Mr. White House Counsel, meet the Constitution

SFGate.com ^ | September 10, 2002 | David R. Henderson

[Boonie Rat]

I teach at the Naval Postgraduate School in Monterey, meaning that I instruct young military officers who are generally smart, hard working and curious.

On Aug. 27, I realized that I might well have one of the best jobs in America. That afternoon, the school's guest speaker was President Bush's White House counsel, Alberto Gonzalez, widely believed to be on the short list for the next Supreme Court appointment. What happened spoke volumes, not just about Gonzalez and his likely positions on the Constitution, but also about the students at the Naval Postgraduate School.

[mrsmith]

"It was establish back in the Washington administration that war could not be waged on an Indian tribe without a declaration from Congress. "

Yes, a declaration of war much like the declaration of war that was passed for the Gulf War or the declaration of war passed after 9/11:

"Sen. Journal--FRIDAY, NOVEMBER 9, 1792
...we shall nevertheless concur in every necessary preparation for the alternative; and, should the Indians on either side of the Ohio persist in their hostilities, fidelity to the Union, as well as affection for our fellow-citizens on the frontiers, will insure our decided co-operation in every measure which shall be deemed requisite for their protection and safety..."

Washington sent an army under Hamar against the indians without consultation, then he sent an army under St Cyr with consultation, and then he sent "Mad" Wayne against them under the above authorization- which was only from the Senate BTW, though backed budgetarially by the House.

The war on terror is much like the Indian conflicts.
There is a lot we can learn from them about how the Founders would view our war- though we have to be very careful in drawing conclusions.

[Viva Le Dissention]

They might be able to go to the law library, but it takes training in order to be able to read and interpret the law properly. The untrained layman simply doesn't have the knowledge to do it.

I can read books on building tall buildings, but does that mean I'm qualified to be the chief engineer for a skyscraper in Manhattan?

I can read all sorts of technical information on the human brain, but does that mean I'm fit to be the head brain surgeon at the largest hospital in the country?

[Viva Le Dissention]

It might well be a very selective tidbit, but I can read what the government is saying. People are welcome to read the case and judge for themselves, but I think the government's position, unequivocaly, is that the court can't second guess. It outright says it in the quote from the brief above, and I think it all but outright says it in your previous quote.

I might have selectively pulled a quote from the brief, but it wasn't out of context and it directly addressed the situation at hand.

[Khepera]

We, as lawyers are all well grounded in the Constitution.

What about lawyers who don't understand the second amendment or even the first? What about the judges who have shredded the constitution aren't they lawyers too?

I say lawyers don't know shit!

[j271]

IMO, that's the problem with legal elitism.

Lawyers make the law increasingly complex and arcane until no average citizen ever has a hope of properly understanding it.

But if we are to accept the premise that the law is intended to be a guideline for citizens as to what is or is not acceptable behavior, then it is fundamentally illogical to make the law incomprehensible to the very same citizens.

The unfortunate effect is that law is corrupted from its original purpose and becomes the tool used by a small minority -- lawyers -- to oppress the rest of society for their own benefit.

[Tauzero]

Excellent point.

[Hemingway's Ghost]

BUMP.

[inquest]

First of all, that quote looked very much to me like a simple promise of cooperation on the part of the Senate, not an authorization for anyone to do anything. Secondly, and more importantly, it didn't delegate to the President the power to determine whom we should be at war with, and when to initiate it, as the 9/11 resolution (unconstitutionally, IMO) does.

[hflynn]

No it's not.

Yes it is. Do you see the words "he determines"?

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized , committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

It's quite sickening. Unless you're planning for Bush to be POTUS for life, . . . .

Nowhere in the resolution did Congress, in it's infinite wisdom, say "Bush".

. . . expect the definition of 'terrorist' to change. With that worthless resolution we'll be at war for years.

Congress again, in it infinite wisdom, defined the parameters of the President's discretion by defining "terrorist".

The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized , committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

With that worthless resolution we'll be at war for years.

Very good!. I think your beginning to understand what Congress has authorized.

[billbears]

Very good!. I think your beginning to understand what Congress has authorized.

I see exactly what Congress has authorized. A never ending war against enemies of whose exact origin is determined at the whim of the sitting President. Today, Muslims. 2008 when Hillary or someone like her gets into office it could very well be those 'homegrown terrorists'. You know. Conservative Christians and strict Constitutionalists

[hflynn]

I don't think you have read Joint Resolution 23. All of your questions are answered within it.

