gunpowder are not weapons of mass destruction of the calibre that we face today. That is true, but they were serious enough to threaten the largest cities of the day and cause sufficient destruction to threaten a city or a nation's economy.

And they were not the only WMDs. Think of the smallpox-infected blankets used in the Siege of Fort Pitt. Think of the terror of mustard gas in The Great War—WWI. Recall, if you will, that when we speak of Saddam using WMDs, mustard gas was what he used on the Kurds and the Iranians. The same WMD used by the Germans on Canadians 90 years ago.

Every era has its terror weapons, in the light of which all that came before always seem like child's play. Familiarity breeds contempt. New technology is scary.

The Emergence of Rogue Nations is no more a new thing than WMDs, or the dangers of new technology and knowledge. Take, for instance the so-called "Barbary States", home of the Turkish Corsairs or "Barbary Pirates", the area the Islamic world calls the Maghreb. From the Western perspective, this area has long been ruled by strongmen and pirates since the days of the Crusades, much of the time under the aegis of the Ottoman Empire, financed by tribute, ransom, slavery and plunder.

(Note that all of the European powers also commissioned privateers, and that the early economy of the United States was closely tied to slavery, and that the people of North Africa and the Middle East, like my celtic ancestors are a tribal people, basing their power structures on familial ties rather than territory and lines on maps.)

To the extent that the term "rogue nation" means anything it means outlaw nations that don't obey what we recognize as the civilized international law. Besides the Barbary States of the Maghreb which the US has fought since it gained its independence from England (see the "Shores of Tripoli" reference in the marine hymn), our early history with the French and "their" indians (not to be confused with "our indians" who harassed the French, and the demonized "wild indians" of the American West), is full of nations that fit that definition. And just as the indians learned to scalp their enemies from Europeans, it was after all, the US that helped build the Afghani Mujahideen up to fight the Russians.

No, the United States has dealt with deadly enemies whose culture was way outside of our notion of civilized international relationships since before the country was founded. Which brings us to the terrorist threat.

International Terrorism isn't a new development in the world, nor unfamiliar to Americans.

I've already mentioned the "French and Indian War", but conflict between the French and British colonies, was much longer lived than that one war. Both sides harassed the other through their surrogate allied native tribes. As mentioned above, one of the things the European powers taught their Indian clients was the taking of scalps to as proof for the awarding of bounties. Beyond scalping, fire and kidnapping were frequent tactics in the guerilla and terrorist struggle along the colonial boundaries.

As the conflict turned from British vs French to colonist/Americans vs Indians, the intentional depletion of game animals, disease infected blankets and the distribution of addictive drugs in the form of alcohol were added to the repertoire of terrorist tactics. Make no mistake about it, early American history involved terrorism and state-sponsored terrorism. Biological weapons and a drug trade in the hands of terrorists were all known, and practiced by the British, French, Native Americans and the United States.

Although Yoo doesn't explicitly mention "Ethnic Cleansing" among his list of modern ailments, it is worth considering that the New World knew it not only in the treatment of Native Americans, but also in the form of the expulsion of the Acadians from Nova Scotia to, among other places, New Orleans, where we know them as the "cajuns". And speaking of New Orleans, there was also piracy and privateering familiar to the denizens of New Orleans and those along the Anglo/Spanish frontiers.

Returning to terrorism, and moving on to the 19th century there was the wave of revolutions that swept through Europe in the 1840s. In America, we had Bloody Kansas leading up to the Civil War, and during it, the guerilla warfare of Quantrell and Bloody Bill Anderson, and Sherman's march to the sea, all of which could legitimately be described as terrorism, at least by those on the receiving end. Anarchist terrorism grew through the last decades of the 19th century and into the 20th, where, it was the spark that ignited World War I, with the assassination of Archduke Franz Ferdinand of Austria.

It makes great propaganda to talk about how "the whole world changed" after 9/11, but it does not accurately reflect history or the American experience. We may have had a few illusions dispelled, but WMDs, rogue nations, international and state-sponsored terrorism are all familiar, or should be, to Americans with any historical perspective.

And Flawed to Its Heart

This historical weakness, unfortunately, strikes to the very heart of Yoo's book because one of its main thrusts is to use history as a basis for his constitutional theory. For his theory to be sound, the understanding of history upon which it based must be sound.

