The United States Constitution, as the Obama Regime pretends to understand it, is a most peculiar document, one that is actually enhanced by the criminal actions of public officials who brazenly violate its most explicit provisions. Most people would assume that such actions would tarnish the Constitution. As the administration tells it, however, decades of persistent presidential contempt for the Constitution have conferred an “historical gloss” on the document, just as decades of determined obfuscation of its unambiguous and easily understood war powers provisions have “clarified” their meaning.

Caroline D. Krass, a minor functionary in the Justice Department’s Office of Legal Counsel, was assigned to play the role of the Obama administration’s John Yoo — that is, the sophist responsible for composing a spurious but serviceable legal rationale for the exercise of dictatorial powers by the president. The resulting memo — dated, appropriately, April 1 — claims that Obama needed no congressional authorization of any kind to commit aggressive war against Libya, since in his holy and indisputable judgment the possibility of “regional instability” and injury to the “credibility and effectiveness of the United Nations Security Council” posed threats to our national security that demanded a military response. Accordingly, Krass concluded, Obama could initiate war with Libya “as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers … even without prior specific congressional approval.’

The actual text of the Constitution, and the well-articulated intent of the Framers to deny the president unilateral powers of this kind, are inconsequential, according to Krass, who cites an earlier OLC opinion claiming that a “pattern of executive conduct, made under claim of right, extended over many decades and engaged in by Presidents of both parties, evidences the existence of broad constitutional power.” It does no such thing, of course, any more than the persistence of armed robbery in defiance of laws against theft “evidences the existence of a broad right to steal property at gunpoint” (which is, of course, the defining activity of the institutionalized affliction called “government”).

Krass’s memo does offer a pretty detailed description of the devious dialectic in which presidents have usurped war powers, and congress has abdicated its authority, yielding the present post-constitutional synthesis in which any elected dictator can wage war anywhere for as long as he or she pleases. The only “possible constitutionally-based limit” on the president’s supposed authority to wage war, she insists, would involve “a planned military engagement that constitutes a `war’ within the meaning of the Declaration of War Clause….” This is to say that from the Regime’s perspective, there is a vague, and not terribly important, possibility that the Declaration of War Clause might actually impose a hypothetical limit on presidential war powers. However, the memo goes on to assert that “the historical practice of even intensive military action [such as] … some two months of bombing in Yugoslavia in 1999 — without specific prior congressional approval” effectively nullifies that constitutional limitation.

The compelling “national interest” claimed in the OLC memo is two-fold: First, preventing a “humanitarian catastrophe” that “could” have ensued in Benghazi (a claim that was as much a cynical fiction as Bill Clinton’s lie that hundreds of thousands of Kosovo Albanians were facing annihilation, or the Bush administration’s fabrications about Saddam’s WMD); and second, “maintaining the credibility of the United Nations Security Council and the effectiveness of its actions to promote international peace and security.” Both of those objectives are best served, we are supposed to believe, by flinging Tomahawk cruise missiles at population centers in  a country that posed no threat to us.

Of particular interest in this connection is Krass’s statement that “the United States government has recognized that `[t]he continued existence of the United Nations as an effective international organization is a paramount United States interest.’” That phrase, which was cited by the first Bush administration to justify the UN-”authorized” December 1992 invasion of Somalia, originated in a 1950 State Department Bulletin entitled Authority of the President to Repel the Attack in Korea. The term “paramount,” of course, is a synonym for “supreme”; this means that Krass and her predecessors defined preservation of the UN as the supreme foreign policy interest of the United States government.

As was recently pointed out in LRC,  the United Nations was never intended to be a peace organization. From the beginning, as Simon Tisdall of theGuardian of London observes, the UN’s “primary purpose was as a war-fighting machine.” When Congress enacted the United Nations Participation Act in December 1945, it effectively repudiated its constitutional role in declaring war, deferring instead to a new arrangement in which the president can deploy troops anywhere in the world in compliance with our supposed “obligations” to the UN and the international system it administers.

Granted, the UN war-making  system hasn’t operated in strict accordance with its charter — but this is just another case in which the text of a supposedly binding document has been transcended by the “historical gloss” placed on it by policymakers who recognize no limits on the powers they exercise. Whenever such people find their ambitions constricted by the terms of a constitution or charter, they will simply write themselves an elaborate permission slip — festooned with specious citations — authorizing them to do whatever they damn well please.

William Norman Grigg [send him mail] publishes the Pro Libertate blog and hosts the Pro Libertate radio program.

Copyright © 2011 William Norman Grigg

You can sympathize with the humanitarian motives of our Libyan intervention while still doubting its constitutionality.

The Constitution prescribes the rules about how the United States is to enter a war, and the Obama administration has violated those rules.

The administration argues that the hostilities, because limited, do not rise to the level of “war,” as the Constitution uses that word.  But that position is almost surely wrong: Founding-Era dictionaries and other sources, both legal and lay, tell us that when the Constitution was approved, “war” consisted of any hostilities initiated by a sovereign over opposition.  A very typical dictionary definition was, “the exercise of violence under sovereign command against such as oppose.”  (Barlow, 1772-73).  I have found no suggestion in any contemporaneous source that operations of the kind the U.S. is conducting were anything but “war.”

The Founders’ favorite authority on international law, Vattel, divided wars into three principal categories: defensive wars, offensive just wars, and offensive unjust wars. A nation fought a defensive war when it responded to an invasion.  It fought a just offensive war when it responded to an infringement of its rights short of invasion.  It fought an unjust offensive war if it attacked another country even though that other country had not infringed its rights.  Examples of unjust offensive wars were those fought for conquest or to limit an innocent neighbor’s power.

A defensive war did not require a declaration.  A just offensive war did require one, although it might be called something other than “declaration of war.”  The declaration triggered certain consequences under international law, but Vattel says its principal purpose was to give the other country a last chance to correct the injury it was inflicting.  Because unjust wars were those launched by a country that had not suffered legal injury, it follows that “declarations of war” issued by an aggressor were at least partially defective.

Now: The federal government has only those powers the Constitution grants it.  The Constitution grants the federal government authority to begin and wage a defensive war: “The United States shall . . . protect each [state] against Invasion” (IV-4).  (Protection of U.S. territories is impliedly authorized as well: IV-3-2) But the Constitution grants only Congressauthority to initiate a just offensive war€”that is, an American attack to vindicate our legitimate rights: “The Congress shall have Power . . . To declare War.” (I-8-11).  It can be inferred from the document that the government has no constitutional power to wage an unjust war.

The Constitution entrusts Congress with creating the means for waging war: “To raise and support Armies” (I-8-12),  “To provide and maintain a Navy” (I-8-13), and “To provide for calling forth the Militia to . . . repel Invasions” (I-8-15).  It grants the President authority to serve as Commander-in-Chief (II-2-1).  Under the latter provision, the President can oppose an invader (engage in defensive war) without prior congressional authorization, since “The United States [not just Congress] shall . . . protect each [state] against Invasion” (IV-4).   But there is no enumerated power authorizing the President to launch an offensive war without a congressional resolution that qualifies in substance as a declaration.

Many quotations from key Founders show that is was their understanding as well. For example, James Wilson, one of the greatest Founders, told the Pennsylvania ratifying convention:

“This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives. . . .”

(This quote is only one of several.)

Nevertheless, many well-meaning people have sought to find a presidential power to wage undeclared war.  In part they rely on practice arising decades, even centuries, after the Founding.  As I point out in The Original Constitution: What It Actually Said and Meant,such evidence is too remote to be a reliable source of original understanding.  The fact that the President sometimes has acted unconstitutionally does not render those acts constitutional.

The most sophisticated presidential defenders make the following argument:

*    What determines constitutional force is not how the ratifiers understood the document, but its objective “original public meaning” to the larger public;

*    the Constitution grants the President the “executive Power” (II-1-1);

*    although the Constitution does not mention undeclared wars, based on the practice of the British Crown the President’s “executive Power” included authority to initiate them.

Unfortunately for this argument, recent scholarship has largely destroyed the view that the phrase “the executive Power” conferred the King of England’s power on the President.  The most comprehensive study of the subject is Curtis A. Bradley & Martin S. Flaherty’s  article,Executive Power Essentialism and Foreign Affairs, 102 Mich. L. Rev. 545 (2004).  In addition,my own published investigation of Founding-Era legal drafting practices discovered that those practices were completely inconsistent with the conclusion that the phrase “executive Power” conferred any authority.

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As for the claim that the Constitution’s “original public meaning” trumps what the ratifiers understood, to my knowledge no one has contested the conclusions of my excruciatingly-footnoted 2007 study of Founding-Era interpretative methods.  It concluded that the Constitution was to be interpreted by the ratifiers’ understanding, with “original public meaning” being consulted only when a coherent understanding could not be found.  In the case of the war power, though, the ratifiers’ understanding is pretty clear.

