On Waterboarding as Torture archived

Posted By: lewisinsovFor better or worse, the US has a four-year "elected dictatorship", so you'll just have to wait a little while for the next President.

Just to pick a nit, one of the reasons that we have the concept of impeachment is to prevent this type of "elected dictatorship." And it is also why we have different branches of government with checks and balances. I understand what you are trying to say - I just think it is a poor choice of words, as it adds confusion to an already clear as mud topic.

Posted By: BernBush and his cabal argued that we had to preempt Iraq from using their WMD's; therefore invade. Some are using the same line to justify military action against Iran. I don't think any of these clowns would have lasted working for Eisenhower:
All of us have heard this term 'preventative war' since the earliest days of Hitler. I recall that is about the first time I heard it. I don't believe there is such a thing; and, frankly, I wouldn't even listen to anyone seriously that came in and talked about such a thing.
D D Eisenhower Press Conference (1953)

Wow... Dwight sure was prescient :wink:


[edited to add emphasis]

Posted By: rastroWow... Dwight sure was prescient

I'm liking him more and more.

He wasn't chosen to lead the largest invasion in human history, and didn't succeed at it, because he was a fool.

"as with pretty much all democratic countries, the Constitutional powers of the President should expand during times of military engagement and should contract during peacetime."

That's the stupidest interpretive leap of all time. Do you seriously think that was the intent of the Constitution? Step back and think about that for a second. We are a country that is inherently suspicious of executive power. The Constitution was written with the intent to strictly contain the powers of a single individual. Under your interpretation, what's to stop a president from constantly engaging the military in order to expand his powers? Except perhaps for the suspension of the writ of habeus corpus, which itself is limited, there is nothing in the Constitution that implies that the president has expanded powers or that the Congress has constricted powers.

Do you seriously think that the office of the president of the United States is as an "elected dictatorship." Maybe this President thinks it is, but that doesn't make that the case.

rastro - I think we might have our interpretive wires crossed. I distinguish between totalitarianism, which is absolute power, and dictatorship, which means governing without the consent of those governed. Obviously, there are limits on what the President can do, such as with respect to impeachable offenses. However, so long as the President stays within those limits, he can do what he likes regardless of how unpopular it might be.

katiemcc - I never said that I was a lawyer. It is NOYFB what I do. As for wartime powers, you can argue that Bush has exceeded his wartime powers, you can even argue that there should be no wartime powers because the US isn't really at war, but to argue that there is no such concept as Presidential wartime powers is just nonsense. That's a BASIC, BASIC fundamental of constitutional law.

Off topic.

I always believed that Eisenhower was under appreciated. When he made a decision, it was a done deal.

In 1919, he was in a military convoy that traveled from Washington, DC to San Francisco. They wanted to gauge the feasibility of transporting military material cross-country. The 80 vehicle convoy took 62 days; most roads were unpaved. After WW II, he saw and admired the German autobahn system.

That was enough for him to push for, get Congressional approval, and start the construction of the Interstate Highway System. A system we now take for granted. There were the usual naysayers, who said that the Federal Government should not be involved; highways are a state matter. The revenue sharing was very generous. The Feds picked up 90%.

He also pushed through the National Defense Education Act. Every school in the country received significant funding for science education, leading to the education of millions of engineers and scientist, and causing us be the world leader in science, far ahead of others. Now, we get faith based initiatives.

We have real issues that are not being resolved. We have serious water shortages in some parts of our country. These are engineering issues. We need leaders with initiative and foresight. Leaders that can create a national water policy and build a system which allows us to shift water from water rich areas to areas of draught. Instead, we have prayers meetings asking God to give us relief.

Posted By: katiemcc"as with pretty much all democratic countries, the Constitutional powers of the President should expand during times of military engagement and should contract during peacetime."

That's the stupidest interpretive leap of all time. Do you seriously think that was the intent of the Constitution? Step back and think about that for a second. We are a country that is inherently suspicious of executive power. The Constitution was written with the intent to strictly contain the powers of a single individual. Under your interpretation, what's to stop a president from constantly engaging the military in order to expand his powers? Except perhaps for the suspension of the writ of habeus corpus, which itself is limited, there is nothing in the Constitution that implies that the president has expanded powers or that the Congress has constricted powers.

Do you seriously think that the office of the president of the United States is as an "elected dictatorship." Maybe this President thinks it is, but that doesn't make that the case. That's a BASIC, BASIC fundamental of constitutional law. Did you say you were a lawyer?

I really don't believe it was the intention of our constitutional founders that the constitution should be diluted in times of war. They would have added those limits to the constitution, similar to the limit imposed upon habeas corpus.

