Author Topic: Who do you trust with the nuclear launch codes?  (Read 23042 times)

Fenring

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Re: Who do you trust with the nuclear launch codes?
« Reply #50 on: January 04, 2016, 10:40:05 AM »
Pete, did Afghanistan attack the US?  Was the UK attacked?

The argument was that the ruling authority in Afghanistan was abetting Al Qaeda. What part of this is hard to understand? As for the UK they were an ally of the U.S. and are fully entitled (even required in certain circumstances) to fight alongside the U.S. when it's attacked.

Pete at Home

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Re: Who do you trust with the nuclear launch codes?
« Reply #51 on: January 04, 2016, 01:02:47 PM »
I said:
"International law as recognized by the Nuremberg decision recognizes a legitimate right of self defense when a government allows another military group to operate out of government territory, striking another country.
There is also a defense of another argument when the country attacks another, and Taliban's attack on the Northern Alliance qualified"
Pete, did Afghanistan attack the US?  Was the UK attacked?


In light of what I just explained, that's a foolish pair of questions, unless you were helping me by trying to demonstrate the ignorance and stupidity I spoke of.  First of all, the Taliban weren't "Afghanistan;" they were a government sovereign over central and Southern Afghanistan. 

More importantly, and dispositive to the question of whether the US and UK actions were legal, the Taliban allowed Al Qaeda to operate out of Taliban-controlled land.  When AQ struck the USA, this effectively (by traditional law of nations as codified into international law through the Nuremberg Tribunal) became the Taliban's Act of Aggression.

The UK was not attacked, but entered into the war under the traditional and Nuremberg-recognized rationale of "Defense of Another." 

Defense of another is just as valid in the common law and in international law as self-defense.  For example, World War II started when England and France came to the defense of Poland.

Self-defense and defense of another are far more entrenched in the Law of Nations and less controversial than the relatively new idea that the UN can approve a war that would traditionally not be justifiable. 

Pete at Home

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Re: Who do you trust with the nuclear launch codes?
« Reply #52 on: January 04, 2016, 01:14:52 PM »
Lest anyone miss the leftish doublespeak, note that the lefty argument against our action in Afghanistan employs contradictory premises:

1. The assumption that no war may be declared without approval from the United Nations (a position that the UN itself has never taken!)

2. The assumption that the Taliban were "Afghanistan," despite the fact that the United Nations at the time did not recognize the Taliban as Afghanistan's legitimate government, recognizing the Northern Alliance instead.


AI Wessex

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Re: Who do you trust with the nuclear launch codes?
« Reply #53 on: January 04, 2016, 05:42:43 PM »
Yes, it's pretty thick.  Oh well...

NobleHunter

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Re: Who do you trust with the nuclear launch codes?
« Reply #54 on: January 05, 2016, 09:39:09 AM »
One may declare war without the approval of the UN but if there is sufficient disapproval, intervention might be forthcoming. Or, rather, if there is consensus in the Security Council that the war is not permissible.

Seriati

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Re: Who do you trust with the nuclear launch codes?
« Reply #55 on: January 05, 2016, 03:01:06 PM »
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I pointed out that the last two Democratic Presidents have each engaged in military actions
Why them and not the last 3 (or 4 ( or 5)) Presidents?
Between the last 3 Presidents we're covering 23 years of history, of which 16 were by the 2 Presidents I referenced.  We could go further back if you like, but it doesn't help your case much, early Presidents strictly complied with the War Powers Act and Congressional approval limitations.
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Rise above and not make this partisan, even if you think that was the intent of the thread.
It was clearly the intent of the thread or it would've covered whether we can trust Hillary and Bernie with the codes, no and yes, for your reference.  I've yet to see you make any non-partisan point, so it's a bit of pot and kettle with your call for my neutrality.
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You then claimed that President Obama was acting in what he thinks were the best interests of the country, and presumably couldn't wait around for Congressional approval.
No, I said Congress refuses to do anything except whine and complain that whatever he chooses to do is wrong.  Would you have him sit idly by while the world goes up in smoke?
Two things, first I asked you to explain the emergency rationale, you utterly failed to even try it, so why are you claiming the 'world is going up in smoke'?  If you have the rationale lay out, if you don't quite with the hyperbole.

