Category Archives: Separation Of Powers

Chuck Hagel Speculates About Bush’s Impeachment

There is much discussion in the blogosphere about Senator Chuck Hagel’s interview in Esquire where he speculates about the possibility of President Bush’s impeachment:

“The president says, ‘I don’t care.’ He’s not accountable anymore,” Hagel says, measuring his words by the syllable and his syllables almost by the letter. “He’s not accountable anymore, which isn’t totally true. You can impeach him, and before this is over, you might see calls for his impeachment. I don’t know. It depends how this goes.”

The conversation beaches itself for a moment on that word — impeachment — spoken by a conservative Republican from a safe Senate seat in a reddish state. It’s barely even whispered among the serious set in Washington, and it rings like a gong in the middle of the sentence, even though it flowed quite naturally out of the conversation he was having about how everybody had abandoned their responsibility to the country, and now there was a war going bad because of it.

“Congress abdicated its oversight responsibility,” he says. “The press abdicated its responsibility, and the American people abdicated their responsibilities. Terror was on the minds of everyone, and nobody questioned anything, quite frankly.”

All of this is true. Grave mistakes were made on both sides of the political aisle that have plunged America, and the rest of the world, into a situation that seems to be without an easy solution right now. But that’s not a ground for impeachment.

Here’s what Article II says:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

It is without question that profound policy mistakes have been made by the Bush Administration, especially when it comes to the Iraq War. They relied on faulty intelligence, ignored evidence that didn’t conform to their predetermined conclusions, and started a war without planning what would happen after it was over. We have paid the price for those mistakes for four years now.

But….

Making bad policy decisions is not a ground for impeachment under the Constitution. Turning the impeachment power into a method of removing from office a President who is merely unpopular would, I think, be a grave mistake.

Cheering For A Venezuelan Coup

In the comments to Doug’s last post, and in the comments on Reddit, people seem shocked that Doug would advocate a military coup to overthrow Chavez.

They’re shocked, of course, because a site called the Liberty Papers would suggest that a military coup to overthrow a quasi-democratically elected president. The key, of course, is that they equate liberty and democracy. Only they’re not equal. Chavez’ propensity to nationalize sectors of his economy and his desire to destroy personal wealth through monetary inflation make him a distinct threat to liberty. To me, it doesn’t matter if he was democratically elected or not.

You see, there are two definitions of democracy. One is the correct definition, and that is rule through elections. However, that definition is not in common parlance. The second definition is a state where many of the levers of power are controlled through a democratic manner, in a state which also protects individual rights through the rule of law. The first definition leads, quite commonly, to tyranny. The second definition is generally a pretty liberty-friendly society.

You see, here at The Liberty Papers, we have little love for democracy for democracy’s sake. We are interested in outcomes which support liberty. The first definition of democracy doesn’t usually do so, as Chavez and Venezuela are pointing out. The second definition of democracy usually does support liberty, but Chavez has been ruling by decree, not by law, nationalizing the economy, and destroying the currency, so Venezuela doesn’t meet the second definition.

Whether Chavez was elected democratically or not, he is acting as a dictator in ways to fundamentally destroy the liberties of the people of Venezuela. Thus, it is my position that he should be removed from power, for the good of the Venezuelan people. Now, I’m not advocating that this be something the United States get involved with. After all, while Chavez is a loudmouth, he doesn’t threaten the United States. However, should he be overthrown from within by forces who will restore the liberties of the Venezuelan people, I’ll be raising my glass in support.

UPDATE: It appears that commenter “lifeofliberty” is willing to allow anyone who is democratically elected to do whatever they like. I would assume, then, that he supports President Bush choosing what portions of laws he will or will not enforce through “signing statements”? I would assume he wouldn’t have a problem with our Congress giving him near-dictatorial power for 18 months? I would assume he’s in favor of domestic wiretapping, and the suspension of habeas corpus, and Guantanamo bay? Because even though Bush was democratically elected, I find those things deplorable and think they are anti-liberty. I guess “lifeofliberty” believes that because “the people” voted for Bush, all these things are just fine?

Someone needs a lesson in separation of powers… AGAIN

Well now, take a quick look at this bill, and see if you can tell me what’s wrong with it:

HR 563 IH

110th CONGRESS

1st Session
+

H. R. 563

To vacate further proceedings in the prosecution of certain named persons.