Although the Obama administration’s Libya operations probably qualify as a constitutionally-authorized “just war” (because it is designed to assist an oppressed people who have risen in rebellion), launching those operations without prior congressional consent violated the Constitution.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See http://constitution.i2i.org/about/.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute. Visit his blog there at http://constitution.i2i.org/

With military action taking place in Libya right now, the essential question must be asked: Is it even Constitutional? For those of you who don’t want to read more than a sentence or two, here’s the short answer. Absolutely not.

DELEGATED POWERS

The ninth and tenth amendments, while they didn’t add anything new, defined the Constitution. In short, they tell us that the federal government is only authorized to exercise those powers delegated to it in the Constitution…and nothing more. Everything else is either prohibited or retained by the states or people themselves.

What does this have to do with Libya? Well, whenever the federal government does anything, the first question should always be, “where in the Constitution is the authority to do this?” What follows here is an answer regarding American bombs being dropped on Libya.

WHO DECIDES?

Ever since the Korean War, Article II, Section 2 of the Constitution has been regularly cited as justification for the President to act with a seemingly free reign in the realm of foreign policy – including the initiation of foreign wars. But, it is Article I, Section 8 of the Constitution that lists the power to declare war, and this power is placed solely in the hands of Congress.

Article II, Section 2, on the other hand, refers to the President as the “commander-in-chief of the army and navy of the United States.” What the founders meant by this clause was that once war was declared, it would then be the responsibility of the President, as the commander-in-chief, to direct the war.

Alexander Hamilton clarified this when he said that the President, while lacking the power to declare war, would have “the direction of war when authorized.”

Thomas Jefferson reaffirmed this quite eloquently when, in 1801, he said that, as President, he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.”

In Federalist #69, Alexander Hamilton explained that the President’s authority:

“would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which by the constitution under consideration would appertain to the legislature.”

James Madison warned us that the power of declaring war must be kept away from the executive branch when he wrote to Thomas Jefferson:

“The constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the legislature.”

WORDS HAVE MEANING

If, like any legal document, the words of the Constitution mean today just what they meant the moment it was signed, we must first look for the 18th Century meaning of the words used. Here’s a few common 18th-century definitions of the important words:

War: The exercise of violence against withstanders under a foreign command.
Declare: Expressing something before it is promised, decreed, or acted upon.
Invade: To attack a country; to make a hostile entrance

What does this all mean? Unless the country is being invaded, if congress does not declare war against another country, the president is constitutionally barred from waging it, no matter how much he desires to do so. Pre-emptive strikes and undeclared offensive military expeditions are not powers delegated to the federal government in the Constitution, and are, therefore, unlawful.

HOW IT APPLIES TODAY

Here’s the quick overview of how this all plays out:

• In Constitutional terms, the United States is currently at war with Libya.
• Libya is not invading the United States, nor has it threatened to do so.
• Congress has not declared war. Barack Obama did.

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Some would claim, and news articles are already reporting on it, that the 1973 war powers resolution authorizes the President to start a war as long as it’s reported to Congress within 48 hours. Then, Congress would have 60 days to authorize the action, or extend it.

The only question you should have to ask for this would be – “where in the Constitution is congress given the authority to change the constitution by resolution?”

It doesn’t. And that resolution, in and of itself, is a Constitutional violation. More on that in a future article, of course.

James Madison had something to say about such a plan when he wrote:

“The executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.” [emphasis added]

War Powers resolution or no war powers resolution – without a Congressional declaration, the president is not authorized to start an offensive military campaign. Period.

The bottom line? By using US Military to begin hostilities with a foreign nation without a Congressional declaration of war, Barack Obama has committed a serious violation of the Constitution. While he certainly is not the first to do so in regards to war powers, it’s high time that he becomes the last.

If the finest hour for the people of East Germany occurred with the fall of the Berlin Wall on November 9, 1989, one of the lowest moments occurred just over one month before.  On October 7, 1989, East German leader Erich Honecker hosted all of the Communist dictators of the Warsaw Pact – including Soviet Premier Mikhail Gorbachev – in East Berlin to celebrate the 40^th anniversary of the independent East German state.  By this point, East Germany, like the other nations of Eastern Europe, teetered on the precipice of bankruptcy and economic disaster.  Nevertheless, the event had all of the trappings of a typical Communist get-together – a military parade and much pomp and circumstance.  That night, however, the members of the East German Communist Youth Group, the Freie Deutsche Jugend, marched in a torchlight parade in front of Honecker, Gorbachev, and their Communist brethren.  These were the cream of the Communist Party’s younger generation and the future of East Germany.  All of a sudden, quietly at first and then building to a crescendo, the young people began chanting “save us, Gorby, save us!”  It was truly a pitiful sight.  A lifetime of Communist dictatorship had done its job well.  None of these young people had any sense of pride, self-reliance, or confidence.  Faced with East Germany’s insurmountable problems, they begged the dictator of the nation that held its boot on the neck of their own for over 40 years to “save them.”

While this event shows the pathetic state of affairs beyond the Iron Curtain, is it that different from the attitude may Americans have towards their President?  In recent weeks, as the oil crisis in the Gulf of Mexico continues, politicians, pundits, and citizens alike have excoriated President Obama for his “failure” to curb the leaking pipe in the Gulf and to stop the flow of toxic crude oil into the water and onto the beaches and marshlands of the Gulf Coast.  Former Vice-Presidential candidate Sarah Palin’s response is typical of the outrage:  “The fundamental problem at the core of this crisis is a lack of responsibility.  There’s a culture of buck-passing at the heart of this administration that has caused the tragedy of a sunken oil rig to turn into a potential disaster.”  House Republican Conference Chairman Mike Pence has stated that “People in the Gulf of Mexico deserve better” than Obama’s “response.”  Even James Carville, the well-known Democratic pundit, has put Obama in his crosshairs:  “The president doesn’t get down here in the middle of this… I have no idea of why they didn’t seize this thing . . .  I have no idea of why their attitude was so hands off here.”

If you needed any proof of the fact that the two major political parties are out for themselves and lack even a shred of principle, here is the evidence.  Republicans, who are supposed to be the party of “small government,” have dropped their small government principles to rage at President Obama for not being active enough simply as a “tit-for-tat” for the equally pernicious Democratic criticism of President Bush during Hurricane Katrina.  It hearkens back to that day in East Berlin – its as if everyone is crying out for President Obama to “save us,” and yet nobody stops to think about whether this crisis has anything to do with the President’s job description.

While many ideas from the Founding era can be said to be up for debate, it is indisputable that the words “save us” never entered the thoughts of the Founders when establishing the office of the Presidency.  In the Constitution, the Presidency is established in Article II, an Article which is dwarfed in size by its companion, Article I, which creates Congress.  The powers granted to the President in Article II are actually very limited.  They are:

  1)  The power to be commander-in-chief of the military;

  2)  The power to require the written opinion of officers from the executive departments;

  3)  The power to commute sentences and grant pardons;

  4)  The power to make treaties (with advice and consent of the Senate);

  5)  The power to nominate ambassadors, public officers, and judges (with advice and consent of the Senate);

  6)  The power to issue recess appointments for public officers and judges;

  7)  The power to convene Congress when not in session;

  8)  The power to adjourn Congress when it cannot agree on time for adjournment;

  9)  The power to receive foreign ambassadors and ministers;

10) The power to commission officers of the United States.

Added to these powers are two duties:  1) The duty to give to Congress, “from time to time,” information on the state of the Union, and 2) The duty to ensure that the laws are faithfully executed.  Finally, Article I, obviously, also gives the President power to assent to or veto laws passed by Congress.  These powers can be boiled down into two broad generalities – foreign affairs and enforcing Congressional enactments.

The President was to be America’s “first officer,” not its savior.  In other words, the President is not there to ease the pain of individual citizens or groups of citizens when things do not go their way. 

Americans should take an example from Grover Cleveland, one of the most forgotten presidents on our history.  The reason why he is so unknown is because he espoused a theory of strict limitations on federal power, and presidents who resist the urge to use federal power to solve every problem tend not to end up in the history books.  In 1887, a horrible drought hit Texas.  The drought destroyed the crops of many Texas farmers, thereby threatening their livelihoods.  In response, Congress passed the Texas Seed Bill, a statute which appropriated over $10,000 to purchase new seed for these beleaguered farmers so that they could re-plant their crops and avoid financial ruin.  President Cleveland, famously and in a principled, constitutional stand, vetoed the bill.  His message to the House of Representatives explaining the veto is worth quoting at length:

It is represented that a long-continued and extensive drought has existed in certain portions of the State of Texas, resulting in a failure of crops and consequent distress and destitution.

Though there has been some difference in statements concerning the extent of the people’s needs in the localities thus affected, there seems to be no doubt that there has existed a condition calling for relief; and I am willing to believe that, notwithstanding the aid already furnished, a donation of seed-grain to the farmers located in this region, to enable them to put in new crops, would serve to avert a continuance or return of an unfortunate blight.

And yet I feel obliged to withhold my approval of the plan as proposed by this bill, to indulge a benevolent and charitable sentiment through the appropriation of public funds for that purpose.