Second, in a non-emergency situation, a lack of Congressional action is a BAR on action, not an invitation for the dictator to make the rules himself.
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I'm sure Congress would rather Obama be seen as a failure than give him a green light and support him.
I think represents your entire world view, and explains why we can't see eye to eye.  I think the President's policies are what they can't support, there isn't much trouble when there are actual compromises placed on the table.  Or policies that both parties can get behind.  It's beyond stupide to expect members of Congress to vote for policies they directly oppose as a test of whether they want the President to fail or not.
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I remember the good old days when politics stopped at the border.  Now, the Republicans go out of their way to entertain foreign leaders and send missions to advise foreign governments that they shouldn't listen to the President.  How times have changed...
I remember the good old days, when the President brought the treaties he signed to the Senate, as is required by the Constitution, and it wasn't necessary to send delegations out to tell people in other countries that he couldn't sign a treaty by himself.  Apparently, you think the President acting like a King is more damaging than a Congress trying to stop him from doing so.  Do you really believe you support civil rights?
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If we did need to topple Kaddafi - and again no rationale explanation for how its in our interests, at all, to act against one of the few regional leaders that has ever even partially reformed, then we should have done it in a way that didn't create a power vacuum.
All well and good, but HOW and WHAT would have led to that happy result?
You didn't answer the question of why this should happen.  That's endemic in this debate, you skip over what ever you don't have an answer for and go further with the side track.  I don't care what or how that happy result could be achieved if you can't tell me WHY that result should be our goal or respond to the argument about it being directly against our long term interests.  And that's not because I lack the ability to plan to get that result.
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If you think I'm being unfair to Bush and too kind to Obama, consider the magnitude of their errors and the scope and scale of their manipulations to get their way. Then consider that Congress gave Bush authority to act and this Congress refuses to give Obama any.
I think the only relevant item for you was which party each was in.  And I'm sorry to say at this, I honestly believe that.  I have explained everything the Bush admin did, multiple times, you seem deluded into thinking they acted illegally (which is wishful thinking and not an actual legal analysis) and that they lied (notwithstanding the clear evidence that they believed what they were saying).  Yet you think there is a stark difference with President Obama when you can't even articulate a reason for why he acted as he did.

Fenring

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Re: Who do you trust with the nuclear launch codes?
« Reply #56 on: January 05, 2016, 03:38:28 PM »
I have explained everything the Bush admin did, multiple times, you seem deluded into thinking they acted illegally (which is wishful thinking and not an actual legal analysis)

I differentiate between following the legal procedure of how to go about declaring wars and between illegal acts that may be employed during that correct use of procedure. For instance one can wage a legal war while employing illegal methods, such as torture, which we know for 100% certain were knowingly employed (even though we cannot directly pin the responsibility on any particular person, which is no accident). I agree with you fully that the forms of declaring war were obeyed far better during W's Presidency than during Obama's, but overall I think both Presidencies are roughly equal in overreaching beyond what the law permits.

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and that they lied (notwithstanding the clear evidence that they believed what they were saying).

Here's where I think you stray somewhat into partisan territory, because unless you could somehow demonstrate otherwise we already have conclusive evidence (not indisputable proof, mind you) that they lied about WMD's in Iraq. This evidence comes not only from the CIA and from other intelligence sources, but even from African foreign nations that had a special relationship with the Hussein regime and knew what he was and wasn't doing. Also curiously omitted from statements at that time was that the gas we knew Saddam had was the gas provided to him by America to use against Iran. Perhaps you think it's a magical coincidence that the Project for the New American Century was pushing for invading Iraq since the late 90's, that W said even prior to his election that he intended to invade Iraq if given the chance, and that the UK had covertly agreed to join in on the invasion long before the "intelligence" on the WMD's was confirmed and the war voted on in Congress?

I'm with you on most points you make here, but on this one issue I can't see how the facts bear out your position. As I see it they definitely lied through their teeth to the Congress about the WMD's, which you may recall was a fallback position after failing to make their case that Saddam was aiding Bin Laden, but they used the lies to effect a legally legitimate process of declaring war. In a sense I view that scenario as superior to the scenario where the Congress is bypassed altogether, since at least it was perhaps in the power of the Congress to see through the smoke and vote against. It was such a crazy time in America, though, that fear and confusion prevailed.
« Last Edit: January 05, 2016, 03:44:10 PM by Fenring »

AI Wessex

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Re: Who do you trust with the nuclear launch codes?
« Reply #57 on: January 05, 2016, 03:57:29 PM »
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I think the only relevant item for you was which party each was in.  And I'm sorry to say at this, I honestly believe that.  I have explained everything the Bush admin did, multiple times, you seem deluded into thinking they acted illegally (which is wishful thinking and not an actual legal analysis) and that they lied (notwithstanding the clear evidence that they believed what they were saying).  Yet you think there is a stark difference with President Obama when you can't even articulate a reason for why he acted as he did.
The parties and their chosen leaders act on different sets of constraints and principles, so clearly I see a difference.  There are some things Presidents of both parties have done that I either disagree with or reserve judgment (maybe forever).  I marched in Washington against the first Gulf War because I believed it was the wrong thing to do.  IMO, it was a successful military effort, but had a disastrous aftermath, as I and many others feared.  So, to be clear, I was opposed to the invasion because I felt very strongly that it would lead to a destabilization of the region.  I'm not happy that I was right, and it's fair that I point that out and point out whose fault that was. 

