to my post on his Slate essay:
The characteristically sharp-penned Eric Posner seems to me to miss the mark here. Lincoln as pragmatist is exactly the point I made in the piece (a well-worn idea about Lincoln, I concede, though it is not usually applied to the international laws of war). Lincoln began the war relatively disdainful of the laws of war. When he eventually embraced the idea of the law of war, it was not out of what his drafter Francis Lieber scorned as "mawkish sentimentalism," but out of a very concrete set of strategic aims. This may not be the "fashionable" IHL view of the 21st century, of course. But that's exactly the point. In fact I would have thought that my version of the tradition of Lincoln would appeal to Eric for precisely the reason it departs from both (a) the slightly ridiculous gentleman's duel model of Vattel and McClellan, and (b) the nihilism of those who don't grasp the strategic value that law has to offer. The former may resemble the IHL orthodoxy of the 21st century in its awkward divergence from the security interests of states. But the latter resembles the worst elements of the most recent Bush administration's engagement with the laws of war.
Seems to me that Lincoln and GWB both tested the limits of what was legal when a grave threat presented itself. To be honest, I think just about anybody in that position would do the same. And that's because it is easier to cover your butt by going too far than not going far enough and risking getting burned. It's not ideology, just hedging one's bets.
No, but it is certainly to be taken into consideration in judging him. From some of the posts and comments to posts I've read here and elsewhere, you'd have thought he'd personally firebombed cities or summarily executed captured Al Qaida members.
That was (approximately) FDR.
Ummm.... what "strategic value" does the law have to offer while dealing with Al Qaeda and barbaric islamic fundamentalists? None, what so ever - Some body tell Mr.Witt that extraordinary renditions started with the Clinton regime ( a certain Mr.Panetta who was the WH CoS then is now the DCI)- these "suspects" were sent to the Egyptian secret service - i am sure Hosni Mubarrak must have promised to treat these suspects like flowers.
But more importantly Eric Posner was trying to make the point that Witt was unwittingly proving that Bush was no different from Lincoln in that he did not hesitate to take his gloves off. And what exactly does Witt have to say for that ?
He has nothing but petty words undermining Bush's intentions - no, no these guys you see were "nihilists" ! Could it be that these nihilists wanted to prevent attacks similar to 9/11 and were ready to bend/break the law to do it ? While Mr Witt can comfortably arm chair quarterback the decisions made in the last seven years, he will have to admit that Obama is actually doing NOTHING DIFFERENT .
His appointee to the DCI categorically refused to say that he wont take the gloves off, if a ticking time bomb scenario presented itself - really ? And i thought that liberals believed that this utterly implausible scanario is nothing more than a glorification of that torture porn show called 24? Or that when you are tortured you will pretty much say anything ?
What happens to all those arguments now? Ohh forget it ! "Our" team is now in charge of the interrogations - it is cool to use the same flimsy ticking time bomb nonsensical scenario NOW. Change !
Obama's appointee to the DNI categorically refused to say that waterboarding is torture. What does Witt have to say about that ? Let me guess - Obama is following Lincoln !!!
But Bush ?? Naah, he is nothing like Lincoln - just a nihilist.
A very weak response by John Fabian Witt - and it is pretty telling that the response is lame.
The ACLU seems to be unhappy with the Obama administration
In Obama's defense, he is only following in the footsteps of Lincoln - John Fabian Witt can attest to that.
It is a peculiar implication of your post that Lincoln was President of merely his North and that he had no interest in preserving the integrity of the national boarders of the U.S. It also supposes that the government of the Confederacy was not subjugating the people within its sphere of influence.
Aligning the neutral/tepidly-allied countries more strongly with your side is long been considered a very important strategic advantage. Insofar as violating the rules of war makes those countries' cooperation harder to secure, it harms the war effort and endangers lives.
Actually, it was Reagan. But Clinton did continue it.
I would count subversion of the US Constitution (to which both Lincoln and, before their insurrection, the Confederates, were sworn to uphold) to be of the same magnitude.
This claim, often repeated, obfuscates more than it reveals.
The Reagan administration carried out extraordinary renditions to bring criminal suspects to trial in the USA.
The Clinton administration transported suspected terrorists into the custody of third party governments widely known to routinely torture their political and military opponents, such as Saudi Arabia and Algeria.
This represents two very, very different policies, even if both used the same euphemism to describe kidnapping.
A very good and nice to hear theory - it just doesnt work that way in the real world. In the real world of the Middle East that is.