I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the general government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit.  A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadfastly resisted, to the end that the lesson should be constantly enforced that, though the people support the government, the government should not support the people.

The friendliness and charity of our countrymen can always be relied upon to relieve their fellow-citizens in misfortune.  This has been repeatedly and quite lately demonstrated.  Federal aid in such cases encourages the expectation of paternal care on the part of the government and weakens the sturdiness of our national character, while it prevents the indulgence among our people of that kindly sentiment and conduct which strengthens the bonds of a common brotherhood.

In other words, Congress and farmers in Texas cried out “save us, Grover, save us,” and President Cleveland eloquently declined.  His rationale, as stated above, was simple – the President of the United States is given authority to exercise powers in the service of the whole people of the United States, but not to involve himself in every unfortunate incident that plagues parts of that whole.  The oil spill in the Gulf of Mexico, while tragic, is similar to the plight of the Texas farmers in 1887.  That incident was not President Cleveland’s responsibility – nor is the oil spill President Obama’s.  The tendency to give the President a hand in everything is a substantial cause of the federal government trampling on state prerogatives.

The people of the Gulf Coast region are suffering greatly from this tragedy.  Many will likely lose property, others their livelihood.  BP – which is actually responsible for the mess – will have to clean up the oil, but the responsibility for rebuilding the Gulf Coast will fall to the people of the Gulf Coast and to their State governments, which are far closer to the disaster than the federal government and can better assist in the recovery.  You may find this reality harsh.  But it is actually just the opposite.  It reflects the belief that the people in this country have the ability and the fortitude – with the help of their neighbors, family and friends – to bounce back.  It’s a testament to the “sturdiness” of their character. 

East Germany’s collapse was imminent when its citizens begged Gorbachev to “save us.”  The proper response to the Gulf oil crisis is not “save us, Obama, save us” and to criticize the President for not doing so quickly enough.  Rather, the proper response is to say, as citizens, that we’re going to band together and beat this crisis without complete reliance on the federal government.  That’s what Americans do when the going gets tough.

Andy Quesnelle spent most of his early childhood in Cincinnati, Ohio and moved to Pittsburgh, Pennsylvania in 1992. He has lived in Pittsburgh ever since, except for the 7-year period during which he was in college and law school. He graduated from the University of Michigan in 2003 with a B.A. in History and Political Science. His primary areas of concentration were Colonial American History, 20th Century U.S. History, and American politics and government. He received his J.D. from Villanova University School of Law in 2006. Since then, he has practiced as a labor and employment attorney, representing management and employers, in Pittsburgh. He has always been a very strong advocate of states’ rights and decentralized government. He believes that Thomas Jefferson was absolutely right — government power is not to be trusted, and the more centralized government power becomes, the less it is to be trusted.

The following is based on a talk delivered at the Free State Project’s Liberty Forum in Nashua, New Hampshire, Saturday, March 20, 2010.

In the United States, civil liberties are seen as the province of the left. The ACLU, the Bar Association, the Democratic Party, people who err in favor of procedural protections for criminals and even terrorists—this is what tends to come to mind to conservatives who condemn civil liberties as a leftist interest, and to liberals who celebrate it as a great anchor of their political philosophy.

But what happens when the left-liberals are in charge of the executive branch, its police, its justice department, prosecutors and military courts? Predictably, conservatives fear the government will be soft on foreign and domestic villains. Liberals hold out hope that due process will be restored.

Libertarians, too, will often adopt this general lens through which to see political reality. Just as many progressive writers discussed the coming of Obama as a new dawn for the Bill of Rights—or, at least, the amendments they openly favor—many libertarians hoped that the Bush era of warrantless wiretapping, indefinite detention, torture and police statism would recede with the electoral victory of the Democrats.

But here we see the problem. For if the left are the most institutionally important guardians of civil liberties, then the ascent to power of one of their own will often mean a quieting of dissent. Left-liberals become caught up with economic policy, become corrupted, or simply tire of finding more reasons for their own partisan figurehead to be criticized, and look the other way. Just as Republican administrations can often implement domestic interventions with a freer hand—look at Bush’s effortless Medicare expansion compared to how long it has taken for Obama to move on health care—Democrats can expect a less hostile climate in which to build up executive power to the detriment of civil liberty. And indeed, even if they have good intentions, they run against political pressure from the opposition accusing them of being soft with the police power. A left-liberal in office is the perfect storm for the destruction of our privacy and the rule of law. Just remember what Clinton did at Waco, or the erosion of liberty after the Oklahoma City Bombing, and the truth of this was confirmed long before January of last year when Obama took the throne.

Consider for a moment the very meaning of civil liberties, and we come across another problem. In contrast to so-called civil rights, civil liberties concern the protection of our negative rights—our rights not to be deprived of life, liberty and property without due process. But the problem here is that even this admirable set of values is tainted by a statist tinge. Civil liberties are recognized, if not granted by the state. They often involve judicial powers like the power of a judge to issue writs of habeas corpus, the power to subpoena evidence, the power to force people to testify. Even those in the legal profession dominated by the political left are thus motivated not just by their interest in our personal freedom as individuals, but in the well-workings of the state apparatus. There is a real libertarian reason to want courts to be able to throw out evidence and issue writs of habeas corpus. But there is also a sense in which such due process protections elevate the institutional nature of the government and can be seen as machinations of the government itself. A leftist attachment to civil liberties is thus compatible with a belief in a well-working, equitable managerial state.

Yet, given the government is not going away any time soon, we can all celebrate procedural due process, strict requirements for warrants, the exclusionary rule and the like. But the reason we libertarians defend civil liberties—because we don’t trust the state by its very nature—is at least subtly different from the left-liberal conception, whereby they want the state to be as trustworthy as possible. To the left-liberal, civil liberties are reasons to celebrate the government we live under. For us, it is simply a reason to fear what even the most moderate of us consider an evil, even if it is necessary.

Of course, civil liberties can have a broader definition to include purely negative rights—such as the right to free speech on your own property, or the right not to be searched randomly while driving down the road. And of course all who love freedom must be stark champions in this broad sense of civil liberties as they relate simply to individual personal liberty, and we must be opponents of the law-and-order, war-on-terror mentality under which we find ourselves.

Putting all this aside for a second, let us look at what this all means in the age of Obama. No matter how you slice it, no matter how we try to define our terms, Obama has so far proven himself to be a disaster for civil liberties in practically every respect, with a trajectory that I must say is more frightening than even what was experienced under Bush.

The first sign that this might be the case came before Obama was elected. During the presidential campaign season, his campaign promised that he would vote to filibuster any bill that gave amnesty to telecom companies that had cooperated with Bush’s illegal NSA warrantless wiretapping program.

Now, the debate even back then was framed in statist terms. The left-liberal objection to the NSA program was more centered on the evils of the companies that followed Bush’s orders. It was not a matter of outrage against the state itself, or the illegal program by itself. The companies that had, admittedly immorally, cooperated with Bush, perhaps out of legitimate fears of legal reprisal, were the focus of leftist animosity. Immunity for Bush and the military surveillance state? That’s a national security policy question. But immunity for the sinners in the private sector? The Democrats all opposed this loudly.

But the mainstream media and the mainstream Democratic left were at least pretty critical of this gross violation of the Fourth Amendment and the use of the military to spy on Americans. When the story of the NSA spying broke in December 2005, it was a matter of some controversy. It typified the excessive war on terror policies of Bush and gave the Democrats a chance to seem less egregious on an important component of a free society.

But then Obama voted to legalize the program, to give immunity to the government and its connected telecoms. He voted for cloture—against filibuster. Even Hillary Clinton voted the right way. But Democratic nominee Obama had thrown his lot in with presidential dictatorship.

And now this issue is not even being debated. We have a Bushian surveillance state approved by both political parties. It is a bipartisan feature of leviathan, much like Social Security or the war on drugs.

This of course is the main problem, from a civil liberties standpoint, of having the Democrats in power. The police state grows, oftentimes faster, but with less vocal resistance among grassroots and centrist activists on the entire left side of the spectrum.

But nowhere is the betrayal more complete or horrifying than on detention policy.

Senator Obama voted against the Military Commissions Act of 2006, which stripped the federal judiciary over habeas corpus review power over aliens detained abroad. Obama gave a speech that September on the Senate floor pleading his colleagues to amend the bill and restore habeas corpus. He criticized the Detainee Treatment Act and lamented the procedural inadequacy of the Combatant Status Review Tribunals. He pointed out the irony of the multi-tiered judicial processes used to process so-called enemy combatants:

Now, the vast majority of the folks in Guantanamo, I suspect, are there for a reason. There are a lot of dangerous people. Particularly dangerous are people like Khalid Shaikh Mohammed. Ironically, those are the guys who are going to get real military procedures because they are going to be charged by the Government. But detainees who have not committed war crimes—or where the Government’s case is not strong—may not have any recourse whatsoever.

He spoke for all civil libertarians in bringing the issue home:

I do not want to hear that this is a new world and we face a new kind of enemy. I know that. I know that every time I think about my two little girls and worry for their safety—when I wonder if I really can tuck them in at night and know that they are safe from harm. . . . .