There is almost no possible rational defense of Bush II's actions in Iraq.  I don't believe they really believed what they were saying; I believe they wished it to be true and said it thinking after the war started nobody would really care what the reasons were.  They lied, and if you don't think so I feel a bit sorry for you, but you are deluding yourself.  The evidence was cooked, and they chose will dupes and con men to make the claims that they accepted without hesitation.  Believing they told the truth makes you a thoroughgoing partisan, but this isn't the first time you've made that apparent.

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I differentiate between following the legal procedure of how to go about declaring wars and between illegal acts that may be employed during that correct use of procedure. For instance one can wage a legal war while employing illegal methods, such as torture, which we know for 100% certain were knowingly employed (even though we cannot directly pin the responsibility on any particular person, which is no accident). I agree with you fully that the forms of declaring war were obeyed far better during W's Presidency than during Obama's, but overall I think both Presidencies are roughly equal in overreaching beyond what the law permits.
Yes, you can declare someone a witch and within your lawful powers drown them.  You can declare that Iraq has WMD and is plotting with AQ and buying Uranium from Niger and invade them, but we know for a fact that there was no concrete evidence that she was a witch, Iraq had WMD, was plotting with AQ or was buying Uranium.  If only saying would make it so, but just saying it is so easy and nobody will know you lied until she's drowned.

I understand why you both think Obama acted incorrectly or even illegally, but you seem willing to throw out the baby and keep the bathwater.  IMO, Obama acted with great constraint *because* he couldn't get approval from Congress.  It is also quite clear to any objective observer that the Congress quite deliberately did everything in its power to deny him what you think would have been the authority he could have used to prosecute whatever actions you say were illegal because they didn't give it.

For the record, I also think our military and diplomatic efforts in Syria are mostly a failure.  I would appreciate it if one of you would explain what should have been done and when and what you would have had Congress do to support those efforts.

Seriati

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Re: Who do you trust with the nuclear launch codes?
« Reply #58 on: January 05, 2016, 04:42:20 PM »
Fenring,

I'm not so convinced that you, or anyone else has presented an non-hindsight influenced demonstration that Congress was lied to.  Intelligence is a tricky business, there are always contrary reports that exist real time.  I'm left with the clear consensus opinion of the world's intelligence services that Saddam had and/or was attempting to hide WMD development programs as the influencing factors.   And I honestly believe that if the administration had known there were no WMD's they would not have sold that line so strongly.  It made them look like idiots and evil when the WMD's weren't found. 

I think a big part of the issue, is people retro-actively convincing themselves that it was the only justification or only valid justification.  But it wasn't.  I was alive for, and paying attention to, the administration's arguments at the time and they made multiple arguments from the start and at all points that were adequate for a declaration of war (and unlike talking heads and people discussing it on a board years later, the politicians in office knew the legitimacy of the other rationales).  It's a revisionist focus of ours to look at it as solely about WMD's, and that's done not because it was a known lie or a bad policy decision, but simply because they were not found (at least not in any expected quantities).

So I disagree with you specifically about the lie portion, and have not seen anything convincing - at all - to change my view on that.  I don't think having preliminary discussions about the invasion of Iraq - assuming its true - changes anything about that.  We were still at war with Iraq, the Iraqi government was not in compliance with the terms of the cease fire and the Iraqi government was responsible for a litany of human rights abuses and suffering.  The possibility or even liklihood of needing to go back in was known, and making plans for it is not some deep evidence of inevitability or dark purpose, just what rationale people start doing about any crisis situation.

I differentiate between following the legal procedure of how to go about declaring wars and between illegal acts that may be employed during that correct use of procedure. For instance one can wage a legal war while employing illegal methods, such as torture, which we know for 100% certain were knowingly employed (even though we cannot directly pin the responsibility on any particular person, which is no accident).
I agree with you here, there is a difference.  But we have different concepts for the two, one is an illegal war or invasion, the other are war crimes.  The presence of war crimes does not convert an otherwise legal war into an illegal one.  And for the record, there is no excusing any war crimes or other acts of torture conducted by US personnel, but also for the record, claiming something is a "war crime" is not the same thing as actually knowing what one is.

For instance, if you have read the Geneva Conventions, explain to me how it is not a violation, and hence a War Crime, if we were to try captured combatants from Afghanistan in US courts.  There is some nuance there, but way the left used to call for both POW treatment and trials simultaneously would have locked in a clear violation.
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I agree with you fully that the forms of declaring war were obeyed far better during W's Presidency than during Obama's, but overall I think both Presidencies are roughly equal in overreaching beyond what the law permits.
Torture is a violation of law, not an overreach.  I don't see the overreach you're claiming in the Bush admin. 
« Last Edit: January 05, 2016, 04:46:02 PM by Seriati »

Fenring

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Re: Who do you trust with the nuclear launch codes?
« Reply #59 on: January 05, 2016, 05:05:08 PM »
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Torture is a violation of law, not an overreach.  I don't see the overreach you're claiming in the Bush admin.