Yoo's claims that everything has changed after 9/11 are, however, not historically sound, and that he makes them in the introduction to what is presented as a scholarly reconsideration of fundamental Constitutional issues, raises the question of where they come from. Some of the possibilities are:

• He is terribly misinformed.
• He has gotten swept up in the popular mythology.
• He is blinded by his own biases and preconceptions.
• He is cherry picking his facts to suit his theory.
• He is intentionally misleading us to sell his theory.

Any of these weaken the book. The later ones carry more blame, and given that he contributes substantially to the Bush Administration's theoretical basis for strengthening the centralized authority of the Presidency, give us good reason to be wary.

In the historical chapters that follow, Yoo appears to be cherry picking his history, to be seeking out those pieces that suit his theory, so perhaps that's what is happening here. Perhaps he is just blinded by his assumptions, biases and loyalty to the President.

Several of Yoo's claims make assumptions that he does little to prove,

These new threats to American national security, driven by changes in the international environment, should change the way we think about the relationship between the process and substance of the warmaking system....

If, however, the nature and level of threats are increasing and military force unfortunately remains the most effective means for responding to those threats, then it makes little sense to commit our political system to a single method for making war.

p. x, (emphasis mine.)

I have already provided numerous counter examples to his claimed new types of threats are emerging or increasing. The new claim that he interjects in these passages that military force is the most effective response to these threats, is also unsubstantiated, and should be questioned. It is, for instance, that US military forces has been entirely effective in Iraq.

As ever, don't believe me. Study history yourself. Check out The Powers of War and Peace from the library. If the book is too long for you, sample the memoranda he wrote as part of the Bush Administration. There are examples available at the DoJ and FindLaw. An interview with Yoo at the University of Chicago, includes both comments and quoted passages. The Harvard Law Review includes it in a broad review of 4 books. The Founders Constitution is an excellent collections of historical documents related to the Constitution.

Be the Voice of Liberty!
To Be Continued...

It's been a while since I posted to Vox Libertas. Most of that time has been spent reading and watching  congressional hearings and small symposiums. This posting will attempt to pull together some of what I've learned and to point out both specific and general sources that I think will be of interest and use to you, dear readers.

Ambassador Freeman Tells It Like It Is

Perhaps the strongest piece I read was a speech made by retired ambassador, Charles W. Freeman, Jr. to a gathering of DACOR (Diplomats and Consular Officers, Retired). The speech is long and rich, as you might expect when a highly skilled and experienced diplomat addresses his peers. I will therefore excerpt and summarize, but please read the whole thing. It is available at the Middle East Policy Council web site. Freeman was Reagan's translator on his trip to China and the ambassador to Saudi Arabia during the Gulf War, among other things. He has served in China, India, Thailand, Africa, the Middle East and Europe.

The man clearly loves the country he has served so well, and after a glowing summary of our successes and contributions to world civilization in the 20th century, he says baldly,

Since 9/11 Americans have chosen to stake our domestic tranquility and the preservation of our liberties on our ability – under our commander-in-chief – to rule the world by force of arms rather than to lead, as we had in the past, by the force of our example or our arguments. And we appear to have decided that it is necessary to destroy our constitutional practices and civil liberties in order to save them.

He then, quickly summarizes the same Robert Harris account (see "The 'war on terror' that ruined Rome" in the Herald Tribune) of the beginning of the end of the Roman Republic that inspired some of my rhetoric in The Real Tragedy of 21st Century America. The parallels between Rome's reaction to piracy and kidnapping in Ostia in 68 BC, which ultimately led to the Republic falling into Empire, and our reaction to 9/11 is a sobering cautionary tale.

From the first few seconds that I heard George W. Bush speak, long before I knew what his politics were, I was dead set against the man for the simple reason that he set off the "Beware! Lying arrogant bully!" alarm that a childhood featuring broken bones developed in me. Thus, Freeman's comment that

There has been little room for such measures – for diplomacy – in the coercive and militaristic approach we have recently applied to our foreign relations. Much of the world now sees us as its greatest bully, not its greatest hope.... Thus, the neglect of both common courtesy and diplomacy fosters violent opposition to our global preeminence in the form of terrorism, nuclear proliferation, and war.

struck a particularly painful cord with me. He goes on to point out with clarity how little the current administration and the public that they mislead understand war or diplomacy:

The common view in our country that diplomacy halts when war begins is thus worse than wrong; it is catastrophically misguided. Diplomacy and war are not alternatives; they are essential partners. Diplomacy unbacked by force can be ineffectual, but force unassisted by diplomacy is almost invariably unproductive.