But as a parent, I can also imagine the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence.

He pointed out that such horrors were actually taking place, that innocent people had been victims of extraordinary renditioning, tortured by foreign regimes under U.S. prodding, and went on the make the radical point that

Under [the military commissions act], people who may have been simply at the wrong place at the wrong time—and there may be just a few—will never get a chance to appeal their detention. So, essentially, the weaker the Government’s case is against you, the fewer rights you have.

He did give himself some wiggle room, however, suggesting that perhaps the government “set up a system in which a military tribunal is sufficient to make a determination as to whether someone is an enemy combatant and would not require the sort of traditional habeas corpus that is called for as a consequence of this amendment, where the court’s role is simply to see whether proper procedures were met.”

And this is one problem, of course, with left-liberal civil libertarianism. It is, ultimately, in love with the state and believes the state can be fair. Indeed, the Supreme Court decisions regarding detention policy during the Bush years often amounted to a denunciation that Bush was not following the law, but perhaps if he cobbled together a new “substitute” or “alternative” system, that would be good enough for constitutional government work. Then, as the conservative presidential supremacists on the court validly pointed out, Bush would tend to comply with these demands, creating new standards, which would again be struck down as insufficient.

However, the thrust of Obama’s critique of Bush detention policy was overall mostly spot on. Obama appealed to habeas corpus many times in public, casting his lot with these principles that were part of the “Anglo-American legal system for over 700 years.” “The great traditions of our legal system and our way of life” were at stake, he boldly said. He repeatedly said we must close down Guantanamo, and he would do so. He cheered on the Boumediene v. Bush decision in 2008 that overturned the military commissions act’s worst elements and extended habeas to Guantanamo. He pointed out that the commissions were not even yielding many convictions, and consistently decried the “legal black hole” of having a system unchecked by habeas corpus, prisoner of war protections or the Geneva Convention. Upon election, Obama kept Robert Gates on as secretary of defense, which was not encouraging generally, but Gates had been a proponent of closing Guantanamo at least as he was vocal that it would probably happen quickly with Obama’s presidency.

But then Obama took the White House. The left cheered, including the civil libertarians. Almost everyone expected we would reverse the course toward totalitarianism in the war on terror and return back to a system at least resembling the rule of law. In his first week, Obama signed a few executive orders regarding black sites and Guantanamo and torture, most of which was symbolic, but at least it was a start.

After week one, however, Obama reverted to Bush detention policy in virtually every way. One of the first major disgraces concerned detainees at Bagram, the prison camp in Afghanistan, where Bush began shipping more detainees after Guantanamo was no longer his lawless playground, and where Obama has increased funding and the prison population. Four men sued for habeas relief. Justice John Bates, a federal judge appointed by Bush found that habeas should apply, in limited capacity, to Bagram, given that the Supreme Court ruled that it extended to Guantanamo. Obama’s administration appealed this ruling, using Bushian reasoning down the line.

Bagram is even worse than Guantanamo, where at least the CRST process existed, and the military commissions have freed hundreds of people. Bagram is simply a dungeon beyond the law, and Obama has basked in it with only a little criticism from the left.

As for Guantanamo, Obama had promised to close it by this January. It is not closed and current plans indicate it will be closed, perhaps around the end of Obama’s first term. There is talk of bringing Gitmo to the mid-west, which raises other concerns of setting the precedent that you don’t need to go to Cuba to find an American legal black hole. A cry for justice in the spirit of “Yes We Can” has morphed into a totalitarian-style five-year plan. And the abuses there have only gotten worse.

Obama did decide to try Kahlah al-Marri in civil trial, rather than treat him indefinitely as an enemy combatant, but this could be seen in the same light as the Bush administration’s decision to eventually charge and try José Padilla. As the executive made bold assertions of power over these domestic “enemy combatants,” the court system threatened to repudiate the executive prerogative. To avoid the embarrassment, the administrations decided to opt for a kangaroo court under the traditional U.S. civil law system rather than under the military commissions system.

This speaks to another important point. Although the Democrats have been less repulsive than Republicans in the area of military commissions, they act as though civil trials would be fair. When they announced the civil trial of Khalid-Sheikh Muhammed, civil libertarians suddenly had their faith in the system restored, and conservatives attacked Obama for being weak on terrorists, even though the Justice Department guaranteed a conviction and, barring that, indefinite detention.

And indefinite detention is clearly the worst policy. Not even a guarantee of a kangaroo trial of any sort, military or civilian, just the idea that the government can lock you up forever and not even tell you when it might look into the justice of your situation.

Last May, Obama stood in front of the Constitution at the National Archives and unveiled a frightening sketch of his detention policy. Some would be tried, others tried before military commission, still others detained forever, and some let go. He did this all in the name of the rule of law, sort of like Bush destroying the free market to save it. At the same time, Dick Cheney was giving a speech to appeal to the base conservatives with his anti-terror fearmongering. But the two sets of policies are not much different. Bush did let hundreds of people go, after all, even if in the name of being tough. And Obama is continuing to detain people without any due process—many of whom did nothing worse than defend their country against invading soldiers, if even that—but what’s worse, he’s doing so in the name of the rule of law and a pragmatic balance of liberty with security.

Dialectically, this is a disaster. Neal Katyal, David Cole and other legal experts who heroically called out the Bush administration for its dictatorial detention policy are now praising Obama’s balance of interests. It is disheartening. The left-liberal press, while perhaps slightly better at criticizing Obama on these grounds than the rightwing was at criticizing Bush, are nevertheless giving him a pass in all important respects. Obama detains people without charge, and this is bad, but the real enemy is the Tea Parties and Glenn Beck, the left-liberals seem to suggest. Socialized medicine makes it tolerable to countenance a regime hostile to every last civil liberty.

A couple more words on detention policy. Obama was rhetorically anti-torture, as were Bush and McCain, but he has done everything to stall investigations and block recourse, defending John Yoo from a lawsuit by invoking Bush’s legal arguments regarding torture and even pushing for an amendment to the Freedom of Information Act with the sole purpose of stopping video evidence of torture from seeing the light of day.

Then there is renditioning, the outsourcing of torture, which Obama railed against as candidate and in writing. Now it looks like the program will continue, but under the oversight of the State Department—that is, under the oversight of Hillary Clinton. Raymond Azar, Obama’s first rendition victim, was not even an alleged terrorist or belligerent. He was accused of a white-collar crime that shouldn’t even be a crime—failing to come forward regarding very minor corruption in defense contracting. Consider this a moment. Our federal government fleeces us of hundreds of billions to shovel into the coffers of the military-industrial complex. Corruption is rampant, and many probably know about it. But for an alleged white-collar non-crime, this Lebanese man working at Sima International was arrested in Afghanistan and, according to his testimony, taken to Bagram, deprived of sleep, stripped naked, subjected to extreme temperatures and stress positions, deprived of food, confined in a metal box and railroaded into a plea bargain lest he never see his family again. When this happened under Bush to alleged terrorists, the left-liberals cried foul. When it happened under Bush to someone alleged of Martha-Stewart-level criminality, almost no one says anything. Expanding the lawless torture state to cover offenses that should simply result in being fired from his contracting position.

Everything is just ramped up under Obama. Instead of state secrets to protect information on the warrantless wiretapping, they claim sovereign immunity. Instead of a poor excuse for law at Gitmo, they celebrate no law at all at Bagram. Everything is sold in the name of the rule of law and American decency, but the policies are the same or worse. Now they want the power to indefinitely detain U.S. citizens on U.S. soil and Obama claims the right to assassinate U.S. citizens he deems enemies of the empire as long as they are on foreign soil. We live under a leviathan where there is no geographic escape. If you managed to escape the Soviet Union, its jurisdiction was mostly behind you. If you leave America, you could still have to pay taxes and if they deem you an enemy combatant you can be liquidated by drone attack in the name of national security.

Of course, detention policy is only one of many concerns for civil libertarians, although it really does get to the crux of the totalitarianism that sits behind the mask of American security policy. We now have a TSA that is getting only worse, with full-body scans being implemented so as to stop the Christmas bomber, which probably wouldn’t have been stopped this way. Immediately after the failed bombing, blankets were taken away from commercial passengers—as though not allowing passengers to have blankets makes any sense in light of a man trying to set himself on fire. And of course, all the terrorist attacks being thwarted are being thwarted by private actors, passengers and crew.

A three-strikes-style policy for intellectual property enforcement, a drive to control the internet, where government spying and entrapment crusades are on the increase—a lot of bad is accelerating under Obama. We have the TSA contractors pitching programs to monitor behavior in airports to identify troublemakers. The Democrats rhetorically condemn racial profiling but they have nothing against facial profiling. Have you ever been tired, frustrated or impatient in an airport? You’d better cut it out.

With a little victory for campaign finance issues in the Supreme Court, we saw just how situational the left’s devotion to and understanding of the First Amendment is. We are getting all the extra attacks on the Bill of Rights you’d expect from a Democrat, without any retrenchment of the Republican national security state.