But realistically, that does occur. People gets scared, intimidated and expedient steps are taken. After the fact, the courts wake up (and sometimes the public) and then its "tsk, tsk, that should not have been done."

We're not in a war. I'm a strict conservative constructionist and I believe our constitution should be followed. We're at war when congress declares war. Besides, what kind of war is this, when our recommended sacrifice is "shop a lot"?

And don't forget, the framers just lived through a war that was anything *but* a foreign war. We had British and German troops right here in our country. And leading the Constitutional Convention was none other than General Washington himself.

It seems unlikely that they just kinda forgot to put expanded wartime powers for the chief executive into the Constitution. It actually *looks* like they did the opposite and put the rules and regulations of warfare into Congress' portfolio.

>However, so long as the President stays within those limits, he can do what he likes regardless of how unpopular it might be.

That's not the question we seem to be arguing, though. It's *are there* any limits, and *who sets them.* I mean, we can all agree on what you said, but if the next sentence out of your mouth is "Congress can't pass any laws restricting the President" then we're at odds.

Bern,
You quoted Pres. Eisenhower:

All of us have heard this term 'preventative war' since the earliest days of Hitler. I recall that is about the first time I heard it. I don't believe there is such a thing; and, frankly, I wouldn't even listen to anyone seriously that came in and talked about such a thing.
D D Eisenhower Press Conference (1953)

I ran across this quote several months ago and have been unable to get a source for it. I have wanted to use it a couple of times, but I don't like to quote people without a legitimate source. If you have a link for this, please share it with me. Thanks

threeringale: http://www.presidency.ucsb.edu/ws/print.php?pid=9977

Posted By: Tom Reingoldthreeringale:http://www.presidency.ucsb.edu/ws/print.php?pid=9977

I ran across it too but I should look to see where I found it. Mine has the wrong year and is in a different context from Tom's quotes.

Here are some more

Quotes by Dwight D Eisenhower
"No one can defeat us unless we first defeat ourselves."

Dwight D Eisenhower Quotes
"The supreme quality for leadership is unquestionably integrity. Without it, no real success is possible, no matter whether it is on a section gang, a football field, in an army, or in an office."

Quotes by Dwight D Eisenhower
"When people speak to you about a preventive war, you tell them to go and fight it. After my experience, I have come to hate war."

Quotes by Dwight D Eisenhower
"We will bankrupt ourselves in the vain search for absolute security."

http://www.fdrs.org/quotes_by_dwight_d_eisenhower.html

Tom Reingold,
Thank you for the link, the gist of the quote is there with a little more context. Now I can use it to torment my Republican friends!

"to argue that there is no such concept as Presidential wartime powers is just nonsense. That's a BASIC, BASIC fundamental of constitutional law."

Then show us the part of the Constitution that states that the Executive has increased powers in wartime than in peace. Should be easy if it's that basic.

Bern, what a goldmine. Now if only the Democratic frontrunners would start quoting Dwight at every opportunity. Wonder if history will regard him as a greater President than--gasp!--Reagan.

To today's wingnuts Eisenhower might as well be a communist, his ideas as so antithetical to theirs.

True, tom!

lurker - Article 2, Section 2 of the Constitution

War Powers Resolution of 1973

Ex parte Milligan, 71 U.S. 2 (1866)
Ex parte Quirin, 317 U.S. 1 (1942)
Korematsu v. United States, 321 U.S. 760 (1944)
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=331202

I am not your research assistant. Next time, look it up yourself.

yawn.

Oh come on. This is the entirety of Article 2 Section 2:

>Clause 1:

>The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

>Clause 2:

>He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

>Clause 3:

>The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

His wartime powers are laid out in one sentence fragment. Be serious, those aren't the kind of "expanded powers" that Cheney et al are claiming.

The [War Powers Act](http://usinfo.state.gov/usa/infousa/laws/majorlaw/warpower.htm) is all about *limiting* Presidential power in wartime. It specifically reserves rights to Congress and forces the Executive to report in advance of and regularly throughout hostilities.

Youngstown Sheet & Tube Co. also limited Presidential powers. Citing Korematsu is interesting because a lot of people believe that if Presidential power is allowed to go unimpeded *that's how bad things can get.*

Quirin has to do with saboteurs caught in the act. They landed in the US June 13, 1942, their trial began July 3, 1942, and the executions were carried out August 8, 1942. So much for indefinite detention without trial.