He's too wise to use dreaded "died in vain" phrase, but he does point out how the lives of our troops are doing little to actually achieve our national priorities and why,

Every death or crippling of an American on the battlefields of the Middle East is a poignant reminder that, in the absence of diplomacy, the sacrifices of our soldiers, sailors, airmen, and marines, however heroic, can neither yield victory nor sustain hegemony for the United States. A diplomatic strategy is needed to give our military operations persuasive political purposes, to aggregate the power of allies to our cause, to transform our battlefield successes into peace, and to reconcile the defeated to their humiliation.

He moves through a laundry list of our foolish and dangerous military and diplomatic mistakes and takes us from the devaluing of our diplomatic currency to the weakening of the power, respect and desirability of our actual currency, the dollar and the devastating impact that that can have on our mortgaged future.

He ends with a list of principles which should guide us in recovering our nation. His full text is very well worth reading, but here I have summarized, taking just the first sentence or two from each point:

First, an America driven by dread and delusion into the construction of a garrison state, ruled by a presidency claiming inherent powers rather than by our constitution and our laws, is an America that can be counted upon to respect neither the freedoms of its own people nor those of others.

Second, it is time to recognize that freedom spreads by example and a helping hand to those who seek it. It cannot be imposed on others by coercive means, no matter how much shock and awe these elicit.

Third, credibility is not enhanced by persistence in counterproductive policies, no matter how much one has already invested in them. The reinforcement of failure is a poor substitute for its correction. Doing more of the same does not make bad strategy sound or snatch successful outcomes from wars of attrition.

Fourth, we must recover the habit of listening and curb our propensity to harangue. We might, in fact, consider a war on arrogance to complement our war on terror.

And finally, he exhorts us to change with the following,

Guantánamo, AbuGhraib, the thuggish kidnappings of "extraordinary rendition," the Jersey barrier, and an exceptional aptitude for electronic eavesdropping cannot be allowed permanently to displace the Statue of Liberty and a reputation for aspiration to higher standards as the symbols of America to the world. To regain both our self-respect and our power to persuade rather than coerce the world, we must restore our aspiration to distinguish our country not by the might of its armed forces but by its civility and devotion to liberty. The best way to assure the power to cope with emergencies is to refrain from the abuse of power in ordinary times.

But please don't trust my poor powers of summary and explanation. Please, read the words of this man who has so long and so capably served our country, who knows the arts of diplomacy, law and governance so much better than our current leaders. And then talk to your friends and family. Get out the word and save the Republic.

JAGs Judge the Military Commissions

In the Jurist, University of Pittsburgh's on-line law journal, two retired lawyers  from  the Judge Advocate General's corps, now law professors, wrote an analysis entitled "Military Commissions: War Crimes Courts or Tribunals of Convenience?". This article is shorter than Freeman's, and more focused, but still strikes at the heart of what's going wrong in this country. Geoffrey Corn served as a tactical intelligence officer, chief prosecutor and finally the Special Assistant for Law of War Matters to the U.S. Army Judge Advocate General, and so is highly qualified to address the issues raised by the MCA and the Manual for Military Commissions. He and Prof. Hansen specifically address the following question:

What is the purpose of creating these tribunals? Are they intended to serve the legitimate purpose of leveraging the unique competence of the profession of arms to sit in judgment of alleged violations of the laws of war? Or are they intended to serve the much less credible purposes of simply providing a more “convenient” forum to adjudicate crimes that do not fall into this category, or even worse did not even exist when the commissions were created?

and come to a very unfortunate conclusion.

They start by citing the MCA's own declared purpose: to “codify offenses that have traditionally been triable by military commissions” and contrast that  with the actual offenses enumerated and how they differ from those in the Uniform Code of Military Justice, the Manual for Courts-Martial and the international law of war. While it is worthwhile reading their analysis, one example in the simplest of terms will illustrate.

