I take your point, Shodan, about “sex is sex” – but a major part of the legal argument against him (if it’s not the blowjob question, a point I’ll concede in your and other cases) is that he lied under oath – and what I said was AFAIK the case – he was asked if he had had sexual intercourse with her and truthfully answered that he had not. He was not obliged to take other sex acts into consideration by the phrasing of the question, and not required to volunteer any information. His obligation in responding to the summons was to answer the questions put to him truthfully. If you hale me into church court for a heresy trial and suspect that I don’t hold sound doctrine on the Resurrection, asking me for my beliefs about the Crucifixion is not going to get you the answer you want. It may be related but it’s not the same thing.
Well, Polycarp, as I said, I was going from memory, but I believe it was explained to Clinton that sex meant sex, not simply intercourse.
And the judge in the case agreed that Clinton had, in fact, made false and misleading statements under oath, and ruled to that effect in her findings.
So, as far as I can tell, he did indeed lie under oath.
I can dig up the cite if you like.
Regards,
Shodan
What on earth does Nazi generals have to do with impeaching the President? Absolutely nothing.
No it doesn’t but you can’t impeach the President for constitutionally exercising his powers. You can’t impeach the President for exercising his appointment power under Article II. Similarly speaking, if the President is acting within his powers given to him in Article II as Commander In Chief then he can’t be impeached for exercising them. With this said lets look at your examples.
Bad example because this would not be a valid exercise of the President’s power as Commander in Chief.
Allow me to explain why. Lets use some examples. Lets use a specific UN charter.
Now this provision of the UN Charter has been interpreted to mean that an armed attack is a necessary condition before military hostilities can be initiated by one nation against another.
The International Court of Justice has interpreted “armed attack” not to include preparation for attack or a nation harboring those who have perpetuated an attack against a sovereign nation.
Now these provisions of the UN charter, as interpreted, would impair the Presidents power as Commander in Chief under Article II of the U.S. Constitution to engage in military hostilities absent self defence from an armed attack. The Supreme Court has interpreted the Commander in Chief power broadly. The President has used his Commander in Chief power to deploy U.S. military troops and forces to engage in hostilities. This has included instances where there has been no armed attack such as in Kosovo, Yugoslavia, Libya, Somalia, Lebanon, Afghanistan, and many others. There are enough U.S. Supreme Court opinions permitting the President to use military forces in the manner done by President Bush as Commander in Chief under Article II of the U.S. Constitution.
Now this specific provision of the UN would impair the President to exercise all of his powers as Commander in Chief of the U.S. Constitution. It would prohibit the President from committing combat troops in situations where he is capable of doing so as Commander in Chief under Article II of the U.S. Constitution. Hence, we have a collision between the provisions of the UN charter and Article II of the U.S. Constitution’s provision of President as Commander in Chief. So the query is whether or not the UN Charter is really binding on the President or the Congress if it conflicts with the powers given to them to exercise via the U.S. Constitution? Well the result would be the treaty is not binding or specifically in this instance this particular provision is not binding.
Now with this in mind back to your original point of impeaching the President for **So far however, it certainly seems like an aggressive war to me, and hence could be labeled as a Crime agains Peace by the Nuremburg conventions. If indeed it is, then I definitely will call for impeachment. **
Once again you can’t predicate impeachment on UN provisions not binding on the President. So while under the UN provisions this is arguably an “aggressive war” the fact remains the President has the Constitutional authority as Commander in Chief to engage in an aggressive war because there are a series of U.S. Supreme Court opinions permitting the President to engage in so called aggressive wars as Commander in Chief in Article II. Try reading the Prize cases for starters and tomorrow I will cite about 10 more cases for you validating the Presidents power to engage in aggressive wars as Commander in Chief under Article II of the U.S. Constitution.
So once again you are back at square one. Trying to impeach a President for violating UN provisions not binding on the President by virtue of the fact they conflict with the Commander in Chief clause under Article II of the U.S. Constitution. You can’t use a source of law not binding on the President as grounds for impeachment. If the law is not binding on him, then he can’t be in violation of it. If he can’t be in violation of it, then how can he be impeached for violating a law not binding on him?
So what exactly are you going to impeach him for? At this point it looks as if you are going to impeach him for exercising his constitutional authority. It was never the Framers intent to permit impeachment when Constitutional authority has been exercised but when it has been abdicated to the detriment of the government or to the people or abused.
Why not?
