The US Constitution

[jaffacakesaresogood]

The fact that no one is willing to step in and stop it doesn't mean it's right. It just makes the other world powers complicit and equally culpable. There is an on going legal challenge to the border issue and in fact to the drones issue as well. While the president may ultimately have to stop using those tactics. He will never be held accountable for allowing innocent people to be deliberately targeted. Which is a war crime.

 

[Timetravler]

Constitutional rights are litigated in civil courts, not criminal courts. If an aggrieved party proves his/her case, the remedy is monetary damages to the aggrieved party and sometimes an injunction barring the defendant from engaging in the allegedly-wrongful conduct, not incarceration of the defendant.

Reuters: Ex-Guantanimo detainee sues U.S. for damages

Saying "Bush or Obama will never be sentenced to jail so the system isn't raising a finger to stop constitutional violations" ignores the how of how constitutional rights protect individuals from government overreach. Just because there's no incarceration of government officials doesn't mean there's no mechanism for punishment and recourse.

 

[Gretta]

Not quite. I know there was, maybe still is, a statute to that effect, but it is unconstitutional on its face. The President has absolute control over the military. What Congress can do is stop funding the military excursions.



QFT.

Plus, the President acting within the scope of his duties all but certainly has absolute immunity. To quote the Federal Practice Manual: "Absolute immunity bars any action against officials in the conduct of their office even for actions taken maliciously or in bad faith. Absolute immunity focuses on the governmental function being performed and the nature of the responsibilities of the official, not on the specific action taken. In deciding whether officials performing a particular function are entitled to absolute immunity, courts generally look for a historical or common-law basis for the immunity in question."



You're confused. Constitutional rights are a defense, a shield. They are not a sword for offense. You might be able to sue under 42 USC 1983, or you might bring a "Bivens suit," but I can't imagine it would be against the President.

 

[Janel]

No, you're confused. It's a sword to seek restitution, as a shield it's apparently unbelievably flimsy. Mitlov compares it to legislation against murder, but it's more like saxon/viking weregild. Indeed, if no-one is held personally accountable then it's not the government paying compensation, it's the public purse.

 

[alais85]

Do you have any successful lawsuits in mind? I named the only two avenues available that I can think of: Section 1983, and Bivens. Both of those avenues are narrow in scope. Unless you can identify another recourse, I stand by what I said.

 

[Timothye]

I wouldn't call Section 1983 suits "narrow in scope." They are frequently used against national, state, and local governments for everything from the serious to the trivial. A significant part of my practice is defending Section 1983 lawsuits brought against county and city law enforcement, so I have significant first-hand experience with Section 1983 litigation.

 

[ihavequestionst]

That's a fair point -- you can sue at the local level up to the federal level. Defendants are going to claim "qualified immunity," though, and that's a pretty good defense, is it not? I think it's something like, considering the law at that time, the act is so obviously wrong that only a "plainly incompetent officer" or one who was "knowingly violating the law" would have done such a thing, right?

 

[ILOVEmyHusband]

Qualified immunity attaches only to individual government officials and not the government agency they work for. So if you sue the Aikido County sheriff's department and the two arresting deputies, here's what I'll do:

(1) I'll contest the claims against the officers on qualified immunity. If what they were doing was clearly illegal at the time they did it, they're in deep trouble and likely won't get out of the case on suofftopicry judgment (i.e., their case will go to a jury). Qualified immunity only attaches if the defense can prove that the law was muddy on the issue at the time the officer acted.

(2) I'll contest the claims against the County under Monell. If the County has a custom, practice, or policy that lead to the alleged constitutional infringement at issue, it's in deep trouble and likely won't be able to get out of the case on suofftopicry judgment.

 

[JoB]

Right. That's the context my brain was in. Your phrase "clearly illegal at the time" coincides with my phrase "the act is so obviously wrong."

Suppose I want to sue the President of the US. Could I successfully do it?

 

[rockgirl]

I didn't say it did. What I meant was that with the power and influence of the US, I doubt you'll see any sort of secondary power successfully accuse, try, and punish US officials (especially the President) for War Crimes.



You realize that the group(s) who win make the rules, right?


There would need to be a Supreme Court Case that ruled against it or even the willingness of Congress to repeal the power of the "War on Terror" declaration. I don't see it happening anytime soon. Once Government seizes additional power, it is hard to get it back.


I don't think you can prove that innocent people were "deliberately targeted" - if you could, you might have a chance in the case. Right now, they are 'collateral damage' from attacks on suspected terrorists, which, as I explained, the President has the (US) legal right to pursue at the moment. The US won't listen to alleged 'war crimes' accusations form other countries unless there is some very strong proof.

