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Mistaking Absolutism for Principle

February 7, 2013 Leave a comment

tomdrones

[Tom Tomorrow, March 2012]

Mistaking Absolutism for Principle: Killing US Citizens Without Trial

In his inaugural address two weeks ago, President Obama declared:

That is our generation’s task – to make these words, these rights, these values – of Life, and Liberty, and the Pursuit of Happiness – real for every American. Being true to our founding documents does not require us to agree on every contour of life; it does not mean we all define liberty in exactly the same way, or follow the same precise path to happiness. Progress does not compel us to settle centuries-long debates about the role of government for all time – but it does require us to act in our time.

For now decisions are upon us, and we cannot afford delay. We cannot mistake absolutism for principle.

Eloquent words, worthy of a historic, transformative president, which he may well be. Yet, how does he reconcile these words with the drone warfare he has championed?

As has been widely publicized this week, NBC revealed a Department of Justice White Paper on Monday that “sets forth a legal framework for considering the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen.” The principal finding, as reported by Charlie Savage and Scott Shane in their NYT coverage, is that

Obama administration lawyers have asserted that it would be lawful to kill a United States citizen if “an informed, high-level official” of the government decided that the target was a ranking figure in Al Qaeda who posed “an imminent threat of violent attack against the United States” and if his capture was not feasible.

[snip]

It adopts an elastic definition of an “imminent” threat, saying it is not necessary for a specific attack to be in process when a target is found if the target is generally engaged in terrorist activities aimed at the United States. And it asserts that courts should not play a role in reviewing or restraining such decisions.

The white paper states that “judicial enforcement of such orders would require the court to supervise inherently predictive judgments by the president and his national security advisers as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.”

No courts. Judgment left to the president. Isn’t that absolutism?

Let’s turn to David Cole, law professor, expert on legal issues of the war on terror, and far more knowledgable observer than I am, writing yesterday in the New York Review of Books:

Perhaps the most disturbing feature of the paper is how it interprets the criteria of “imminence” and “feasibility of capture.” It argues correctly that, under the international legal doctrine of self-defense, lethal force is justified in response to an imminent threat of attack upon the United States. But it then defines “imminence” so broadly that it effectively eliminates the requirement altogether. There need be no showing, the paper claims, that an attack will “take place in the immediate future.” Instead, it coins what it euphemistically calls a “broader concept of imminence.” On this view, an al-Qaeda leader by definition poses an imminent threat, no matter what he is doing—because al-Qaeda is continually plotting attacks against the United States, will undertake them whenever it can do so, and we may not be aware of all such plots. In such a case, all that is required is a “window of opportunity,” not an immediate threat.

This reasoning directly contradicts the central purpose of the “imminence” requirement—to ensure that lethal force is used only as a last resort. If there is no evidence of an immediately pending attack, it is possible that some alternative way of countering the threat—in particular, by capture—may become available. And if so, then killing the suspect is neither necessary nor legal under domestic or international law. Is it any coincidence that the Obama administration has killed hundreds of suspected terrorists with drones outside Afghanistan, but captured almost none?

The white paper properly acknowledges that killing in self-defense is appropriate only where capture is not feasible. But it fails to address the central question posed by drones in this regard: Because drones permit the US to kill without risking any American life, and a capture operation will always incur some risk, does the availability of drones change the feasibility criterion? It probably should not, but it is hard to believe, again given the administration’s record of hundreds of kills and virtually no captures, that it has not.

At Esquire, Charles Pierce opened his commentary on the latest drone news with the following thoughts on war powers:

It should come as a surprise to nobody any more how quickly and how easily the institutions of a democratic republic can transform themselves under the spell of the conjuring words of the national-security state. It was the dark force implicit in self-government because self-government depended upon human beings, who are easily terrified by every rustling in the bushes and every branch against the window. It was the dark force dreaded most by the authors of the Constitution, because they knew what people were like, and they knew how deeply embedded was the need for something like a king even among the people who’d just booted one off the continent. They feared it even worse than they feared theocracy. So they did what they could to keep it in check. They lodged the war powers in the national legislature, rather than in the executive branch. They lodged the power to pay for a war in the same place, because they knew what a single national leader could do with both the public purse and an army at his disposal.

