Mike Kueber's Blog

October 21, 2011

Celebrating the coup de grace of Moammar Gadhafi or worrying about the future of Libya

Filed under: Issues,Media,Politics,War — Mike Kueber @ 4:30 am
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More and more often on weeknights, I find myself leaving FOX News shortly around 8:10 p.m.  After listening to right-leaning Bill O’Reilly off-and-on for an hour, I quickly tire of viewing far-right-leaning Sean Hannity and then start channel surfing.

My first stop is Piers Morgan on CNN.  Although he is a bit effeminate, he does good interviews if he has a good guest.  Unfortunately, he only rarely has a guest that I’m interested in listening to.

My next stop is usually Rachel Maddow on MSNBC.  Rachel is as far left as Hannity is far right, but she has a lot more sparkle in her personality, so a few minutes with her is usually more enjoyable than a few minutes with the dull Hannity.

I especially enjoyed Maddow tonight because she was waxing romantic over the killing of Moammar Gadhafi.  Her lengthy soliloquy was broken up only by a
conversation with an equally emotional Richard Engel.  Both individuals were nearly in tears of joy, not only because the wicked witch dead, but also because he had been killed by a collective of good guys and was being replaced by a bunch idealistic reformers.

When Maddow asked Engel about the new group in charge, Engel quickly admitted that they were highly religious Islamists, but these Muslims loved the Americans who helped them overthrow the evil Gadhafi.  Engels said he hadn’t had to pay for a cup of coffee in Libya for months.

While listening to Maddow and Engles, I couldn’t help but recall the overthrow of Saddam Hussein and the greeting of Americans as liberators in Iraq.  The analogy was also similar in that Hussein was hiding in a spider-nest when he was captured while Gadhafi was pulled from hiding in a sewer.

Near the end of the hour, I changed channels back to FOX News and learned that Maddow might be sugar-coating things.  According to two FOX foreign-policy experts, America should be highly concerned about the people who will be running Libya.  Among other things, the country is a virtual munitions armory and the new leadership could do a variety of things with these armaments that could prove disastrous to America.  Who is right – FOX or Maddow?  I’ll find out tomorrow by getting outside the world of talk TV.

I finished my political fix for the night by listening to The Daily Show with Jon Stewart.  He was on the same page as Maddow and used a major portion of his show to make fun of the FOX fiends for begrudging Obama this unqualified success.  In fact, Stewart presented one of the most partisan, unfair segments that I have seen on The Daily Show.  He attempted to prove his point (a) by showing several clips of leading Republicans, like McCain and Rubio congratulating European countries, like France, Great Britain, and Italy and (b) by implying that America was actually the dominant power that brought down Gadhafi.

I haven’t been following Libya closely, but my understanding is that Europe, not America, played the dominant role in supporting the rebels in Libya and that Obama made America’s secondary status clear in his various communications.  Consistent with this position Maddow proudly pointed out during her soliloquy that America had never deployed a single combat troop in Libya.

During his Libya segment, Stewart criticized FOX for taking two inconsistent opinions – (a) the removal of Gadhafi may make things worse, and (b) we should have been able to remove him in one month instead of taking six months to do it.  I suggest that Stewart and Maddow are guilty of an analogous inconsistency in their positions – (a) Obama deserves credit for removing Gadhafi, and (b) America led from behind as part of a collective and we never seriously engaged militarily in Libya.

I’ve been a consistent supporter of America’s role in Libya, and I believe America should always prefer participating in a coalition instead of lone-rangering, so I completely agree with Maddow’s feeling good.  But even with MSNBC pundits saying “the war in Libya is over,” I think Americans should be reminded that despite the hoopla in the streets, “more work needs to be done.”

Someone famously told George Bush that if you break Iraq, it is yours.  That is why America’s huge short-term investment in overthrowing Saddam led to a huge long-term investment in the building of new Iraq.

By contrast, America made a relatively small short-term investment in overthrowing Moammar, but it is undecided whether America is going to make a long-term investment in the building of a new Libya.

We can start worrying about that tomorrow.  Tonight let’s just celebrate.

June 29, 2011

The U.S. Constitution – does it still matter?

The title of this posting was a question posed on the cover of Time magazine this week.  Fortunately, only the first few paragraphs are available on-line.

