The Supermajority Escalator

I have very rarely found plain, common sense in the years I've studied political science, especially in political theory. Several ideas are very logically based, but tend to be political pipedreams and, in my opinion, just partisan hopes and dreams based on party ideology. Bruce Ackerman, however, astonishes me with a very decent remedy to the current political and Constitutional crisis facing the United States today: The Supermajority Escalator. Something so simple, yet so effective I have not yet read in my life when it comes to dealing with a remedy to a situation like ours.

The idea of a sliding scale of political power was something we needed years ago to balance out the legislative and executive abuses occurring in the United States. Why didn't we hear of such an idea? As Ackerman notes several times, the executive doesnt want to forfeit power. Combine this with the fear people had in the days following 9/11, and it made the executive the strong leader people wanted to rally behind. We are now 6 years removed from the tragedy that occurred on that fall morning, yet political power remained extremely dictatorial and emergency-based. With only a weak minority in the Congress, any attempts to override the executive and legislative actions were hopeless at best. This solution being offered gives hope to either party of being able to end a crisis and re-establish constitutional boundaries.

In addition to re-establishing the constitutional boundaries, I think its important to note that this style of emergency constitution gives the minority the right to report and give a measure of accountability to the majority party and its leaders for their actions. This type of check on government simply did not exist, which is why we currently have the government policing agencies on the defensive for overstepping boundaries. This is why we have an executive branch that is politically on shaky ground. This is why our Supreme Court is being thrust into the role of a permanent check that it should not be forced into doing, and this is why we dont have a sense of normalcy in government today. This type of accountability and difficulty of maintaining an emergency as is proposed by Ackerman is a cure for a system that ails us.

Will the system work, though? We don't know, but our current system has failed us. That seems good enough reason to at least work out a plan. After all, we may never see an end to terrorism, and worse yet, we may never see an end to the terrorism of our freedoms, values, and government that has existed for 6 years since the terrorism that shook us all to our cores.

"Preserves judicial review in civilian courts"

I think I wont be the only one disturbed by the above statement. David Bowker, in his article "Unwise Counsel" , on pg. 188, writes "Tellingly, the U.S. government has vigorosoly opposed every effort to obtain habeas corpus review of these detentions, notwithstanding White House counsel's public reassurance that the Presidents November 13 order "preserves judicial review in civilian courts.""

The more I read about torture, the more this article and others disturb me. As an American-born citizen, I worry about torture. Let me explain my view on this type of torture, though. I worry about physical torture that exists in the world, such as the waterboarding, the interrogation tactics, etc. which I doubt I will ever have to experience in my lifetime. I sincerely doubt any of us, who are sane and rational individuals, will ever be subjected to this torture unless we decide to start committing acts of terrorism against the United States. The torture I worry about is the torture listed above, the one that has come of light since September 11th, 2001. Our leaders now have to come out and explicitly state to the citizens of this nation that our rights will be protected, as other people's rights are not.

Why is this torture? Precisely for the reason above. The average citizen today does not know legally where he stands. What is legal? What isn't? Sure, we all know not to murder, rape, loot, pillage, etc. but with such laws as the Patriot Act, and other acts that we may not be explicitly aware of, we may be breaking the law. Are we possibly looking at a Guantanamo trip? Perhaps spending the better years of our life locked up in a brig in some US military base? But the biggest question is: What rights do we have left?

Our leaders came out and explicitly stated that judicial review will still stand in civilian courts. Great, but will I end up in a civilian court if I ever have to go to trial? This is the type of torture the average american has to deal with on some level. We don't know where we stand legally, or what rights we have. We dont know what will be crossing a line, or even if a line exists. Does speaking out against a government position mean we will be placed onto a list of dissenters, such as existed during the heyday of McCarthyism?

These nagging doubts and questions could be nothing more than a heightened state of tension, or a loose form of paranoia, but the fact is, the need to have our rights explicitly stated to us did not exist before September 11th. Living in fear, doubt, and constant political pressure is certainly a form of torture that has now become part of our daily life. When will it stop?