It is politically incorrect to point this out, but i might as well do it. There are no "neutral" people in this war against Islamic fundamentalism. The so called allies of the US in the middle east are all governments headed by pseudo-secular or military regimes - their VERY co-operation with the US is a source of great heartburn amongst its people - let alone whether this co-operation flouts international law or not. These regimes have their own fights with the fundamentalists and have shut them from Government participation almost totally.
The Islamic Brotherhood has been at a war with the Egyptian Government longer than with the US Government.The Egyptians are more than happy to fight these elements with torture, long term imprisionment etc. And i am only talking about their local opposition.
As far as AQ goes, these Governments get paid for supporting US ideas/strategies on how the war should be fought. But mindful of the harsh anti American feelings among its people, it carries out these actions covertly.
Your theory would make more sense with European Governments - but as we all know even they allowed secret CIA detention sites to exist - it was only after European human rights organization raised a ruckus were they even forced to respond.
We can argue all day long as to whether these strategies actually help or harm American interests/standing- but from what information has been made available so far, we cannot deny that the Obama Govt is ESSENTIALLY following the footsteps of the Bush Administration vis-a-vis terrorism policies.
This is exactly why the ACLU has been disappointed as I ve tried to point out in my earlier posts. There are even progressives like Prof.Darren Hutchinson who have openly expressed their disagreement with Obama on this as well their disappointment that the likes of Glenn Greenwald and co have not taken Obama to task on this matter ( the way they screamed murder when Bush did it)
So far, no one is going to deny that. My take (and my beef with Romero et al), is that he's only been in office 4 weeks, much of it spent on domestic affairs. In due time, I trust that he will moderate some of Bush's excesses in a deliberate and thought-out fashion.
When he does come to some conclusions, I can't guarantee that I won't be disappointed (and, likely the ACLU will be quite disappointed, perhaps you will too). Then will be the time to grouse about Obama's national security policy, not now.
Lincoln had the choice of letting the Southern states go their own way or plunging the continent into a deadly war. He chose the latter. In prosecuting that war he trashed the Bill of Rights in the North while his army did more than defeat the Southern army, it wantonly devastated the South. Lincoln was not defending the country from some outside invasion.
Yes, slaves were subjugated in the South. If there was a political consensus in the North to fight a war to free the slaves, even at the expense of killing 2% of the entire population, that would have been one thing, but actually some of the staunchest abolitionists advocated the North seceding from the South. Lincoln by his own words chose war to "save the union," i.e., maintain economic and political hegemony over the South under a government dominated by the more populous North.
By the way, the authors of the Constitution itself originally "saved the union" precisely by not pressing the point about slavery.
Moderate Bush's excesses ? So,the goal posts have now moved from "reform" to moderation - i would'nt blame you or any one else who has tamped down expectations of change when it comes to Obama's policies on the war on terror.
It is always easy to criticize as a member of the opposition than it is to be a member of the executive who dreads another attack on the home land (given that he receives daily information regarding the various terrorist threats to the country.) Obama is now starting to realize this- and sure as hell, he is not going to be known as the President who allowed a terror attack to happen on his watch - look at what happened to Bush after 9/11 - a Presidential candidate who campaigned on a humble foreign policy, education and social security reform changed rather drastically into a security first/security at any cost President.
When he does come to some conclusions, I can't guarantee that I won't be disappointed (and, likely the ACLU will be quite disappointed, perhaps you will too)
I didnt make myself clear - In my view, Obama has already started leaning in the direction that he is going to follow in Bush's footsteps when it comes to anti terrorism measures. Sure, there might be a few cosmetic changes in the future, but the essence of Bush's policies are going to be maintained.
His appointments - Dennis Blair (who refuses to call water boarding as torture) and Leon Panetta (who had intimate knowledge of rendition program under Clinton's watch) is very telling.
I think that this issue has been politicized so much by the Democrats in the last 6 years that an honest discussion of what the Government does/has done in the name of protecting its citizens looks very unlikely. In stead we have people like John Fabian Witt who talks about who is really following in Lincoln's footsteps - how is this even relevant?
Then will be the time to grouse about Obama's national security policy, not now.
For a Presidential candidate who famously boasted that a President should be able to multi task many complex issues, this is quite a come down.
This financial/economic crisis is the worst since the Great Depression according to Obama/Keynesians - (although there are economists who think that it is similar to the recession of 81/82.)
If we take Obama and economists who support this view at their word, it is a pretty safe bet that you will have to wait for ever for Obama to "reform" the anti terrorism policies - after all he needs to focus all his energies on pulling the US and the world out of a global recession, the likes of which has never been seen in the modern economy.
The ACLU figures this to be the case - hence the reason for their disappointment.
But in the mean time while we all figure how best to recover from the downturn, the status quo for anti terrorism policies remains.