*Milligan* says (per Wikipedia):

>The Supreme Court decided that the suspension of habeas corpus was lawful, but military tribunals did not apply to citizens in states that had upheld the authority of the Constitution and where civilian courts were still operating, and the Constitution of the United States provided for suspension of habeas corpus only if these courts are actually forced closed. In essence, the Court ruled that military tribunals could not try civilians in areas where civil courts were open, even during times of war.

Again, hardly what Bush is trying to do in indefinitely detaining citizens without trial.

I'm not sure what any of these things have to do with torture.

lewis,

If you mean by "expanding" powers that the President assumes leadership of the military during wartime etc as described in clause 1 (thank you, tom), then you have a point. But this is not how the rest of us view the term expansion. It has to be seen as a change in the balance of power between executive and legislative branches--the Executive's powers expanding as legislative powers contract. Article 2 does not revoke or alter legislative power in wartime; it doesn't revoke anything in the Bill of Rights.

tom - It doesn't matter whether the cases placed certain limitations on the powers. I am not suggesting that the Presidential wartime powers are absolute. The cases themselves discuss the scope of the wartime executive powers of the President.

lurker - The executive powers of the President do expand during wartime and there is certainly Supreme Court obiter to the effect that the President can get away with some things during times of war that he could not get away with during peacetime. This does not mean that the Congress cannot pass laws that limit those powers even during a time of war, because it clearly has the power to do so. My argument is that that power is not absolute to the extent that it tramples on the ability of the commander in chief to conduct the war in accordance with the constitutional rights reposed in him via the constitution.

Article 2 does permit limiting some of the constitutional rights in order to fight wars. See Korematsu, which has never been overruled despite some people regarding it as repugnant.

w/r/t Korematsu, you say that it has not been overruled. But has it been challenged since the Supreme Court decision? It's easy to say it hasn't been overruled if there has been no case to challenge it.

And from Justice Black's opinion...

Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders -- as inevitably it must -- determined that they should have the power to do just this.

First, the idea was that we were at war with a nation, and people in the US who were from that nation were possible threats. However as you have pointed out, we are not at war with a nation. So if we cannot identify the nation with which we are battling, how can we identify the people who are possible threats? A broad brush was used back then. But it was clearly defined as Japanese Americans. What clear criteria are used today?

Second, there was a "military urgency." What military urgency exists now?

Third, Black's opinion explicitly identifies Congress as the grantor of these powers to the military commanders, not to or from the President. So even though it was an Executive order that initiated the interment camps, it was up to Congress to grant the power to inter anyone.

Now, keep in mind I am a lay person, not a lawyer. I'm sure there is lots of legalese in opther parts of the opinion, But this paragraph seems to make it pretty clear who granted the authority to hold possible subversives.

rastro - no it hasn't been challenged. Therefore it remains good law.

It is not an unreasonable argument that we have to be at war with another nation for the expanded executive powers to kick in. However, the argument flies in the face of American history in which declarations of war have been the exception not the rule when engaging in military conflicts and I have previously given you the example of the Barbary Wars in which the US was not at war with a nation that it recognized.

Just so people don't accuse me of things that I am not advocating. I am not suggesting for a moment that internment camps are a good idea or that we should collectively punish Muslims, arabs or anyone else. However, we can identify some of the people who are clearly the enemy and to the extent that we have done so, the President should have sufficient power to act.

As for military urgency, obviously it is a question of degree. In some cases there may be more urgency than others (such as if the US became aware of an impending major attack).

In Korematsu, some of the powers were Congressional, some of them came from executive orders.

A few more quotes for you, rastro:

“It is important to bear in mind that we are here dealing not alone with an authority vested in the president by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress.” - United States v. Curtiss-Wright, 299 U.S. 304 at 319-320 (1936) per Justice Sutherland

“When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. … When the President acts in the absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its [Congress’] contribution is uncertain. Therefore, congressional inertia, indifference, or quiescence may sometimes, at least as practical matters, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on imperatives of events, and contemporary imponderables rather than on abstract theories of law.” - Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 at 635-637 (1952), per Justice Jackson

Posted By: lewisinsovrastro - no it hasn't been challenged. Therefore it remains good law.

I assume "good law" here is a legal term?

yes - bad decisions if not overruled are still good law.

Posted By: lewisinsov“When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in hisown right plus all that Congress can delegate. … When the President acts in the absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its [Congress’] contribution is uncertain. Therefore, congressional inertia, indifference, or quiescence may sometimes, at least as practical matters, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on imperatives of events, and contemporary imponderables rather than on abstract theories of law.” - Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 at 635-637 (1952), per Justice Jackson

if I may be so bold as to condense this to two words, "it depends..." :wink: