What about the troops?

POSTED BY: Causal
UPDATED: Wednesday, December 26, 2012 15:17
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CAUSAL

Wednesday, February 7, 2007 8:50 PM

Quote:
Originally posted by Fremdfirma:
Quote:
US CONSTITUTION.
Article 1, Section 8.
The Congress shall have power...
To declare war

Congress, and ONLY Congress, has the power to declare war - they cannot legally abdicate it, the President cannot legally usurp it, and unless a power has been specifically granted to either one, it is the province of the state, or it's people respectively (See: Amendments IX and X)

Is there an Offical, recorded Congressional Declaration of War on Iraq ?
No.

THEN THERE IS NO WAR, Constitutionally.

By the very letter of the highest law, orders for deployment to Iraq are unlawful orders

Yeah, but here's the trouble:

Quote:

US CONSTITUTION
Article 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

The trouble seems to be this: the constitution gives Congress the power to declare war, and it names the president Commander in Chief. This means that the president can issue orders to the military, but not declare war, and congress can declare war, but not issue orders to the military. As I understand it, this is meant to insure that both branches work together. But the framers missed a huge loophole: they did not specify whether or not the president could order the military into combat without a declaration of the war. So: big issue. Can a president order the nation's forces into combat without a congressional declaration of war? Well, pretty clearly, the president has (the most notable examples being Vietnam and Korea, which were labelled "police actions" avoid this whole issue). Now, I'm no lawyer, but I'm pretty sure that the way jurisprudence works is that when a law seems to cover a particular circumstance but does not do so explicitly, an appeal is made to precedent. Now, there are at least three twentieth century examples of presidents ordering American forces into combat without declarations of war (Korea, Vietnam and Gulf War I). It would seem that the precedent established has been that yes, the president can order America's military into combat without a declaration of war. Unless a legal challenge is mounted and precedent is set that contradicts that, I'm pretty sure that ordering American forces into Iraq was not illegal (though it was certainly monumentally foolish).

Now, the War Powers Resolution was passed with exactly this sort of situation in mind: congress wanted to restore what it viewed as the slide of power away from the legislative branch toward the executive. So the War Powers Resolution places a check on executive power by requiring the president to seek congressional approval before the commencement of hostilities (which Bush did, and which congress duly gave him). So again, the Iraq war may be foolish, but it is not illegal, being that the president sought and received congressional approval. Interestingly, the War Powers Resolution can be used by congress to require the president to pull US troops out of combat (it was used this way in the aftermath of the battle in Mogadishu, Somalia). So congress could, conceivably, still act in order to legally require the president to withdraw US forces from Iraq.

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FIVVER

Wednesday, February 7, 2007 9:25 PM

Actally there's precedence going back to at least 1801 where congress, without specifically declaring war, authorized Thomas Jefferson to use whatever military forces he needed to protect American interests against the Barbary Pirates.

This is pretty much what congress did with Iraq. They voted to give the president authority to act militarily and since then have continued to authorize funds to conduct the war.

But the main reason the judge is not letting the trial become about the legality of the war is he has no authority to do so. The judges authority only extends to trying the defendant under the law he is accused of violating. It is at the appeals court and supreme court level where other issues (did the defendant receive a fair trial, were his rights respected, is the law he was tried under constitutional, etc) are determined.

CAUSAL

Wednesday, February 7, 2007 9:28 PM

Well, then I guess Mr. Watada will have his hearing at those levels. I wonder if they'll really make a run at it...

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FREMDFIRMA

Thursday, February 8, 2007 1:27 PM

Casual -

On that one I agree, he should have showed up, demanded, as is his right, his orders in writing and THEN refused them, by the book.

So yes, on that charge I would spank him, but that's a minor thing and by the potential sentence they're offering, it's just another sidestep like the captain I mentioned above used to discipline a female troop ostensibly for something else, when in fact he was retaliating for her failure to do what he ordered, you see.

There's a few spots where Watada failed in his duty regardless, by missing movement for one, and by attempting to influance fellow troops to also refuse - that is not his decision to make, and I do feel it comes under conduct unbecoming because in a position like this an officer speaks with his ACTIONS, and he should have simply stated his position and then stood to it with the silent dignity an officer is required to maintain in such a situation.

Being issued, and subsequently refusing, an unlawful order gives you no right to simply pitch the whole rulebook, and a soldiers actions are his own - him encouraging others to also refuse might fall under spreading sedition, which is a whole other can of worms unrelated to simply refusing an unlawful order.

What this smacks of is trying him for one offense, and then sentencing him for another, and that's complete bullshit, in my opinion.