This economic crisis may have been the best thing to happen to the whole torture debate. It may force people to see the complexity that they steadfastly refused to see while in opposition. and that the cases of torture and rendition arent as black and white as Bush critics would want you to believe.
The lack of right to secede is implied by the absence of such a clause. At the absolute minimum, if you want to read an implied right of secession, it should be subject to the same procedure as accession - the consent of Congress. Read the letter of James Madison about what he thinks the Constitution that he wrote says about the topic.
Political hegemony by the populated? Isn't that pretty much the entire philosophy of the American Revolution? Perhaps we should be ruled by the minority!
Well, one would need to know the details of how the system works before one knows whether there is a need for wholesale reform. At any rate, that's semantics. Obama will evaluate the system as it exists and then propose some changes -- whether those changes are mere moderation or rise to the level that you call "reform" is not a meaningful distinction.
Moreover, I was never one of the shrieking left that considered Bush's approval of a policy to mean, ipso facto, that it is a bad idea.
And I didn't make myself clear -- I strongly think that he's still in the "research and report" phase, not the policy-making phase. Maybe he's leaning towards Bush's footsteps in the sense that he didn't take Tony Romero's advice to close GTMO and transfer all the detainees to Federal Court forthwith (such is the lunacy of the left) but I don't think there are any firm decisions made.
I happen to believe there is quite a bit of distance between Addington's lunacy and Blair &Panetta's position.
Catch-22. If he decides quickly it will be rash and ill-considered. If he takes his time it will be because he wasn't smart enough to do everything at once.
Better than someone mucking about in a complex system (even one that I think needs some "reforms" or "moderations", whatever term you like) without understanding it or having thought out how their new-and-improved system wll work.
Perhaps we were never as naive as you thought (or perhaps some of us are and some aren't).
As Oren noted, nowhere does it say they can withdraw. Here are a few problems with the "right" of withdrawal:
1. All the usual attributes of independent nations -- declare war, commerce with foreign nations, etc. -- were granted to Congress in Art. I, Sec. 8.
2. Art. I, Sec. 10 prohibits states from entering into any confederation, and also prohibits them from many other acts essential to the formation of an independent nation.
3. Art. II, Sec. 2 makes the President CinC of the militia of the states.
4. Art. III, Sec. 2 gives the Supreme Court original jurisdiction over controversies between two or more states.
5. Art. IV, Sec. 3 limits the power of states to combine into any larger state.
6. The Supremacy Clause.
7. Art. VI required state officers to swear allegiance to the Constitution. Secession violated those oaths.
8. Secession is inconsistent with basic contract law and principles of republican government.
"One of Abraham Lincoln's little-noted accomplishments has become his most unlikely legacy. He helped create the modern international rules that protect civilians, prevent torture, and limit the horrors of combat, the body of law known as the laws of war. Indeed, he was probably our most important law-of-war president, having crafted the very rules that George W. Bush and his Justice Department tried to destroy."
The professor's "explanation" above has no relationship to this lead. Posner and Somina [sp?] have exposed Lincoln's laws of war as reflecting exactly the opposite of what the professor argued. Lincoln created arguably barbaric laws that make Bush look like a wimp. The following examples:
1, acts otherwise prohibited by the Lieber Code could potentially be justified if they are considered necessary to "save the nation" (Article 5);
2. the rights under the laws do not extend to "war-rebels" and other insurgents who, as Article 82 points out, "are not entitled to the privileges of prisoners of war" and are generally denied any protection from the laws of war (Article 52);
3. even for legitimate prisoners or war torture banned only for "infliction of suffering for the sake of suffering or for revenge, . . . maiming or wounding except in fight, ... [and] torture to extort confessions" (Article 16), but not banned to secure information or
4. Article 52 states that "If . . . the people of a country, or any portion of the same, already occupied by an army, rise against it, they are violators of the laws of war, and are not entitled to their protection." Under this provision, insurgents in Iraq and Afghanistan could be denied all protection under international law, at least after the US and its allies occupied their countries.
5. Articles 82 and 85 allowed the summary execution of all irregular guerrillas and resistance fighters:
It seems clear the Good Professor has been caught. He must have thought no one would take the time to actually look at Lincoln's laws of war. Another example of how Bush derangement syndrome drives otherwise rational persons to do the dishonest and irrational.
Funny, the person who didnt know the details of how the system works was constantly railing against it during his election campaign and declaring conclusively how it demeaned America in the eyes of the world.
Unless you want to insult my intelligence, Obama presented himself who was going to reform these policies and "restore" America's "moral standing" in the world. Your man passed judgement on Bush policies a long time back, without knowing a whit or caring to know a whit about how "the system worked".