What makes something torture is whether or not it complies with the specifics of what sorts of interrogations are permitted. The question "is waterboarding torture?" has been raised in the past precisely because certain kinds of intense persuasion may be unpleasant but may still not be legally considered to be torture depending on how the laws or policies are written. In particular I think that the use of torture under the Bush admin was both a violation of law and an overreach, because the way in which their interrogation methods were justified had, in part, to do with torturing their interpretation of the rules. It turns out from what we later learned that it wasn't really a fine line and that they were using blatant torture after all. But while the debate went on about which techniques should count as what I would call stepping over the line to be overreach in interpretation of the law.

Another example of overreach which has a similar issue as with torture is with data collection and monitoring of emails and calls. The issue here is both of outright violation of the law in addition to stretching what the law (in this case, the Patriot Act) actually permits. The overreach in this case has been established because a court of law has stated outright that the NSA data collection was illegal, prior to which it may have appeared to those conducting it merely as 'pushing it' to an extent. Depending on how much one thinks they knew exactly how much they were doing what they shouldn't have been one could view the data collection as alternatively overreach or (if they knew for sure) as a blatant violation of the law.

Another arguably overreachy thing was the creation of the Department of Homeland Defence and putting the TSA into it. It smacks to me somewhat of furthering the federal hegemony over the states both in terms of law enforcement and travel regulation. Obviously the creation and enforcement of the department was legal, but it seems to me to have been an encroachment on private life and liberty in favor of authoritarian oversight and top-down management.

I would also suggest that the adoption of a war-time measure such as Patriot Act without defining what the boundaries of the 'war' were and what its end conditions were was a general overreach (and yet legal) by both the admin and the Congress. It pushes credulity to call it necessary for the war on terror without specifying if said 'war' would ever actually end. I finds it somewhat reminiscent of Caesar's status as both Consul and Tribune as an emergency measure, deliberately referenced in the Star Wars prequels as a commentary on America. The Act itself had a time limit on it, but that's not the same as setting a definite end-condition on what would otherwise be an unconstitutional Act justified as an emergency measure.

There is also the issue of Guantanamo Bay, and as with most of these issues they remain issues to this day, which is primarily why I suggest a similarity between the two recent administrations in some respects.
« Last Edit: January 05, 2016, 05:07:59 PM by Fenring »

AI Wessex

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Re: Who do you trust with the nuclear launch codes?
« Reply #60 on: January 05, 2016, 06:03:49 PM »
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And I honestly believe that if the administration had known there were no WMD's they would not have sold that line so strongly.  It made them look like idiots and evil when the WMD's weren't found. 

Yes, but it made no difference at that point.  Oh, no WMD? Carry on!

Pete at Home

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Re: Who do you trust with the nuclear launch codes?
« Reply #61 on: January 05, 2016, 06:10:43 PM »
Yes, it's pretty thick.  Oh well...

The traditional justifications for self defense and defense of another are too arcane for you?  Do you think the US committed aggression in declaring war against Nazi Germany after Pearl Harbor?

