Collusion or Conspiracy

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Collusion or Cowardice:  J'accuse!

No, I'm not talking about Trump/Putin. 

The malefactors I charge are Congress, the President, and the Supreme Court. By employing collusion or cowardice of their co-equal Departments of the government, they successfully ignore the Constitution of the United States when it suits them.  An explicit or unspoken conspiracy that defeats the checks and balances we all learned about in grade school, the scheme that was carefully designed to preserve the balance of power in our government.

I suggest the evidence is overwhelming. The terms of the deal are: "You don't complain about my violations of the Constitution, and I won't complain about yours."

I choose two simple examples to prove my charge. The first is relatively small, beyond most of the public notice, but I mention it here because I was directly involved. It does not threaten our national security (as contrasted with the second example below) but it offers direct proof of my assertion:

Example One: I accuse the Supreme Court of blithely amending the Constitution at will, ignoring the explicit and exclusive provisions of Article V, which provide the exclusive means of amending our basic charter. The Founders concluded that the architecture of our Democracy was so vital to its longevity, that all citizens, States, and federal government Departments must operate within Constitutional constraints. And only if an overwhelming majority of society (two thirds of Congress and three quarters of the states) want change, can they formally amend the Constitution.

But I suggest the Supreme Court has arrogantly defied Article V, and simply amended the Constitution without bothering with the requirements of that Article.

In 1995, I tried a libel case against CBS. The unanimous federal jury found the essential facts: that we had proved, by clear and convincing evidence, that CBS had knowingly or recklessly defamed our client. 

CBS appealed, and that's when we were faced with the Supreme Court's outright violation of the Seventh Amendment, which reads:

"In suits at common law ... no fact tried by a jury shall be otherwise re-examined in any Court in the United States ... ."

But in its zeal write a new section of the Charter, to substitute different rules from those employed by the Founders, the Court amended the Constitution by directly contradicting the Seventh Amendment: It manufactured a new rule; Henceforth, when a plaintiff wins a jury verdict in a libel case, the facts tried by the jury must be re-examined by the Court. Wow! By requiring federal appellate courts to make their own "independent assessment" of the evidence considered by the jury in some cases, the Court blithely repealed the Constitution!

So when CBS appealed the jury verdict to the Seventh Circuit, the three-judge panel decided they would make a de novo review of the evidence "with little or no deference to the jury's findings."  In effect, they re-tried the case, based on reading the transcript. It was as if the Seventh Amendment didn't exist and the jury verdict was a nullity.

In the end, they came to the same conclusions as the jury did, but that's beside the point. The Supreme Court had promulgated a rule that directly violated the Constitution. That startling malfeasance was never challenged by Congress, which of course, had impeachment power as a check on the judiciary. But the Congress had no appetite to i) object to a ruling favoring publishers and reporters who could be vital allies at election time, or ii) challenge the conduct of the judiciary, the entity that had the power to pass on the constitutionality of congressional legislation. 

Collusion or Cowardice?

But the foregoing is just an hors d'oeurve. The main course of this piece is the stuff that is on today's front pages:

Article I, Section. 8.  of our Constitution, provides:

"The Congress shall have the Power ... To Declare War ... ."

Article II, Section. 2. provides:

"The President shall be Commander in Chief of the Army and Navy of the United States ... ."

The distinction could not be clearer: Congress is not the Commander in Chief, and the President has no power to declare war. (Without going into mind-numbing detail, it is unquestioned the President, as Commander in Chief, has the power to direct the Armed Forces to defend the United States if attacked. That distinction is not relevant to this essay.)

Where did Truman get the authority to send troops to Korea without seeking Congressional approval, Eisenhower send troops to Lebanon, Johnson to bomb North Vietnam (even before the questionable Tonkin Gulf Resolution,) Reagan to send troops to Grenada, Clinton to bomb Serbia, Bush I to invade Panama, or Obama to make war on Libya, etc., etc., etc.?

President Trump has effectively declared war on ISIS, and we are bombing Syria and have troops on the ground there. 

All without any declaration or authorization by Congress.