IN THE HOUSE OF REPRESENTATIVES

January 18, 2007

Mr. HUNTER (for himself, Mr. POE, Mr. JONES of North Carolina, Mr. TANCREDO, Mr. ROHRABACHER, Mr. GOODE, Mr. BURTON of Indiana, Mrs. MUSGRAVE, Mr. ROYCE, Mr. DUNCAN, Mr. BARTLETT of Maryland, Mr. HERGER, Mr. COLE of Oklahoma, Mr. BARRETT of South Carolina, Mr. CARTER, Mr. PORTER, Mr. MCCOTTER, Mr. BURGESS, Mr. GERLACH, Mr. MICA, Mr. SAXTON, Mr. DAVIS of Kentucky, Mr. SESSIONS, Mr. CANTOR, Mr. HOBSON, Mr. LAHOOD, Mr. WALSH of New York, Mr. TERRY, Ms. FOXX, Mr. HASTINGS of Washington, Mr. WELDON of Florida, Mr. BISHOP of Utah, Mr. KIRK, Mr. ROGERS of Alabama, Mrs. MYRICK, Mr. STEARNS, Mr. RENZI, Mr. BONNER, Mr. BAKER, Mr. PETERSON of Pennsylvania, Mr. EVERETT, Mr. CANNON, Mrs. CUBIN, Mr. SHADEGG, Mr. SHIMKUS, Mr. COBLE, Mr. ENGLISH of Pennsylvania, Mr. GILCHREST, Mr. HAYES, Mr. LEWIS of Kentucky, Mr. ROGERS of Kentucky, Mr. DAVID DAVIS of Tennessee, Mr. PEARCE, Mr. GINGREY, Mr. GARY G. MILLER of California, Mr. LOBIONDO, Mr. TIBERI, Mr. WHITFIELD, Mr. LATOURETTE, Mr. YOUNG of Florida, Mrs. BLACKBURN, Mr. PITTS, Mr. SMITH of New Jersey, Mr. SULLIVAN, Mr. MANZULLO, Mr. MCHUGH, Mr. WILSON of South Carolina, Mr. MCKEON, Mr. AKIN, Mr. KINGSTON, and Mr. TIAHRT) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To vacate further proceedings in the prosecution of certain named persons.

Whereas the conviction and sentencing of United States Border Patrol Agents Ignacio Ramos and Jose Compean for the pursuit and shooting of drug smuggler Osvaldo Aldrete-Davila which is the subject of a Federal criminal case in the United States District Court for the Western District of Texas represents an extreme injustice: Now, therefore,

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Congressional Pardon for Border Patrol Agents Ramos and Compean Act’.

SEC. 2. ORDER.

It is hereby ordered that the conviction and sentences of Border Patrol Agents Ignacio Ramos and Jose Compean are vacated. The release of the defendants from the custody of the Government is hereby ordered, with prejudice. No further criminal prosecution or other proceeding against these named individuals with respect to the circumstances giving rise to the convictions and sentences vacated by this Act shall take place.

SEC. 3. SENSE OF CONGRESS.

It is the sense of Congress that the Department of Homeland Security review the rules of engagement presently utilized by the United States Border Patrol.

END

If you guessed it had something to do with the title of this post, you get a gold star.

So, a little background for those of you who don’t know.

Ramos and Compean were Border Patrol Agents on the U.S. Mexican border, along the El Paso section; which happens to be one of the busiest smuggling regions, as well as one of the more dangerous.

Border patrol rules of engagement specify that BP agents are not to enter into armed confrontation with smugglers. Well, Ramos and Compean did; and they ended up shooting one in the back.

Oooh no, in the back, those foul evildoers…

Yeah it’s bull. Anyone who knows anything about a violent situation knows that when shooting starts, you don’t pay attention to anything other then staying alive, and stopping the threat. If he’s still moving, he’s still fighting; but that’s neither here nor there.

The problem is, after shooting at said scumbag (who was attempting to smuggle 800lbs of Marijuana that day) 15 times (they apparently only hit him once), they figured “ehh just another dead smuggler”, and they didn’t report the incident.

Now, that is a seriously big no-no. Very bad ju-ju. They violated their ROE, and they knew it, so they decided to hush it up. Grounds for dismissal certainly, and possibly a minor prosecution; but probably nothing really serious.

But the scumbag wasn’t dead; and he complained to his own government about being shot. The Mexican government then complained to our Department of Homeland Security (who run the Border Patrol), who at the behest of the Mexican government told the U.S. Attorney for the western district of Texas that these two agents had “Committed a conspiracy to commit murder against a Mexican citizen”.