It is like the 1990s Clinton era, with hysteria directed against the Democrats’ version of the “other”—tax protesters, militia men, the anti-census cultural conservatives of rural middle America who are lumped together with Nazis and the KKK under Homeland Security’s warnings of rightwing extremism. But the anti-Muslim police state persists. Thus, you had better be patriotic, but not too patriotic. You had better support the troops but veterans are suspected terrorists. The SPLC is now back in business as essentially an arm of the state, warning that the Oathkeepers are only a couple steps away from those who would violate federal lynching laws. But the antiwar movement, or what’s left of it, is doubtless still being spied on. We live under an era of McCarthyism mixed with the Brown Scare where the only kind of fanatics that are considered respectable are those on the spectrum between Obama and McCain. Birthers and truthers and all outside establishment thinking are now a government concern. We have Cass Sunstein of the Office of Administrative and Regulatory Affairs calling for the disruption of so-called conspiracy theories—that is, any theory that undermines the government—although he does admit in his paper that some of them are true.

The move on the left to go after thought crime is very frightening. When that nutcase van Brunn murdered the Holocaust Museum Security guard, the progressive left began talking about banning hate speech, and by that they mean everything ranging from Stormfront to Michael Savage. Only a few left-liberals like Glenn Greenwald have solidly kept their heads together. Most of them seem to want to link together every isolated incident of violence that could be feasibly considered rightwing as one big conspiracy and go after the “extreme right” in a way that makes the war on terror seem like a coherent strategy. And they think we’re paranoid.

The war on drugs is no more tame than before, except marginally on medical marijuana raids. But in fact, even here there is a dark side. Obama says he will not raid clinics that operate under state law. But they raided a dispensary in California for allegedly violating sales taxes, bringing about a worrisome precedent whereby the feds will investigate state criminal law violations and, without proving them beyond a reasonable doubt, will use them to trigger federal legal action. If California decriminalizes recreational marijuana this November, the Obama administration will have to face a tough choice. If it decides to let California become a green state, it will be because of the de facto nullification of pot laws on the state level—an encouraging trend along with similar activism to protect gun rights and resist Obamacare. Of course, health care reminds us of the inconsistent theoretical devotion to personal liberty and the right to choose on the left, as this intimate area promises to become even more bureaucratized and corporatized, with the IRS enforcing the mandate to buy private insurance. This fascist scheme illustrates the real despotic police power involved in the welfare state and tax policy, which left-liberals seem to always ignore. If the state says you owe taxes, you have no right to be judged by a jury of your peers, no due process before your property is deprived for so-called public use.

Gun rights are under attack, but it’s been pleasing to see that Obama has not moved as far forward toward disarmament as Americans have in arming themselves. Gun rights are just as important as anyone here thinks they are, but they are not a panacea of course. The Second Amendment is a bulwark against tyranny, but an armed statist culture is not. If you think there’s no such thing as armed slaves I ask you to type military conscription in Wikipedia. But on one level I actually think gun rights are better secured under Democrats—not because they are pro-gun but because everyone knows they are anti-gun. Ironically, gun rights might even be stronger now, with all the great stuff happening on the state level to give the Tenth Amendment some teeth. When Bush rounded up weapons door to door after Katrina, the NRA came out with a perfunctory reprimand. Obama is even afraid to directly denounce those who bring guns to his speaking events. This could all change, of course, and Rahm Emanuel’s idea to disarm all Americans on the no-fly list should make us all lose a bit of sleep, but I do like being a contrarian and I think gun rights are at least no more under threat than they were under Bush. This might be thanks largely to the rightwingers who fear their guns being stripped from them. If so, they had better keep clinging.

The left-wing attack on so-called civil liberties, the unreliability to say the least of Democrats to guard due process, the rule of law, free speech—the way a constitutional law lecturer who every rightwinger feared would abolish police agencies, free prisoners and let every war on terror detainee go home freely turned around and entrenched every Bush policy into an even more permanent status of our legal system—is a source of confusion for many, especially on the left, but it should not be.

First, a historical point. All the left’s presidents were the greatest opponents of civil liberties. Woodrow Wilson’s war on communists and left-radicals was infinitely worse than Joe McCarthy’s hectoring of high government officials. Wilson put people in prison for saying the draft is unconstitutional and deported anarchists to Bolshevik Russia. I thank my lucky stars not to have lived under Wilson, who even jailed a man for criticizing England in a patriotic movie about the American Revolution.

Franklin Roosevelt interned 100,000 Japanese Americans, but since he got us out of the Great Depression supposedly by expanding American fascism, he gets a pass. He also banned marijuana and set up an office of censorship, ready to jail people for their opinions on left and right. The left loves FDR, even though he would have presumably shipped every Arab and Muslim American into a concentration camp had Manhattan been attacked on his watch. The left loves JFK and LBJ, who agitated the antiwar movement with infiltrators and spied on Civil Rights activists. None of this even includes these monsters’ use of military conscription, a particularly evil form of slavery.

But most of the left does not see conscription as slavery, nor taxation as theft, nor aggressive war as murderous. And this cuts to the core of the problem with leftist civil libertarianism. It is almost always based on a tissue of incoherencies. This is what we must explain to those genuinely disappointed with Obama, who authentically believe that the right to a trial or a right to free speech is more important than a right to a free lunch.

We must explain that leftism cannot sustain and defend civil liberties, since true civil liberties are bound up with the ethics and logic of private property. The left used to complain that the freedom of press is worthless if you can’t afford a press. Now everyone has a blog and the left naïvely wants the government to have control over everything online. The egalitarian mindset looks at the internet, where not all are created equal, and demands the FCC do something about it.

Since the egalitarian, social-democratic, progressive managerial left hates private property rights and the free market and buys into the pernicious myth that the centralizing democratic state is an extension of the people’s collective will, not just the protector but granter of liberties, it is this philosophical bankruptcy that must be challenged if their devotion to civil liberties is to be any more than window dressing. We don’t love the rule of law because we want to be able to trust judicial authorities or worship due process as an end in itself—we defend due process only because we don’t trust judicial authorities, never will, and the evil of the state must be restrained in any and all possible ways. Whether this is by cheering for the defense attorneys, as we should, or cheering for secession, as we should, it is not that we see the state as perfectable but as inevitably hopelessly immoral that we would favor anything that gets in the way of their guns.

The left must be converted to libertarianism, and some of them can, just as some of the right can, but it is as clear to me as ever that the desire to separate some freedoms from others makes it impossible to reliably defend any. The Republicans were supposed to deliver a government at least slightly smaller than Al Gore would have given. Instead they started two murderous wars, destroyed the economy more than Clinton would have in 30 years, and desecrated most of the remaining virtues of the Constitution. Obama was supposed to deliver us from these excesses and has instead stepped on the gas. The whole time, the people on Team A or B cheer on their champions and lose sight of principle, if they had any to begin with. To say Clinton killed a bunch of peaceful if strange people in Waco was simply seen as being on the Republican side, so virtually the entire left defended that massacre.

Civil liberties are a bit of a misnomer. Individual liberties are the real issue, and due process, Bill of Rights protections and the like are only a means to an end—a means, hopefully, of restraining the state on the margins through some socially demanded and set process. But the nature of the state is it can only be institutionally restrained in two ways: by public opinion, which shapes the state’s boundaries, and the laws of economics, which no state can outright repeal.

When a left-liberal friend expresses disappointment with Obama’s war on the Bill of Rights, just note that it was inevitable. This is a party that is hostile to private property, the anchor of all individual liberties and rights, and enamored of the managerial central state, the greatest modern enemy of all liberties. Leftists will have to make a choice—bail on their civil libertarianism, as most did under FDR, defending Japanese Internment and national command economics, or bailing on their dream of creating social paradise, or even fostering society, through the violent means of central planning. We must be there to explain how it all goes together, and although I am pessimistic we will break most of Obama’s groupies out of the hypnotic delusions of his professorial and literate American Idol authoritarianism, we will convince some, even many, one by one, to abandon the rot of soft socialism that has plagued the American left since World War I, and instead embrace the only ethic that can morally transcend Bush’s and Obama’s dungeons, wiretaps and crackdowns on dissent: The ethic of anti-state libertarianism grounded in private property. And as they come in, one by one, let us welcome them with open arms as we do our slow and uphill work to bring the police state down.

Reprinted from Campaign for Liberty.

Anthony Gregory is Editor-in-Chief at Campaign for Liberty, a research analyst at the Independent Institute, a columnist at LewRockwell.com, a policy adviser for the Future of Freedom Foundation, a freedom activist, and a musician. See his webpage for more articles and personal information.

Copyright © 2010 Campaign for Liberty

Last week politicians in Washington made a few things clear about how they really feel about the state of the union. First, they are beginning to hear the growing discontent with the size and scope of government and the broken promises that keep piling up. Certain events in Massachusetts recently made that statement loud, clear and unavoidable.