Seriati

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Re: Who do you trust with the nuclear launch codes?
« Reply #62 on: January 07, 2016, 03:20:30 PM »
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Torture is a violation of law, not an overreach.  I don't see the overreach you're claiming in the Bush admin.
What makes something torture is whether or not it complies with the specifics of what sorts of interrogations are permitted. The question "is waterboarding torture?" has been raised in the past precisely because certain kinds of intense persuasion may be unpleasant but may still not be legally considered to be torture depending on how the laws or policies are written. In particular I think that the use of torture under the Bush admin was both a violation of law and an overreach, because the way in which their interrogation methods were justified had, in part, to do with torturing their interpretation of the rules.
This is where I'm not following you, do you think it would have become acceptable if the Bush admin had gotten Congressional approval of the waterboarding?  I don't think so, it would still have been illegal.  President Obama's actions are not illegal acts for the country to engage in, they are just not within the limits of the President's authority.  A President is not a King to engage in war where he wills, but Congress is the representative of a sovereign power that does in fact have the right to engage in war.
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It turns out from what we later learned that it wasn't really a fine line and that they were using blatant torture after all. But while the debate went on about which techniques should count as what I would call stepping over the line to be overreach in interpretation of the law.
Maybe I'm parsing too fine, but I just see a debate over whether the law is violated, not an overreach of any sort.  I'm guessing we mean roughly the same thing but the words are getting in the way.
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Another example of overreach which has a similar issue as with torture is with data collection and monitoring of emails and calls. The issue here is both of outright violation of the law in addition to stretching what the law (in this case, the Patriot Act) actually permits. The overreach in this case has been established because a court of law has stated outright that the NSA data collection was illegal, prior to which it may have appeared to those conducting it merely as 'pushing it' to an extent. Depending on how much one thinks they knew exactly how much they were doing what they shouldn't have been one could view the data collection as alternatively overreach or (if they knew for sure) as a blatant violation of the law.
This is an example of governmental overreach yes.  The whole thing is unconstitutional, but again that parses differently than the Obama admins actions in Libya specifically because they could have been legally and Constitutionally authorized, whereas the NSA spying could not.  Executive overreach vs. governmental overreach.
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Another arguably overreachy thing was the creation of the Department of Homeland Defence and putting the TSA into it. It smacks to me somewhat of furthering the federal hegemony over the states both in terms of law enforcement and travel regulation. Obviously the creation and enforcement of the department was legal, but it seems to me to have been an encroachment on private life and liberty in favor of authoritarian oversight and top-down management.
I agree with you about the TSA.  However, I still think the FDR era decision that allowed for federal agencies to mix the powers of the three branches was wrongly decided.  So I don't agree that it's obvious the creation was legal, just consistent with the established precedents.
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There is also the issue of Guantanamo Bay, and as with most of these issues they remain issues to this day, which is primarily why I suggest a similarity between the two recent administrations in some respects.
The problem I have with Guantanamo Bay is that neither side is right.  There should no place subject to the power of the US government that is not subject to the authority of the US courts.  Prisoners held there have rights.

However, that doesn't mean they have any right to contest their detention or petition for freedom.  They are not being held for crimes, and the basis of release is not based on concept of time served or punishment.  There should be no distinction in their position whether they are held in Cuba or the US, but in both places they should be just as stuck as they are now.

Fenring

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Re: Who do you trust with the nuclear launch codes?
« Reply #63 on: January 07, 2016, 04:37:36 PM »
This is where I'm not following you, do you think it would have become acceptable if the Bush admin had gotten Congressional approval of the waterboarding?  I don't think so, it would still have been illegal.  President Obama's actions are not illegal acts for the country to engage in, they are just not within the limits of the President's authority.

There are two meanings for "legal." One is that an act and a policy are consistent with each other; "I did was I was authorized to do." Another meaning is whether the policy itself aligns with some greater set of laws, such as either the constitution, or maybe the Geneva Convention or some other international standard. Since the Convention is a treaty, obeying it would therefore also be a question of following the constitution in terms of adhering to treaties. So now take waterboarding. Let's say that Cheney gave the green light for it, and that it was wishy-washy whether or not this was forbidden under the constitution. The "illegal" part of this wouldn't be the people following his policy, since their act is consistent with the policy of the admin. However their act may not be consistent with the Geneva Convention or the constitution, so it's legal in one sense and illegal in another. The extent to which U.S. law may define waterboarding as not being torture increases its legality in terms of adhering to the constitution (as it forbids torture), but may not increase its legality in adhering to international treaty, which may in fact clearly define it as torture. The wording of U.S. laws can therefore alter its legality locally while leaving unaltered its legality in the eyes of the Geneva Convention. Other forms of torture are obviously illegal under all law, but a wishy-washy torture method (which was the argument for waterboarding in the 2000's) might be claimed as legal under U.S. law using an exaggerated definition of what the law actually states, which then becomes an overreach in terms of interpreting treaties and the constitution. It's not the administration's job, in other words, to take it upon themselves to interpret the law of treaties and the constitution and then use their own interpretation to do whatever they want. It's their job to inquire and corroborate their interpretation before acting, and the lack of doing so (which may in fact result in illegal actions) is itself an overreach of authority.

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This is an example of governmental overreach yes.  The whole thing is unconstitutional, but again that parses differently than the Obama admins actions in Libya specifically because they could have been legally and Constitutionally authorized, whereas the NSA spying could not.  Executive overreach vs. governmental overreach.

I agree with you and this is why I said earlier that while I think both admins overreached in their actions, they did so in different ways that nevertheless resulted in what I see as potentially illegal results. Under the Bush admin it was seldom Bush himself that overreached his Presidential authority; rather it was either the admin as a whole, or sometimes their concerted relationship with the Congress that resulted in overreach. With the Obama admin it seems less to be a concerted interplay between Obama, his admin, and the Congress that results in it, but rather more him as a President overreaching. The type of overreach is different, which is kind of expected since Bush and Obama are very different from each other, but I wouldn't particularly call one better than the other. The result is pretty similar to me, and I'm not the only one who sees striking similarities between the Bush admin and the Obama admin in terms of practical results. If more of what Bush et al did was government overreach, and more now is Presidential overreach, then so be it, but I don't see that as mattering all that much; it's just a question of how the questionable act is sold to the public.

