Obama's War & Congressional Authorization

Stephen Kershnar
The Libyan War and the Constitution
Dunkirk-Fredonia Observer
April 3, 2011

There are many reasons to oppose the current U.S. war on Libya. First, this war is expensive. Reuters reports that we’ve already spent $550 million on it and we just got into it. The federal government is currently borrowing roughly 43% of what it spends (roughly, we will likely borrow $1.6 trillion on a $3.7 trillion budget) and hence a country mired in debt is putting the war on the credit card. We’ve already spent $800 billion on the Afghanistan and Iraqi wars. The total costs of these other wars may go as high as $3 trillion if the estimate by Nobel-Prize-winning economist Joseph Stiglitz is correct.

Second, because our goals are not clearly defined, mission creep has occurred and likely will continue to do so. The war was initially sold to us as imposing a no-fly zone to keep Moammar Gadhafi’s air force from killing the rebels. This could be accomplished by taking out his air force and air defenses. The mission then changed to protecting civilians. The new goal might explain why we’ve killed Gadhafi’s soldiers, destroyed his armor and command-and-control centers, and even bombed his residence. The recent discussion of arming the rebels suggests a new mission is on the way: regime change. If this mission succeeds, we’ll likely have yet another mission: nation building. In Afghanistan and Iraq this has been expensive and gone poorly, but President Obama rushed in anyway.

Third, the war makes U.S. policy unpredictable to both U.S. citizens and foreign countries. The U.S. attacked forces in Serbia, Bosnia, Iraq, and Libya, in part for humanitarian purposes, but did nothing in Sudan, Congo, and Rwanda. Given the lack of U.S. interests in Serbia, Bosnia, and, arguably, Libya, the pattern is arbitrary. This arbitrariness can also be seen in the U.S.’s muted response to protesters being killed in Bahrain and Yemen. Because both Republicans and Democrats jump into humanitarian wars, U.S. voters have no way to end this type of foreign adventurism. Other countries are also left to guess at what we’ll do next.

The main reason to oppose this war is that it is unconstitutional. Obama didn’t bother to get Congressional approval for his war. He did, however, get U.N. permission. Apparently, that’s what’s important.

Article I Section 8 states that Congress shall have the power to declare war. The best interpretation of this clause is that except in the cases where the country or its vital interests are attacked, the President cannot initiate war until Congress has declared it. Not only does the language of the Constitution suggest this, but the country’s fathers, James Madison, Alexander Hamilton, and George Washington, likely intended this. As writer Walter Isaacson notes, Washington said, “The Constitution vests the power of declaring war with Congress, therefore no offensive expedition of importance can be undertaken until after they shall have deliberated on the subject, and authorized such a measure.” Alexander Hamilton in Federalist no. 69 stated that the President is just the “first general and admiral” and just as generals and admirals may not initiate war, Presidents may not either.

The structure of the Constitution also supports this interpretation. Elsewhere in Article I Section 8, Cato Institute scholar Gene Healy points out, Congress has the power to initiate military action, specifically by allowing private American ships to attack other countries’ ships and to use militias to suppress domestic rebellion and repel invasions. In contrast, the Constitution grants to the President merely supervisory war-related powers. He may lead the army and navy only after Congress has created them and authorized their use.

As a side note, this was the position that Senators Obama and Biden held before they joined the executive branch. University of California at Berkeley professor and former Bush administration lawyer John Yoo notes that Biden opposed the nomination of Supreme Court Justice Samuel Alito because he didn’t admit that the Bush administration would need congressional permission to attack Iran. Obama is on record defending a similar view.

Yoo provides the strongest argument for the claim that the President alone has the power to make war. Yoo argues that this claim can be seen in the nation’s history. The U.S., he notes, has used force abroad more than 100 times and only declared war five times. Even major wars like the Korean and Vietnam wars were fought without a declaration of war and Congress didn’t even authorize the former.

Yoo also argues that the drafting history of the Constitution supports his claim because the Constitutional delegates substituted in “declare war” for “make war,” suggesting that they didn’t view Congress as having the power to initiate war. He further argues that when the Constitution sets out a power that Congress and President share, such as enacting laws and entering treaties, it lays out a specific procedure. However, it does not lay out a specific procedure for war. He claims that a proper historical understanding also supports this interpretation. Constitutional delegates, Yoo claims, were following our English ancestry. In England, he notes, the King alone could initiate war and Parliament could undermine a war by refusing to fund it. Congress, Yoo notes, can stop a war via the purse.