One of the crimes  explicitly punishable by death is the intentional killing of a "protected person". The way that the new Manual for Military Commissions differs from the UCMJ, MCM  and international law is that whereas they require proof that the defendant knew that the victim was a a protected person (innocent civilian, basically) the new manual merely requires that he "should have known". This raises negligence rather than actual intent to the level of capital crime.

The conclusion of their article reads:

The nature of the offenses established by the MCA and the apparent use of the MMC to modify the nature of these offenses is both telling and troubling. By disconnecting the realm of available offenses from a solid mooring to the laws of war, the military commissions are invariably disconnected from the pragmatic foundation that has historically justified such tribunals. No matter what procedural changes may have been implemented by the MCA, this most fundamental question about the legitimacy of these tribunals will persist until the charges genuinely reflect that law from which the authority for such tribunals is derived. Until then the military commissions will be rightly viewed as a tribunal implemented for the convenience of the government.

This is a stinging indictment of the purposes of the MCA, its military commissions and manual, made not by liberal civilians, but ny experience JAG lawyers, one of whom was the Corp's expert on the Law of War. Again, read their article, tell your family and friends.

The MCA and Habeas Corpus

An interesting contrast of opinions can be seen by comparing another Jurist article and one that appeared in the Writ, with a recent discussion held at the Duke University Law School of the outstanding legal issues arising from the MCA.

In her article "Why Boumediene Was Wrongly Decided", Marjorie Cohn concludes that the recent ruling by the DC Circuit Court of Appeals upholding the stripping of habeas corpus under the MCA was erroneous and is likely to be overturned by the US Supreme Court. She bases this on specific Supreme Court case law. The two main grounds are that the Court has indicated that the US has sole jurisdiction over Gitmo, and the Combatant Status Review Tribunals and other MCA processes are not an adequate substitute for habeas corpus, as demanded by existing precedent.

In contrast, the participants in the February 12 Duke discussion "The Military Commissions Act of 2006: Outstanding Legal Issues", which is available on video, and audio versions, seem a lot less certain that the MCA will be overturned, given the complexity of the issues and Congress's fairly obvious intent in its passage. The video is well worth watching and is moderately clear and accessible. The discussion took place before the DC court ruled on
Boumediene, but their analysis does not seem to preclude much of the reasoning of the Court. One panelist suggests that the ultimate decision on the applicability of Constitutional protections at Gitmo will depend on how Justice Kennedy, as the swing vote reasons, when the cases get to the Supreme Court.

Even more recently, Michael Dorf has stepped into the question in a commentary in The Writ. Like Prof. Cohn, and the Duke participants, Dorf says that it is up to the Supreme Court to determine the extent of habeas corpus. He is less certain of the outcome but offers substantial reasoning as to why he hopes that they will finally address the core Constitutional issues and do so in light of modern circumstances and law. He says,

Those who favor reading the Constitution to mean exactly what it was generally understood to mean at its adoption frequently complain that, if judges depart from the original understanding, then they have no fixed standard by which to ascertain constitutional meaning. The charge, however, is doubly misleading.

First, as the disagreement in Boumediene itself illustrates, discerning guidance for modern controversies from Eighteenth Century sources that were contested even in their day, is hardly a determinate exercise that leads to a single incontrovertible result. Second, one can find functional guideposts for modern understandings that also effectively constrain conscientious judges' decisionmaking.

Collectively, these three sources provide an excellent understanding of the issues that Freeman so passionately tells us is of vital importance. They can be a bit challenging at times, but are well worth the attention of the informed citizen, and if we are not going to just allow politicians with increasingly unlimited power to make all our decsions for us, we must become well informed.

General References

I often urge Vox Libertas readers not to believe me, but to inform themselves. Let me suggest here a couple of resources that I find very helpful in this:

• The Jurist, The University of Pittsburgh's on-line legal journal and news feed. Specific resources there include:
• The Jurist Forum, op-ed pieces by law professors and Jurist editors
• Paper Chase - "Serious law. Primary sources. Global perspective".
  
• The FindLaw site, including:
  
• FindLaw News, legal news in their "for legal professionals" section.
  