It is quite clear that Congress has given the President carte blanche (Unrestricted power to act at one's own discretion). Joint Resolution 23 was a declaration of war. Again, read it.

The best thing of it all is that Congress understands what you don't. The President now has congressional authorization to do anything he desires regarding terrorism which is why they are trying to take the authorization back without a congressional vote witnessed by their constituents.

[hflynn]

I see exactly what Congress has authorized. A never ending war against enemies of whose exact origin is determined at the whim of the sitting President.

Very good. Congress authorized the war. Article 1 Section 8 has been complied with by the President.

[billbears]

That's just what a liberal does. Twist the words of the Constitution to fit their needs. You very well know the 'intent' behind those words as well. Not to be a conquest tour of the world, which is exactly what this openended resolution covers.

[hflynn]

That's just what a liberal does. Twist the words of the Constitution to fit their needs. You very well know the 'intent' behind those words as well. Not to be a conquest tour of the world, which is exactly what this openended resolution covers.

I'm sorry. When you said Congress authorized the war I concluded that you were saying Article 1 Section 8 was complied with by Congress and the President. Did I get that wrong? Congress authorizing a war does not = Article 1 Section 8 compliance!

Well billbears it really doesn't matter because the SPECIFIC STATUTORY AUTHORIZATION cited in Joint Resolution 23 wasn't Article 1 Section 8.

[billbears]

Well billbears it really doesn't matter because the SPECIFIC STATUTORY AUTHORIZATION cited in Joint Resolution 23 wasn't Article 1 Section 8.

Which means that Bush has no right under the Constitution to declare war without SPECIFIC CONGRESSIONAL APPROVAL to attack Iraq.

[hflynn]

Which means that Bush has no right under the Constitution to declare war without SPECIFIC CONGRESSIONAL APPROVAL to attack Iraq.

. You really don't get it after all, do you billbears. The United States Congress has declared war, not the President.

The President was given SPECIFIC CONGRESSIONAL APPROVAL by Congress when they passed Congressional Joint Resolution 23 (which I recommend that any constitutional expert, such as yourself, read before offering your totally erroneous expert opinion) duly signed by the Speaker of the House of Representatives, the Vice President of the United States and President of the Senate, to

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized , committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

You see billbears it is really very simple, the term "those nations" would include Iraq if the President so determines. I beleive the President has so determined and you will agree shortly, since the bombs will be dropping quite soon.

[VA Advogado]

You sound like a very poorly schooled congressional apologist. Perhaps you need to have someone read to you the delaration the congress passed exactly one year ago. Thats all he needs bucko. Stick that constitution back in your pocket and go to law school before you try to play supreme court justice again.

[lewislynn]

They might be able to go to the law library, but it takes training in order to be able to read and interpret the law properly. ....Like Roe VS Wade for example?

"Interpret the law properly" doesn't explain 10 different interpretations from 10 different lawyers/judges.

The untrained layman simply doesn't have the knowledge to do it.

Don't flatter yourself, we may lack the training but we have the knowledge.

[billbears]

You see billbears it is really very simple, the term "those nations" would include Iraq if the President so determines

Yes hflynn it is quite simple. So simple a blind man could see, but yet you refuse. A declaration of war requires an enemy. 'Those nations' are not an enemy. They're a set of nations to be determined at a later date as defined by the sitting President of these United States. Wars have endings. There is a set goal to be completed. Hell, with that kind of mandate the President will NEVER have to go to Congress again to declare war. All he or she will have to do is say, 'well they're terrorists because I say they are and somehow I can tie them to 9/11' and declare war on half the world if they so chose. According to THAT resolution, a state of war now officially exists with 1/3 of the world with more to be added!! Surely you're not suggesting Congress meant for that to happen are you? This 'resolution' that you so preciously waive DOES NOT trump the Constitution of these United States

If I were you (being the expert on 'living breathing documents' that you so readily show yourself to be), I suggest you go read the INTENT behind the words as outlined in the Federalist Papers among other places. The document means what it says.

[hflynn]

This 'resolution' that you so preciously waive DOES NOT trump the Constitution of these United States

LOL! Your right it doesn't trump the Constitution of the these United States it merely adheres precisely to the rules spelled out by the Constitution.

The resolution was proposed by the people empowered by the Constitution to make said proposals. It was then voted on by the people empowered by the Constitution to vote on such a proposal. The bombs will be falling shortly in a very constitutional manner (that's to the right).

PS - Read the damn JR 23 because it is patently obvious you still have not done so.