Schlesinger v. Yoo

{1} “The nineteenth-century philosopher and theologian Ludwig Feuerbach – known for his influence on Karl Marx – proposed that the distinction of humans is recognition of ourselves as a species. But many animals readily distinguish members of their own species from members of all others – for example, through olfactory cues. And humans are notable for demonizing members of their own species, declaring them less than human, to disinhibit sanctions on murder – especially during wartime.”
Carl Sagan & Ann Druyan; Shadows of Forgotten Ancestors: A Search for Who We Are; Random House; 1992; page 372.

The United States' role in the warfare in Libya is being heatedly debated in numerous arenas, including on the Democratic Underground. I have purposely avoided participating in the arguments here, for a variety of reasons. In part, my decision was based upon the high degree of emotion that saturate the threads on the war, including questions regarding the manner in which President Barack Obama has handled the situation.

However, due to the amount of misinformation that I've seen, I want to take a moment to add my two cents. I do so, recognizing that my opinion will not sway a single forum member, but hoping that I might clarify a couple of issues. The more accurate information we have available, the better we might frame our points of view. And the better we do that, the less need there is for purely emotional, angry, and acrimonious posts that question others' motives or values.

An example of the lowest, most base form of argument can be found, for example, in accusing those opposed to US intervention of being supporters of Muammar al-Gaddafi. This type of nonsense can, of course, be used by advocates of either position.

A better level of debate involves issues such as the laws of our land, rooted in the Constitution, which apply to the process in which our nation might become involved in a war. Obviously, there are other vital topics which are worthy of our consideration. I am going to focus on the Constitution and constitutional law, as I believe that it offers us not only the best avenue for considering what route we should take, but more, because it offers a framework that – were we to hold fast to it – can allow us to create a civil society. That seems a better option than the lawlessness and dehumanization that has too often been central to our country's involvement in warfare since WW2.


{2} “This book consequently devotes special attention to the history of the war-making power. The assumption of that power by the Presidency was gradual and usually under the demand or pretext of emergency. It was as much a matter of congressional abdication as of presidential usurpation. As it took place, there dwindled away checks, both written and unwritten, that had long held the Presidency under control. The written checks were in the Constitution. The unwritten checks were in the forces and institutions a President once had to take into practical account before he made decisions of war and peace – the cabinet and executive branch itself, the Congress, the judiciary, the press, public opinion at home and the opinion of the world. By the early 1970s the American President had become on issues of war and peace the most absolute monarch (with the possible exception of Mao Tse-tung of China) among the great powers of the world.”
Arthur Schlesinger, Jr.; The Imperial Presidency; Houghton Mifflin Company; 1973; page ix.

In 1951, after republican Senator Robert Taft stated that President Truman's deploying US troops into war without Congressional approval violated the Constitution and accepted tradition, Schlesinger was among the Democrats who dismissed Taft's positions. Two decades later, Schlesinger would be the only one of those people to publicly admit his error. He followed that up with his classic book which documents the dangerous path towards an “imperial presidency” – a route that involved both Democratic and Republican Presidents, and which always involved our nation becoming involved in a non-defensive war.

One year after his book's publication, the Congress passed the “Joint Resolution Concerning the War Powers of Congress and the President.” I've found it interesting that a number of people, both for and against US military involvement in Libya, have spoken about how the “War Powers Act” of 1973 supports their position on President Obama's actions. In fact, there have been two “War Powers Acts” passed by the US Congress; neither were in 1973. Readers of Schlesinger's book know that; I count it as one of the facts that assists us in a proper understanding of current events. For if history is to be of any value, it cannot be a shopping list of unconnected events. Rather, much as Carl Sagan connected numerous scientific concepts to bring about a higher level of understanding in his class rooms, as students of political history, we benefit from doing the same.

The 1973 act is properly known as the “War Powers Resolution.” We have all seen or heard people quoting small sections of it, to boost their position. It definitely does allow a President to commit US troops in some situations, before getting Congressional approval. However, as noted in Section 3 {C} (3), these are defined as “a national emergency created by an attack upon the United States, its territories or possessions, or its armed forces.” Surely, a rational position can hold that the events in Libya do not meet this level of emergency.