• The Writ, FindLaw's on-line legal journal, with excellent commentaries, and a discussion forum.
• FindLaws' Annotated Constitution - The full text, with copious commentary and references
  
• The Founders Constitution, an excellent collection of the historical documents that informed the decisions of the authors of the Constitution and shed light on their reasoning.
• Thomas, the Library of Congress's searchable database which contains the text of bills and resolutions and their history as they move through Congress.
• The White House's news page – the full text of all the Decider's signing statements and press releases, videos of many of his speeches and appearances. One way or the other, an important site.
  

Keep informed. Discuss the issues with family and friends. Be the Voice of Liberty.

We often hear the 9/11 attacks, especially on the World Trade Center described as a tragedy, and for the families and friends of those killed, it was tragic. My heart ached watching the events unfold that day, and I can only imagine the impact that it had on folks whose family members were on those planes and in those buildings.

In another sense, though, it was not a "tragedy" in the classical sense of the term. Tragedy is a form of drama in which the great are brought to ruin through the workings of their own actions and folly, and while America is one of the world's and history's great powers, the attack of 9/11 was not our downfall, nor really brought on by our own actions or hubris.  And in fact, on that day Americans demonstrated to the world some of our finest qualities.

The FDNY, police and other first responders reacted professionally and heroically. Many doctors and ordinary citizens seeing their fellows in difficulty, ran towards the danger to help. On flight 93, a group of common citizens gathered together, took a vote and decided to fight back, which we can only believe resulted in the downing of flight 93 before it could be used as a weapon against another target. Those passengers, like the Minutemen in Concord, represent the Militia of the United States, and they did what citizens of almost no other country in the history of the world do in the face of an emergency—vote and then defend themselves. The employees of Cantor Fitzgerald, carried on after suffering 2/3s casualties and reopened the bond market, again after a vote. Military organizations that take 2/3 losses seldom carry on as well. Brokers don't expect to take any losses. Thousands and thousands of people walked calmly out of the city across the bridges, without the panic we expect and see in fiction. No, America was heroic and did not fall that day.

But the events of that day are being used in the years following to bring upon a true American tragedy, the fall of the world's greatest democratic republic due to her own foolishness and actions. In the years following the heroism and victories of 9/11, we have perpetrated terrorism on ourselves, frightening—terrifying—ourselves with the specter of foreign and alien terrorists as if they could actually destroy the greatest nation on earth. And we have been destroying that nation by surrendering our most valued possessions, our freedom and the rule of law, in the name of security. And if we let this continue, the great will fall as a result of our own actions, our own flaws, our own foolishness—classic tragedy in the true sense of the word.

Three weeks after 9/11, I wrote a web page venting my anger at the portrayal of 9//11 as an American defeat (see "9-11: America Victorious"). Now, I find that I am even angrier, angry that we are working so hard to turn victory into defeat, defeat in the name of "victory" in a tragic war, defeat in revenge for a supposed "defeat" that was actually a victory, defeat caused by surrender, surrendering liberty for temporary security.

This blog is intended to not only vent that anger, but to help correct the misperceptions, the doublespeak, the lies and to fend off this entirely senseless tragedy. Join me. Cry 'Freedom". Be the Voice of Liberty.

JimB.

Whether you read it as "The Voice of Freedom" or "Cry Freedom" (which makes me want to call out "Cry 'Freedom!' and let slip the Rule of Law!"), Vox Libertas is my new blog dedicated to the issue of protecting our Republic and the freedom and principles upon which it is based.

The road to this blog started back in September when the Military Commissions Act was passed, restricting the right of habeas corpus on the same day that I found out my job was one of the many being "downsized". As I reflected on the two events, I realized that I was far more concerned about habeas corpus than my own career, which made me rethink a lot of things about my life, politics, activism and the state of our Republic. Since then, I've been doing a lot of reading, researching and networking, all with eye towards doing something about rolling back some of the damage that has been done to our country and its principles.

For the last couple of months, I've only been writing here for my friends and family. Now, I intend to start writing publicly and more regularly. I hope that you will join me here, commenting and contributing. Even more, I hope you'll take some sort of action. Register to vote, if you haven't. Get your friends and family to register. Support candidates. Write your senators and representatives. Attend public hearings and town meetings. Study history, our Constitution and the daily news. Talk with friends and family.

JimB.