I looked into the Prize cases, perhaps you’d like to explain why they are relevant since IMHO the court issued it’s opinion on the grounds that congress passed laws in 1765 and 1807 allowing the president to use military forces in the occasion of “an invasion by foreign nations and to suppress insurrection”.
In fact, this case by itself only seems to damage your claim since it’s apparent that congress saw fit to specifically give the president those powers as if they weren’t already derived from the constitution. Perhaps you could explain that as well
Hopefully, your next 10 cases are more obviously relevant.
Uh in one word Errata, No. Your interpretation of the Prize cases is not correct.
So first of all the Court is noting the statute passed by Congress did not permit him to use the Navy to form a blockade of Southern ports. This is pivotal because whether or not the President possessed the authority to use the navy is outcome determinative whether or not the ships that were seized were legally seized. If the President lacks the power to institute a blockade, then the seizure of those vessels is illegal. The statute, as noted by the Court, did not authorize the President to use the navy to form a blockade and as a result Lincoln’s action must be validated based upon some other provision.
Next you evidently missed this next part of the Court’s argument.
Since there was no declared “war” by Congress then the legal legitimacy of the seizure of those vessels by the blockade at this point is questionable. Hence, the Court frames the question as one of:
So the Court then goes on to find the authority for Lincoln to use the blockade and seize vessels not upon the 1807 act because it is not sufficient.
Hence the court asks:
So the question necessarily becomes one of was there a “war” permitting Lincoln to act pursuant to the act of 1807 in forming a blockade and legally seizing vessels?
The 1807 Act did not close these ports and if the 1807 Act authorized the President to use the navy to form a blockade and seize vessels then the Court would have not gone any further in its analysis than the statute itself.
So if the 1807 Act was not sufficient, then what did the Court rely upon? What is the legal standard? Well the Court focuses specifically on the issue of “war”. The court goes forward with the query:
and
So the 1807 Act, contrary to your assertion, was not the basis for legitimizing the President’s conduct.
Essentially the Court based its opinion in the Commander in Chief clause in Article II of the U.S. Constitution. Did the President have the power to put the United States in a state of war absent a declaration of war by Congress?
Citing Robert J. Delahunty, Deputy General Counsel, Office of Homeland Security; Special Counsel, Office of Legal Counsel, United States Department of Justice, and John C. Yoo, whose accolades are to lengthy, in an opinion written by them regarding The Presidents Constitutional Authority to Conduct Miliarty Operations Against Terrorist Organizations and the Nations That Harbor or Support them out of Harvard Journal of Law and Public Policy Volume 5 number 2 Spring 2002 note in the Prize Cases the Court explained that, whether the President in “fulfilling his duties as Commander in Chief” was justified in treating Southern States as belligerents and instituting a blockade, was a question to “be decided by him.” Id (in other words read the Prize Cases, the entire opinion. The Court could not question the merits of his decision, but must leave evaluation to “the political department of the Government to which his power was entrusted.” Id. All of this on page 490 of the journal.
The Court also observed the President enjoys full discretion in determining what level of force to use. The Court observed, “He (the President) must determine what degree of force the crisis demands.” See the case on this is on page 490 of the journal.
Now with the Court’s observations of the President’s power in the Prize Cases noted what other cases are relevant?
Again relying on the esteemed counsels of Mr. Delahunty and John C. Yoo in the Journal they cite the following cases:
Johnson v. Eisentrager, 339 U.S. 763 (noting that the president has authority to deploy United States armed forces “abroad or to any particular region.”)
Massachusetts v. Laird, 451 F.2d, 32 (1st Cir.1971) (noting the President has the “power as Commander in Chief to station forces abroad.”)
Additionally Attorney General Jackson, later Justice Robert Jackson, formulated the executive branch’s military powers:
“Article II, section 2, of the Constitution provides tat the President shall be Commander in Chief of the Army and Navy of the United States. By virtue of this constitutional office he has supreme command over the land and naval forces of the country and may order them to perform such military duties as, in his opinion, are necessary or appropriate for the defense of the United States. These powers exist in time of peace as well as in time of war…Thus the President’s responsibility as Commander in Chief embraces the authority to command and direct armed forces in their immediate movements and operations designed to protect the security and effectuate the defense of the United States…”
The Justices in these cases noted it is the President of the United States in his capacity as Commander in Chief and the clause stipulating the "Executive Power shall be vested in a President of the United States, " permits the President to evaluate when a threat is of a serious kind to the United States and then how to deal with it.