The courts and the Clinton and Obama administrations have in effect adopted Yoo’s position. In Doe v. Bush (1st Circuit 2003), Campbell v. Clinton (D.C. Cir 2000), and Massachusetts v. Laird (1st Circuit 1971), which considered Constitutional challenges to the second Iraqi, Serbian, and Vietnam wars, the courts threw out challenges based on the fact that Congress had not authorized these wars. The courts reasoned that because Congress had not ordering an end to the wars or cut off funding, it was not at odds with the President. This reasoning makes sense only if Presidents can make war without Congressional approval.

If Yoo and the recent administrations were correct, then the Constitution permits Presidents to unilaterally start bloody and expensive wars with major powers like China and Russia without Congressional oversight. If Congress tried to stop the war by passing a law and the President vetoed it, Congress could then stop it only by forming a super-majority to override the President’s veto. In effect, Congress would have to act through hard-to-obtain super-majorities. This is likely not what the war-weary founders intended. It would also do little to slow down our repeated entry into unnecessary wars, especially with the pathetic specimens who populate Congress.

In addition to the Constitution, the War Powers Resolution, passed over the veto of President Nixon, prohibits the President from using the armed forces in a war for more than 60 days (with an addition 30-day withdrawal period) without Congress declaring war or otherwise authorizing the use of force. This resolution appears to be inconsistent with the Constitution on either of the above views because it transfers a power (war-making) from Congress to the President or vice versa. In any case, it’s still on the books and Obama has yet to satisfy it.

The best approach here is for Congress to follow Stanford Law Professor John Hart Ely’s suggestion to impeach and convict Obama for illegal war-making. Ely argues that violating the separation of powers to engage in an illegal war is a “high crime or misdemeanor” and far worse than, for example, Richard Nixon’s wiretapping and Bill Clinton’s perjury and witness tampering. Were this adopted earlier, this might have prevented Presidents from recklessly spending American blood and treasure in Korea, Vietnam, Iraq, Somalia, Serbia, Bosnia, and Libya.

Whether the military who took an oath to uphold the Constitution should refuse to fight is an issue for another day.

Judaism and Christianity: Falsehoods in Sacred Texts

Stephen Kershnar
Judaism and Christianity: The Shame of the Bible
Dunkirk-Fredonia Observer
March 7, 2011

Judaism and Christianity are committed to the claim that what the Bible says is true or, at least, reliably true. There are two reasons for this. On one account, these religions are, by definition, a set of beliefs with a certain historical past. This historical past involves the Bible. For Jews, consider the centrality of Abraham, Saul, and David, and Moses’ receipt of the Ten Commandments. For Christians, consider Mary’s virgin birth, Jesus’ crucifixion, speeches, miracles, and so on. On a second account, these religions depend on knowledge that comes from the Old and New Testaments. On this account, even if these religions are not defined in terms of the Bible, they rely on knowledge that has been reliably passed down through the Bible, although perhaps not only through it. Both religions, then, depend on what the Bible says.

The problem is that some of what the Bible says, at least in its current translations, is false. University of Colorado philosophy professor Michael Huemer provides the following examples. First, some statements contradict each other and at least one of every two contradictory statements is false. Consider how one is saved.

For it is by grace you have been saved, through faith … not by works. [Ephesians 2:8-9]

What good is it, my brothers, if a man claims to have faith but no deeds? Can such faith save him? … Faith by itself, if it not accompanied by action, is dead. [James 2:14-17]

Behold I am coming soon! My reward is with me, and I will give to everyone according to what he has done. [Revelation 22:12]

Consider whether God changes his mind.

God is not a man, that he should lie, nor a son of man, that he should change his mind. [Numbers 23:19]

Then the Lord relented and did not bring on his people the disaster he had threatened. [Exodus 32:14]

Second, the Bible makes scientific errors. Here are a few examples.

All flying insects that walk on all fours are to be detestable to you. There are, however, some winged creatures that walk on all fours that you may eat: those that have jointed legs for hopping on the ground. Of these you may eat any kind of locust, katydid, cricket or grasshopper. [Leviticus 11:20-22]

You may eat any animal that has a split hoof divided into two and that chews the cud. However, of those that chew the cud or that have a split hoof completely divided you may not eat the camel, the rabbit, or the coney [a small Middle Eastern mammal]. [Deuteronomy 14:6-7]

He made the Sea of cast metal, circular in shape, measuring ten cubits from rim to rim … It took a line of thirty cupits to measure around it. [1 Kings 7:23]

The problem is that no insects (including grasshoppers) are four-legged, rabbits don’t chew cud, and pi does not equal 3. For those who are tempted to claim that insects walk on four feet and jump with two, this still conflicts with Leviticus 11: 23. Cute moves about rabbits also fail.

