Recently, while watching a video of Judge Andrew Napolitano commenting on revelations that Bush and his administration knew about and authorized “enhanced interrogation techniques” (ie, torture) by the CIA, I started thinking – as usual – about how all this fits in under the Constitution.

First of all, watch the video, it’s pretty interesting stuff:

Whether you agree with the use of torture or “enhanced interrogation techniques” or not (I strongly oppose them), is not the issue.  The important point is whether or not our elected officials are following the rules that govern their behavior.  It seems to be quite clear, as Napolitano put it, that if Mr Bush violated the law, he should be prosecuted.

I think the Judge makes some solid points here.  The United States is supposedly a nation of laws, and those who break that law should be held accountable.  And, what’s the “supreme law” of the land?  Well, the Constitution, of course!

By denying those people held at places like Guantanamo and elsewhere the privilege of habeas corpus (to challenge their detention in court), and by effectively locking people up permanently without charge or recourse, a culture of torture was easy to create.  In my humble opinion, the root cause of all these issues was the suspension of habeas corpus in the first place.

Doing so was a direct violation of the Constitution.

Here’s how I explained it in an article from 2007:

1. As enshrined in the 10th Amendment, the federal government operates under the principle of positive grant – meaning that it can only exercise delegated powers listed in the constitution.
2. According to the Constitution, the only reference to limiting habeas corpus is “in cases of rebellion or invasion”

Since the qualifiers for suspension do not exist, the federal government cannot restrict, limit, or eliminate habeas corpus for anyone. Period.

And, in a follow-up article, I discussed issues of US jurisdiction:

While it’s correct that the US Government doesn’t have global jurisdiction it often acts that way. People are held outside of US jurisdiction, and the claim is that outside of it, the government doesn’t need to follow the Constitution. But – while claiming exemption from the law due to lack of jurisdiction, the government still exercises jurisdictional authority by imprisoning these people in the first place.

In short, the government exercises jurisdictional power while, at the same time, claiming an exemption due to lack of jurisdiction.  As always, wanting it both ways.

More importantly, though, the Constitution doesn’t mention any location or jurisdiction. It doesn’t apply to foreigners. In fact, it doesn’t apply to people at all!

It applies to the Federal Government – only.

Clearly, this wasn’t a popular position with the right in 2007, and I received the usual attacks of being a “liberal.” But, supporting a violation of the Constitution because you agree with the politician in power is not a good choice.

Why?  Because you’ve just given the opposition that same power.  To those of you who supported expansions of federal power while Bush was in office – are you happy now that Obama is in charge with all that new power?

Torture, restricting habeas corpus, terrorist/DHS watch lists, free speech zones, and more…The Constitution isn’t partisan.  It’s something to be followed no matter who’s in power, and no matter what they’re trying to scare you with.

Thomas Jefferson may have put it best:

“I never submitted the whole system of my opinions to the creed of any party of men whatever, in religion, in philosophy, in politics or in anything else, where I was capable of thinking for myself. Such an addiction is the last degradation of a free and moral agent. If I could not go to Heaven but with a party, I would not go there at all.”

By the way, Judge Napolitano’s new book Dred Scott’s Revenge, which covers much of the awful legal history of racism in America, is an amazing read.

More memos recently have surfaced that were written early in the Bush administration by John C. Yoo from the Justice Department’s Office of Legal Counsel — the man who gave us the administration’s horrifyingly narrow definition of torture. As difficult as it is to believe, the recently released memos are even scarier than the original torture memo.

Yoo boldly asserts that the president’s power during wartime is nearly unlimited. For example, he argues that Congress has no right to pass laws governing the interrogations of enemy combatants and the commander-in-chief can ignore such laws if passed, and can, without constraint, seize oceangoing ships.

The memos also argue that military operations in the United States against terrorists are not subject to the Fourth Amendment requirement for search warrants or the Fifth Amendment requirement for due process.

This broad interpretation of executive power and the president’s commander-in-chief role would make the nation’s founders jump out of their graves. Purposefully, the Constitutional Convention enumerated the large number of Congress’s powers in Article I, and gave most powers related to defense and foreign affairs to the people’s branch.

In particular, the war power was given to Congress. The chief executive, whose powers were enumerated in the much more brief Article II, was given the commander-in-chief role, but this was intended narrowly, only as commander of U.S. troops on the battlefield.

Instead of declaring war, which has fallen out of fashion, the Congress, after 9/11, passed a resolution authorizing the president to go after al-Qaida overseas but deliberately omitted domestic activities from that authorization.

Democrats and Republicans alike declared that they were not endorsing a broad expansion of the president’s authority as commander-in-chief.

An important example from the nation’s infancy shows how narrowly the founders regarded the president’s role as commander-in-chief. During the Quasi-War with France in the last years of the 1700s, Congress authorized President John Adams to seize armed ships sailing to French ports. Adams exceeded the congressional authorization by ordering the seizure of vessels sailing to or from French ports. The Supreme Court, in the case Little v. Barreme, ruled that Adams had exceeded the authority Congress had delegated to him. So much for Bush’s supposed intrinsic authority to seize all oceangoing ships without congressional authorization.

In 1952, President Truman, the first imperial president, seized the steel mills under his alleged “inherent power” as commander in chief — supposedly to prevent paralysis of the national economy and using the rationale that soldiers in the Korean War needed weapons and ammunition.

By a wide margin, in the case Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court struck down Truman’s executive order to seize the mills because it had no statutory or constitutional basis. Essentially, the court ruled that the president may be commander-in-chief of the armed forces but not the country.