No, that was not a typo.  I said “fortunately” because the article was so poorly written that its author could have been a college kid submitting a
term paper.  The author was, in fact, Richard Stengel, the managing editor of Time magazine, which probably explains how such a sophomoric article found its way into Time magazine.  Either his editors were too cowed to do their job or Stengel haughtily rejected their help.

I am blogging about the article because it raised an important topic – i.e., the relevance of the U.S. Constitution toward four transcendent issues in America:

  1. Making war as applied to Libya
  2. Defaulting on the national debt
  3. Interstate commerce as applied to ObamaCare
  4. Birthright citizenship

Making war

The first issue revolves around the War Powers Resolution.  The Resolution, which became law in 1973, was designed to prevent another Vietnam and end the string of undeclared wars since WWII.  It allows the president to initiate military action without a declaration of war, but requires the military action to cease if Congress doesn’t give its approval within 60 days.  This seems like a very reasonable accommodation of (a) modern exigencies and (b) the Constitutional provision, “The Congress shall have power… to declare war.

The Resolution was passed despite a presidential veto, and every president has asserted that it is unconstitutional because it infringes on his constitutional power to “be commander in chief.”  But President Obama is the first president to engage in an extended military action (Libya) without obtaining Congressional approval.

Stengel’s take on this issue – he mildly chides President Obama for ignoring the following position staked out by candidate Obama: “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”  And he lamely excuses Obama because, “since 1973, Presidents have at best paid lip service to the resolution.”  The excuse is lame because, although previous presidents have claimed that the resolution was unconstitutional, they nevertheless complied with it, including George W. Bush in Iraq and Afghanistan.

Stengel complains that our Founders created this problem by drafting provisions that are conflicting.  That is hogwash.  If this issue ever gets
before the Supreme Court, they will certainly be able to reconcile the Congress’s power to declare war with the President’s power to be the commander in chief.  Without explanation, Stengel concludes this section by saying, “this matter will not end up in the Supreme Court.  Congress does not really want the responsibility of deciding whether to send troops to places like Libya.  It just doesn’t want the President to do so in a way that makes it look superfluous and impotent.

Washington Post columnist Charles Krauthammer recently addressed the application of the War Powers Resolution to the military action in Libya.  Unlike Stengel, he provided an explanation for why the courts haven’t resolved this issue – “Moreover, the judiciary, which under our
system is the ultimate arbiter of constitutionality, has consistently refused to adjudicate this ‘political question’ (to quote one appellate court judge) and thus resolve with finality the separation-of-powers dispute between the other two co-equal branches

Like Krauthammer, I think the War Powers Resolution was a reasonable reconciliation of the constitutional provisions.  It reminds me of the Roe v. Wade decision on abortion, in which the Supreme Court balanced the privacy interests of women against the public interest in protecting the life of a fetus.  That is the type of public-policy decision, however, that should be made by legislatures, not the courts.  I wish President Obama would do what all previous Presidents have done – respect the law.

Debt ceiling

My conservative drinking friend thinks that the Founding Fathers had no idea that Congress would become such a profligate spender and, if they had, they would have included a balanced-budget provision in the Constitution.  In fact, however, the Founding Fathers knew that America had incurred huge debt during the Revolutionary War and they specifically approved the practice in Article 1, Section 8 of the Constitution – “The Congress shall have power … to borrow money on the credit of the United States.”

Regarding the possibility of default because on Congress’s failure to raise the debt limit, Stengel makes a suggestion that I haven’t previously heard – i.e., that the Constitution doesn’t allow government to default on its debt.  His suggestion is based on Section 4 of the 14th Amendment, which reads, “The validity of the public debt of the United States… shall not be questioned.”  The Amendment, which was passed shortly after the Civil War, was intended to affirm the Union’s Civil War debt while repudiating all Confederate debt.

According to Stengel, if Congress refuses to increase the debt ceiling, President Obama would be constitutionally authorized to take extraordinary measures such as ordering “the Treasury to produce binding debt instruments … sell assets, furlough workers, freeze checks.”  I have never heard of this possible scenario, and during President Obama’s press conference today, he did not refer to it when he was asked about the possibility of default.  Let’s hope that this doomsday scenario never occurs.

Interstate commerce

The U.S. Constitution authorizes Congress the power to regulate interstate commerce.  During law school, I learned that the Supreme Court has interpreted this provision extremely liberally, once holding that the provision authorizes the federal government to regulate a farmer who is growing grain for his own consumption.  In recent years, however, there has been push-back by constitutional conservatives against this expansive interpretation on the basis of the 10th Amendment, which says that all powers not expressly granted to Congress shall be reserved to the states, and with respect to ObamaCare, several federal judges have bought this argument.

