Exclusive: Bush Administration in Violation of Constitution and War Powers

[dubyaD40web]

Bush Administration in Violation of Constitution and War Powers
An exclusive by dubyaD40.com

In the wake of Hurricane Katrina, the stage has been set for the Governor of any State in the Union to challenge any further deployment of the National Guard troops to Iraq. In addition, a case could also be made that the Bush administration is now in violation of the U.S. Constitution Article I Section 8http://www.usconstitution.net/const.html">1 and the War Powers Resolution Public Law 93-148http://usinfo.state.gov/usa/infousa/laws/majorlaw/warpower.htm">2 regarding the National Guard troops that are currently serving in Iraq.

It has been widely reported that during the immediate aftermath of Hurricane Katrina there was a rift between President George W. Bush and Louisiana Governor Kathleen Babineaux Blanco over who would be in control of the National Guard. The Bush administration urged the Governor to allow the federalization of the National Guard but as the Washington Post reported, on September 3, 2005 Governor Blanco officially refused and by doing so remained Commander-in-Chief over the Louisiana National Guard.http://www.washingtonpost.com/wp-dyn/content/article/2005/12/04/AR2005120400963.html">3

Amid the growing controversy over Presidential authority, the federal government's power over the National Guard has been largely overlooked. Use of the National Guard by the federal government is granted through Article I Section 8 Clause 15 of the U.S. Constitution, The Dick Act of 1903 and The National Defense Act of 1916. And when used in conjunction together the President becomes the Commander-in-Chief of the National Guard and is allowed to use these forces outside the territorial limits of the United States. But only by means of a Congressional Declaration of War, Congressional Act or National Emergency Proclamationhttp://www.arng.army.mil/history/Constitution/">4 however these powers are restricted by the War Powers Resolution,http://usinfo.state.gov/usa/infousa/laws/majorlaw/warpower.htm">5 The National Emergencies Act,http://www.marad.dot.gov/publications/complaw03/National">6 and the Posse Comitatus Act.http://www.northcom.mil/index.cfm?fuseaction=news.factsheets&factsheet=5">7

When President Bush conceded authority to Blanco it was an admission that no national emergency was in effect and therefore he was unable to assert command and control under that requirement. And being there is no declaration of war with Iraq two of the three requirements are not applicable for further federalization attempts. The ability to use the National Guard for the invasion of Iraq came through the Joint Resolution to Authorize the United States Armed Forces Against Iraqhttp://www.whitehouse.gov/news/releases/2002/10/20021002-2.html">8 and it is this resolution that is the heart of the argument for the restricting of further National Guard deployments to Iraq.

The title of this resolution is very important because it can be surmised that the word "against" was used deliberately and that it meant that this authorization was for direct combat operations against the Hussein regime only. Any additional combat operations would be under the guise of a rebuilding effort of the Iraqi infrastructure.

On May 1, 2003 President Bush made a speech aboard the USS Abraham Lincoln announcing the end to major combat operations in Iraqhttp://www.cnn.com/2003/US/05/01/bush.transcript/">9 and it could be argued that this was when the resolution giving the President authority over the National Guard would need to begin to conform to the applicable laws dictating overseas deployment. But because Saddam Hussein and many of the former top Iraqi officials had yet to be captured and an argument could also be made that the resolution was still in effect and would remain viable until a new Iraqi Government was in place. Both of these stances have merit and would need to be debated and ruled on by congress.

Not subject to debate is that on June 2, 2004 Coalition Provisional Administrator L. Paul Bremer handed over sovereignty to Prime Minister Iyad Allawi and a new American Ambassador took his place and that is when the resolution definitely came to an end.http://iraq.usembassy.gov/iraq/transfer_of_iraq0628.html">10 This is a watershed moment in that this was the point in time after the invasion where the restrictions of the National Defense Act of 1916, War Powers Resolution and Posse Comitatus Act was supposed to be invoked.

According to these Acts the federal government would only be able to keep control of the National Guard outside the territorial limits for an additional 270 days plus 6 months subsequently, therefore that control should have expired on September 25, 2005 and all National Guard troops be returned to the United States. Any further deployment would be in direct contradiction to the constitutional requirements and therefore would have to be deemed illegal.

