In the
run-up to the invasion of Iraq, Congress's abdication of perhaps its most
important constitutional role was so pathetic that all but a handful of U.S.
Senators (including our present Secretary of State) didn't even bother to walk
to a secure room in the Capitol Building to read a National Intelligence
Estimate, which made clear, contrary to what President Bush and his
administration were telling us, that much of the U.S. intelligence community
disagreed with claims about Iraq developing a nuclear capability and about its
possession of weapons of mass destruction.
In fact, just a few months before 9/11, Condoleezza Rice and Colin
Powell independently stated that, following the first Gulf war, Iraq's weapons
had been destroyed, it had not re-armed, and it didn't even pose a danger to
its neighbors. Senator Bob Graham, who
urged his colleagues to read the National Intelligence Estimate, went so far as
to warn, correctly, that the security of the people of the United States would
be put at great risk if we attacked Iraq, saying to his colleagues that, if
they voted to allow the president to make the decision to go to war, blood
would be on their hands.
More than a
million innocent Iraqis killed, more seriously injured, and vast hatred and
hostility generated throughout the Muslim world toward the United States,
making us much less safe for generations to come -- all on the basis of
lies. Had Congress done its fact-finding
job and met its constitutional responsibility to determine for itself if war
against Iraq was justified, none of it would ever have happened.
Several
presidents since Truman have unconstitutionally made war against other nations,
and several Congresses have unconstitutionally sought to delegate their war
decision-making power to the president.
So where have the courts been to make certain that the War Power
Clause of the Constitution is followed?
That is, after all, how our constitutional system of checks and balances
is supposed to work.
The sad
answer that strikes at the heart of our Constitution is that the courts have
checked out, making excuses for dodging the question, most often in the form of
the court-made "political question" doctrine. The Congress and President both violate the
Constitution -- and the courts say, "Sorry, it's a political question and
we can't -- or, rather, won't -- do anything about it." In other words, the War Power Clause
essentially has been ripped out of our Constitution -- leading to the
incredibly dangerous point where one person -- the President -- can make the
decision as to whether our nation goes to war.
That takes us one giant step closer to the tyranny our Founders sought
to prevent.
* * * *
Our nation's
proud tradition has been that we do not torture -- and we do not permit
torture. George Washington ordered his
troops to refrain from torturing British soldiers, even when the British were
committing such atrocities against colonial soldiers. The Lieber Code forbade torture during the
Civil War. The U.S. has court-martialed
our own servicemen for torturing, including water boarding -- during the 1900
conflict in the Philippines and during the Vietnam War. Numerous high-ranking members of the
military, including Utah's own Brig. Gen. (ret'd) David Irvine, have uniformly
called for enforcement of the absolute prohibition against torture, arguing
persuasively that torture is productive of misinformation because torture
victims will say anything in order to avoid further torture; it creates far
more hatred and more enemies; and it creates a more dangerous situation for our
own servicemen and servicewomen. Also,
of course, it is fundamentally immoral, blatantly illegal, under both
international and domestic law, and dehumanizing and demoralizing to those who
engage in the torture.
We know now
that President Bush and others in his administration authorized the use of
torture. Unbeknownst to us at the time,
on the day before President Bush was at the Opening Ceremony for the 2002 Salt
Lake Winter Olympic Games, he signed a memorandum stating, directly contrary to
what the Supreme Court later ruled, that the Geneva Convention protections
against torture would not apply to people detained in the so-called war
on terror. His authorization of torture,
and the authorization by others in his administration of torture, constitute war
crimes, under the Geneva Conventions and the Convention Against Torture, as
well as under laws passed by Congress, including the War Crimes Act of 1996 and
the federal anti-torture statute.
When
President Obama said concerning those war crimes -- and about the federal
felonies committed by those who engaged in warrantless surveillance of
Americans' communications -- that there should be no accountability for the
crimes because, in his words, we should look forward and not back, he
dangerously contributed to the further deterioration of the rule of law in our
nation. His virtual granting of
immunity, notwithstanding the requirement in the Convention Against Torture
that all signatories must prosecute torture as they do other serious offenses,
is completely contrary to all applicable laws -- and characteristic of a
dictator who believes that he is the law. It is another major ratcheting up of the
imperial presidency -- and another momentous degradation of the rule of law and
our constitutional system, in which the president and other members of the
Executive Branch are to be constrained by the law and by the other two branches
of our government. That
evisceration of the rule of law by President Obama and a Congress that has
timidly fallen in line with the assertion by the Bush and Abama administrations
of unprecedented executive powers take us one more giant step closer to the
tyranny our Founders sought to prevent.
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