Stengel’s legal defense of ObamaCare includes several glaring faults:

  1. He fails to mention the 10th Amendment.
  2. He notes that government can compel us to buy car insurance, but fails to recognize the important distinction that car insurance is compelled under a state’s police powers, not the federal government’s power over interstate commerce.
  3. He says it’s silly to argue that health care – which accounts for 17% of the U.S. economy – doesn’t involve interstate commerce, but fails to recognize that conservatives are arguing that the individual mandate is unconstitutional, not the entire law.

Birthright citizenship

The principle objective of the post-Civil War 14th Amendment was to grant citizenship to former slaves.  It reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”  The problem with that wording is that it creates so-called birthright citizenship, i.e., if you are physically born in
the United States, you’re a citizen.  The United States is one of the few countries in the world that grants birthright citizenship.

Birthright citizenship has become extremely problematic in America because there are millions of illegal immigrants who are having babies, so-called “anchor babies.”  The anchor babies are American citizens entitled to a vast array of welfare and can eventually, as adults, sponsor their parents into the United States.  Until then, however, their parents are entitled to little more than deportation.

Stengel concedes that Congress was not thinking about illegal immigration when it drafted the 14th Amendment, but he gives short shrift to the argument from constitutional conservatives that the Amendment doesn’t apply to illegal immigrants because of the term, “subject to the jurisdiction thereof.”  Stengel haughtily asserts without explanation that “this argument doesn’t hold up under scrutiny.”  I have reviewed the judicial precedent on this issue, and there is nothing definitive.

Stengel also concedes that birthright citizenship makes no sense, yet he asserts, “There are liberals and conservatives alike who oppose changing
birthright citizenship
It’s seen as a core American value.”  That is hogwash.  I don’t know of a single well-known conservative who endorses birthright citizenship.  If there were, why didn’t Stengel name the person?

Ultimately Stengel concludes that resolving the birthright-citizenship issue will not resolve the bigger issue of illegal immigration.  For that, he recommends a carrot-and-stick approach.  The carrot is to make immigration easier and to give a path to citizenship to undocumented young people who go to college or join the military.  The stick is workplace enforcement and better enforcement.

Stengel concludes his article by quoting Judge Learned Hand, one of the greatest non-Supreme Court jurists in American history, who said the following in a speech during WWII:

  • “I often wonder whether we do not rest our hopes too much on our constitutions, upon laws and upon courts.  Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.”

Stengel rephrased this sentiment by warning, “The Constitution does not protect our spirit of liberty; our spirit of liberty protects the Constitution.  The Constitution serves the nation; the nation does not serve the Constitution.  That’s what the framers would say.”

Sounds like Stengel is not a constitutional conservative.  Rather, he sees the Constitution as a living document that “is more a guardrail for our society than a traffic cop…. a st of principles, not a code of laws.”  I think the framers wanted the Constitution to live and grow through amendments, not through the liberal thinking of arrogant jurists.

If the Constitution is construed to provide citizenship to children born to illegal immigrants, the Constitution should be amended.  If the Constitution is construed to empower the federal government to force individuals to buy health insurance, the Constitution should be amended.  If the Supreme Court determines that the War Powers Resolution is unconstitutional, then it should reconcile the Congressional power to declare war with the Presidential power as commander in chief.  And finally, if Congress fails to raise the debt ceiling, the Supreme Court will decide whether the President has extraordinary powers to avoid default.

The U.S. Constitution is not as dysfunctional as liberals like to think.

March 25, 2011

Should we be in Libya?

I recently posted on my Facebook wall a NY Times column by Nicholas Kristof that approved the American intervention in Libya because, according to Kristof’s reporting, American was being welcomed as a liberator in Libya.   By way of contrast, Kristof said that our intervention in Iraq was seen as an occupation.  On my Facebook wall, I commented that liberal Kristof was being as generous toward the actions taken by liberal President Obama as he had been oppositional toward the actions taken by his Obama’s predecessor, conservative George W. Bush.  That comment prompted a Facebook friend to ask what I thought about America’s actions in Libya, and I responded as follows:

  • My first position is to defer to the president. I hate it when Republicans and Democrats argue foreign policy to the voters.  That’s usually above our pay grade.  I agree with the Libya move because of the 10-0 vote in the UN and the universal support, but I think America needs to reserve the right to act unilaterally, too.  Cowboy up.  E tu?” 