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I agree with you about the TSA.  However, I still think the FDR era decision that allowed for federal agencies to mix the powers of the three branches was wrongly decided.  So I don't agree that it's obvious the creation was legal, just consistent with the established precedents.

Again, it's a question of legal consistency versus legality by some higher absolute standard. Obviously the changes made under FDR dwarf any particular act taken by anyone since then in terms of altering how America runs, but I was just addressing Bush vs Obama. If we want to go further back to look at past errors or corruption then we get into a deep rabbit hole indeed. The fact that precedent from FDR's time made possible certain government actions doesn't automatically mean a President and his admin have to use those powers to encroach on the states and on liberty. Yes, it's bad that they had the capability in the first place, but using it to do that is another matter. It's like having a nuke; jasonr says they shouldn't exist in the first place. Maybe that's true, but just because they exist doesn't mean someone has to use them. If someone does use a nuke you can blame them right along with whomever put the nukes in arm's reach in the first place.
« Last Edit: January 07, 2016, 04:39:48 PM by Fenring »

Seriati

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Re: Who do you trust with the nuclear launch codes?
« Reply #64 on: January 11, 2016, 11:01:20 AM »
There are two meanings for "legal."
There really aren't two meanings for legal.  Nuremberg made clear that just following orders is not a defense when the actions ordered are illegal.  The law, the authorization, the act, are all together illegal or not illegal.
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So now take waterboarding. Let's say that Cheney gave the green light for it, and that it was wishy-washy whether or not this was forbidden under the constitution. The "illegal" part of this wouldn't be the people following his policy, since their act is consistent with the policy of the admin. However their act may not be consistent with the Geneva Convention or the constitution, so it's legal in one sense and illegal in another.
It may be moral or not moral, but it cannot be illegal and not illegal.  If Cheney ordered an illegal act, it's illegal in all senses, or if the act is legal - which you acknowledge an apparent gray area - it would only be so because it does not violate the Constitution and the Geneva Convention.  It's binary. 

If you want to get to an overreach argument, you'd have to argue that waterboarding is legal, but that the Administration had no authority to order it, that they had to go to Congress first, for instance.
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The extent to which U.S. law may define waterboarding as not being torture increases its legality in terms of adhering to the constitution (as it forbids torture), but may not increase its legality in adhering to international treaty, which may in fact clearly define it as torture. The wording of U.S. laws can therefore alter its legality locally while leaving unaltered its legality in the eyes of the Geneva Convention.
Part of the problem here is that people are confused about how international law works.  The US is a sovereign state, International law is only controlling on the US to the extent that it consents to it, or can be forced to comply.  As such, the final interpretation of the Geneva Conventions, for example, in the US is determined by US law and the US courts.  The International community may disagree with the interpretation of the US, but it makes no difference as a legal matter.  In the US though, we put our treaties on the same level as federal law (ie just below Constitutional law). 
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Other forms of torture are obviously illegal under all law, but a wishy-washy torture method (which was the argument for waterboarding in the 2000's) might be claimed as legal under U.S. law using an exaggerated definition of what the law actually states, which then becomes an overreach in terms of interpreting treaties and the constitution.
You understand it can not be "legal" under US law and violate the Constitution at the same time?  The Constitution is US law.  And as I pointed out the interpretation of treaty obligations is also, contra-logically, a matter of US law.  It is entirely possible for the International community to disagree with an interpretation, but their recourse is to persuade us or force us to comply.
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It's not the administration's job, in other words, to take it upon themselves to interpret the law of treaties and the constitution and then use their own interpretation to do whatever they want. It's their job to inquire and corroborate their interpretation before acting, and the lack of doing so (which may in fact result in illegal actions) is itself an overreach of authority.
Mixed bag here.  It is in fact the duty of the administration to faithfully enforce and follow the law, including the constitution and treaties.  They do in fact have to make thousands, if not millions, of decisions on interpretation of those obligations every day.  I do agree its a violation of their obligation to "do whatever they want."  They are supposed to comply with the intent and the letter of the law.
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With the Obama admin it seems less to be a concerted interplay between Obama, his admin, and the Congress that results in it, but rather more him as a President overreaching. The type of overreach is different, which is kind of expected since Bush and Obama are very different from each other, but I wouldn't particularly call one better than the other.
Better?  Wrong concept I think.  We have a system of checks and balances, what President Obama is doing deliberately undermines that.  He's taken the position that he can act like a King so long as a supramajority of Congress won't agree to stop him.  And's both a filibuster proof majority or possibly even a veto proof majority.  Or he's challenged the courts to stop him.  The abusiveness of that is beyond the pail though.  An executive can make thousands of damaging decisions with little personal cost, and force those using the courts to incur hundreds of thousands if not millions of dollars to unwind them, only to face them being reimposed in a slightly different format for free by that executive. 