There are also numerous legal cases that define Constitutional law regarding the President's “war powers.” A couple go back into the early 1800s. Two important Supreme Court decisions include “Little v Barreme” (1804), and “United States v Smith (1806). The first of these is covered by Schlesinger.

A more recent case which should be of interest is “Dellums v Bush” (752 F. Supp. 1141), where fifty-four members of Congress went to a Washington, DC, federal court to seek an injunction to keep Bush the Elder from starting a war in Iraq, without Congressional approval. While Judge Harold Greene denied the motion, his ruling was based on the fact that the President had not actually started the war; however, though premature, Judge Greene determined the issues in dispute were “plausible.”

Hence, the War Powers Clause of the US Constitution is still the law of the land, in theory if not in practice. I believe that there are distinct advantages in honoring the Constitution, and following constitutional law. Also, as Schlesinger showed, there is very real and serious harm done when any President is allowed to violate that law.


{3} “Whatever political party occupies the White House, therefore, there is usually a John Yoo prepared to rationalize the president's unconstitutional exercise of power. According to Bruce Fein, 'Mr. Bush has adamantly refused to acknowledge any constitutional limitations on his power to wage war indefinitely against international terrorism, other than an unelaborated assertion he is not a dictator.' In the name of fighting terrorism, says Fein, Bush has not ruled out arguments that the president possesses the inherent authority to 'break and enter homes, to intercept purely domestic communications, or to herd citizens into concentration camps reminiscent of World War II.' That some conservatives consider this normal or desirable says rather a lot about the present condition of the conservative movement.”
Thomas Woods, Jr. & Kevin Gutzman; Who Killed the Constitution?; Three Rivers Press; 2008; pages 193-184.

Just as it is offensive to claim that those who oppose the US military intervention in Libya are supporters of Gaddafi, it would be obscene to imply that those who support President Obama's actions are “John Yoo-ites.” My reasons for quoting from the above book is to show that some actual “conservatives” are pro-Constitution; willing to expose the absolute lies of the Yoo positions that Bush & Cheney claimed gave them license to trample constitutional law; and to remind readers of the actual dangers associated with imperial presidencies.

Obviously, President Barack Obama is not the equivalent of George W. Bush. However, it is fair to say that he has not acted to reverse some of the more toxic Bush-Cheney policies, which definitely pose threats to Constitutional rights.

We live in strange and dangerous times. Among the many crises we face, a central one is the ugly and corrupt system of national government located in Washington, DC. In the years since the Nixon White House (at least), the rot has been found at various times in the Supreme Court, in Congress, and in the Executive branch.

On one hand, we do not want a President who is handcuffed by a foul Congress, and incapable of accomplishing anything. On the other hand, we do not want an imperial presidency – much less a revolutionary presidency, which is what VP Cheney exercised. The only good alternative, as Schlesinger's book noted, is “a strong Presidency – but a strong Presidency within the Constitution.” I am convinced that this concept – a presidency within the Constitution – is more important than political party advantage.

Again, I do not delude myself into thinking that my opinion will change anyone else's. In fact, I prefer that everyone think for themselves. But I think it is essential that we all move beyond emotional argument, and engage in a rational discussion of what is actually involved.

Be awake. Be aware.

H2O Man

my opinions ARE tedious, and my essays painfully boring to read. But I still will defend my right to hold them!

In my opinion, they are an appeal to contemplation. There is not a lot of that going around.

I had said to my son, who was sitting next to the other computer, that I thought my OP was rather interesting, but that no one was responding to it. I liked his response -- "Well, your essays are rather tedious, and discussing politics with you is a drag. But I'll fight for your right to keep your opinions to yourself." So I paraphrased.

thing, I guess, wasn't working. This is just a test to see if it will go through....now.

edit: Yes! OK, now I'll retrieve my first reply and try to re-send.

to a Bill Moyers program on July 13, 2008. Transcript and video are archived at the PBS website. On this particular program, both Bruce Fein and John Nichols were fervently, if not frantically, endeavoring to point out the dangers of the presidential powers G.W. Bush had, more or less, been granted and of the dangers therein. Mr. Fein warned that if this power grab, for lack of a better term tonight, was not immediately addressed, that no future President would give up the powers.