Pierce then turns to James Madison’s 1793 words:

In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man; not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.

President Obama, 2009 recipient of the Nobel Peace Prize, seems not to have taken these words to heart.

Categories: Law, Politics, War

Change We Can Believe In, Finale

February 7, 2013 Leave a comment

changebelieve

Change We Can Believe In: The Rule of Law

A month ago, I wrote the 37th post in my Change We Can Believe In series, devoting it to President Obama’s signing of a five-year extension to the Foreign Intelligence Surveillance Act. Once again, he had failed to follow through on the commitment he had expressed in his presidential campaign to the rule of law, this being the principal theme of the series.

Several Change posts have focused on Obama’s use of drone warfare. I hoped to have another one ready to go three weeks ago, but didn’t complete it. Then came Obama’s second inaugural address. Remember this stirring passage?

We, the people, declare today that the most evident of truths – that all of us are created equal – is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great Mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.

It is now our generation’s task to carry on what those pioneers began. For our journey is not complete until our wives, our mothers, and daughters can earn a living equal to their efforts. Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well. Our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote. Our journey is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity; until bright young students and engineers are enlisted in our workforce rather than expelled from our country. Our journey is not complete until all our children, from the streets of Detroit to the hills of Appalachia to the quiet lanes of Newtown, know that they are cared for, and cherished, and always safe from harm.

That is our generation’s task – to make these words, these rights, these values – of Life, and Liberty, and the Pursuit of Happiness – real for every American. Being true to our founding documents does not require us to agree on every contour of life; it does not mean we all define liberty in exactly the same way, or follow the same precise path to happiness. Progress does not compel us to settle centuries-long debates about the role of government for all time – but it does require us to act in our time.

For now decisions are upon us, and we cannot afford delay. We cannot mistake absolutism for principle, or substitute spectacle for politics, or treat name-calling as reasoned debate. We must act, we must act knowing that our work will be imperfect. We must act, knowing that today’s victories will be only partial, and that it will be up to those who stand here in four years, and forty years, and four hundred years hence to advance the timeless spirit once conferred to us in a spare Philadelphia hall.

I didn’t want to appear churlish by taking Obama to task in the afterglow of these words. So I have held my tongue, leaving the latest drone post unfinished.

Now, a little over two weeks later, I’ve decided to put this series of posts to bed. With the start of Obama’s second term, it’s time to introduce a new theme.

What should the theme be? Bear with me, please, as I search for the right one. I may try several. Coming next: my initial experiment.

Categories: Law, Politics

The Rule of Law and Foreign Policy

January 13, 2013 Leave a comment

jonassalk

The writer Robert Wright (author most recently of the 2009 book The Evolution of God) was a regular contributor at The Atlantic for the past year. He has now moved on to other ventures, writing his valedictory post a week ago. I wish I read him more consistently.

Wright took advantage of his post to “articulate three beliefs of mine that I rarely articulated this year, but that informed much of what I wrote, especially in the realm of foreign policy.” All three are worthy of reflection. Here’s the third:

If the United States doesn’t use its inevitably fading dominance to build a world in which the rule of law is respected, and in which global norms are strong, the United States (and the world) will suffer for it. So when, for example, we do things to other nations that we ourselves have defined as acts of war (like cybersabotage), that is not, in the long run, making us or our allies safer. The same goes for when we invade countries, or bomb them, in clear violation of international law. And at some point we have to get serious about building a truly comprehensive nuclear nonproliferation regime–one that we expect our friends, not just our enemies, to be members-in-good-standing of.