Question: Putting aside the issue of whether our wars on ISIS and Assad are morally justifiable, what is the legal justification for this gross violation of the Constitution?

Answer: There is none that passes the laugh test!

Defenders of Presidential war-making powers have used absurd justifications. "Korea was not a "war", it was a 'Police Action,'" Clinton could bomb Serbia because he was "Commander in Chief," blah, blah, blah.

Currently, the President's minions argue we can make war against ISIS and Assad because on September 14, 2001, Congress reacted to the attack on the Twin Towers three days earlier by passing an Authorization to Use Military Force that gave the President power to use military force against "those who planned, authorized, or aided in the attack."  Without congressional approval, the Bush administration independently insisted that meant it was now authorized it to make war on Al-Qaida and the Taliban wherever we found them. Congress sat on its hands, and successive administrations have drunk the Kool Aid.

But even under that questionable expansion of the 2001 AUMF, there is certainly no authorization for the current war against ISIS, or our attack on Assad. ISIS had nothing to do with 9/11 --it did not even exist then. And there is no suggestion that Assad's 2018 atrocities had anything to do with 9/11. Yet the proponents of Presidential war-making power, in and out of congress, continue to cite the 2001 AUMF as authority for these Executive Department's military ventures. 

Those justifications are legally preposterous.

What is going on here is that Congress doesn't want to make these decisions. They simply do not want to think and talk about decisions that might come back and bite them at election time. Want evidence" Think back to the 2016 election charges and countercharges about who was for and who was against our incursions into Iraq and Libya. The only candidates who escaped criticism from one side or the other were the candidates who kept their mouths shut.

The press and the public are free to express opinions on the subject of military intervention, but for a politician, it's a lot safer not to take a position publicly. Let somebody else do it. But honorable members of Congress do not have that option. They are obliged by the Constitution to discuss and decide.

The prime example of their failure to do that was when Assad used chemical weapons and crossed Obama's "red line" declaration, and the President, listening to the advice of Constitutional scholars, went to Congress to seek authorization to strike Assad. To its disgrace, Congress refused even to take up the bill. It was never  discussed. The result, Obama did not use force, and the hawks criticized Obama, not Congress!

The result: two of the three Constitutionally-created Departments of our government have been  engaging in an unmistakable if unspoken acts of conspiracy or cowardice, leading to the degradation of our Constitution.

Many of these foreign adventures have public support. In Korea we fought the bad guys, same in Kosovo, etc. ISIS is evil and Assad's use of poison gas is horrendous. It's should be easy to agree on the easy ones, but even as to those, Congress refuses to do its job. There's always an election right around the corner for all the members of the House and one-third of the Senate. Why take unnecessary political risks?

But when it comes to the proposed use of force against bad guys, who decides who the bad guys are, and what degree of force we should use? It is perhaps easier to overlook Constitutional violations if we have Dwight Eisenhower making the call, and we were even okay with the Bushes and Obama. And the assault on our Constitution may be easier to swallow when the adversaries are monsters like ISIS and Assad.

But the wisdom of the Founders is ever more prominent today.  Their vision was that making war on anybody was something deserving, indeed demanding, discussion and decision exclusively by the people's representatives. That's the law.

But our current Congress ignores its Constitutional duty. While Trump bombs, Congress dithers. 

A bipartisan group of Senators is now actually getting ready to propose a new AUMF, but there is apparently no hope of getting it through either house. Paul Ryan, the empty-suit Leader of the House, has said he sees no need for the legislation because "The President already has the power he needs!"

North Korea is again in the news. The President earlier boasted about how big his nuclear button is. There was much debate about whether that was wise, or dangerous. But that's irrelevant to my point. What is important is that it is not HIS button. It belongs to the members of Congress. Where are those people? Hiding under their desks, that's where. It's "duck and cover" for pols.

Shame on the leadership of both parties in Congress for dishonoring Constitutional separation of powers commandments. 

As we sow, so shall we reap.

N.B. The more polite, and concise, editors of Time.com have published a condensed version of the second half of this piece. You'll find it here:

http://time.com/5245014/president-donald-trump-congress-syria-war-authorization/

A bientot.