Question of scale

Joshua Dratel writes, of terrorism: "...we managed to eradicate nazism as a significant threat without wholesale repudiation of the laws of war, or a categorical departure from international norms...we can dispatch it [terrorism] to the same historical dustbin without, in the process, forsaking all of the precepts we hold dear, and upon we distinguish ourselves from the enemies" (p.114)

For the first time this semester, I think I have found something I can sink my teeth into. Mr. Dratel speaks of nazism and terrorism in the same breath, without presenting the true scales of war let alone the changes of war that have occurred. First, he attempts to apply codified law of war in a situation where none exists. The german and american armies did follow the laws of war, whereas terrorism knows no such law. Terrorism is not a war of soldiers, it is a war of agents, subversives whose aim is to not conquer a nation by sheer numbers, but by subversion, chaos, and fear. Nazism was a war of chaos, certainly, but it was an organized and methodical system of a visible and viable military structure. To say that a military, let alone a thousands year old "code of war" should and CAN apply here is rubbish. These terrorists are so decentralized and so far from standard soldiers, old methods are just not practical or applicable.

Next, Mr. Dratel forgets to notice that our enemies are flat out not just terrorizing captives, but are killing them for propaganda purposes. One needs to look no further than Al-Jazeera to see tapes of soldiers, reporters, etc. being killed. The last time I checked, even in situations that the United States have violated torture procedures, there were no deaths. The international norms that Mr. Dratel describes have grown out of the cold war ideologies, and need to be updated since we are past the cold-war appeasement and containment ideas. We are dealing with a shadow organization that does not respect what the U.N, E.U, NATO, or whatever other organization says. We gain nothing by following Mr. Dratels Euro-style model, as Europe is 1) Not involved in an active conflict, and 2) Still following a cold war policy of political and military pacifism. Should we be? Thats certainly open for debate, and I welcome that debate. However, ours is not the above listed question.

We are in a situation that cannot now be avoided, and Mr. Dratels solution is not a viable one. A solution needs to be found to address 21st century intelligence and warfare, one that does follow rule of law, but our own. We need to lead by example, the right example. And we need to show the world once again that we can lead with our example, as opposed to following an outmoded thought process of the releasing of doves and the shaking of hands, as our enemy now kills the doves and cuts off the hands of diplomacy. How to accomplish this? Certainly by not being followers, but leaders where we prove that bi-partisan thinking and thought can prevail to curtail abuses while still making headway towards the goal: making the world safe, not just for democracy, but for respect for law and man

Rule of War? Rule of Law

As is written on page 281 of the reader, a la Scalia's Rasul dissent: "...Scalia maintained, would mean that American military prisoners held not just in Guantanamo but anywhere in the world now controlled by Americans...could sue the government in American courts." (281)

Its interesting how things come around and, legally speaking, bite you in the butt. Post 9/11, the government wanted to get out and make war on someone that people and politicians willingly (almost blindly) gave the executive powers never seen before in the course of American political history. For a period of 2-3 years, the executive enjoyed these powers and was, for all intents and purposes, a warlord....completely unchecked by the government. Worse, by setting up Guantanamo as a detainee center where anyone could be held indefinitely based on a whim, it became a legal concentration camp of sorts, minus the inhumane work and living conditions. Executive power was absolute, laws of war were done. These were not POW's, no, they were enemy combatants, not even POWs and did not have rights under military law.

Fast forward to the Rasul case and Scalia's dissent. He and the executives now realize their fatal flaw: They refused to treat these men as POW's and instead treated them as some unclassified group never seen before. BIG mistake. Now, the court has ruled that those prisoners can sue the US government legally for habeas corpus in a US court wherever the US is occupying a nation or territory. Inadvertently, the US government changed the laws of war so much so that now, a POW standing would look like heaven to the executive. The failure of a pro-executive outcome to Rasul is ultimately the failure of legitimacy of this overextension of executive power and prerogative.

Its often been said that those who live by the sword shall perish by the sword, and that still holds true, but I would also add that the pen is mightier than the sword. The pen writes the opinion that destroys executive legitimacy in this entire post 9/11 disaster of government. Had the executive just stayed in his political place, and used the traditional and well established rules of war, this may not have happened in the first place. Now, the executive has come full circle and perhaps, just perhaps, we may be able to return to the political and judicial life that existed on September 10th, 2001.

Nuggets in Hamdi

I think I have seen a bit of faith restoration in the government as of late, and now I can see where it started. In her opinion, Justice O'Connor writes: "We have long since made clear that a state of war is not a blank check when it comes to the rights of the nation's citizens...." (Hamdi V. Rumsfeld)

As of late, we have seen the Bush White House and its policies lose American support, and since the democratic party victory last year, we have seen more problems with the Presidents policies come to light. This attempt by the petitioner to attain a speedy and fair civil trial highlights the short-sighted policy of this armed conflict. Militarily, one can argue that it has been well run, and in fact, it has thanks to our troops. Politically, this may be the BIGGEST blunder since Vietnam. The reason we are failing domestically and internationally is through the lack of foresight, oversight, and, well, any sight period.