We learned not to expect sensitivity to this issue during the reign of Bush-Cheney, as they willfully ignored the rule of law. But President Obama would be different, or so I thought on the eve of his inauguration four years ago. Alas, little has changed. Two examples:

1. Drones. I never got around to writing about this at the time, but as Scott Shane reported in the NYT back around Thanksgiving,

Facing the possibility that President Obama might not win a second term, his administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures, according to two administration officials.

[snip]

The administration’s legal reasoning has not persuaded many other countries that the strikes are acceptable under international law. For years before the Sept. 11, 2001, attacks, the United States routinely condemned targeted killings of suspected terrorists by Israel, and most countries still object to such measures.

But since the first targeted killing by the United States in 2002, two administrations have taken the position that the United States is at war with Al Qaeda and its allies and can legally defend itself by striking its enemies wherever they are found.

Commenting on this story a few days later, Georgetown law professor David Cole wrote:

The real problem is not that there are no guidelines written down—though the administration itself seems now to acknowledge that what it has is insufficient—but that we the people don’t know what they are. The idea that the president can authorize the killing of a human being far from any traditional battlefield without any publically accessible set of constraints, conditions, or requirements is unacceptable in a country committed to the rule of law. In his first and only speech on security and our national ideals, at the National Archives in May 2009, President Obama insisted that adherence to the rule of law is essential in the fight against terror, and to that end, promised to be transparent about his actions “so that [the people] can make informed judgments and hold us accountable.” Yet after four years and hundreds of killings authorized in secret, the most the president has been able to offer us about the scope of his most awesome power is a handful of vague paragraphs in a handful of administration officials’ speeches, which experts must then parse for clues as to what the rules might actually be. This is more akin to what law looked like in the Soviet Union than to what it should look like in the United States of America.

2. Fake vaccination program. Capturing (or killing) Osama Bin Laden was a high priority, but the end didn’t justify the means, or one of the means: fake vaccinations. As The Guardian first reported two Julys ago, “the CIA organised a fake vaccination programme in the town where it believed Osama bin Laden was hiding in an elaborate attempt to obtain DNA from the fugitive al-Qaida leader’s family.” Three days later, The Guardian followed up with objections raised by Doctors Without Borders:

Médecins Sans Frontières has lashed out at the CIA for using a fake vaccination programme as a cover to spy on Osama bin Ladenon Thursday, saying it threatened life-saving immunisation work around the world.

The international medical aid charity said the ploy used by US intelligence, revealed this week in the Guardian, was a “grave manipulation of the medical act”.

[snip]

“The risk is that vulnerable communities – anywhere – needing access to essential health services will understandably question the true motivation of medical workers and humanitarian aid,” said Unni Karunakara, MSF’s international president. “The potential consequence is that even basic healthcare, including vaccination, does not reach those who need it most.”

Tom Scocca reviewed the details at the time, concluding that

Bin Laden had already been found. The vaccination campaign was a matter of bureaucratic self-protection—to get DNA samples from people inside the compound, to confirm that the target that the CIA had identified in Abbottabad was correct, so that the agency wouldn’t embarrass itself. The most that the vaccinations could have done, if the DNA tests had come back negative, would have been to allow the CIA to quietly add this particular house to the list of places in which, over the course of a decade, it had failed to find Bin Laden.

And that assumes the vaccination trick even worked. According to the Guardian, it was “not known whether the CIA managed to obtain any bin Laden DNA, although one source suggested the operation did not succeed.” Yet we got Bin Laden anyway. The necessity that [a “senior U.S. official”] was pleading was fake necessity.

Last month, eight vaccination workers were killed in Pakistan during a nationwide vaccination drive.

Obama’s inauguration is a week away. May he show greater respect for the rule of law in his second term.

Categories: Journalism, Law, Politics

Change We Can Believe In, XXXVII

January 6, 2013 Leave a comment

changebelieve

Change We Can Believe In: We’re Still Listening

Last week, Congress approved and President Obama signed a five-year extension of the Foreign Intelligence Surveillance Act. The war on terror continues to be war on ourselves. Reporting in the NYT, Robert Pear writes:

Congress gave final approval on Friday [December 28] to a bill extending the government’s power to intercept electronic communications of spy and terrorism suspects, after the Senate voted down proposals from several Democrats and Republicans to increase protections of civil liberties and privacy.