 

[BeckyG]

According to the War Powers Act of 1973, yes, it is. This of course is currently not in effect because Congress has given the equivalency of a declaration of war (Congressional approval) to the President, allowing him to use troops as needed. Once that "war" is determined to be over, it will revert back to those limits.


It is not "unconstitutional" unless so determined by the Supreme Court - and they have not done so.

The President has a lot of control over the military but it is not "absolute". As you mention, there are three checks that may come into play: (1) Congress can declare an end to the war and require the President to pull the troops out; (2) Congress can scale back or cut funding to the military and military actions, effectively ending it, or (3) the Supreme Court can make a ruling based on a case that comes to them on the constitutionality of an element of (or the entire) amount of power the "War on Terror" gives to the President and rule that it needs to end or change.

Personally, I dislike the notion of the "War on Terror" - I feel it has given our President way too much power regarding the military and feel it subverts much of the checks and balances regarding the powers of the three branches. However, it was 'legally' achieved (passed by the houses of Congress and has not been ruled by the Supreme Court as 'unconstitutional'. Therefore it is still in play.

 

[orlythen]

That still doesn't make them right. That's like saying a dictator has the right to do as he pleases because he controls the strongest army. I thought the world had progressed at least a little beyond that line of thinking.

 

[rugger]

It doesn't matter whether it makes it right or not - what's the reality of what would happen?

If Pakistan or the UK or Mali or somewhere stepped up and accused the US of war crimes and asked for the President to be turned over, what do you think would happen and why?

Now, if the US accused a country of war crimes and seriously wanted the leader taken out or government over turned, what do you think would happen? (Hint - ask Iraq and Afghanistan)

It may not be right, but in world politics, it really matter "who" you are and what kind of military and world power you have.

 

[Uptown]

What in the Constitution grants Congress any control over the military? I believe the answer is "nothing." In contrast, the President is explicitly named as coofftopicnder-in-chief of the entire US military. There it is.



It has not been tested in court, that is true, but it is easy to see where the Justices' gavel will fall on this one.



The "War Against Being Afraid" has been horrible, because it has been used as an excuse to restrict freedom and increase the reach of the US government (which are pretty much synonymous terms, actually). I am very bothered by the federal courts upholding the wrongly-named "Patriot Act."

 

[Galaktik]

The President in C-in-C but Congress has control of the rules and laws of the military and in funding it. They also have the power to declare war (and determine the start and finish).

The War Powers Act of 1973 put a lot of limits on the C-in-C (done legally) and is only suspended due to the declaration of 'war on terror'. Once that is determined to be over, it reverts back to those limits. (which are not in the Constitution but are instead a set of laws made through use of the 'elastic clause' as something 'necessary and proper'. They may be changed by Congressional action or by the Supreme Court in a case ruling.)



Don't be so sure - they haven't done so over the past 10 years+

I would have thought that the "War on Terror" would have been challenged, or even the detainments in Guantanamo Bay, or the withholding of rights in border areas. None have been successfully challenged.

Where do you see a successful challenge coming from?




I completely agree. However, what makes it scarier for me is that is has been done "legally" without any of the branches stopping it.

 

[Kayd]

Yes, the bold part. Congress funds the military. I said that. (The number of generals is set by federal statute, actually. That comes from Congress' power to build the military.) This power has nothing to do with sending troops hither and thither. The power to send troops here or there vests exclusively in the President. It's not in the list you quoted. Congress cannot change that through a statute, anymore than it can pass a law allowing Obama to be elected for a third term.


I know. It's distressing. Vote Libertarian next time.



(We were speaking of control over the military here.) Congress would pass a resolution saying, "Time is up. The Army is supposed to come home now." And the President would ignore it. The generals are *not* going to obey Congress over the President. At that point, I don't know what the cause of action would be. A petition for an injunction, maybe? Yes, maybe that would be it.

 

[ny21tb]

OK - what are you trying to argue with me?

First you said,
My response showed that there is indeed a whole list of specific controls that Congress has over the military, including funding, militias, the Navy, etc.
So, your answer of "nothing" is inaccurate.

As far as the power to send troops 'here or there' or 'hither and thither', you are right that the President has that power but it is tied very closely to Congress' ability (and willingness) to pay for it (no money=no troops) and the power to declare war.

Congress does indeed have the power to pass laws or statues regulating this - through the "elastic clause" - this is not specifically spelled out as to what the limits are because it is designed to be flexible and deal with any need that arises. Read the definitions and rationale behind the War Powers Act of 1973 - it articulates it very clearly (http://cwx.prenhall.com/bookbind/pubbooks/dye4/medialib/docs/warpower.htm). This is the Constitutional check on the power of the President as C-in-C.

Instead of detailing the limits on the right to declare war and fund the military and create laws to regulate them, it gives Congress the power to make any law "necessary and proper" to execute those powers, including the right to limit how the C-in-C can use troops.