Anyway, the El Paso U.S. Attorney looks at the ROE, looks at the criminal drug smuggling bastard shot in the back, and then looks at the pressure from Homeland Security and the Mexican government; and of course he sees where his bread is buttered, and decides to crucify Ramos and Compean.

They were charged with and convicted for, assault with a deadly weapon, attempted murder, and conspoiracy to commit murder; and they each got 12 years… actually 11 years and 1 day, and 12 years respectively (not sure what the calculation was on that).

It gets better. Once they were remanded to custody, TWO BP AGENTS WHO SHOT A MEXICAN DRUG SMUGGLER WERE PUT INTO GEN-POP WITH ALL THE MEXICAN GANGS.

They were of course beaten nearly to death within hours, before being put into protective custody.

Now, SOP for a cop who gets sent to prison, is that they are NEVER put in with the general population, because if they do, it’s effectively a death sentence. How this was ignored… let’s just say is smells.

Let me just say something: I know for a fact we didn’t get the whole story out to the public. I have family in the Border patrol who tell me this whole thing stinks to high heaven. BUT, based on what evidence was presented, this wasn’t attempted murder or assault, this was a JUSTIFIED line of duty shooting.

What it comes down to is, the BP agents in question were so scared of the bureaucratic bull, and attitude of the Border Patrol management, that they decided to pretend it never happened. Their fear of their own bad management is what created this problem, not any improper action in shooting said drug smuggling scum bag.

Anyway, off my soap box for a minute.

Now, look at this little section from the bill above:

SEC. 2. ORDER.

It is hereby ordered that the conviction and sentences of Border Patrol Agents Ignacio Ramos and Jose Compean are vacated. The release of the defendants from the custody of the Government is hereby ordered, with prejudice. No further criminal prosecution or other proceeding against these named individuals with respect to the circumstances giving rise to the convictions and sentences vacated by this Act shall take place.

Now, here’s the big problem.

Congress can’t do that.

The constitution provides clearly delineated separation of the powers of the branches of government. Congress Makes the Laws, the Courts interpret and apply the laws, and the Executive branch executes and enforces the laws.

Pretty cut and dried.

Congress could write a new law, saying that what Ramos and Compean did isn’t illegal; but it wouldn’t change their case because what they did WAS illegal when they did it, according to the interpretation of the courts.

The courts could overturn their conviction, and dismiss the charges.

The Executive branch is the enforcement branch, and as such the privilege of executive clemency is their purview; so the president could pardon them.

But Congress cannot, “By act of Congress Assembled”, vacate a conviction, or grant a pardon. Oh they can do it symbolically with a “sense of congress” resolution, or they can ASK the president to issue a pardon, they can even by act of congress ask the supreme court to consider the case (as they did with the Terry Schaivo issue… though the way it was worded they overstepped their bounds there as well)…

But congress can not vacate a conviction, or issue a pardon. In fact, they can’t order the courts, or the president to do ANYTHING; except to follow the law. It is not within their constitutionally delegated powers to do so.

The only enforcement power that congress has, is to cite someone for contempt of congress (either for not following a law, or for not responding to the requests of congress expressed in their powers of subpoena to compel evidence and testimony); or to institute impeachment against the president (and in fact, they don’t enforce that: the supreme court, acting on the authority of the senate, vacates the office of the president, and then the next in line of succession takes over).

Of the bills 87 co-sponsors, most of them are lawyers, who one would assume took constitutional law at some point or another. Many of them are congressmen of long service, who really should understand their constitutional authority, role, and powers.

Perhaps we are asking too much of our congressmen to understand their jobs, or the constitution.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Meet Michael Charles Smith

If the 2008 presidential campaign wasn’t about electing the first woman, African American, Hispanic, or Mormon president but rather about ideas, candidates like Ron Paul might have a fighting chance to be the next president. For the purposes of this post, I’ll pretend that this race is about ideas.

Ron Paul seems to be a fan favorite here at The Liberty Papers. I also have a great deal of admiration for Ron Paul. I hope that he draws a great deal of attention in the debates so that certain libertarian issues will be discussed that the G.O.P. front runners wouldn’t touch with a 10’ pole. As far as domestic issues go, I think Paul is right on the money…its some (but not all) of his foreign policy positions I have problems with (the same problems I generally have with the Libertarian Party platform in regard to foreign policy). More specifically, Ron Paul’s inability to understand the very real threats to the U.S. by Islamofascists makes it very difficult for me to endorse him or pull the lever for him.