The Senate passed the bill by a vote of 73 to 23, clearing it for approval by President Obama, who strongly supports it. Intelligence agencies said the bill was their highest legislative priority.

Critics of the bill, including Senators Ron Wyden of Oregon, a Democrat, and Rand Paul of Kentucky, a Republican, expressed concern that electronic surveillance, though directed at noncitizens, inevitably swept up communications of Americans as well.

[snip]

The No. 2 Senate Democrat, Richard J. Durbin of Illinois, said the surveillance law “does not have adequate checks and balances to protect the constitutional rights of innocent American citizens.”

“It is supposed to focus on foreign intelligence,” Mr. Durbin said, “but the reality is that this legislation permits targeting an innocent American in the United States as long as an additional purpose of the surveillance is targeting a person outside the United States.”

However, 30 Democrats joined 42 Republicans and one independent in voting for the bill. Three Republicans — Mr. Lee, Mr. Paul and Senator Lisa Murkowski of Alaska — voted against the bill, as did 19 Democrats and one independent.

Mr. Merkley said the administration should provide at least unclassified summaries of major decisions by the Foreign Intelligence Surveillance Court.

“An open and democratic society such as ours should not be governed by secret laws,” Mr. Merkley said, “and judicial interpretations are as much a part of the law as the words that make up our statute.”

The Economist’s Jon Fasman offered informative commentary on the FISA extension, concluding:

Mr Obama first ran for office five years ago promising to roll back some of his predecessor’s more outrageous violations of civil liberties. He has done nothing of the sort. Mr Obama signed the FISA extension into law on December 30th, and he won the right to keep his rationale for killing Americans secret three days later. He deserves full measures of opprobrium for both, but this is no more about him than the Patriot Act was about his predecessor. The extension lasts for five years, by which time Mr Obama will no longer be in office. This is about America’s imperial presidency and the fourth amendment, which it has trampled into irrelevant ink smudges.

Categories: Law, Politics

Change We Can Believe In, XXXVI

January 6, 2013 Leave a comment

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Change We Can Believe In: Hear No Evil, See No Evil (And, Secrecy)

You may have missed news of the unanimous ruling last month by the European Court of Human Rights that the CIA tortured Khaled el-Masri. That he was wrongly arrested, imprisoned, and interrogated isn’t in doubt. The CIA admitted as much and released him. What’s new is that the CIA actions have now been found to be torture (not that that was really in doubt either).

From Richard Norton-Taylor’s report at The Guardian:

CIA agents tortured a German citizen, sodomising, shackling, and beating him, as Macedonian state police looked on, the European court of human rights said in a historic judgment released on Thursday.

In a unanimous ruling, it also found Macedonia guilty of torturing, abusing, and secretly imprisoning Khaled el-Masri, a German of Lebanese origin allegedly linked to terrorist organisations.

Masri was seized in Macedonia in December 2003 and handed over to a CIA “rendition team” at Skopje airport and secretly flown to Afghanistan.

It is the first time the court has described CIA treatment meted out to terror suspects as torture.

“The grand chamber of the European court of human rights unanimously found that Mr el-Masri was subjected to forced disappearance, unlawful detention, extraordinary rendition outside any judicial process, and inhuman and degrading treatment,” said James Goldston, executive director of the Open Society Justice Initiative.

He described the judgment as “an authoritative condemnation of some of the most objectionable tactics employed in the post-9/11 war on terror”. It should be a wake-up call for the Obama administration and US courts, he told the Guardian. For them to continue to avoid serious scrutiny of CIA activities was “simply unacceptable”, he said.

[snip]

Masri was released in April 2004. He was taken, blindfolded and handcuffed, by plane to Albania and subsequently to Germany, after the CIA admitted he was wrongly detained. The Macedonian government, which the court ordered must pay Masri €60,000 (£49,000) in compensation, has denied involvement in kidnapping.