Yoo’s assertion that Congress has no right to pass laws that impinge on the president’s claim to a broad interpretation of his role as commander-in-chief violates the core of the constitutional system of checks and balances, and for which the United States regularly criticizes despots in foreign countries.

Finally, the Fourth Amendment (requiring warrants for any search) and the Fifth Amendment (the right to due legal process) contain no exceptions for wartime. In fact, in a republic — where the rule of law should be king — crises and wartime are exactly when people’s rights are most likely to be endangered and when safeguards are especially needed.

Even more tragic and dangerous than the quagmires of Iraq and Afghanistan have been President Bush’s usurping of power from the other two branches of government and the creation of the “hyperimperial” presidency.

Ivan Eland is Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He has been Director of Defense Policy Studies at the Cato Institute, and he spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. He is author of the books, The Empire Has No Clothes: U.S. Foreign Policy Exposed, and Putting “Defense” Back into U.S. Defense Policy.

© 2008 – Ivan Eland – All Rights Reserved

As CNN reports:

The confirmation of Michael Mukasey as attorney general was all but assured Friday when two key Democratic senators said they will vote in favor of the nominee despite questions about his views on “waterboarding” and the president’s power to order electronic surveillance.

Sens. Dianne Feinstein of California and Charles Schumer of New York announced they would support the retired federal judge from New York just hours after the chairman of the Judiciary Committee announced his opposition to the nominee.

The concern from the opposition is that Waterboarding constitutes torture, and thus, would be in violation of the Geneva Conventions – a treaty to which the US government is a signer. Unfortunately, though, no one in a position of political leadership has even brought up the 8th Amendment – and it’s prohibition on the federal government engaging in activities that constitute “cruel and unusual” punishment – but even that’s not my main concern.

It’s the 10th Amendment which should’ve been invoked repeatedly in these hearings.

Let me explain.

The Constitution was written under what’s called “positive grant.”  What this means is quite simple – the federal government is authorized to exercise only those powers which are delegated to it by the Constitution.

This principle was so important to the founders that they codified it in law as the Tenth Amendment:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Pretty simple, right?  You’d think so.  It’s pretty clear to me what this means – if the Constitution doesn’t authorize the federal government to do something, then it cannot.

Thus, here’s a few things that the 10th Amendment prohibits the feds from doing:

• Defining Waterboarding – or any other word, for that matter
• Engaging in Waterboarding.

As a matter of fact, a quick reading of the Constitution would verify that the practice of Waterboarding is never even mentioned.  So why is this an issue?

Because the politicians and the bureaucrats would like to make sure that we’re all distracted from the real issues.  They want to keep us in semantic arguments about what words mean – so as to avoid what they dread – the 10th amendment’s limitation of their powers.

This issue is just a microcosm of the problems facing us in regards to the US federal government.  It’s completely out of control – and the first step to reigning it in would be to start demanding a strict adherence to the principle of positive grant – as enshrined in the 10th Amendment.

More specifically, The American Freedom Agenda Act would

• bar the use of evidence obtained through torture
• require that federal intelligence gathering is conducted in accordance with the Foreign Intelligence Surveillance Act (FISA)
• create a mechanism for challenging presidential signing statements
• repeal the Military Commissions Act, which, among other things, denies habeas corpus to certain detainees
• prohibit kidnapping, detentions, and torture abroad
• protect journalists who publish information received from the executive branch
• ensure that secret evidence is not used to designate individuals or organizations with a presence in the U.S. as foreign terrorists.

None of these were constitutional in the first place, and all are morally repugnant to the ideals of a free society. There is evidence of strong support for ending each of these individually, but no one in government seems to have the courage to do anything about it.

Ron Paul, on the other hand, had the courage to introduce legislation to end all of it. No one on either side of the aisle has done anything close.

I was browsing around the net looking for people who were writing about this big news, and came across an article on DailyKos.com (the hotbed of Democratic bloggers online) – which simply gave the text of the legislation and asked people to support it:

Please contact your Rep and ask for them to support this Resolution that has been introduced in the House today. The details of the Act are under the fold.

This didn’t get much traction on Kos – which I thought was odd, because it was a call to repeal so much of what the Bush administration had instituted over the last 6 years.

In fact, reading the comments was even worse – of the few posted, there were two that were downright hostile to the bill – not because it was a bad bill – but because it was introduced by Ron Paul, a Republican.

Here’s a comment by “Marcus Tullius”

Instead of supporting Ron Paul’s bill, I’d like to see the Dems propose their own.

And another:

I do not plan to help Ron Paul make political points. Imo, the Majority needs to put forward a bill proposing essentially the same thing. Couple of reasons why.

First, it denies R’s the ability to say that they are the party advocating a restoration of the rule of law. I aim to kill their party, and helping R sponsored bills pass is not on my list of shit to do right now.

Second, it requires any R that would support to vote against his/her party, and his/her president. That’s helpful because it further splinters their party, and it weakens the president.

So, to my mind, the only solution is a Dem sponsored bill. And they need to propose one, imo.

Although no one in his party has introduced legislation that’s even remotely similar – and although he supports the repeal of these awful laws, he won’t support it unless it’s been done by a Democrat.

It’s just this kind of attitude that, in my opinion, has gotten us to where we are now, and people like Marcus make me sick.

Marcus has no problem with torture, kidnapping, ending habeas corpus, and the like – and refuses to support the end of such activities, unless ended by a democrat.

I wonder how pervasive this kind of attitude is.

Party vs Freedom?

People like Marcus are happy to throw away your liberty, as long as it serves his party.

Now that’s a traitor if I ever saw one.