"I strongly think that he's still in the "research and report" phase, not the policy-making phase."
I have to say i am beginning to enjoy this debate. Obama's supporters obivously seem to know which "phase" he is in. Don't tell that to the voters though, who elected him to be the "change they can believe in".
"Perhaps we were never as naive as you thought (or perhaps some of us are and some aren't)."
No, but you are about as honest as i thought people in the Left are/were.
This whole conversation confirms that. So, let me recap - Obama campaigns on how he is going to be the "change" we can believe in, how he is going to reform America's "moral standing" in the eyes of the world and when he comes to power, he is now in the "research and report" phase. Why ?? Because, he does not want to muck up a complex system - the same complex system that he campaigned against and excoriated Bush administration for. And all that we arguing about is mere semantics here.
I only wish some one from the ACLU could read our back and forth.
Bonus:Panetta and Blair are not like Addington - sure, only 90% alike. Now, that's CHANGE !
Well, we knew enough about GTMO back when to know that it was a mistake. We knew enough from the sweeping claims made by the SJ in Hamdan to know that those were a mistake.
I voted for Obama, on the theory that the "change" that he represented was the well-reasoned sort -- the kind that comes out of a deliberative rational process. Perhaps I was hoodwinked.
(1) He's been in office 4 weeks. When he does reform (or whatever) the intelligence system, I'm sure you'll be back here to tell us how bad the new policies are.
(2) Judging policies to be deficient and replacing them with better ones are two very different things. It's easy to identify the problem (step 1 accomplished), it's harder to fix them and certainly more time-consuming (see #1).
(3) I don't care what the ACLU thinks, I saw Romero do a single interview and concluded he does not live in the same reality we do. It's not that I don't support their principles, it's that I don't think their solutions are practical
It's amazing that with a government of enumerated or limited powers, some people will claim acts are prohibited because its Constitution doesn't "give rights to do that thing".
The existence of the US and its Constitution must be illegal since —according to Oren and MarkField's theory— dependent colonies cannot become independent.
For most Guantanamo prisoners, their best, most humane option is where they are. No western nation will take them, and the few countries that would take them will probably kill them after brief
tortureincarceration. Change® supporters are realizing the US must either keep these prisoners, risk releasing them to be recaptured in attacks on US or allied citizens, or 'dispose' of them. This means (respectively) being hypocrites or doing something that will get them drummed out of office; acting as Bushies or being out of power. Hmmm.In laying the groundwork for the new 'war reality' with armed force cutbacks and reduced personnel, Witt fundamentally misunderstands what is acceptable and what is inhumane. Executing prisoners was never acceptable; except "in cases of necessity" it might be OK now . . . Lincoln said so. Executing captured "enemy guerrillas" might be OK; Lincoln permitted that too. Etcetera. And lest we forget ". . . and Lincoln made it all legal."
The crowd that howled at Bush for not enough diplomacy now look to Lincoln for guidance, a leader who spit at the notion. Initially ignoring any civilized conventions, when forced by popular opinion to obey the 'rules of war' Lincoln simply made some up, to his own advantage of course.
Quite simply the left is forced to adopt somebody-besides-Bush' position to justify their occupation of Bush' positions and the meme of Change®. Might as well be Lincoln.
Don't confuse the legal right of secession with the natural right of revolution. The former is a quasi-contractual right granted by the sovereign. The latter can be summarized as "you gets your guns, you takes your chances".
If the American Revolutionaries had failed militarily, they would all have certainly been hanged for treason.
One third of the population of the American colonies hanged? Not hardly. Both sides kept POWs, negating your claim the British would have hanged them all. Too many 'Tarleton' movies will do that.
The Declaration of Independence contained a long litany of complaints —a bill of compliants— drawn up by American lawyers and state legislators. The separation was legal, not just a revolt. The war (armed conflict) began spring 1775, Virginia declared independence in May 1776, and a Congress of the states, former colonies, declaring independence July 1776.
In 1777, the Second Continental Congress adopted the Articles of Confederation and Perpetual Union containing the words: Oviously this was later jettisoned —without provoking a war or even any legal complications— to adopt the newer Constitution ... which has no such wording.
So we went from 'shall be perpetual' which can be nullified by states' vote to silence on the matter. Probably because a 'shall be perpetual' which can be nullified at-will doesn't mean anything worth writing down.
Oren wrote, "The lack of right to secede is implied by the absence of such a clause."
The 'unlimited powers' theory is made-up out of thin air because it reaches the result you want.
Also because it's the result that Madison said was obviously intended the Constitution. You know, the one he wrote, "We the People" and all that (nb: it's not "we the states").
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