U.S.C. 12301http://www4.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00012301----000-.html">11 states that a Governor cannot withhold consent because of any objection to the location, purpose, type, or schedule of such active duty. And the Bush administration would surely invoke this law to keep the National Guard troops under federal control. But the applicability of this law and others like it comes into question if the deployment of these troops is no longer constitutionally legal. And with the lack of a specific Congressional Act for these troops to be serving in Iraq it is only through a constitutional challenge that their deployment be deemed officially legal or not.

If a Governor were to declare a state of emergency and thereby solidify control over the State’s National Guard, that Governor should be able to refuse further federalization in order to meet the needs of his or her State. A state of emergency could be either natural or man made and it is not limited to being a response but could also be under the auspices of preparedness. If a Governor perceives a threat to those he or she governs then it is their duty to prepare a reasonable plan to deal with such a threat. An action by a Governor would be the Constitutional challenge needed to force the issue and it would be up to the Judicial and Legislative branches of government to determine its constitutionality.

Such a move would be politically risky but at the same time it would appeal to both sides of the political spectrum. A Governor would garner support from strict Constitutionalists, Anti-War and States Rights advocates, not to mention the thousands of National Guard members and their families.


Sources:

<1>http://www.usconstitution.net/const.html
<2>http://usinfo.state.gov/usa/infousa/laws/majorlaw/warpower.htm
<3>http://www.washingtonpost.com/wp-dyn/content/article/2005/12/04/AR2005120400963.html
<4>http://www.arng.army.mil/history/Constitution/
<5>http://usinfo.state.gov/usa/infousa/laws/majorlaw/warpower.htm
<6>http://www.marad.dot.gov/publications/complaw03/National%20Emergency%20Act.htm
<7>http://www.northcom.mil/index.cfm?fuseaction=news.factsheets&factsheet=5
<8>http://www.whitehouse.gov/news/releases/2002/10/20021002-2.html
<9>http://www.cnn.com/2003/US/05/01/bush.transcript/
<10>http://iraq.usembassy.gov/iraq/transfer_of_iraq0628.html
<11>http://www4.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00012301----000-.html


Links:

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[CrispyQ]

1. Holy crap!

When is all his shit going to catch up with him?

Nominated.

[Arkansas Granny]

2. I don't think he will have much to worry about as long as

Republicans control the House and Senate. Things will probably be different if the Democrats pick up enough seats this year.

[Blutodog]

3. Never

Never because the Congress will grant this guy the authority to do anything he wants. The so called War on Terror that will never end is what he will invoke. Funny isn't it? I re - call right after 9/11 that Bu$h promised he'd never use 9/11 for political purposes. Seems to me that's all he's done these years since 9/11.

[usg353d]

4. Holy Shit!

This could be damaging. Every DU'er should run with this. K & R!!!

[malaise]

5. The shit will soon hit the fan

:popcorn: :popcorn:

[SammyWinstonJack]

6. .

:kick:

[Roland99]

7. So, let me ask a stupid question, then....

Does this mean that any current and future combat operations commanded/directed by the U.S. are in violation of US Federal Law and the US Constitution as the transfer of sovereignty essentially made the IWR null and void?

[Clyde_dubyaD40]

8. No this only concerns the National Guard - future operations

by the regular military and Reserves are still under Bush's control. The main reason for the illegality stems from the fact that the intended purpose for the National Guard lies within the U.S. borders.

[Roland99]

12. Ah, ok. And Sept. 25 was the max # of days, eh? With Katrina/Rita hitting

the Gulf Coast. Well, we all know how much the NG were needed here.

[Karmageddon]

9. If I understand your question correctly, possibly yes.

Based on the fact that according to the Constitution, dumbass doesn't have authority to declare war, even if Congress weasels out of it and tells him he can. Short of a Constitutional amendment, it is still Congress's job. That being said, the entire Iraq war, past, present, and future should be unconstitutional, and, as you said, the IWR should be null and void.

That's just my humble opinion though, for what little it's worth.

[Roland99]

11. Well, my understanding of the IWR was that Congress ceded control

per some section of the War Powers Act.

[Clyde_dubyaD40]

17. It is not a matter of congress giving up its oversight it is a matter of

constitutional law. When the Iraq resolution ended the War Powers Resolution, Posse Commitatus Act and the National Guard charter are supposed to go onto effect. To keep control the Bush Administration would need another congressional act giving the federal government the right to federalize the troops otherwise they are remitted back to the governor of the particular state.

