Could the Press Grow a Spine?

What part of Commander-in-Chief escapes you? Pick up a book on
Constitutional Law and you'll find that the "regulation of the armed
forces" applies to how the members of the force shall be governed and
treated. This is handled through the Uniform Code of Military Justice,
which is still in force.

This was also discussed by the panel last night on the News Hour.

What the Bush administration wanted was a direct violation of the UCMJ, under
the article covering assault. I don't have a copy of the UCMJ. I believe they
said it was Art. 77.

These legal experts all agreed that they had never seen anything like this
before. One of them said he "almost fell out of his chair" when reading these
documents recently released.

DO note that these actions of the lawyers in the executive branch so incensed
lawyers in the JAG office that they went outside the government and reported
these activities to outsiders, I believe in the New York Bar Association.

Ed, you need to wake up.

Walt

"WalterM140" wrote:

These legal experts all agreed that they had never seen anything like this
before. One of them said he "almost fell out of his chair" when reading
these
documents recently released.

He almost fell out of his chair because someone suggested it was legal "poke
in the chest, push lightly...." a detainee?

"WalterM140" wrote in message
...

(Snip)

What the Bush administration wanted was a direct violation of the UCMJ, under
the article covering assault. I don't have a copy of the UCMJ. I believe
they
said it was Art. 77.

Every military man should have a copy of the UCMJ available readily for his
personal reference. Here's yours:

http://usmilitary.about.com/library/.../mcm/blmcm.htm

No charge. (^-^)))

George Z.

"George Z. Bush" wrote in message ...
"WalterM140" wrote in message
...

(Snip)

What the Bush administration wanted was a direct violation of the UCMJ, under
the article covering assault. I don't have a copy of the UCMJ. I believe
they
said it was Art. 77.

Every military man should have a copy of the UCMJ available readily for his
personal reference. Here's yours:

http://usmilitary.about.com/library/.../mcm/blmcm.htm


WHen I was in High School one of my teachers told us that
the UCMJ was required reading once a year when he was in
the Army, circa 1950. The men sat in the mess hall while
someone read the entire UCMj to them out loud. He said most
of the guys slept. He took notes.

--

FF

Ed Rasimus wrote in message . ..
On 24 Jun 2004 13:56:48 -0700, (WalterM140) wrote:


What part of Commander-in-Chief escapes you? Pick up a book on
Constitutional Law and you'll find that the "regulation of the armed
forces" applies to how the members of the force shall be governed and
treated. This is handled through the Uniform Code of Military Justice,
which is still in force. You may even note its application against the
criminals of Abu Ghraib.

The UCMJ is Federal law created by Act of Congress. Neither the
President nor his Secretary of Defense may authorize violations
of the UCMJ.

I am only infinitesmally less than certain that the list
of interrogation techniques Rumsfeld authorized includes acts
prohibited by the UCMJ.

Are you familiar with the doctrine of command responsibility?
If not applicable to the crimes a Abu Ghraib, it was never
applicable anywhere.

The current occupant of the White House has not been
charged with any felonies. Harder to say that about his predecessor.

No it is not. To my knowledge, none of his predecessors have ever
been charged with any felonies, certainly not while they held office
or afterwards.

--

FF

From: (WalterM140)


Ed Rasimus wrote in message
...
On 24 Jun 2004 14:13:20 GMT, (ArtKramr) wrote:

The constitution was intact until Bush was elected.

Arthur Kramer

OK, Art. Put up. What part of the Constitution is no longer intact?

Article One.

Commentary on the News Hour last night indicated that since the
Congress is charged with regulation of the armed forces, Bush usurped
that power by trying to dictate how prisoners would be treated.
Ooops.

Really? Try Article 2, section 2:

Section 2. The President shall be commander in chief of the Army and Navy of
the United States, and of the militia of the several states, when called into
the actual service of the United States

Article 1 section 8 describes funding the military, declaration of war and
making regulations. Those regulations are now called UCMJ.

Tell me how Bush "usurped" that article.

The legal experts they had said that most of the documents released by
the White House dealt with how to twist the law so as to avoid being
charged with felonies. Disgusting.

No, they said what was being suggested didn't violate any law. They twisted
nothing. Sitting on the hood of your car isn't a violation of law, it is also
not twisting the law.

Bush is the worst president -ever- and he has to go.

Gee, that sounds like an absolute. I take it you have compared him to each and
every president in detail?

Walt

Dan, U.S. Air Force, retired

The constitution was intact until Bush was elected.

Arthur Kramer

OK, Art. Put up. What part of the Constitution is no longer intact?
What has been fractured and by what specific Bush action?

Bush usurped the Constitution.

I was speaking from memory a bit earlier.