So, in your examples, you are wrong about Congress not being able to pass a statute controlling where troops are sent - the War Powers Act is a good example. The only ways around such a legal statute as the War Powers Act would be (1) a new law passed through both houses to countermand it; (2) a declaration of war would negate it for the duration of the war; (3) a Supreme Court case that overrides it (which would then need to be overridden through an Amendment).

Your example of the 'third term' is a completely different one - prior to the passage of the 22nd amendment, Congress could have tried to pass a law regarding 'term limits' and may have been successful because the Constitution was "silent" on Presidential term limits. That could have been challenged by the Supreme Court and overturned if they ruled against it. That point is moot though because of the 22nd Amendment - now (as of 1951 when the states ratified it) the Constitution clearly states that the President is limited to two terms. The only way to overturn that is with another Amendment.

If Congress wanted to stop the President from using the military now, they need to vote to end the "war". They can also cut funding to the military and force the President to bring them back. If Nixon were alive today you could ask him how the War Powers Act of 1973 gutted his plans for continuing in Vietnam by erasing the authority to send troops into combat using the "Gulf of Tonkin Resolution". This is a very similar example to the current one, except that the "War on Terror" gives much broader authority to the President. It can still be revoked or the money can be cut off.

I am not arguing 'right or wrong' here, just trying to explain how the Constitution works.

 

[Ghh]

I was unclear. You are right. I once mentioned funding earlier, and in my head I had brought it up again, but on review I see that I didn't actually type it again. I meant to, but I didn't. Anyway, we both agree that Congress funds and builds the military.



Agreed. By stopping all funding, the military would in theory be unable to do anything at all. The lack of money has never in recent times stopped the government from spending money, but, anyway.



This is our disagreement. I deny that Congress can order an existing military force to go anywhere or to do anything, nor curtail the President's orders for such. The power to coofftopicnd the military is plainly that of the coofftopicnder-in-chief, and we know who the coofftopicnder-in-chief is. The 1973 law has been controversial from the beginning, but has not been litigated.

This question is analogous to the law suits over whether or not Congress can fire a Cabinet member. The answer from the courts was no, that Cabinet members have to be impeached in the same manner as a President has to be impeached. The rationale was that because the President has exclusive power to nominate Cabinet members, after the Senate approves an appointment only the President can fire them. Well, after Congress builds and funds an army, the President alone coofftopicnds it. There is only one coofftopicnder mentioned in the Constitution.

Suppose Congress passed a statute limiting the President's selection for Cabinet appointments. What would the courts say to that? They'd obviously strike it down. The analogy follows.


My point was that it's a clearly-written item in the Constitution, and statutes never override the Constitution. One body builds the military, and one body coofftopicnds it.

 

[lbjfan408]

Your argument is changing subtly each time. We weren't talking about Congress specifically ordering troops anywhere. I have maintained that Congress' check on the C-in-C is through funding and through statutes passed through the elastic clause.

Yes, the President is the C-In-C and can order troops to be deployed and has operational powers over various units. Congress has no power over which groups get sent or what they do.

Congress does have power over whether they get sent and how long they can be deployed. This is articulated in the War Powers Act of 1973 (which you may wish to read - it's very clear (http://cwx.prenhall.com/bookbind/pubbooks/dye4/medialib/docs/warpower.htm)

The War Powers Act of 1973 is a statute passed by both houses of Congress and done under the Constitutional powers of Congress as expressed in the "necessary and proper clause" under section 8. It provides specifics as to when the President can deploy troops (such as through a Congressional Declaration of War) and for how long. This is not counter to anything else in the Constitution - even though it lists the President as C-in-C, there are no specific limits listed. That's why Congress has the right to pass laws regulating the military, funding, and etc.

EDIT - I see you added a line about the War Powers Act of 1973 being controversial - yes it is. However, it was passed legally and has not been successfully challenged by the Supreme Court for the past 40 years and previous Presidents have followed the 'intent' of the law. Troops can be deployed as the President sees fit but must let Congress know (and get a formal declaration) within 60 days or he needs to remove them. Regardless of the controversy, it remains legal and available until challenged by the Executive branch or by the Judicial Branch.

Since the US is currently "at war" (so to speak), the War Powers Act is over-ridden until Congress rescinds the declaration of "war", which is within their right to do so. At that point, they can ask that troops be returned home.

 

[skierdude66]

To say they can't go to XYZ, and to say they must come home now, is outright the power of coofftopicnd. That is the point at which I dispute the Act.

Don't pretend that the Act of 1973 hasn't been disputed since its passage. Every President after Nixon, the person in office at the time, has opined that it is unconstitutional.



Over a presidential veto, because then-President Nixon believed it was unconstitutional.



To say when they can go and when they must come home is literally and outright the power of coofftopicnd. That's as plain as day!!!!!