Third, the Bible makes grave moral errors. It has a long list of who must be put to death. This list includes anyone who curses his father or mother (Leviticus 20:9), commits adultery (Leviticus 20:10), engages in gay male sex (Leviticus 20:13), promiscuous girls who lose their virginity (Deuteronomy 22:20-21), and those who do not keep the Sabbath (Exodus 35:2).

The Bible also orders complete and total genocide in some cases (Deuteronomy 7:1-2 and 20:10-17) and permits the keeping of slaves (Leviticus 25:44-45) and beating slaves (Exodus 21:20-21). There’s more, but you get the picture.

Jews and Christians have to admit that the Bible contains falsehoods. This is enough to show that God didn’t write it because he’s all-knowing. Worse, they involve big errors, specifically, how one is saved, the nature of God, whether one may commit genocide and keep slaves, and who should be killed for unpopular sex. Even if Christians and Jews want to retreat to the position that human beings wrote the Bible and were divinely inspired, the most that can be said is that they are an extremely unreliable source as to what is true and what God wants. This alone is enough to show that Christianity and Judaism is false when viewed in terms of their full set of doctrines (for Jews, Abraham, David, and Moses; for Christians, virgin birth and Jesus’ arising from the dead and role in salvation). Even the stripped down minimal doctrines (monotheism and Jesus’ divinity) are doubtful to the extent they are not supported by evidence that does not rely on the Bible.

One objection is that Bible as originally written was not stocked with such falsehoods, they crept in when it was translated. I’ve seen no evidence for this, perhaps there’s some of which I’m unaware.

A second objection is that the Bible was written nearly two thousand years ago and it is unfair to blame ancient people for not using modern science, morality, and logic. The objection is not that these people were blameworthy for what they wrote. Rather, it is that the Bible is so unreliable as to count as evidence against Judaism and Christianity.

A third objection is that belief in Judaism and Christianity should rest on faith (strong belief unaccompanied by adequate evidence) or these religions’ ability to make people’s lives go better. The data shows that religious people are happier and, a dated study, shows that they have better sex lives. It is likely reassuring for those who grew up with it and, for many, it provides a loving and supportive community. Even if this is true, believers are still in the awkward position of believing in and practicing what they do not know to be true and, more likely, know to be false. This is problematic for those whose job depends on their handling evidence. This includes scientists, engineers, physicians, lawyers, professors, and people in business. To the extent that one holds that self-interest is a good reason to believe something, regardless of whether it is true, religious people escape can live with the awkwardness. Perhaps this is why we see lawyers, physicians, and professors sitting slightly uncomfortably in Synagogues and pews.

In sum, the Bible contains a number of troubling falsities. In the absence of convincing philosophical arguments for religious doctrines, and here I just assume such arguments are absent, this is convincing evidence that Judaism and Christianity are false. This need not trouble those who are okay with holding false beliefs in limited areas, when doing so makes their lives go better. However, to the extent that politicians and religious leaders rely on the Bible to solve personal, moral, or political issues, they are arguing from false premises and should be ignored.

Enhanced Interrogation Techniques

Stephen Kershnar
Enhanced Interrogation Techniques: Taking Off the Gloves
Dunkirk-Fredonia Observer
March 6, 2011

An important fight has broken out over the Bush administration’s use of hardball tactics when interrogating al Qaeda suspects. In Courting Disaster (2010), Bush administration speechwriter Marc Thiessen argues that the CIA’s use of enhanced interrogation techniques (EITs) was spectacularly effective.

The CIA started using EITs after the 9/11 attacks. According to the Justice Department (cited by Thiessen), high-value detainees who would not cooperate with interrogators were subjected to “conditioning” techniques. These included nudity, sleep deprivation, and a diet limited to Ensure dietary shakes. If these didn’t work, “corrective” techniques were used. These included a face slap and a forceful head grasp. If this didn’t work, “coercive” techniques were used. These involved being put in uncomfortable stress positions, forced to stand against a wall, being slammed into a flexible wall, and being doused with cold water. Finally, if all else failed, detainees were waterboarded. Strict conditions governed this last technique. The CIA was required to have credible intelligence that a terrorist attack was imminent. It was also required to have substantial and credible evidence that the subject had information that could prevent, disrupt, or delay an attack and that other methods were unlikely to work.

Thiessen points out that of the tens of thousands captured in the war on terror, the CIA only held about one hundred terrorists, only about thirty were subjected to EITs, and only three were waterboarded. In 2006, the Bush administration reluctantly scaled back the program to “conditioning” and “corrective” techniques. In his first two days in office, President Obama shut it down.