UN special rapporteur on human rights and counter-terrorism, Ben Emmerson, described the ruling as “a key milestone in the long struggle to secure accountability of public officials implicated in human rights violations committed by the Bush administration CIA in its policy of secret detention, rendition and torture”.

He said the US government must issue an apology for its “central role in a web of systematic crimes and human rights violations by the Bush-era CIA, and to pay voluntary compensation to Mr el-Masri”.

President Obama and Attorney General Holder have already made clear their lack of interest in looking backward. Scott Horton wrote immediately after the European Court’s decision:

The El-Masri ruling is a watershed event principally because it reflects the first high-profile, binding judicial determination that the CIA used torture practices in connection with its renditions program. Thus far, litigation of the issue in the United States has failed as federal courts — deferring to the executive’s attempts to avoid scrutiny of well-documented and severe human rights abuses by invoking secrecy — have generally refused to allow cases to proceed to trial.

[snip]

… the perpetrators of El-Masri’s torture have not been held to account under criminal law. According to an investigation run by the Associated Press, CIA officer Alfreda Frances Bikowsky played a key role in El-Masri’s abusive treatment, ignoring his protests because her “gut told her” he was a terrorist. Bikowsky was quickly promoted following the El-Masri incident, and she now occupies a senior counterterrorism post, from which she exercises great influence on sensitive operations.

Recall too Holder’s announcement last August that he would not prosecute CIA interrogators.

Attorney General Eric H. Holder Jr. announced Thursday [August 30, 2012] that no one would be prosecuted for the deaths of a prisoner in Afghanistan in 2002 and another in Iraq in 2003, eliminating the last possibility that any criminal charges will be brought as a result of the brutal interrogations [i.e., torture, but the NYT doesn’t call it that; see next sentence though] carried out by the C.I.A.

Mr. Holder had already ruled out any charges related to the use of waterboarding and other methods that most human rights experts consider to be torture. His announcement closes a contentious three-year investigation by the Justice Department and brings to an end years of dispute over whether line intelligence or military personnel or their superiors would be held accountable for the abuse of prisoners in the aftermath of the terrorist attacks of Sept. 11, 2001.

The closing of the two cases means that the Obama administration’s limited effort to scrutinize the counterterrorism programs carried out under President George W. Bush has come to an end.

That’s moral leadership for you.

Categories: Law, Torture

Change We Can Believe In, XXXV

January 6, 2013 Leave a comment

changebelieve

Change We Can Believe In: Constitution-in-Wonderland

Should I be retiring this series? I haven’t had a new installment in three months. Obama’s second term starts in two weeks. With the madness that has taken control of the Republican Party, I don’t want to give the false impression that all the problems besetting this country are Obama’s fault. On the other hand, some are. Like this one. Sure, his predecessors put anti-constitutional secrecy in place. But he’s the one who promised to change it and instead has chosen to entrench it.

This was never more in evidence than last week, when federal district court judge Colleen McMahon ruled on Freedom of Information Act requests by the New York Times and the ACLU. Adam Liptak explains:

A federal judge in Manhattan refused on Wednesday to require the Justice Department to disclose a memorandum providing the legal justification for the targeted killing of a United States citizen, Anwar al-Awlaki, who died in a drone strike in Yemen in 2011.

The ruling, by Judge Colleen McMahon, was marked by skepticism about the antiterrorist program that targeted him, and frustration with her own role in keeping the legal rationale for it secret.

“I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret,” she wrote.

“The Alice-in-Wonderland nature of this pronouncement is not lost on me,” Judge McMahon wrote, adding that she was operating in a legal environment that amounted to “a veritable Catch-22.”

[snip]

Even as she ruled against the plaintiffs, the judge wrote that the public should be allowed to judge whether the administration’s analysis holds water.