From the News Hour last night (6/23):

EUGENE FIDELL: I think there were some aspects to the original memoranda that
were extremely disturbing; specifically the notion that the president, as
commander in chief, was essentially above the law.

And I think that, if anything, that set off a firestorm of controversy here.
What I see is a lot of government time... lawyer time being expended on a
subject that most people I think would consider off limits in any event.

RAY SUAREZ: Were you comforted, reassured, by the tone of some of the
communications in response to those original memos -- not affirming their
findings?

EUGENE FIDELL: No, I was dismayed, as a matter of fact, because this sort of
dialogue that had been going on, conversation within the executive branch,
continued on and on within terms of reference that I thought were very, very
surprising. I was shocked by the whole conversation, actually.

RAY SUAREZ: Professor Wedgwood, I ask you the same question. What did you
conclude from watching this evolving communication between the White House and
its lawyers?

RUTH WEDGWOOD: There were a lot of memos that got released in the last couple
of days and I think we are all digesting them still.

I think what bothered a lot of people, including me, about the original way
that the memos were framed is it seemed to be worrying as much about potential
criminal liability as what should be the standards that we choose to govern
ourselves by or that we're committed to govern ourselves by, by international
law, i.e., the relevant question is not simply is there a felony that attaches
to conduct but rather what should we do, which is why I took some comfort today
from the president reiterating again in the most imperative terms that the
standard has to be humane conduct.

RAY SUAREZ: In the written communications, do you have that same reassurance?
Do you think the government came down in the right place?

RUTH WEDGWOOD: The office of legal counsel has always had a function that is
much like a court because there are questions that the executive branch has to
address that may never get to court.

So OLC, which is an entirely obscure agency in justice, has always been seen as
quite dispassionate or at one step removed from the fray, not operational.

So I suppose my first critique is that they should have apprised the president
more thoroughly of the differences, of the view that others were likely to
take.

One can propose an idiosyncratic view, a dumbed down view of torture that is
only organ failure, but if 97 percent of the world does not agree with you or
99, you should apprise the president of that so he can make an informed
judgment about how he will fulfill the American duty to be humane.


Conditions of prisoner abuse

RAY SUAREZ: There was still a lot of conditional declarations, weren't there,
that laid out a case and then said but, on the other hand, here's this case,
where conventions may not apply, where the detainees are not like ordinary
POW's, that still reserve the right to use the harshest physical treatment?

RUTH WEDGWOOD: There are a lot of different both treaties and standards of
customary law that can apply here. Most of the law of armed conflict is not
written down – it's customary law -- but it is still real law.

One of the arguments I did not like in the early January memo is the claim that
because customary law may not be part of domestic law, that therefore it is not
worth considering. It is still international law.

Other countries have the right of so-called diplomatic protection of their
nationals and how they're treated. So we have to be mindful surely of
international standards, whether or not Congress has translated them into
domestic law.

RAY SUAREZ: Eugene Fidell, though the administration has rejected many of the
early legal opinions, didn't they, at the same time reserve for themselves the
ability to in the final analysis to use harsh physical measures that Geneva
Conventions might consider torture if they feel it's necessary?

EUGENE FIDELL: That's exactly right. That's one of the things that's very
disturbing. What you get if you read all of the memos, you come away with a
sense that all options remain open; that one of the objectives being served is
to effectively immunize U.S. personnel against prosecution for misconduct. This
is one of the things that's most disturbing. Can I give you an illustration?

RAY SUAREZ: Sure.

EUGENE FIDELL: There is a legal memorandum that was prepared by the judge staff
advocate for the U.S. Southern command that says this: regarding the uniform
code of military justice, the proposal to grab, poke in the chest, push
lightly, and place a wet towel or hood over the detainee's head would
constitute a per se violation of the assault statute, military statue.

Threatening a detainee with death may also constitute a violation of that
statute or the statute on communicating a threat -- "it would be advisable to
have permission or immunity in advance from the convening authority," the
military commander, "for military members utilizing these methods."

What this is is a road map for permitting, condoning criminal conduct. And to
see this in a legal memorandum, I have to say, I almost fell out of my chair
when I read that.

RAY SUAREZ: Ruth Wedgwood?

RUTH WEDGWOOD: Well, I think some of these have a certain macabre quality. I do
think that the centerpiece of attention ultimately after they rescind the memos
because it is unprecedented act that the administration took yesterday of
rescinding an office of legal counsel memo – to my knowledge, it has never
happened before.

They have promised to review them all, vis-Ã*-vis interrogation standards. But
I think the important question going forward is to look at what is acceptable
and not acceptable given our values, given our law, given what we want to be
seen as in the world in interrogation methods.

There are people involved in this process who I think are moral human beings.
They intend to be. They face a difficult situation where it seems to have been
case in the fall of 2002.