Take for example the current issue with the FBI and the over-steps it took under the Patriot Act. So intense and devisive was the action that it set up nothing that would be able to justify or sell it whole-heartedly to America, other than through scare tactics. This left the ability for abuse wide open, as goes the saying: "Absolute Power Corrupts" The same can be said for the issues at Abu Garaib prison, and for other areas of terrorist suppression. One can say the intent was right, and the intent was good. I can certainly agree with that, however, failure to have the funds to back up the blank check that Justice O'Connor mentions can leave the account low, or worse yet, bounce the check. The check that bounced was the faith of the people, and the low funds were levels of political oversight and control. The court wisely rules that Hamdi does have the right to an impartial judge, something he didn't have earlier, and he does have the right to argue his status as a United States citizen. Slowly, through proper correction, that blank check has been torn up, and while we need to use some of those funds, certainly, we cant bankrupt our Rule of Law for our protection. A nation that suspends all of its rights to defend itself is not a nation at all....

The past comes back....

I find political science to be an interesting arena of study, especially when dealing with legal aspects. Fischer writes about the trial of the hijackers in Berlin, and quotes Judge Stern from the bench in Berlin: " Without the Constitution, the Secretary of State would have the power to arrest any person without cause, to hold a person incommunicado, to deny an accused the benefit of counsel, to try a person summarily and to impose sentence- all as a part of the unreviewable exercise of foreign policy." (164)

Although it escapes me now, there is a Supreme Court case mentioned earlier in the semester that, in one of the opinions, states that the decision allows the president a vast power, something he will be able to pull out at anytime and use whenever he feels. (Korematsu perhaps?) I felt then that it could be and has been used by the administration as a political pressure tool to keep things in check, especially by asserting the executives emergency powers. Stern, in his opinion, echoes the same thing, but from a different time. History repeats itself.

For most of 2001, 2002, and 2003, Sterns warning was a daily reality in Guantanamo. This exercise of foreign policy met critical rebukes from the European Union and other foreign nations, and was questioned domestically. Until Abu Garhaib, this was the case. It seems like it takes a major scandal or political shakeup to have this administration effectively alter its policy on the detainee situation. The point man, Mr. Gonzales, is now himself on the hotseat, and the FBI has been busted for illegal spying. There are now hearings for gross violations of the Patriot Act, and soon, we may be seeing a shift back towards a level of normalcy in all of this political mess. The worst thing, however, is that we have failed to learn from the past, to paraphrase Schmidt, we are a political state of know-nothing pork barrel ignorance. We have failed in several areas, and we are still making our Cold War mistakes on foreign policy today. Maybe if we took our cold war era warnings more seriously, we could avoid our problems today get our nation and our policies back on track.

Surprising? Not to those of us in the know...

While reading John Podesta's article in the reading assignment, he writes: "The breath and the scope of the redaction of government information is astounding..... the federal aviation administration has removed data from its website on enforcement actions against air carriers...." Well, what are those enforcement actions? Some are security, some are airspace infractions, some are major, some are minor. What Podesta fails to mention is the fact that the air carriers rarely feel the effect of the silencing policy.

We, the little pilots of America, are the ones who are villified and made to deal with the media and the FAA. If a commercial airliner, on an instrument flight plan, strays into the ADIZ (Air Defense Initiation Zone) around Washington, DC, the pilot can take corrective action without having the air force up their butts. If I were to do that same thing, while on an instrument flight plan with my little cessna, I'd have F-16s dispatched, I'd be forced to land, interviewed by the FAA, FBI, Homeland Security, and other groups. How do I know this? Several newsworthy articles that vilify me and my plane as being "possible terrorists" 767's and 757's took out targets on Sept. 11th, not Cessnas. Why is the government being so selective with its secrets, which aren't secrets?

It's simple. The administration and its agencies failed miserably on 9/11. Its touted security and its control over aviation was lost that day. The airlines simply need to recover, and it leaves the little guy to get picked on. Its not just happening in aviation, its happening everywhere, as Podesta says. While most people dont care about the violations (which STILL do occur), they would rather see the little guy get vilified than the big guy. And trust me, those terrorists didnt need ground school to fly those planes, any person with a computer and a copy of Microsoft flight simulator can do it. I guess I should be proud to say: I'm one of 411,000 AOPA members who didnt get an aviation-related infraction today, and I'm also one of over 2,000,000 registered pilots in the US who hasn't committed an act of terrorism with my plane.....