“More fulsome disclosure of the legal reasoning on which the administration relies to justify the targeted killing of individuals, including United States citizens, far from any recognizable ‘hot’ field of battle, would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated,” she wrote.

Here is Judge McMahon’s full decision.

Categories: Law, Politics

Change We Can Believe In, XXXIII

June 25, 2012 Leave a comment

Change We Can Believe In: Abandoning Moral Authority

Jimmy Carter says it all, in today’s NYT op-ed piece:

THE United States is abandoning its role as the global champion of human rights.

Revelations that top officials are targeting people to be assassinated abroad, including American citizens, are only the most recent, disturbing proof of how far our nation’s violation of human rights has extended. …

[snip]

Recent legislation has made legal the president’s right to detain a person indefinitely on suspicion of affiliation with terrorist organizations or “associated forces,” a broad, vague power that can be abused without meaningful oversight from the courts or Congress …

In addition to American citizens’ being targeted for assassination or indefinite detention, recent laws have canceled the restraints in the Foreign Intelligence Surveillance Act of 1978 to allow unprecedented violations of our rights to privacy through warrantless wiretapping and government mining of our electronic communications. Popular state laws permit detaining individuals because of their appearance, where they worship or with whom they associate.

Despite an arbitrary rule that any man killed by drones is declared an enemy terrorist, the death of nearby innocent women and children is accepted as inevitable. …

These policies clearly affect American foreign policy. Top intelligence and military officials, as well as rights defenders in targeted areas, affirm that the great escalation in drone attacks has turned aggrieved families toward terrorist organizations, aroused civilian populations against us and permitted repressive governments to cite such actions to justify their own despotic behavior.

… [I]nstead of making the world safer, America’s violation of international human rights abets our enemies and alienates our friends.

Of course, Bush and Cheney deserve a lot of the credit for this state of affairs, with assists from Congress and countless government officials. But it’s Obama who has taken rogue policies of partisan leaders and made them the bipartisan consensus. It’s Obama who has crafted drone warfare into his own distinctive program. It’s Obama who has insisted on unquestioned authority to do what he deems necessary. Some change.

Categories: Law, Politics

Deport the Innocent

June 19, 2012 Leave a comment

Last Friday, the Obama administration announced, as reported in the NYT, that

hundreds of thousands of illegal immigrants who came to the United States as children will be allowed to remain in the country without fear of deportation and able to work … .

Administration officials said the president used existing legal authority to make the broad policy change, which could temporarily benefit more than 800,000 young people. He did not consult with Congress, where Republicans have generally opposed measures to benefit illegal immigrants.

The policy, while not granting any permanent legal status, clears the way for young illegal immigrants to come out of the shadows, work legally and obtain driver’s licenses and many other documents they have lacked.

Later in the day, Atrios devoted a post to what he labeled Asshole Test:

I think a reasonable test of whether someone is an asshole without any hope of improvement is if you sit them down and explain that:

1) People without the legal right to live and work in this country often bring their kids here with them.

2) Those kids are often quite young when they arrive. You know, babies.

3) Such kids also are undocumented.

4) In many cases they grow up not or barely speaking the language of their home countries, depending on their age and particular circumstances.

5) Given whole lack of documentation thing, most of these kids have never been to the country that their parents came from and don’t know any of the family, if any, that are still there.

6) Upon becoming adults, their work and educational opportunities are complicated and limited.

If the person’s response is, “they’re illegal, deport them,” then you know you’ve found an asshole.

Today, in a front-page NYT article, Damien Cave provided a concrete example of the damage done.

Jeffrey Isidoro sat near the door of his fifth-grade classroom here in central Mexico, staring outside through designer glasses that, like his Nike sneakers and Nike backpack, signaled a life lived almost entirely in the United States. His parents are at home in Mexico. Jeffrey is lost.

When his teacher asked in Spanish how dolphins communicate, a boy next to him reached over to underline the right answer. When it was Jeffrey’s turn to read, his classmates laughed and shouted “en inglés, en inglés” — causing Jeffrey to blush.