Having a Senatorial minority colluding with the President pretty much circumvents almost all the "checks and balances" our system places on Executive authority.

Plus honestly, I feel like the country does a much better job of keeping Republican Presidents on the straight and narrow than they do with Democratic ones.  The press starts hostile, most of the well organized interest groups start hostile, any encroachment on civil liberties sparks protests instead of rationalization crusades.  We're just better off because we give them less latitude.

Fenring

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Re: Who do you trust with the nuclear launch codes?
« Reply #65 on: January 11, 2016, 11:37:37 AM »
There are two meanings for "legal."
There really aren't two meanings for legal.  Nuremberg made clear that just following orders is not a defense when the actions ordered are illegal.  The law, the authorization, the act, are all together illegal or not illegal.
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So now take waterboarding. Let's say that Cheney gave the green light for it, and that it was wishy-washy whether or not this was forbidden under the constitution. The "illegal" part of this wouldn't be the people following his policy, since their act is consistent with the policy of the admin. However their act may not be consistent with the Geneva Convention or the constitution, so it's legal in one sense and illegal in another.
It may be moral or not moral, but it cannot be illegal and not illegal.  If Cheney ordered an illegal act, it's illegal in all senses, or if the act is legal - which you acknowledge an apparent gray area - it would only be so because it does not violate the Constitution and the Geneva Convention.  It's binary. 

If you want to get to an overreach argument, you'd have to argue that waterboarding is legal, but that the Administration had no authority to order it, that they had to go to Congress first, for instance.


You're missing my point here. If waterboarding was unambiguously illegal under U.S. and international law then there would be no discussion. The whole point is that a case was being made for a while that waterboarding was being done under the premise that it didn't technically count as torture, and that there was no illegal intent. This might have been a giant lie, of course, but following the argument itself the issue of overreach I speak of is that when using an interrogation technique of physical/mental duress that is of questionable legality the people authorizing the methods should be seeking approval from their superiors, who in turn would need to bring it to a high enough level that it could be vetted against international treaties and U.S. law. Imagine, for instance, some new interrogation technique is devised that's substantially different from what they use now and that is not technically classified as torture because no one's seen it yet. I would call using this technique straight away without checking to see whether it will be accepted as legal as an overreach. It's not illegal to do something that's not yet illegal - but it's an overreach to not bother doing due diligence and see if what you're doing is ok and just doing whatever you feel like instead. The reason it's a grey area is because of the wishy-washy legality of waterboarding in this case. It's the responsibility of a senior person in charge of interrogation to bring issues like this to his superiors, but if he hands down an order to do it to those below him it's not reasonable to expect them to turn around and say "But sir, I'm not 100% sure of the legality of this based on the Geneva Convention." I'm pretty sure backtalk like that in the CIA is frowned upon. If an order is given down it's expected that it's legal. Now, if the order was "You, go shoot those prisoners in the back of the head," then that would be a different story because whoever receives such orders would know they're illegal orders and would have a decision to make. But when the person doesn't really know that the orders are illegal (even if they're unsavory, since many unsavory things are quite legal) he surely cannot be held responsible for carrying them out.

Seriati

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Re: Who do you trust with the nuclear launch codes?
« Reply #66 on: January 11, 2016, 11:57:35 AM »
I don't see real distinction there Fenring.  Yes, it's certainly possible that people may not be sure if something is illegal, that doesn't make it overreach to act.  People act in the grey area all the time, sometimes in good faith sometimes not.  Overreach has to do with exceeding authority, whether waterboarding is legal or not is only tangentially related to that concept, and whether it is exceeding authority does turn on the legality.

D.W.

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Re: Who do you trust with the nuclear launch codes?
« Reply #67 on: January 11, 2016, 12:06:05 PM »
When it comes to private individuals or businesses I think we should expect them to operate in the gray areas.  Businesses in fact we should expect them to be RIGHT up to the edge at all times.

When it comes to our government thought.  I don't think it's entirely naive to expect them to avoid actions that are obviously going to be illegal as soon as the mechanisms of law catch up.  Our parties have differing goals and interpretations of what our country SHOULD be as well as a very large overlap.  Acting against those ideals because it's TECHNICALLY not yet illegal is something we should punish them for in an effort to discourage that behavior. 

"Truth justice and the American way" should be more than catchy propaganda and bumper sticker fodder.  All governments play outside the rules now and then, but the closer we hold to our (stated) ideals the better, when it comes to the global community, as well as domestic moral.  That's not to say some calculate a loss of moral and the apathy that brings doesn't play into the plans of some.  It just seems, to me, to be a risky play and very short term thinking.