As for the War Powers Resolution, and I trust we're speaking of Public Law 93-148-1973 - the final arbiter is still the constitution, and an unconstitutional act is still such a thing regardless of cover of law, because it is the basis for those laws - writing a law in such a fashion is no different than writing one ex-post-facto, which has also been done repeatedly.. just because the powers that be choose to ignore said document's requirements, does not absolve one of one's oath to uphold and defend it, which oath, mind I remind folk, does not expire when one leaves the service, which is why this is such an issue for me.

That being said... his 60 days are long since up, Congress has failed in their duty to declare war in iraq, be it by negligence, ignorance or unwillingness to commit, they have still failed that obligation and thus no state of war exists, rendering deployment orders unlawful at this time.

All that being addressed, I *would* charge Mr. Watada with deriliction of his duty both for failing to appear with his unit, because by the book he should have appeared, demanded those orders in writing and then refused them, and also for conduct unbecoming an officer in lieu of the more debateable sedition charge.

And yes, he should be charged for those things, and if convicted should be sentenced for those things - but what should NOT happen, is convicting him of those things, and then SENTENCING him for something else, that's a bullshit sidestep manuever used all too often by military courts in a case where unlawful orders have been issued and disobeyed.

And finally, the defense is allowed in any court of law to present evidence that they feel is relevant to the charges, and to a degree it is, if only as a mitigating factor in the sentence, and it is not a judges right to decide what evidence or testimony can be entered, to usurp this falls to "cherry-picking" and an active attempt to influance the verdict in that fashion resulting in something other than the fair trial Mr. Watada has a right to.

I hope that clarifies my position on the matter a bit.

-Frem

It cannot be said enough, those who do not learn from history, are doomed to endlessly repeat it

CAUSAL

Thursday, February 8, 2007 1:35 PM

Well, it's pretty clear we're not going to agree over the issue of Constitutionality (because in my mind the declare war/CinC thing is ambiguous).

The judge in Watada's case has declared a mistrial on the basis that Watada didn't understand a form he was signing (funny, he can investigate the war thoroughly enough to decide it's illegal, but 12-page documents give him trouble). In any event, I think it's a short-term victory and a long-term defeat for his case. He's not going to prison (at least not for now), but he's losing the opportunity to put the war on trial in the appeals process. And personally, I wouldn't mind having the government make an official pronouncement on the legality/illegality of the war (if for no other reason than to shut up people like us!).

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FREMDFIRMA

Thursday, February 8, 2007 2:27 PM

Agreed, and since it is their responsibility, and one they have neglected, I say we put the screws to Congress and DEMAND they vote on it.
(Declaration of War, that is)

A nice simple Yea or Nay that would settle the matter in instant.

Yea - They have to come up with some unambiguous plan involving what needs to be done before we can declare victory and go home.

Nay - We throw it to the UN and bug out.

I call that a win-win situation.

-F

RUE

Sunday, February 18, 2007 7:11 PM

http://www.sciencedaily.com/releases/2007/02/070208131528.htm

Study Based On Abu Ghraib Suggests Military Veterans Highly Tolerant Of Detainee Abuse

Only 16% of veterans indicated zero tolerance for detainee exposure and deprivation
Only 31% indicated zero tolerance for detainee exposure and sexualized humiliation
Not even half (48%) indicated zero tolerance for detainee rape

In general, veterans' tolerance for abuse was least when soldier-initiated, and greatest when superior-ordered. Tolerance for abuse also was high when a whistleblower was involved.

SIMONWHO

Monday, February 19, 2007 1:48 PM

The trouble is if someone says abuse is widespread, some people will say "No it isn't" because they genuinely believe that and others will say "No it isn't" because they're just Iraqis and who cares if they get killed, maimed, tortured.

I think it's pointless to debate with the latter group and the first group will just insist that any abuses are just one off examples:

So here's my first one-off example:

http://www.iht.com/articles/2007/02/18/opinion/web.0218abuse.php

Your standard man is held by the Americans, interviewed twice, tortured, starved, electrocuted then released (providing he signed a form saying "I was not mistreated during my incarcaration").

AMITON

Monday, February 19, 2007 4:02 PM

Quote:
Well, it's pretty clear we're not going to agree over the issue of Constitutionality (because in my mind the declare war/CinC thing is ambiguous)

Just to throw a quick idea in, I don't think that the Constitution is ambiguous on the matter in intent. Only Congress can declare war, and when that's combined with the original intent to not maintain a standing national army it stands to reason that the President wouldn't have anyone to command unless Congress had called up the military. I think the ambiguousness came from sidestepping the application (apparently all the way back to Jefferson...who knew?)

Amiton.

SIMONWHO

Tuesday, February 20, 2007 9:52 AM

Caution: today's link contains images of those tortured by the Americans. You will see pictures of people dead, abused, covered in excrement, beaten, bloodied.

If you want to keep pretending there's no systemic issue with the troops, do not click on the following link:

http://www.thememoryhole.org/war/iraqis_tortured/

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