“Houston is home,” Jeffrey said during recess, in English. “The houses and stuff here, it’s all a little strange. I feel, like, uncomfortable.”

Never before has Mexico seen so many American Jeffreys, Jennifers and Aidens in its classrooms. The wave of deportations in the past few years, along with tougher state laws and persistent unemployment, have all created a mass exodus of Mexican parents who are leaving with their American sons and daughters.

[snip]

Critics of immigration have mostly welcomed the mass departure, but demographers and educators worry that far too many American children are being sent to schools in Mexico that are not equipped to integrate them. And because research shows that most of these children plan to return to the United States, some argue that what is Mexico’s challenge today will be an American problem tomorrow, with a new class of emerging immigrants: young adults with limited skills, troubled childhoods and the full rights of American citizenship.

“These kinds of changes are really traumatic for kids,” said Marta Tienda, a sociologist at Princeton who was born in Texas to Mexican migrant laborers. “It’s going to stick with them.”

Jeffrey’s situation is increasingly common. His father, Tomás Isidoro, 39, a carpenter, was one of the 46,486 immigrants deported in the first half of 2011 who said they had American children, according to a report by Immigration and Customs Enforcement to Congress. That is eight times the half-year average for such removals from 1998 to 2007.

Mr. Isidoro, wearing a Dallas Cowboys hat in his parents’ kitchen, said he was still angry that his 25 years of work in the United States meant nothing; that being caught with a broken taillight on his vehicle and without immigration papers meant more than having two American sons — Jeffrey, 10, and his brother, Tommy Jefferson, 2, who was named after the family’s favorite president.

As for President Obama, Mr. Isidoro uttered an expletive. “There are all these drug addicts, drug dealers, people who do nothing in the United States, and you’re going to kick people like me out,” he said. “Why?”

[snip]

Jeffrey, like many other children whose parents have moved them to a country they do not know, seems to be teetering between catching up to his classmates and falling further behind. His parents are struggling to find work and keep their marriage together. Jeffrey, in quieter moments, said he was just trying to endure until he could go home.

“I dream, like, I’m sleeping in the United States,” he said. “But when I wake up, I’m in Mexico.”

Obama’s policy change has come a little late. But I’ll put most of the blame for our benighted immigration policies on the Republican Party leadership, who care far more for children before they are born than after.

Categories: Law, Politics

War and Executive Power

June 12, 2012 Leave a comment

War as a tool to consolidate executive power is an old theme. Still, I was taken by surprise by a couple of passages I read yesterday in Gordon Wood’s review of four books on the War of 1812 and James Madison in the current New York Review of Books. (One of the four, George Daughan’s 1812: The Navy’s War, is featured above.) Somehow, there’s never-ending novelty in the news that there’s nothing new under the sun.

Reviewing the historical background to the US’s declaration of war on Britain, Wood explains (emphasis mine) that

Both Democratic-Republican presidents, Thomas Jefferson and James Madison, and their Republican colleagues in Congress had strenuously sought to prevent any augmentation of the country’s military establishment. In January 1812 the Republicans in Congress actually voted down any increase in the size of the navy that was to fight the war they voted for six months later. The Republican Party feared military establishments and war-making because these were the means by which governments had traditionally enhanced executive power at the expense of liberty. Indeed, the Republicans seemed to believe that America’s military posed a greater threat to the United States than it did to Great Britain. Armies and navies, declared John Taylor of Caroline, the conscience of the Republican Party, “only serve to excite wars, squander money, and extend corruption.” Even a strong navy, warned a Republican congressman from Philadelphia, might become “a powerful engine in the hands of an ambitious Executive.”

Later in the review, Wood analyzes President Madison’s war record, concluding (emphasis mine again):

The burning of Washington and other defeats, the many misjudgments, the poor appointments, and the bureaucratic snafus all reveal that the War of 1812 was not Madison’s finest hour. He may have been at times a very successful practical politician, but he was not a decider. He was a legislator, not a natural executive; he was someone who sought to persuade, not command. Believing devoutly in republican principles, he was ill at ease in exercising executive authority. He was, as Henry Clay privately admitted, “wholly unfit for the storms of war.”