This is in fact what Presidents have done in accordance to this interpretation of these provisions. Presidents have used military forces in S. Korea, Kosovo, Yugoslavia, Somalia, and Afghanistan stating they believed it was in the nation’s best interest by protecting national interests or in the case of Bush to protect the U.S. domestically from future attacks. Again it is the President who has the sole authority to assess the threat and then to respond appropriately.
Yet throughout these opinions, we see word like “security” and “defense” which an aggressive war has little if anything to do with. Merely offering the excuse that it is in self-defense does not make it so.
Do you know of any opinions stating that the president has the right to wage aggressive wars in particular, as opposed to wage war in defense of the US?
Jimmy1,
I would like to note that the quotes you offered were not in the two of the versions of the opinions offered by Grier that I found. I’m not sure why there were omissions of that nature, but that’s what led to the confusion.
While the president’s constitutional power came into play in the decision, his initial authority to deploy the militia to prevent an “insurrection” came from legislation and very importantly from the obvious state of war initiated by the South, not from the constitution. IOW if we’re being attacked, we don’t have to wait for Congress to declare war and the president is obligated to take measures to protect the Union. The constitutional powers gave him the authority to decide whether the blockades were necessary because he was commander in chief and obligated to protect the Union, but the legislation gave him the power to suppress an “insurrection” to begin with.
I think you’re still a ways away from showing that simply being commander in chief gives one the right to declare aggressive wars that cannot be superceded by treaty.
Look the statute is a Red herring Errata. The Court did not rest its decision on the statute. The Court’s focus is whether or not a “war” existed in order to permit the seizure of a vessel. The Court’s opinion goes beyond the confines of the statute. The Court’s opinion recognizes the power of the President to use the military to initiate a war absent a Congressional declaration of war. In other words, the President does not have to wait for Congress to declare war before he can mobilize troops and by such a mobilization and his declarations constitute a war. This gives the President powers beyond those in the statute. The statute is just a red herring. The Court’s opinion goes beyond the statute and does not rest its opinion on it. It rests its opinion on the President to mobilize military forces as President of the United States and that such conduct constitutes a war.
As your own quote admits the President has the constitutional authority to decide the necessity of using a blockade and then he had the constitutional authority to initiate a blockade. Hence, his powers to mobilize the military are not contingent on this statute and the Court did not rest its opinion on the statute. The statute is just a red herring.
Well I don’t need a case that is exactly on point. I am sure attorneys Sua Sponte and Polcarp will even tell you there are times when an attorney does not have a case on point and this will necessarily require them to find principles in the rules of law and argue how those principles are outcome determinitive in a particular case. I have provided enough quotes that indicate it is within the sole power of the President to determine what constitutes as a “threat” to national security and what measures are necessary to deal with this threat. Hence, the President Bush as Commander in Chief, as the sole representative of America in foreign affairs, and as having all the executive powers vested in him, has the sole discretion to determine what constitutes as a “threat” and then the best way to address this threat. This necessarily includes the use of military force to address the threat. Only the President, possessing all information from a host of intelligence sources, can adequately assess and address what is a threat to the U.S. and only the President, as Commander in Chief, is best suited to quickly and adequately dispose of these threats to national security. This parallels some of the Framer’s intent to have an executive who can quickly dispel with threats to the U.S.
I might also add Presidents in the pass have acted consistent with these principles and I have already named them.
One last point to be made is Sua’s attempt to explain to you the difference between a self-executing treaty and a non-self-executing treaty. He may have a point in stating until Congress enacts legislation explaining and detailing how article 51 is to be implemented in the U.S., then the President can’t be charged for impeachment if he violates UN article 51. There must first be some U.S. law passed by Congress before the federal government can act under the color of UN provisions and necessarily be prosecuted for violating them or impeached for violating them.
It is also worth noting the Presidents power as Commander in Chief is at its zenith when Congress has declared war. Congress passed a resolution authorizing the use of military force against Iraq and this is tantamount to a declaration of war. Hence, once this resolution is passed the President’s Power as Commander in Chief is at its apex and this includes the ability to engage in aggressive conflicts. As a result, UN article 51 does conflict with the President’s power as Commander in Chief because as it has been noted the Presidents power to use the military forces in any manner he sees fit is at its zenith once a declaration of war, or in this case its equivalent in the form of a resolution permitting him to use military force in Iraq, and article 51 collides with this constitutional power of the President. When a collision exists the UN charter must yield to the U.S. Constitution.
