Robertson's urging the government to assassinate Chavez
bobsheridan at earthlink.net
Wed Aug 31 12:43:43 PDT 2005
As I tend to understand it, not being particularly up on SOP debates,
e.g. WPA, either, the alleged power of the president to assassinate
foreign leaders should be considered a subset of the power to commit
acts of war in general, from ordering blockades (as in Cuba) to firing
ICBMs. A close presidential aide carries a nuclear "football" in a
suitcase near the president at all times, as I understand it, giving the
president to do a lot more damage than offing a head of state if he
thinks it necessary, such as in a Mutually Assured Destruction scenario.
As I further understand it, Congress hasn't always appreciated
presidential activity getting us into war, e.g. LBJ's use of the
unfortunate Gulf of Tonkin Resolutions, based on a perhaps fictional
attack on American warships in the eponymous gulf, to escalate the
Vietnam war. As a result, Congress has sought to prevent further such
military adventures absent express Congressional authorization. Hence
the public debates in Congress in 1990 and 1991 prior to the Persian
Gulf War, as well as before the invasion of Iraq more recently.
Further, that no president has agreed to be fully bound by the WPA in
principle, because the executive cannot accept, as a constitutional
matter, the legislature presuming to curtail its power to act to protect
the nation, if deemed necessary.
So the executive maintains its position but goes through the exercise of
obtaining Congressional support, thus satisfying Congress and not
provoking a Constitutional crisis or confrontation. Perhaps more
important than those seems to be the fact that one of the lessons of the
Vietnam experience is that it is a bad idea to engage the nation in a
war absent popular support, given that wars often enough turn into
Vietnam-like exercises that produce anti-war activity.
I don't know the current validity of Youngstown, but my understanding of
its stated principle is that the Steel Mills were ordered returned by
the Supreme Court on the theory that HST's siezure order presumed to
"legislate," and only Congress could do that. Youngstown thus seems to
give the nod to Congress's power to legislate over the president's power
to act on grounds of national security.
U.S. v. Nixon (Watergate tape subpenas) and NYT v. U.S. (Pentagon Papers
prior restraing), and Hamdi (detentions as enemy combatants), and
Padilla (detention of USC w/o any process) are the other presidential
powers cases that come to mind in which another branch of government,
the Court, has curtailed presidential power exercised in the interest of
national security. The president does not have a blank check, according
to Justice O'Connor, when it comes to national security.
If the president still feels his power to be unfettered by
Constitutional Law, perhaps he has in mind a view of executive authority
derived from a period or form of government when kings did hold
The plan of our Constitution, as I understand it, was originally that no
chief executive should have the power of a king, and the more a
president commits an act of war unilaterally, without gaining the
support of Congress, as Truman didn't in the Steel Siezure, the more he
runs afoul of (or is included in the less pleasant parts, for the
president, of ) Justice Jackson's famous dictum in that case.
Query: When JFK blockaded Cuba, an act of war or close to, as I
understand it (again quite limited, I'm afraid), had he obtained any
formal declaration of support from Congress, or had the situation
developed too quickly to obain it?
Volokh, Eugene wrote:
> I'm afraid I was being imprecise, and I thank Lynne for the
> opportunity to correct the imprecision. My sense is that the
> Constitution doesn't speak to this question, and that it would be
> unwise for Congress to try to deal with this question through a
> statute (though much depends on the statute). I'm not sure whether it
> would be unconstitutional for Congress to do so -- I'm not up on the
> separation of powers debates in this area (for instance, those related
> to the War Powers Act).
> Lynne Henderson writes:
> Eugene--Obviously there is no clause prohibiting the President
> from ordering an assassinatio nof a foreign leader. We seem to be
> in agreement it is ill-advised and immoral at least in most
> cases, and even in others would be impractical with bad
> consequences. But when you say it is a moral and not a legal
> question, are you saying that were Congress were to pass a law
> *clearly* prohibiting the President or any US government al actors
> from assassinating foreign leaders, or, say to limit it,
> deocratically-elected foreign leaders, in their own countries or
> anywhere else, that such a law would be unconstitutional? Or are
> you saying the choice to kill a commonder in chief of another
> nation with which we are at war falls within the CINC power and
> cannot be abridged by law or treaty? Or that morality and
> politics have nothing to do with the Constitution/interpreting the
> Prof. Lynne Henderson
> -----Original Message-----
> From: "Volokh, Eugene"
> Sent: Aug 29, 2005 9:55 AM
> To: CONLAWPROF at lists.ucla.edu
> Subject: RE: Robertson's urging the government to assassinate Chavez
> It seems to me that the Constitution does not prohibit the
> President from authorizing the killing of foreign
> commanders-in-chief any more than it prohibits the President from
> authorizing the killing of foreign soldiers. I think such
> assassinations may be immoral in many instances, and practically
> harmful in many others. But it seems to me that this is a matter
> for political and moral controls, not constitutional or legal ones.
> -----Original Message-----
> *From:* Lynne Henderson [mailto:hendersl at ix.netcom.com]
> *Sent:* Saturday, August 27, 2005 6:08 PM
> *To:* RJLipkin at aol.com
> *Cc:* jca at stanford.edu; mschor at suffolk.edu; Volokh, Eugene;
> conlawprof at lists.ucla.edu
> *Subject:* Re: Robertson's urging the government to
> assassinate Chavez
> "Almost never?" Obviously Hitler is the counter-example, but
> we were at war (foramally declared) with Nazi Germany, and as
> I understand the law of war, killing the enemy is justified.
> We might be sorely tempted, and realpolitick might justify the
> murder of someone opposed to US interests, but how can you
> distiguish among Pol Pot, Idi Amin, Saddam Hussein, etc.
> Chavez doesn't even come close IMHO, although that is not
> directly relevant. In fact, the law might very well (and
> rightly so) prohibit assassination because we cannot come up
> with reliable criteria for who should be assassinated when.
> Defenses can be carved out.
> To cut to the con law chase, I guess, however, what the "rule
> of law" is does matter. A basic point of "this is a government
> of laws, not men" is that whim, caprice, power, or
> manipulation cannot override legal obligation. That the
> *content* of legal obligation is contested doesn't undercut
> the overriding claim of the "rule of law." If the President
> decides, as Nixon did, that "if the president does it, then it
> is not against the law", and you accept that, then we are well
> on our way to an authoritarian/totalitarian state. If clever
> lawyers can find ways around the purpose and intent of a legal
> prohibition, that doesn't negate the purpose and intent. If
> there is "room for interpretation' or judges exercising
> discretion (cf H.L.A. Hart, *The Concept of Law*), that
> doesn't mean abandonment of the commitment of the duty to obey
> law (and note the difference between legal duty to obey and
> moral duty to obey).
> It amazes me how narrowly "positivist" the group members
> get--that is , what is declared, written, human law
> interpreted without spirit or purpose--when they want one
> result, and how willing they are to depart from the model when
> it suits their ends. Eg, there is no constitutional provision
> explicitly prohibiting the President from torturing prisoners
> of war, or assassinating foreign leaders, and there is no
> positive domestic law "clearly on point", so therefore,torture
> is not prohibited, or in this case it is permissible to
> assassinate a foreign leader.
> The duty to obey the law can narrowly or broadly, but that
> doesn't disocount Janet's broader point, that governments
> under the "rule of law" have a prima facie duty to obey that
> law, no matter what their preferences, whims, etc.
> Lynne Henderson
> Vis. Prof. Santa clara Uni. School of Law 2005-2006
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