In the face of those events, the powers that be made the determination that some populist rhetoric was in order, and the idea of a spending freeze in Washington was proposed, albeit with several caveats. These caveats to the proposed spending freeze ensure that we are not at any real risk of actually doing anything about spending.

First of all is timing. It wouldn’t go into effect until 2011, which allows plenty of time to increase spending levels quite a bit before they are frozen.

If the administration really understood and cared about our spending problems they would not freeze spending a year from now, but cut spending immediately and significantly. But, spending cuts almost never happen in Washington, and they are not likely now or a year from now – if the politicians have anything to say about it.

The second caveat is the huge areas of the budget that are shielded from this freeze. The entire State Department budget is exempt, as are all entitlements, all military industrial spending and almost all foreign aid.

Fully 7/8 of federal spending is excluded from this freeze, and some areas to be frozen were actually set to decrease, which means a freeze actually guarantees a higher level of spending.

Especially insulting is the idea that in spite of our own fiscal problems at home, taxpayer dollars will continue to be sent overseas in the form of foreign aid where it often does more harm than good. When need is demonstrated to Americans and they can afford it, they can be counted on for a tremendous outpouring of private, voluntary charity to worthy aid organizations, as we recently saw in Haiti.

By contrast, government-to-government aid is taken from the poor by force and too often enriches the corrupt. It is counterproductive and wasteful. But the idea of eliminating, freezing, or reducing foreign aid is not up for serious debate any time soon.

The third caveat is what is included in the freeze that would make it politically impossible to pass Congress, for example air traffic controllers salaries, education, farm subsidies and national parks.

I do not necessarily want a cut in spending in this country – I just want to change who does the spending. The spending should be done by the people who earn the money, if they choose, and on what they choose, without any government interference. That is what makes the economy work.

Politicians should stick to the very limited roles given them by the constitution instead of allocating such a sizeable portion of our capital and intervening through regulations and tax policy. But because politicians have disregarded the constitution, and the people have no idea what rule they will break next, there is already a very real spending freeze underway in this economy, by the people.

If government would stick only to what it was authorized to do, and leave the rest to the people, most of these problems would resolve themselves.

Ron Paul is a Republican member of Congress from Texas

Presidential power has been on a pathway of expansion beyond what the Constitution outlined, and what a government of, by, and for the people requires, since George Washington was president. That expansion, which hit the highway after World War II, got a turbo boost during the co-presidency of George W. Bush and Dick Cheney.

Some of the new powers that those two stole from Congress, the courts, the states, and us the people are being abused less severely in this new age of Obama; others, more so; but far more crucially, in a pattern followed by recent presidencies, all are being maintained, if not expanded, and thus more firmly cemented into place for future presidents to use. Wherever you fall on the political spectrum, you are likely to strongly oppose some major decisions of some future presidents. So it shouldn’t be hard to envision some pretty undesirable consequences that might flow from presidential power that increasingly approaches the absolute.

Our television news and newspapers don’t seem terribly interested in this story, despite scraping its surface with reports on the many “czars” Obama has appointed or lectures on the importance of renewing, or only marginally amending, the PATRIOT Act. And Congress seems, if possible, even less interested. That’s not so surprising, given that we’ve replaced the three branches of government with the two parties, so that at any given time roughly half the members of Congress take as their leader a president who is theoretically supposed to execute the will of Congress. And the other half usually obey their party’s “leaders” in Congress, whose primary interest is in electing one of their own as the next president. Both parties continue to value presidential power itself either for its uses in the present, or for when their candidate is elected. Everyone wants to inherit the imperial presidency, not constrain it.

Under these circumstances, bills to create commissions investigating presidential abuses, to place a judicial check on claims of “state secrets,” limit the use of presidential signing statements, or to allow more than eight members of Congress to be given “security” briefings by the executive branch prove not to be priorities for either party.

These days, the old-fashioned idea of checking executive abuses of existing laws through the issuance of subpoenas or by impeachment is, in Washington, widely considered a scandalous proposition. Congress impeached a judge this year who had groped his employees, but Jay Bybee, who signed secret memos purporting to legalize aggressive war and torture, and who now holds a lifetime seat on the Ninth Circuit Court of Appeals, is protected from such a step by his recent membership in the executive branch (and the displeasure Fox News would express toward his impeachment).

In April, Senator Patrick Leahy, chairman of the Senate Judiciary Committee, asked Bybee to testify, and the judge refused, just as many of his former colleagues in the Bush administration had in 2007 and 2008. Leahy may be unwilling to follow up by issuing a subpoena that even the new Department of Justice might refuse to enforce. The current department, for instance, allowed the White House Counsel to negotiate partial compliance with a House Judiciary Committee subpoena by former presidential advisor Karl Rove. And if Leahy is like most members of Congress, he will not even consider the option of using the Capitol Police to enforce a subpoena himself – something that no committee has done in 75 years.

All Power to the President

Any quick survey of the powers the presidency now claims would have to include the power to make laws, the power to make wars, the power to spend money, the power to make treaties, the power to grant immunity for crimes, the power to operate in secrecy, the power to spy without warrants, the power to detain without charge, and the power to torture.

Laws are still made by Congress, but they can be rewritten via signing statements; that is, statements announcing a president’s intention to violate particular sections of the very bill he is signing into law. Neither Congress nor President Obama has thrown out all of Bush’s extensive signing statements that did indeed alter laws. In fact, Obama has announced that his subordinates will review his predecessor’s signing statements only as the need arises.

This policy might please those imagining that the Obama administration will always make the right decision about whether to maintain or reject a Bush-made amendment to a law, but it does nothing to strip the presidency of the power to use the mechanism of the signing statement to re-make or amend or alter new laws. As it happens, Obama has already published his own law-making signing statements.

Presidents now also routinely determine national policy through executive orders and, in doing so, run the country out of the White House rather than through departments headed by officials approved by Congress. They also increasingly dictate a legislative agenda to Congress – and both members of Congress and members of the public generally accept without comment or opposition that inversion of our constitutional system. And then there are the secret memos.

In those secret memos, Bush’s lawyers in the Department of Justice dutifully “legalized” numerous illegal acts, including aggressive war and torture. Despite years of public back-and-forth between the White House and the Congress over the question of whether to ban torture, any act of complicity in torture was already a felony in the U.S. code under the Anti-Torture Act, which enforced the Convention Against Torture signed by President Ronald Reagan. However, the secret Justice Department memos were taken as the final word in legality, no matter what the law said.

Obama has directed the Justice Department not to prosecute those at the highest levels responsible for producing those memos, though he has permitted consideration – whether seriously intended or not – of the possibility of prosecuting a handful of low-ranking staffers who strayed beyond the illegal policies outlined in the memos. Not only does this bestow immunity on the most prominent criminals, reversing the approach – starting at the top – that the U.S. took at the Nuremburg war crimes trials after World War II, but it has the potential to create a terrifying precedent for the future. If a president can use his justice department to legalize a crime simply by asking a lawyer to write a memo, then who can doubt that a president has something approaching absolute power?

Presidents, not Congress, do indeed make wars now, whether or not they consult Jay Bybee’s memo on the subject. They make wars without congressional declarations of war, using instead vague bills to maintain a pretense of congressional involvement – and then they don’t even comply with the terms outlined in those authorizations. Illegal (as well as unconstitutional) as they may be, these wars can be expanded into apparently permanent occupations that include the construction of gigantic military bases from which additional wars may be launched. In the process, mercenaries often take the place of soldiers, and as “private contractors” they then operate even further from congressional oversight or the law.

To invade Iraq, President Bush spent money not appropriated for that purpose. He also gave himself the power to transfer money into “black budgets” beyond the purview of all but a few members of Congress, and so use it for secret tasks signed off on by his officials. Of course, massive secret budgets under the control of the president are nothing new, though they’ve grown through the years. Neither are they constitutional or sustainable.

On October 6th, the leaders of the two parties met with President Obama and, by Senate Majority Leader Harry Reid’s account, let him know that he could end, decrease, maintain, or escalate the war in Afghanistan and Pakistan as he saw fit. The Senate had voted the previous week not to call on war commander Stanley McChrystal for public testimony about that ongoing war until after the president determines his war policy, which of course means a war policy for all of us. Two days later, in a surprising flicker of dissent, House Appropriations Committee Chairman David Obey released a statement suggesting that, contrary to everything he’d said for years, he recognizes that Congress has the power to choose not to fund those wars and thereby to end them.

As his presidency was winding down, George W. Bush concluded an unofficial treaty (though it was called a Status of Forces Agreement) with the government of U.S.-occupied Iraq for three more years of war there without feeling the slightest need for it to be ratified by the Senate. Ever since, the U.S. military has actually violated the terms of that document, while its key commanders continued to publicly state their intention to remain in Iraq beyond the end of 2011, a clear violation of the agreement. In the meantime, this White House has used the treaty as cover for an ongoing illegal occupation of Iraq with, at this point, 120,000 U.S. troops and tens of thousands of private contractors.

Is Congress Broken?