Upon further reflection, I decided to expand on that response.

When I grew up, there was a generally accepted adage that “politics ends at the water’s edge.”  Huffington Post blogger Chris Weigant says the phrase has come to mean “that when presidents act in fast-developing situations around the world, they shouldn’t be undercut by partisan griping at home, while the events are still in motion,” and he suggests that Egypt was a perfect example of when it should be applied.  Weigant supports his argument by citing the complete quote from Michigan senator Arthur Vandenberg, who coined the phrase in the late 40s:

  • To me, bipartisan foreign policy means a mutual effort, under our indispensable, two-party system, to unite our official voice at the water’s edge so that America speaks with one voice to those who would divide and conquer us and the free world.  It does not involve the remotest surrender of free debate in determining our position. On the contrary, frank co-operation and free debate are indispensable to ultimate unity. In a word, it simply seeks national security ahead of partisan advantage.  Every foreign policy must be totally debated (and I think the record proves it has been) and the ‘loyal opposition’ is under special obligation to see that this occurs.”

I think Weigant’s interpretation is entirely too narrow because a one-voice foreign policy extends to more than “fast-developing situations … while the events are still in motion.”  As I indicated in a recent blog, I think Senator Harry Reid was irresponsible when he said the following shortly after George W. Bush ordered the surge in Iraq – “The war is lost, the surge is not accomplishing anything.”     Respectful debate is fine, but Senator Reid was clearly pursuing partisan advantage. 

So, should we be in Libya?  Ultimately the president is the commander in chief, subject to Congress’s exclusive authority to declare war.   As I mentioned to my friend, I think that, because foreign policy decisions are ultra-complicated and are affected by information not available to us, we should not be second-guessing the president.  Foreign policy should become a partisan issue only rarely – e.g., Vietnam.

March 23, 2011

The power to make war

Republicans are supposed to be sticklers about constitutional niceties – they often describe themselves as constitutional conservatives.  As a practical matter, however, they don’t let constitutional niceties get in the way of America making war at the drop of a hat.  Thus, you did not hear objection from Republicans when Barack Obama recently decided to make war against Libya without any authorization from Congress. 

A couple of nights ago on Bill O’Reilly’s show, Karl Rove noted that, although George W. Bush received Congressional authorization prior to fighting in Afghanistan and Iraq, the Bush administration did not believe such authorization was constitutionally required.  Rove explained that, although the Constitution gives Congress the right to declare war, the Constitution also makes the President the commander in chief, and that right implies the right to make war.  If that were true, why bother giving Congress the right to declare war?

As Washington Post columnist George Will recently declared

  • “Congress’s power to declare war resembles a muscle that has atrophied from long abstention from proper exercise. This power was last exercised on June 5, 1942 (against Bulgaria, Romania and Hungary), almost 69 years, and many wars, ago. It thus may seem quaint, and certainly is quixotic, for Indiana’s Richard Lugar — ranking Republican on, and former chairman of, the Senate Foreign Relations Committee — to say, correctly, that Congress should debate and vote on this.”
  • “There are those who think that if the United Nations gives the United States permission to wage war, the Constitution becomes irrelevant. Let us find out who in Congress supports this proposition, which should be resoundingly refuted, particularly by Republicans currently insisting that government, and especially the executive, should be on a short constitutional leash. If all Republican presidential aspirants are supine in the face of unfettered presidential war-making and humanitarian interventionism, the Republican field is radically insufficient.”

After the disaster in Vietnam, Congress attempted to rein-in presidential war-making by passing the War Powers Resolution in 1973.  This law requires a president to obtain Congressional authorization within 60 days of initiating hostilities.  If America is still fighting Gadhafi in 60 days, it will be interesting to see if the constitutional conservatives insist on a congressional vote.

P.S., a column by Maureen Dowd in today’s NY Times included the following quote from candidate Obama on presidential war-making powers:

  • As compelling as the gender split is, it’s even more interesting to look at the parallels between Obama and W.  Candidate Obama said about a possible strike on Iran, “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”  Yet both men started wars of choice with a decision-making process marked more by impulse and reaction than discipline and rigor.  Denouncing the last decade of “autopilot” for presidents ordering military operations, Senator Webb told Andrea Mitchell on MSNBC: “We have not had a debate. … This isn’t the way that our system is supposed to work.”