They thought there was an intelligence spike and they worry that the two
alleged al-Qaida guys at Guantanamo might be the key to preventing those
attack. So one can't deny that there are exquisite moral dilemmas here but I
think the key is to resolve them in a way that we are proud of.


The legal issues associated with the memos

RAY SUAREZ: Well, I don't want to get into how many angels can dance on the
head of a pin kind of arguments but I do want to understand the mechanics. You
talk about rescinding the memos -- does that mean the administration says, by
doing so that it rejects all the reasonings, or is there kind of a laundry
list, things that they may think are still true in there like powers that in
here in the commander and chief -- the ability to decide whether prisoners are
covered by the Geneva Conventions or not -- that they still may find valid
although they reject the overall conclusion of the memo.

RUTH WEDGWOOD: Well, that they have been rescinded subject to rewriting and
reconsideration and promised that all issues be reconsidered.

If I had to be a book maker, I would guess that one that is likeliest to
disappear is the claim that the president has an absolute power that can never
be touched by Congress, that even if Congress passed the statute, that they use
the "P" word, the president nor his employees may do the following kinds of
acts.

The claim that he was immune from that statute, that Congress didn't have the
power to reach that act, even though Congress's power under Article 1 of the
Constitution gives them the right to prescribe rules for the governance of the
armed forces. That was an audacious claim. It's not part of this necessary
conversation. And I think some things like that will disappear.

RAY SUAREZ: Is it unusual for you as a lawyer to be able to see the evolution
of a policy debate in documents like this?

EUGENE FIDELL: It's very unusual. Internal government legal memoranda are
typically not made public.

On the other hand, in this case, we have a number of effectively opinions of
the attorney general and I remember when the whole question of prisoner of war
status for Taliban and al-Qaida came up, thinking, gee, I bet there is an
opinion of the attorney general floating out there. It never came out or never
came out until over two years later.

My personal view, Ray, is that on matters that so close to the nation's
interest, every possible document that can be made public ought to be made
public.

Some of this is not going to make much sense to laypersons but it's important
that lawyers in our society, the lawmakers in our society, the legal academy,
be able to bring their critical skills to bear. You can't do that if you don't
have the hard copy.

I think there is an issue, it's not just the question of moving forward in
terms of how particular policies of interrogation play out, as well by the way
as who should be punished for what here because there are cases, as we all
know, pending in the pipeline for Abu Ghraib.

But it also has to do with policy towards transparency and the government's
legal apparatus. We can't allow every bit of legal advice that every official
decision maker, including the chief executive receives to become, you know,
public the next day necessarily.

But I certainly think that policy on that question of transparency has to be
revisited. Incidentally, there is a similar question in the U.K., the United
Kingdom , where the British government has resisted making public some legal
advice received from Lord Goldsmith, the attorney general there.


Â* Should the government release more documents?

Â* RAY SUAREZ: Well, much of it is out but by common consent, not all of
it. Do you think all of it needs to be released, professor?

RUTH WEDGWOOD: Well, the argument you hear on the other side is if you tell
al-Qaida or whoever that exactly what they should expect, even within certainly
the boundaries of humaneness, it is easier for them to train against the
techniques.

So I think what happened in the last day or two is really quite an
extraordinary event in the sense that administration understands that after Abu
Ghraib, people are so troubled, they're troubled.

They want to know where it came from, that you have to have a transparency that
really is probably unprecedented.

I do think and here I surely agree with Gene, is that the on issues of this
gravity, you want this kind of discussion to be one that's taken with more
advice, perhaps, than one had in the very small inside loop.

There are checks and balances in the government. It's wonderful to see how
uniform guys, even with careers in front of them, are duty bound and not afraid
to speak their mind and Secretary Rumsfeld reconsidered things when the JAGS,
the Judge Advocates General complained. That's a healthy check and balances.

The Congress is going to want to be involved in this now. I think it is going
to be a much broader conversation and frankly after Abu Ghraib, which even DOD
I think wonders how it happened. It is probably inevitable.

RAY SUAREZ: Thank you both.

EUGENE FIDELL: Thank you, Ray.



http://www.pbs.org/newshour/bb/white...ners_6-23.html

Walt

"WalterM140" wrote

[.]

There are checks and balances in the government. It's wonderful to see how
uniform guys, even with careers in front of them, are duty bound and not
afraid
to speak their mind and Secretary Rumsfeld reconsidered things when the
JAGS,
the Judge Advocates General complained. That's a healthy check and
balances.

Your reference says "healthy check and balances" - so what part of the
Constitution is no longer intact?

Ed Rasimus wrote in message . ..
On 24 Jun 2004 14:13:20 GMT, (ArtKramr) wrote:

The constitution was intact until Bush was elected.

Arthur Kramer

OK, Art. Put up. What part of the Constitution is no longer intact?