When many feared that Bush might pardon his subordinates for crimes he had himself authorized, the consensus among members of Congress and scholars was that he could, in fact, do such a thing. In some ways what both Bush and Obama have actually done is worse. With a big assist from Congress in the form of bills like the Military Commissions Act and the FISA Amendments Act, they have worked to grant immunity for crimes without even naming the criminals or revealing what they have done. Obama’s Department of Justice is now arguing, appealing, or re-appealing in various court cases to keep secret the abuses of government officials and corporations involved in torture and warrantless spying. Recently, the Justice Department even argued that, when it comes to denying information to a court or the public, telecommunication corporations must be considered a part of the executive branch of the federal government, and earlier this year the administration threatened the British government with an end to intelligence sharing if it revealed evidence of torture.

President Obama announced that he will only claim the right to hide information from a court on the grounds that important “state secrets” are involved after careful review by lawyers at the Department of Justice. This may be an improvement over the Bush years – not exactly a hard standard to reach – but notably this decision still cedes not an ounce of power to any branch other than the executive, even as Obama’s lawyers make radical “state secrets” claims in attempts to block entire court cases, rather than over particular pieces of information.

While this president is ceding modest amounts of territory claimed by the previous one, he is ceding nothing when it comes to presidential power itself. For example, the president said he would release White House visitor logs (as the Bush administration had not), just not those already recorded, including the ones that held records of the visits of deal-making health insurance executives, nor any future logs that he thinks would endanger “national security.” That offers change of a sort, however modest, but leaves it entirely in the president’s hands to decide which logs to release.

This administration has indeed released some of the secret memos that Bush’s Department of Justice used to justify torture and never shared with the public, but only when compelled by courts. The Justice Department has, in fact, fought fiercely against their release and has redacted significant sections of them before making them public.

Bush claimed for the presidency the power to detain people without charge or legal process – and then used it. Obama stood in front of the U.S. Constitution in the National Archives in Washington and asserted the same power, in violation of the right of habeas corpus found in that torn and tattered document. Director of Central Intelligence Leon Panetta and presidential advisor David Axelrod have similarly made clear that the president still claims the power to engage in “harsh interrogation techniques” but chooses not to use it. Torture in this way has been transformed from a crime into a policy choice, with the intended message apparently being that we can stop torture temporarily by choosing to elect Democrats. This is perilous territory.

Perhaps presidents simply cannot be expected to give back powers gained by the executive branch, but shouldn’t we expect Congress to work to take them back on our behalf? When Alberto Gonzales resigned as attorney general, he did so because a rapidly growing list of members of Congress signed onto a one-sentence bill directing the House Judiciary Committee to investigate possible grounds for his impeachment. Such an approach toward Judge Jay Bybee could begin to restore the power of Congress to assert itself in other areas as well, while pressuring the Justice Department to enforce the law, and potentially making public a great deal of information through the subpoenas involved in any impeachment hearing, which does not permit claims of “executive privilege.” Information subpoenaed in an impeachment hearing must be produced, or the failure to produce it can become another impeachable offense.

Many of us probably consider our current president a much nicer guy than our local congressional representative. That doesn’t change the fact that influencing a president, or even a senator, via grassroots pressure is infinitely more difficult than influencing a member of the House of Representatives.

This is not a new discovery. After all, isn’t this, in part, why the House was given the power of the purse and the power of impeachment? Being closer to the ground, that body is, by its nature, going to be more amenable to democratic pressure and direction. If we want once again to have a real hand in making our nation’s policies, our best shot – admittedly still a distinctly uphill course – is to focus on the person who represents us in the House.

Unfortunately, we have to compel each of them to do something they have come to collectively fear: taking back the power originally bestowed on them and not on behalf of their party, but of their branch of government, of the Constitution to which they’ve sworn an oath, and of the proper sovereigns of this nation: we the people. Otherwise the chief legacy of the Obama years will, like those of his immediate predecessors, be the slide from republic into empire and the continuing growth of an imperial presidency.

David Swanson served as press secretary for Kucinich for President in 2004, runs the AfterDowningStreet.org website, and is the creator of Impeachbybee.org. His new book is Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union (Seven Stories Press). Visit his website. He is now touring the country for the book. You can find out when the tour will be in your town by clicking here.

Copyright © 2009 David Swanson

This article appeared in the DC Examiner on November 17, 2009.

Friends of federalism cheered last month when the Obama administration reversed the Bush policy of prosecuting medical marijuana cases in states that have legalized the practice. Welcome though that change was, let’s hold the applause.

Not yet a year into his administration, Obama’s record on 10th Amendment issues is already clear: He’ll let the states have their way when their policies please blue team sensibilities and he’ll call in the feds when they don’t. Thus, he’ll grant California a waiver to allow it to raise auto emissions standards, but he’ll bring the hammer down when the state tries to cut payments to unionized health care workers.

That’s not how it’s supposed to work. As Madison explained in Federalist 45, the powers delegated to the federal government were “few and defined,” to be exercised mainly on “external objects” like foreign policy and international trade. All else — criminal law, marriage, social policy — remained with the states or the people.

Of course, No. 45 also contains one of the Federalist’s saddest sentences, in which Madison predicts that federal tax collectors will be “principally on the seacoast, and not very numerous.” (Sometimes the Framers weren’t all that prescient.)

Indeed, the federal government’s massive power to tax and spend has increasingly allowed it to trample state prerogatives. As the $786 billion stimulus package came online this year, for the first time ever, federal aid surpassed the sales tax as the largest source of revenue for the states.

“This money isn’t manna from heaven,” warned Indiana state Sen. Jim Buck, “it comes with a price.”

California learned that lesson back in May. Struggling to close a $40 billion budget gap, the state government lowered payments to home health care workers, but the Obama team threatened to withhold billions of dollars in stimulus money unless the wage subsidies were restored.

Officials in Gov. Arnold Schwarzenegger’s office accused the Service Employees International Union, a longtime Obama ally, of improper influence.

Just a few years back, the Republicans — nominally the party of federalism — were busily wielding federal power to enforce red state values — prosecuting medical marijuana patients, punishing doctors participating in Oregon’s “Death with Dignity” initiative, and trying to overturn Florida court decisions that allowed Terry Schiavo to be removed from life support. In that odd political climate, you often heard liberals lamenting the decline of states’ rights.

That strange new respect for the 10th Amendment lasted roughly as long as the blue team’s exile from power.

Education Secretary Arne Duncan said recently that “if we accomplish one thing in the coming years, it should be to eliminate the extreme variation in standards across America.” Diversity is bad, uniformity double-plus good; get with the program, comrade.

But one of federalism’s core virtues is the enormous diversity it allows. Decentralization makes it easier for Americans to escape unwelcome state experiments with fiscal and social policy.

It enhances the political power of individual citizens by allowing important decisions of governance to be settled closest to where Americans live and work. And it avoids making politics a centralized war of all against all, where each contested issue is settled in a one-size-fits-all fashion at the level furthest from the people.

Our federal system shouldn’t be a red team/blue team issue, respected or flouted depending on who’s up and who’s down. Conservatives are learning to rue their abandonment of federalist principles during the last administration; liberals may come to regret their rush toward centralization during the next.

Gene Healy is a vice president at the Cato Institute and the author of The Cult of the Presidency.

As I read the many editorial columns and articles in support of Obama’s speech, I can see that many writers are very upset and emotional over criticism of Obama’s action. They also are clueless concerning the reasons why his address is unwelcome. They are name-calling. They are not bothering to mention, much less rebut, the reasoned objections of people like me.

I can at least articulate my reasons for objecting.

Such a speech blurs or crosses several boundaries that I believe there are good reasons to have in place.

The President’s constitutional powers are explicit. They include the “executive Power.” They include being “Commander in Chief of the Army and Navy of the United States” and a few more listed in the Constitution, including preserving and protecting the Constitution. They do not include addressing schoolchildren.

If the President were to live up to his oath to preserve and protect the Constitution, he would request that Congress repeal all its laws regarding education. Section 8 of Article I lists the powers of Congress. Education is not on that list. So when the President addresses schoolchildren, he breaks his oath in several ways. He does not have that power, and he affirms and solidifies a power assumed by Congress that Congress does not have. The President is failing in his sworn duty. Those who think that the President’s speech is helpfully teaching civics are mistaken. His speech is conveying and confirming anti-civics and anti-Constitutional lessons.

The President is a political leader. He is not in office to be an educator. His duties are clearly laid out, and they do not include educating children. By the same token, the President is not the parent of all these children. He is not their teacher. He is not their religious leader. The reason for these boundaries is so that political figures do not use their power and influence to dominate our social lives.

It is a special danger to liberty and society when national powers are developed. These are powers in which the national leadership directly controls or influences individual citizens, while bypassing or circumventing other local sources of governance and influence such as parents, families, churches, schools, and local governments.