K&R

my daughter and I had an opportunity to meet with John Nichols. It was at a forum on issues involving the War Powers Resolution. (My daughter, then 14, had gotten up from the audience, and delivered an amazing anti-war speech. Both Nichols and Elizabeth de la Vega told the crowd that they had just heard from our next leader. After the program ended, the four of us met, and they both gave my daughter autographed copies of their new books.)

Only one US President in modern times has even attempted to give up unconstitutional powers, and return the federal government to the planned balance of powers. That was, of course, Jimmy Carter. He paid a heavy political price for that.

I've been arguing this point for days (and getting about 5 hours of sleep and working for 12)...

"The 1973 act is properly known as the “War Powers Resolution.” We have all seen or heard people quoting small sections of it, to boost their position. It definitely does allow a President to commit US troops in some situations, before getting Congressional approval. However, as noted in Section 3 {C} (3), these are defined as “a national emergency created by an attack upon the United States, its territories or possessions, or its armed forces.” Surely, a rational position can hold that the events in Libya do not meet this level of emergency."

I am 52 years old and have protested every illegal "police action", invasion, and attack since Vietnam and I've no reason to stop now.

In the face of a weak and ineffectual congress that refuses to assert the responsibilities that it was granted, the citizenry that it purports to represent, must stand up.

how often many presidents in the near past have used it.

when Bushco violated the constitution.

This sentence is particularly painful to partisans.
Surely, a rational position can hold that the events in Libya do not meet this level of emergency.

K & R for the objective truth- we either have convictions or we don't.
Put simply Obama and Clinton fugged up royally.

a number of forum members were against efforts to hold Bush and/or Cheney responsible for their "high crimes and misdemeanors." Of that group, it was obvious that more than half were absolutely unfamiliar with the Constitution and constitutional law. (Probably some in favor of impeachment also lacked knowledge of the process, as well.)

Attempts at reasonable discussion can be frustrated by such a lack of insight.

On a side note, I'm not entirely comfortable saying that Presidents Clinton and Obama messed up. I think that there is a very real possibility that their actual goals were/are very different that what the liberal/progressive community was led to believe during their campaigns. If so, they have done a good job in representing the interests of their own kind .... at the expense of everyone else.

H20man your posts often make me stop and think about my positions, and question why I believe as I do.



Would you say that Pres. Clinton violated the Constitution when he made the decision for us to join with NATO in the actions in Kosovo?

I'm not implying that two wrongs would make it any more 'right'. But I did support the action then- with many personal reservations, and I feel very much the same about Libya.

I'm teaching one of my teenaged daughters to drive. Her brothers both warned her that I'm "rigid" about the rules of the road. Recently, I had her stop my vehicle, and get out to take a look. I pointed to the yellow lines in the middle of the road, as well as the white line on the side. I noted that these lines were not placed there by accident. They are not there by coincidence, nor a random act. And those lines are not suggestions.

I feel similar about the Constitution, including the manner perscribed for our nation going to war. I am opposed to any President -- Democrat or Republican -- violating the Constitution.

I am not opposed to the theory or practice of humanitarian military actions. But I'm always opposed to government officials, who should live up to the pledge to uphold the Constitution, violating both that oath and Constitution.

Excellent essay, as always, H20 Man. Your analysis helps us understand how we got to be the way we are today -- a nation of infinite potential locked into what Gore Vidal and others call "a perpetual war for perpetual peace."

Schlesinger was chums with Averell Harriman, one-time business partner of Prescott Bush. Not that there's anything wrong with that, but Harriman was at the nexus of every American war and intervention from World War I to Vietnam. And he was a Liberal of the Old School, meaning he wanted political and socioeconomic progress for all Americans. Yet Harriman used his influence in the corridors of power to encourage American intervention on behalf of corporate interests.

Duopolistic thinking by the likes of Harriman and Schlesinger has kept America fixated on the idea that we can only sustain our economic expansion through imperialism. There just isn't any way to make hay through peace. Charming metropolitan sophisticates would never have heard of the plowshare or peace corps, were not for a traitor to his class. And that means Harriman and his fellows at the top of the socioeconomic heap benefit the lion's share of the benefits and profits from war.

John Yoo-ites. Sick, H20 Man!

Bravo!

I think the information that is presented in the OP is important. By nature, it's not the type of OP/thread that tends to get much response, though. So I do appreciate your taking the time to read it and post your thoughts!