Will you also argue, however, that the de facto state of war resulting from the conflict with the south was not what pre-empted the necessity of a congressional declaration? Was the actual undeniable conflict with the south also a “red herring”? I find that hard to believe. I also find it hard to believe that the need for defense extends to any and all offensive maneuvers.
But the connections between defensive powers in a de facto war and the right above treaties to wage aggressive wars have not been sufficiently made.
Indeed over 50 members of congress attempted to challenge GB the 1st’s capacity to wage an offensive war without congressional approval. The case was rendered moot by later congressional approval, but the issue still obviously remains in contention.
Yes, dispel threats not wage aggressive wars. Claiming self-defense when it is clearly not, is an abuse of power and not what the framers had in mind.
I also have the right to free speech, but that does not mean that there cannot be reasonable laws that govern my speech. The fact that the president is commander in chief does not mean that the president’s power is unassailable by reason and common sense pending constitutional ammendments.
Likewise, the congress has the capacity to declare war, but if they have effectively legislated themselves out of that power in certain situations then they should be held accountable as well.
If the constitution states that treaties are the law of the land and yet an interpretation of a branch’s powers through the constitution are so broad as to render treaties worthless pieces of paper, then the interpretation needs to be re-examined or the treaties need to be trashed .
Now that I have given the constitutional idea it’s due, I will restate that I don’t feel that a violation of US law is necessary. If anyone in this country should be held accountable for war crimes, it is the commander in chief of the military. Should these war crimes not be specifically guarded against by our legislation that does not mean that they should go unpunished. The impeachment powers were not given to the supreme court, they were given to the legislature to balance the president’s power and it’s possible abuses as a voice of their constituents.
The fact that the US has sentenced to death those that have committed such crimes and formally promised with treaties not to do so ourselves, shows to me that it is indeed an offense worthy of impeachment.
If we are not to punish these actions, then we should withdraw from the Nuremberg charter, and the UN charter and apologize for executing the Nazi generals because we would clearly consider it a sovereign right instead of a war crime.
This is rather conclusionary. What makes you think the confict in Iraq is not “self-defense”? Dispelling threats can include the use of aggressive wars. Dispelling a threat can often times mean using the military to render them no longer a threat. N. Korea is a threat and if the U.S. invaded tomorrow, defeated them, rid the country of nuclear weapons, and then established a democracy it would be safe to say the threat was “dispelled”.
Finally what the Framers exactly had in mind is not exactly known. Yes they wanted the the President to have the authority to dispell threats to the U.S. and insurrections but how far they wanted this to be taken is not known. We can’t say with any certainty G. W. Bush exceeded what the Framers intended. Alexander Hamilton, however, probably would have condoned what G. W. Bush did.
Really? How far are you willing to extend this reasoning? Should Fourth Amendment jursiprudence be revised to make it compatible to treaties even if it requires the relinquishment of rights the people are said to have via the Fourth Amendment? Or are you only restricting this statement to the branches of government. Well this restriction would not make any sense because the branches of the government and their powers are found in the U.S. Constitution the same constitution as the Fourth Amendment. The powers given to each branch are similar to the rights given to the people via the Fourth Amendment. Constitutional interpretation of the powers given to the branches of government should not be revised to comport with international treaties any more than Fourth Amendment jurisprudence should be revised to comply with treaties.
Finally the Presidents power as Commander in Chief is at its zenith when Congress declares war or its equivalent. Congress passed a resolution authorizing use of force against Iraq. The only limitations on the Presidents power as Commander in Chief when Congress has authorized war or use of the military must be found in the U.S. Constitution itself. There is nothing in the Constitution prohibiting his ability to use the armed forces in an aggressive manner when Congress has authorized war or use of the military. Hence, it cannot be said he is violating any constitutional provision but is complying with the U.S. Constitution as Commander in Chief. Those provisions of the UN Charter that restrict his powers as Commander in Chief to direct military forces with the authorization of Congress cannot stand as a source of law to impeach him because they conflict with his powers as Commander in Chief. No treaty can undo or alter the U.S. Constitution or any interpretation given to it by the U.S. Supreme Court.
If you are wanting to say the President committed war crimes and use this as a basis for impeachment, then you are going to need to rely on another source of law.
Additionally it may be necessary first to find out if Congress must first pass a law implementing the international provision before the President can be said to be in violation of the provision and used as a source of impeachment. Congress has stated the UN charter is not self-executing but requires Congressional legislation to implement allowing the President to act pursuant to its provisions and hence, be liable under it.