The Constitution remains intact.

I have a friend who has told me that GWB is not 'her' president.
As I explained, the Constitution provides that every four years
he newly elected Congress meets in joint session and votes to
accept or reject the electoral votes sent to that Congress from
the each state from the preceding Presidential Election. If one
Candidate eligible to thePresidency recieve more than half of
the total of the electoral votes accepted by the Congress then
that candidate is the President Elect and on inaguration day he
becomes my President. In Early January of 2001 the newly elected
Congress met in joint session and accepted enough electoral votes
to make George W Bush the president elect. Thus, on inaguration
day, he became my President.

Neither the (7 - 2) decision by the USSC, that Florida was in
violation of the equal protection clause of the 14th amendment,
nor the concurrent decision (5 - 4) enjoining Florida from
remedying that violation had any affect at all on the competency
of the Congress to accept or reject Florida's electoral votes.

The Consitution remained intact.

Since that time Geroge W Bush and his administartion have seized
thousands of persons within the borders of the United States
and, in violation of the Constitution, held them incomunicado
from their families and legal counsel. Here in the United
States of America, the next to final arbiter of what is or is
not permitted or authorized by the Constitution is the United
States Supreme Court, which recently held in a 6 - 3 decision,
that the above mentioned action is forbidden by the Constitution
and ordered the administration to obey the Constitution and
give all persons held in the custody of the United States,
both within the borders of the United States and abroad, access
to counsel and to the courts.

It remains to be seen if George W Bush and his administration
will obey the orders of the United States Supreme Court. Other
presidents in the past have defied the Court, relying on the
final arbiter in all political actions, power. But if George
W Bush and his administration defy the COurt it will be the most
flagrant such violation of the rule of law in the United States
in over 150 years.

Even if George W Bush or his administration does defy the court,
the Constitution itself will have remained intact. As Andrew
Jackson observed, teh USSC has no mechanism for directly enforcing
its orders. If the Court is defied by this administation it will
be incumbant on Americans to enforce the order of the Court.

George W Bush and his administration have proposed, in flagrant
violation of the Constitution, to create ad hoc courts for the
purpose of trying non-citizens outside of the borders of the
United States. It seems unlikely that the administartion has
sufficient time remaining to it to carry out that plan so the
issue most likely will never come befor the USSC.

And the Constitution will remain intact.

--

FF

"Fred the Red Shirt" wrote in message
om...

The Constitution remains intact.

I have a friend who has told me that GWB is not 'her' president.
As I explained, the Constitution provides that every four years
he newly elected Congress meets in joint session and votes to
accept or reject the electoral votes sent to that Congress from
the each state from the preceding Presidential Election. If one
Candidate eligible to thePresidency recieve more than half of
the total of the electoral votes accepted by the Congress then
that candidate is the President Elect and on inaguration day he
becomes my President. In Early January of 2001 the newly elected
Congress met in joint session and accepted enough electoral votes
to make George W Bush the president elect. Thus, on inaguration
day, he became my President.

Neither the (7 - 2) decision by the USSC, that Florida was in
violation of the equal protection clause of the 14th amendment,
nor the concurrent decision (5 - 4) enjoining Florida from
remedying that violation had any affect at all on the competency
of the Congress to accept or reject Florida's electoral votes.

The Consitution remained intact.

Since that time Geroge W Bush and his administartion have seized
thousands of persons within the borders of the United States
and, in violation of the Constitution, held them incomunicado
from their families and legal counsel. Here in the United
States of America, the next to final arbiter of what is or is
not permitted or authorized by the Constitution is the United
States Supreme Court, which recently held in a 6 - 3 decision,
that the above mentioned action is forbidden by the Constitution
and ordered the administration to obey the Constitution and
give all persons held in the custody of the United States,
both within the borders of the United States and abroad, access
to counsel and to the courts.

It remains to be seen if George W Bush and his administration
will obey the orders of the United States Supreme Court. Other
presidents in the past have defied the Court, relying on the
final arbiter in all political actions, power. But if George
W Bush and his administration defy the COurt it will be the most
flagrant such violation of the rule of law in the United States
in over 150 years.

Even if George W Bush or his administration does defy the court,
the Constitution itself will have remained intact. As Andrew
Jackson observed, teh USSC has no mechanism for directly enforcing
its orders. If the Court is defied by this administation it will
be incumbant on Americans to enforce the order of the Court.

George W Bush and his administration have proposed, in flagrant
violation of the Constitution, to create ad hoc courts for the
purpose of trying non-citizens outside of the borders of the
United States. It seems unlikely that the administartion has
sufficient time remaining to it to carry out that plan so the
issue most likely will never come befor the USSC.

And the Constitution will remain intact.


How can the Constitution remain intact if it is regularly violated?