Fenring

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Re: Who do you trust with the nuclear launch codes?
« Reply #68 on: January 11, 2016, 12:12:06 PM »
I don't see real distinction there Fenring.  Yes, it's certainly possible that people may not be sure if something is illegal, that doesn't make it overreach to act.  People act in the grey area all the time, sometimes in good faith sometimes not.  Overreach has to do with exceeding authority, whether waterboarding is legal or not is only tangentially related to that concept, and whether it is exceeding authority does turn on the legality.

The specific overreach I'm alluding to is basically either the executive or someone down the chain of command making a determination of something's legality which rightfully should be the domain of the judiciary or at the very least lawyers who sign off on it officially. By making the order they are de facto stating that it's legal, and if no prior determination had ever been made of the legality of a wishy-washy technique then unilaterally making that determination within the executive is what I would call an overreach.

Seriati

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Re: Who do you trust with the nuclear launch codes?
« Reply #69 on: January 11, 2016, 12:58:26 PM »
When it comes to our government thought.  I don't think it's entirely naive to expect them to avoid actions that are obviously going to be illegal as soon as the mechanisms of law catch up.
Agreed, but we're not talking about obvious illegal (or at least Fenring posited as a grey area).
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The specific overreach I'm alluding to is basically either the executive or someone down the chain of command making a determination of something's legality which rightfully should be the domain of the judiciary or at the very least lawyers who sign off on it officially. By making the order they are de facto stating that it's legal, and if no prior determination had ever been made of the legality of a wishy-washy technique then unilaterally making that determination within the executive is what I would call an overreach.
Judges don't put forward opinions on the legality of actions to be done, nor does our system operate to allow for "pre-clearance" of actions.  It is very common, and in fact occurred on the waterboarding issue, to get legal opinions supporting questionable actions ahead of time.  Pretty much they complied with your request here.

I really think you're over thinking it.  Take a step back and really consider how many judgments the executive branch makes every day.  They are not supposed to screen every decision through the judiciary, that would be another horrible breach of the separation of powers.  The executive is supposed to act in good faith to execute the laws.

Fenring

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Re: Who do you trust with the nuclear launch codes?
« Reply #70 on: January 11, 2016, 01:11:34 PM »
I really think you're over thinking it.  Take a step back and really consider how many judgments the executive branch makes every day.  They are not supposed to screen every decision through the judiciary, that would be another horrible breach of the separation of powers.  The executive is supposed to act in good faith to execute the laws.

Let's put it this way. I consider the contents of the Senate Torture Report, along with whatever else we know about the subject, to be so outrageous that any aspect of this ought to require a lot of inspection. Making a decision to do something that's basically torturous isn't just 'some executive decision' along with many others each day. If you're right and they sign away an action like this as quickly as all that then that's another serious problem altogether.

It seems that some of their interrogation methods were blatantly illegal (whether categorized as crimes or as war crimes) and some were grey, as I said, but based on the obviously illegal things being done I personally don't have any expectation that the executive was acting in good faith in this arena. So no, I'm not actually surprised that no special care was taken to ensure waterboarding was legal; I don't think they cared. But I'm calling it overreach, in a sense, as a charitable attribution since the alternative is to say they were doing stuff they basically knew was illegal. If you don't like the word 'overreach' in this case I guess you could use a term ranging from 'irresponsible' to 'criminal' depending on how much you believe they knew it for sure. But again, I'm calling it overreach because people from one part of the executive likely made a determination that waterboarding was ok when it wasn't their right to make that determination themselves. And we know that no group of lawyers signed off on it because if so that would have come out right away and been a major scandal. It was someone's job to ok the order to waterboard and to keep it going, and someone else made the decision instead, probably to avoid a negative answer. But this is getting a bit into semantics, and my original list of overreaches was meant to reflect not some legal technicality but rather a series of actions where people were just doing whatever they wanted.


Seriati

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Re: Who do you trust with the nuclear launch codes?
« Reply #71 on: January 11, 2016, 01:18:25 PM »
Based on what you said, you should call it illegal.  It's been a while since I looked at, but I am pretty sure that they either had opinions from justice department lawyers or white house lawyers. 

Fenring

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Re: Who do you trust with the nuclear launch codes?
« Reply #72 on: January 11, 2016, 01:25:59 PM »
Based on what you said, you should call it illegal.  It's been a while since I looked at, but I am pretty sure that they either had opinions from justice department lawyers or white house lawyers.

Ok fair enough, maybe you're right. That doesn't particularly alter my view that this should be listed among bad things done during the Bush admin, but since were were listing overreach specifically you can take it out of that column and put it in the 'doing bad things' column instead.