[stepnw1f]

10. Well, Well, Well...

interesting. We know he's a criminal anyways, but man o' man, if this guy does get away with this shit, we as a country of laws have complketely destroyed ourselves for one dipshit of a meglomaniac.

"Yur Doin'a Heckuva job Brownie"

[understandinglife]

13. Well done. And, Blanco would, now, be just the Gov. to make it stick.

Thank you.


Peace.

[dubyaD40web]

14. or Richardson.

[understandinglife]

25. Agree. Though the "poetry" of Blanco doing it would be elegant.

Peace.

[Nothing Without Hope]

15. ***This important thread has been DUPED in the GD-P forum:

be sure to see the comments in the other one too:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=132x2361944
thread title (1-11-06 GD-P): Exclusive: Bush Administration in Violation of Constitution and War Powers

I actually approve of this duplication - this thread needs to be read and bookmarked, and the more people who see it, the better.

[Dinger]

16. Is This For Real?

If so, it's the last nail in the coffin.

[Nothing Without Hope]

18. And remember the BLACKMAIL that BUsh used to try to force Blanco's

compliance in allowing him to grab "ownership" of the LA National Guard troops:
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=104x5518358
thread title (12/4/05 GD): WP:Documents Highlight Bush-Blanco Standoff(Vitter carried Rove's message)

It's very clear that the Bush cabal saw the Katrina disaster as an enabling event to grab more power:
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=104x4790112
thread title (9/16/05 GD): Missing A KEY POINT in *'s speech: POWER GRAB FOR POTUS AND MILITARY

Re Posse Comitatus, I also recommend:

From the Washington University law school:
http://law.wustl.edu/WULQ/75-2/752-10.html

From the Legal Information Institute (Cornell):
http://straylight.law.cornell.edu/anncon/html/art2frag38_user.html

[dubyaD40web]

20. Thanks for the links!

I'll bookmark them.

[sakabatou]

19. It's time for the Bush cabal to go to jail

And they will not pass "Go" or collect $200. :evilgrin:

[Usrename]

21. C'mon Jeb, are you reading this - do something.

Oh, wait a minute... :banghead:

[greiner3]

22. How many troops would it take to enforce martial law;

Over the entire US? Probably more than there is. But with all the freepers having guns, what's to stop bushco from enpowering all those crazies to keep order. Imagine it, 50 million shotgun toting rednecks just waiting for some god-less liberal to give em some lip. I can't decide if I just wrote my worst nightmare or whether this needs the old sarcasm!

[Karmageddon]

23. That's why I now own guns. I'll shoot back.

[dubyaD40web]

28. I'm with you there!

Then WE will be labeled as insurgents. LOL

[samhsarah]

24. thanks

[opihimoimoi]

26. K and R'd

[Peace Patriot]

27. Well argued! Thanks for the post!

That was a most interesting situation with Blanco/Bush, and Bush holding the poor, dying people of New Orleans hostage during his attempted extortion of total power from Blanco. Very undignified thing for a president to be doing. I figured Cheney had him over hot coals on Treasongate and wanted New Orleans as his retirement village (near our last oil reserves), and also wanted the first no-bid, no performance standards, profit guaranteed contract for Halliburton, and God knows what else he wanted. Rove, too, appeared to be bargaining (I was thinking, for a pre-signed, fill in the blank, pardon, like Cheney has). Rove was notably AWOL during Bush's cake eating/guitar playing, Marie Antoinette number on Katrina. In fact Bush seemed to be all alone out there--until Daddy Bush and Bill Clinton got up there behind him. (That was sure weird.) I think the Rover was on strike during Katrina, having to do with Treasongate. (He later put out a cover story that he had been in the hospital with kidney stones during Katrina, cuz his absence got noticed.)

Treasongate was barely a whisper in the news at the time, but I could smell it all the way out here in California. Something real stinko going on there, behind the cake eating and the guitar playing.

I'd love to see Blanco call off the Iraq war. That would be something!

And, yes, Congress had no right whatsoever giving its power to declare war away to Bush, and every one of them that voted for it violated their oath of office that day. The war is absolutely illegal. But some of them who played along back then might be convinced to call it off NOW. It's a frigging disaster, and the Bushites might just get themselves tromped on in the '06 elections even with their Diebold (5% to 10%) advantage. So they might even jump at it quicker than the slimeball War Democrats. If we could get the worried Republicans and the real Democrats together, we might have something.