An Obama address to schoolchildren is an instance of the further development of national power and influence. It breaks new ground in the influence of State over society. Public education already is under the influence of objectionable forces, but this establishes a new precedent that can be extended. If one political leader addresses youth, other leaders are more likely to address youth. The content of their speeches can be enlarged. Their influence can be enlarged. Government will be given more play and support than it already has. Such a speech is inescapably political. Such a precedent can eventually lead to further dangerous developments, such as a Presidential Youth or an Obama Youth.

The President is a politician. Any address he might make, no matter how nonpartisan it may seem, is bound to be political. It cannot be neutral. The very fact that he is President and making such a speech will be taken in by school children. He will be conveying his authority to these children, with the blessings of their parents and school teachers. They will be taught by the speech itself, regardless of its content, to look to the national government in matters relating to their lives. After all, is he not addressing them about very personal and civic matters? His speech is necessarily a political act.

The President is the leader of a particular political party, so that the very fact that he is a Democrat who is President and making such a speech influences his listeners. Children grow up to be voting adults.

In any speech, what the President says lies beyond the control of those who allow that speech to enter the classroom. The teachers have control over the subsequent discussion, if they choose to have it. But the President will already have made his impact. Children do not fully possess the capacities to judge political matters.

Will the opposition party demand equal time? Do we want politicians routinely competing with one another for the attention of and influence over children?

The President commands the airwaves. This is a dangerous and influential power when used with adults. Allowing this power to be extended to communication with every child in the country is even more dangerous.

School districts can opt out of the speech. In some districts, children may be allowed to opt out of the speech. These options are good ones. But they do not alter the reasons outlined above for objecting to a president making speeches in schools.

I’d like to add that I have seldom read stronger words in newspapers directed against those who object to Obama’s speechmaking to children. They are being called crackpots. They are being accused of demonizing the President. They are being accused of McCarthyism. They are being accused of being racist, completely insane, and members of the right-wing lunatic fringe.

These attacks are not called for. There are very good reasons to object to Obama’s speech. I’ll sum up the ones that bother me. There are no doubt others, but I have made no attempt to research them and find out what others are thinking on this matter.

1. The speech is beyond the President’s constitutional powers.
2. The President is supporting a national role in education, which also is unconstitutional.
3. The President is not supporting his oath of office, so he is conveying an anti-constitutional message to children.
4. The President is crossing a boundary between the political and social spheres. That boundary is in place in order to control government power and maintain a healthy free society.
5. The President is augmenting national power and influence.
6. The President is starting a new precedent that has dangerous implications.
7. The President’s speech cannot possibly be non-political. The very act itself is politically in furtherance of government and an enhanced government role.
8. The President also leads his party, and that fact may influence children.
9. The President may have an undue influence over children due to his position and power.
10. Will fairness considerations lead to equal time for opposition leaders?
11. Presidential access to communications is dangerous enough without extending it to youth.

Michael S. Rozeff [send him mail] is a retired Professor of Finance living in East Amherst, New York.

Copyright © 2009 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

Remember the good old days, when one only had to watch out for the Federal Government’s twisted interpretation of the commerce clause to justify tyranny?

Well those days seem to be long gone.  The Obama Administration has been employing an old tactic lately – what some might call an imperial threat – and they’re not doing it overseas, either.

STATES UNDER THREAT

The state of Oklahoma is now the target of a direct challenge from US Attorney General Eric Holder, who is using the Civil Rights Act of 1964 as justification to violate Oklahoma’s sovereignty as affirmed by the Tenth Amendment to the US Constitution.

In a letter written to the State Attorney General in April, the Federal government used aggressive language, bringing up the possibility of withholding Federal funds appropriated for Oklahoma.  The reason?  A proposed amendment to the State Constitution, which requires voter approval, that would make English the official language of the State.

“What it indicates is the Federal Government’s contempt for the states, in this case Oklahoma, and for the idea of federal — as opposed to national — government. AG Holder believes that Oklahoma is an administrative subdivision of the USA, and that it is perfectly right for him to coerce Oklahomans to do his will. Who cares whether he has ever been to Oklahoma, met an Oklahoman, or thought about Oklahoma?” said Kevin Gutzman, an American historian and New York Times bestselling author.

Oklahoma is not alone as a state challenged by central authority in recent months.  Recently, federal firearms licensees in Tennessee and Montana received a letter from another Federal agency, the ATF, who had also issued a decree wrought with hubris – claims by the Federal government of their legal supremacy across the land.

DESTROYING LOCAL GOVERNMENT

“Both of these letters, particularly this letter to the Attorney General of Oklahoma, are very officious,” observed Rob Natelson, professor of law at the University of Montana.  “It reminds one eerily of the kinds of communications that started to come out from the Emperor to the local cities of the Roman Empire, beginning the course of the ultimate destruction of local government.”

Professor Natelson is a widely-recognized expert on the framing and adoption of the United States Constitution, and on several occasions, he has been the first to uncover key background facts about the Constitution’s meaning.  I knew this before our conversation.  What I didn’t know, however, was that he’s also been studying Roman Law and history for the past 50 years, and is responsible for several works in that field.

“During the 2nd century AD, the Roman Emperors began increasingly to interfere with local government and they did this with…letters…letters that look something like this,” continued Natelson, indicating the letter from Holder to Oklahoma.  “They started out as almost advisory and they got increasingly peremptory.  By the end of the 2nd century, there was very little local government left.  You had very few people, therefore, willing to participate in local elections; very little patriotic spirit towards one’s own province or city.  And this was the harbinger for the ultimate centralization of the Roman Empire.”

He continued with a strong, decisive tone, “Almost everyone who’s studied in that area agrees that the effect was to sap the life out of the empire, so that everything flowed to the center.  All that counted was the Emperor and his bureaucrats…and his courtiers.  I look at this and I see this letter which gets close to looking like an order from the central government down to a sovereign state legislature, and I say…WOW.  This looks like something that Septimius Severus would have sent to the local officials.”

In Columbus, Ohio last weekend, a rally in support of State Sovereignty drew around 7,000 people.  Judge Andrew Napolitano addressed the rally and made similar comments indicating the nature of our current point in US history.

“In the long history of the world, very few generations have been granted the role of defending freedom in its maximum hour of danger. This is that moment and you are that generation”

IMPERIALISM AND DECLINE

Are these men ‘crying wolf’?

“Some people might think that’s a far fetched analogy but I can’t emphasize enough how important this development is seen by historians.  When people think of the collapse of the Roman Empire they think of the fall of Rome in 476 AD.  The conversion of Rome from a relatively free state – almost a Federation – into a totalitarian state, really picked up speed and accelerated during the 2nd century [AD], with this increasing intermeddling by the central authorities in local state government.  That’s what it reminded me of,” recalled Natelson.

“[The DOJ] are not violating any law by sending these letters, but there’s a change in tone, there’s a new and disturbing tone in them.  At least the ATF letter was addressed to individuals.  This one is addressed to a state legislature – really, it’s a bit much. Besides the fact that there’s the tone, there’s the fact that they sent the letters at all.  Most of the letters that were sent out by the emperor were called rescripts, and that’s almost what [the letter from Holder] looks like.  The one difference is that a rescript was usually a reply to a request for advice.  In some ways this is worse than a rescript because this is unsolicited.  A better way to compare it would be to an imperial constitutio – an imperial decision or decree.” Natelson added.

His Roman analogy is worth considering, for several reasons.  Rome may have ended up a brutal dictatorship, but it began through a series of treaties between regions, and in some ways parallels present day America.

“When you draw comparisons between the U.S. and ancient Rome, you have to be very cautious, though Rome does have lessons to offer us and the history and results of the relentless centralization of the Empire is one of them,” Natelson continued.

THE OTHER WAY AROUND

If there’s a case to be made that the US is headed for the same sort of central plan that sucks the life out of a Republic, it would be difficult to imagine who in the United States could be encouraged by such a trend, outside of DC’s beltway.

“Certainly state legislators in Oklahoma and congressmen from Oklahoma should put the Federal Government on notice that they will support a substantial reduction in the budget for Holder’s portion of the federal bureaucracy so long as he is trying to coerce them in this way.” recommended Gutzman.

Worldwide trends in recent political elections do exhibit signs of a move away from central planner candidates, a trend the United States has been contrary to for nearly a decade, but perhaps the pendulum has reversed itself.

“As the economy grows increasingly complicated, increasingly interdependent and increasingly technological, centralized control (which never worked very well) works less and less, and people are less willing to stand for it.  This reflects a visceral gut reaction people have against centralized control, because they know from their own life it makes no sense, though it always takes time for those mega-trends to filter into the political class,” Natelson continued. “Eventually, when a mule gets hit over the head enough times it figures out what’s going on, and eventually the politicians will figure out what’s going on, too.”

People in the US are coming together by the thousands, demanding decentralization and nullification of Federal powers. Never before have the political elites had to contend with a non-partisan political force on such a massive scale.  A storm seems to be brewing; a maelstrom of everyday Americans rallying around the document designed to keep the government in fear of the people – instead of the other way around.

Bryce Shonka [send him email] is Media and Grassroots director for the TenthAmendmentCenter