But in one important respect President Madison redeemed himself. Throughout all the administrative confusion, throughout all the military failures, throughout all the treasonous actions of the Federalists, Madison remained calm in the conviction that in a republic strong executive leadership—the leadership of a Napoleon or a Hamilton—could only endanger the principles for which the war was fought. Unlike the Federalists who during the Quasi-War with France in 1798 had passed the harsh Alien and Sedition Acts to suppress the opposition, President Madison, as one admirer noted, had withstood both a powerful foreign enemy and widespread domestic opposition “without one trial for treason, or even one prosecution for libel.” No subsequent American president has ever been able to constrain the growth of executive power in wartime as much as he did.

Of course, it helps if the president actually has an interest in constraining the growth of executive power. We know Bush didn’t, and now we know that Obama doesn’t. I won’t go on about that again. I’ll just quote the opening from this piece put out yesterday by PrivacySOS.org:

Let’s go back to school for a minute. Remember learning that the United States had three separate branches of government and a system of checks and balances to prevent any one branch from becoming too powerful?

Congress could make laws; the president could veto them and propose other laws; Congress could override the president’s veto, control the purse strings and had the sole power to declare war while the president served as commander-in-chief; members of the Supreme Court – nominated by the president and approved by the Senate — could declare a law unconstitutional.

This fragmentation of power was seen at the time the Constitution was drafted as the best way to guard against tyranny and protect liberty.

It’s worth pondering what is left of this system in the post 9/11 world where President Obama has embraced and further enlarged the radical assertion of executive authority handed to him by the Bush Administration.

Has there been any serious attempt by Congress to check rapidly expanding presidential power? No. However bent the Republicans might be on denying President Obama any domestic accomplishments, Congress has largely closed ranks behind a “let the executive branch do it” national security agenda.

Categories: History, Law, War

Righteousness and Goodness

June 10, 2012 1 comment

[Mr. Fish cartoon at clowncrack.com]

I know, I’ve been pushing this drone theme a lot lately (here and here and here). Maybe I should move on. But really. We have a president who insists it’s okay to shoot missiles at people in countries we’re not at war with just because they’re hanging out in the wrong places. It’s even okay to shoot missiles at people in countries we’re not at war with who are US teenagers with no known history of doing anything wrong. That seems worth calling attention to again and again and again.

Mind you, our use of drones in Pakistan and Yemen is still a government secret, even as Obama administration officials talk about it when doing so suits their purpose of projecting an image of resolve and success in the war against al-Qaeda.

Today we find Representative Peter King (from Long Island, and head of the House’s Committee on Homeland Security), in an interview with CNN’s Candy Crowley, explaining that “I can’t officially acknowledge that we have a drone program.” Yet, he goes on to justify their use:

I wish we could all live in a world where we could hold hands and love each other. The fact is, that’s not reality. We have an enemy that wants to kill us. I live in New York. I lost over 150 constituents on 9/11, and if we can save the next 150 by killing al Qaeda terrorists with drones then kill them.

We have to assume that there’s always going to be an increase in weapons. This has been the history of mankind. That’s why we have to make sure our defense budget is not weakened and that we stay ahead of the enemy.

There’s evil people in the world. Drones aren’t evil, people are evil. We are a force of good and we are using those drones to carry out the policy of righteousness and goodness.

What has it come to when one of the most extreme right-wing, Muslim-hating members of Congress so strongly supports Obama’s undeclared drone war? What would King — an ardent supporter of the IRA — have said if the UK used drones a few years back in Belfast neighborhoods where IRA provisionals were known to congregate?

There’s something to be said for democratic processes and the constitution. I prefer the rule of law to a president empowered, in the name of righteousness and goodness, to judge who’s naughty and who’s nice.

Categories: Law, Politics, War