So what is a liberty and small government minded person who also recognizes the threats of Islamofascim to do? The G.O.P. front runners (Giuliani, McCain, Romney, etc.) all seem to want to combat these threats but will also most likely continue to grow the government in much the same way as President Bush has. Ron Paul would work to decrease the size of government and restore some of our lost liberties but would cut and run in Iraq and leave America vulnerable (as would most if not all of the Democrats who are running). No good can come from a defeat in Iraq. There is at least one candidate who is perhaps even less well known than Ron Paul that might be a reasonable compromise between the G.O.P. front runners and Ron Paul; meet Oregon Republican Michael Charles Smith.

For those of you who are looking for the perfect presidential candidate, I have some bad news: there is no perfect candidate. But as I went through the list of things I am looking for in a candidate, Michael Charles Smith is about as close as I can find who reflects my views. Smith is not your typical Republican and certainly won’t be receiving any support from the Christian Right. Smith calls himself a “fiscal conservative” and “social libertarian.” By fiscal conservative he means that federal spending should only be used for functions specifically mandated in the U.S. Constitution (what a concept!), federal taxing and spending should be reduced in favor of state and local control, and the federal income tax should be abolished and replaced with the Fair Tax. By Social libertarian he means that he is pro choice, that illicit drugs should be de-felonized (not a complete withdraw from the war on drugs but a start), and that gays should have the same rights of marriage and be able to openly serve in the military.

In matters of war and peace Smith was opposed to going to war in Iraq but does not believe the troops should leave until the job is done. Though I did support the reasons for going to war with Iraq and continue to support the war, the president and the congress did not use the constitutional approach and was therefore; reckless and possibly illegal (I’ll leave that up to the lawyers to decide). Smith, on the other hand, actually believes the founders had it right in the first place. Smith explains:

Fundamentally, our approach to military engagement should be reset. The threshold for military commitment should be stringently limited to specific threats to Americans, not American “interests.” Any extended commitment of military force should require a formal declaration of war from the Congress. Discretionary commitments and preemptive justifications are too prone to political motivations and lack sufficient checks and balances.

Let’s honor the sacrifice of those who volunteer to protect our freedom by not carelessly putting them in harm’s way.

While I don’t think Smith would be as strong of a leader in the war on Islamofascism as Giuliani, at least Smith seems to recognize both external and internal threats to liberty in the United States. Most importantly, he wants to restore what he calls “constitutional integrity” by returning to a smaller government, less spending, returning more responsibility to the states, restoring the Bill of Rights by upholding church/state separation, civil liberties, and state’s rights.

Obviously, the chances of Michael Charles Smith being the next POTUS is a long shot (lack of campaign funds, name recognition, the MSM, the G.O.P. establishment, etc.) at best. He probably will not even qualify for the early primaries. Though I’m not prepared to give Smith my endorsement at this moment, I think he deserves some careful consideration by those of us with libertarian leanings. How great would that be to have not one but two ‘true’ Republicans in the Republican debates with the likes of Rudolf Giuliani, John McCain, Mitt Romney, and Duncan Hunter? Is it possible that perhaps one of the front runners might adopt some of the Smith and Paul platforms? In this 2008 beauty contest, this is probably the best we can hope for.

Eroding Posse Comitatus

The New York Times writes today about a little-known law passed late last year that significantly eroded the line between law enforcement and the military:

A disturbing recent phenomenon in Washington is that laws that strike to the heart of American democracy have been passed in the dead of night. So it was with a provision quietly tucked into the enormous defense budget bill at the Bush administration’s behest that makes it easier for a president to override local control of law enforcement and declare martial law.

The provision, signed into law in October, weakens two obscure but important bulwarks of liberty. One is the doctrine that bars military forces, including a federalized National Guard, from engaging in law enforcement. Called posse comitatus, it was enshrined in law after the Civil War to preserve the line between civil government and the military. The other is the Insurrection Act of 1807, which provides the major exemptions to posse comitatus. It essentially limits a president’s use of the military in law enforcement to putting down lawlessness, insurrection and rebellion, where a state is violating federal law or depriving people of constitutional rights.

The newly enacted provisions upset this careful balance. They shift the focus from making sure that federal laws are enforced to restoring public order. Beyond cases of actual insurrection, the president may now use military troops as a domestic police force in response to a natural disaster, a disease outbreak, terrorist attack or to any “other condition.”

And, as the Times noted, this was all done in the dead of night as an amendment to a defense appropriations bill. Nobody noticed it was there and it wasn’t seriously debated before being passed. That was, as Brendan Loy notes, simply indefensible. It is, however, consistent with the Bush Administration’s view of Presidential power, which seems to have few, if any, limits.

1 19 20 21 22 23