Thiessen provides four reasons to think EITs worked. First, he points out that in the decade before the CIA began using EITs, al Qaeda launched a number of successful attacks against U.S. interests: the first World Trade Center bombing, bombings of U.S. embassies in Kenya and Tanzania, an attack on an American destroyer (USS Cole), and the 9/11 attacks. In the eight years since the CIA began using EITs, he claims, al Qaeda did not launch a single successful attack on American soil or against American interests abroad.

Second, Thiessen notes, the FBI questioned suspects after al Qaeda attacks with its gloves on. He claims that the FBI failed to get information needed to prevent the 9/11 attacks. By contrast, he claims, since the CIA started using EITs, dozens of senior al Qaeda leaders have been captured and a number of attacks prevented.

Third, Thiessen argues, the use of EITs was based on behavioral science and years of study through the military’s Survival, Evasion, Resistance, and Escape (SERE) training. He claims that the U.S. government learned from SERE training water boarding is highly effective. According to the Justice Department’s Office of Legal Counsel, by 2001 all the military services except the Navy stopped using waterboarding in SERE trainings because it was too effective and thus not useful for training. Thiessen argues that if waterboarding is this effective against our military personnel, it is likely effective against terrorists.

Fourth, he argues, virtually every knowledgeable person who has looked at the reports concluded that the EIT program produced vital intelligence that saved lives. For instance, he argues, until the EIT program was temporarily suspended in 2006, intelligence officials say that over half of the information our government had about al Qaeda – how it operates, how it moves money, how it communicates, how it recruits operatives, how it picks targets, how it plans and carries out attacks – came from the CIA’s interrogation, which included EITs.

This information, Thiessen claims, prevented attacks including ones on a Los Angeles skyscraper, Heathrow airport and Canary Wharf in England, the U.S. Consulate in Karachi, Pakistan, a U.S. Marine base in Djibouti, and a high rise building, as well as an anthrax attack. It also led to the capture of a sleeper suspect who was thought to be considering attacking the New York Stock Exchange, U.S. military academies, and water reservoirs.

Thiessen’s arguments have come under fire from a number of people. Writing in the New Yorker, Jane Mayer (author of The Dark Side, which also covers the war on terror) argues that Thiessen’s arguments fail. Mayer argues that in the eight years that the CIA used EITs, while there were no attacks on American soil, American interests were attacked. She mentions attacks on Egyptian and Indonesian hotels, the U.S. consulate in Karachi, and the Bagram Air Base, as well as an assassination of a U.S. diplomat. Thiessen dismisses her list because it includes attacks that were not carried out by al-Qaeda or did not target Americans.

Mayer seems to argue that al Qaeda did not successfully launch an attack on U.S soil after 9/11 because of tightened surveillance, hundreds of billions spent to improve intelligence, and better coordination between the CIA and FBI, not because of EIT use. Given Thiessen’s specific claims about what terror suspects were identified and which attacks defused, Mayer’s argument works only if we have reason to disbelieve the CIA’s reports and the experts Thiessen cites. These include two former CIA Directors, three former Directors of National Intelligence, and a Homeland Security Advisor. It is worth noting that Mayer has her own experts who are critical of the program, including a FBI Director and four chairmen of the Senate Intelligence Committee.

Writing in Slate, former senior military interrogator Matthew Alexander (a pseudonym) argues that Thiessen’s reliance on the use of CIA interrogators’ opinions is unreliable because they used torture and thus are worried about being prosecuted for war crimes. He also argues that the military and FBI would have gained better information and done so more quickly without using EITs. Given the FBI’s track record, this claim needs evidence that Alexander doesn’t provide.

In a slightly different context, Harvard University English professor Elaine Scarry points out that we have good reason to be wary of expanding the government’s interrogation powers given its recent history of dragnet searches and failure to police itself. In a 2004 article, she points out that in the 2 ½ years following 9/11, 5,000 foreign nationals suspected of being terrorists were detained without access to counsel. She notes that only of three were ever charged with terrorism-related acts and two were acquitted. She also notes that the court set up to issue warrants using secret information (operating via the Foreign Intelligence Surveillance Act) declined only one requested warrant in an estimated 25,000 requests. Thiessen would likely respond that these concerns are legitimate, but not on point for the small and tightly monitored CIA program.

The balance of the evidence appears to suggest that EITs provided information that prevented attacks on U.S. interests home and abroad. The best argument the critics have been able to provide is that less coercive methods would have worked as well, but they have scant evidence. The real objection to such EITs, especially water boarding, is that they are immoral, illegal, or that the costs outweigh the benefits. The first objection is implausible. If EITs work and prevent the deaths of innocent victims and far more Qaeda members, the program is legitimate self-defense. The other two objections are best left for another day.