Saturday, October 4, 2014

John Woo Debates Bruce Fein: US Constitution as Ouija Board

A fachidiot is someone who knows a whole lot about some one thing but lacks ordinary common sense. The lawyers involved in the current debate about whether Obama's actions are unconstitutional are fachidiots. These people look at the problems faced by the federal government in relationship to the only thing they have studied, the US Constitution. What they do not say is how the federal government is going to solve real-world problems if Congress refuses to do its job, which is defined by the Constitution as providing the funds for the executive branch to do its job.

John Yoo, War Monger

John Yoo, a Professor of Law at UC Berkeley, proudly proclaims he is a conservative, yet seems only concerned with one aspect of presidential power, namely war-making. This is a sure sign of the fachidiot: He considers all problems in light of the one thing he knows about. Yoo knows all about the history of warfare and how past presidents have taken over the waging for war from the Congress since WWII. This change has come about because Congress has ceased to show any real understanding of international politics. Instead they have replaced the study of issues, which would require time and intelligence, with application of platitudes, which only requires reading talking points prepared by weapons manufacturers.

Professor Yoo used to work for the George Bush administration. He gave his legal opinion that torture, indefinite imprisonment without trial, and assassination were all perfectly fine under the Constitution. All three of these practics (and several others Yoo approved) violate the Geneva Conventions of War, a treaty which the US signed but which Yoo said we could ignore in its entirety. Professor Yoo says that the Constitution gives warmaking powers to the President and hence, anything he wants to do is legal under the Constitution.

The world is a simple place for Yoo. Might makes right. Presidents are all-powerful when it comes to war. This is similar to the view of Chinese government espoused by Confucius. Confucius maintains that the Emperor is the supreme authority of the state, essentially a god on earth. Therefore, he can do no wrong. Yoo has incorporated a similar totalitarian belief into his study of Constitutional law. He does not seem concerned that the nations of Western Europe and North America have advanced beyond this view of an absolute ruler. He finds the basis for absolute dictatorship in the US Constitution.

Yoo goes further. Finding the UN Charter fundamentally flawed, he suggests a new world order in which countries engage in preventative wars and establish democracies at the point of a gun. His views are not new. They were tried out in Iraq with disastrous results, both in lost treasure and in human slaughter and suffering.

Bruce Fein, Human Rights Advocate

In debate with Woo about Constitutional powers of the president, Bruce Fein claims that the Constitution does not give the president extraordinary powers to make war. He says he does this by examining the motives and opinions of the Framers outside the Constitution. This he calls, examining the spirit of the Constitution as opposed to the letter of the Constitution. Woo commented that Fein obviously didn't care for the views of Robert Bork, the conservative judge who failed to be confirmed to the Supreme Court. Woo assuredly made this comment to chide Fein for not being a true conservative.

Fein is a traditional conservative who believes the Constitution guarantees rights to our citizens and proscribes the government from taking unjust actions against them. In a letter to President Bush in 2007, Fein and his co-authors explained that the policies of the Bush administration would
obliterate the conservative philosophy of individual liberty and limited government celebrated by the Founding Fathers.
Fein also respects the human rights initiatives of the United Nations, writing that
waterboarding, detentions without accusation or trial, the suspension of habeas corpus, spying on Americans without judicial warrants, and threatening lawyers for defending accused terrorists or terrorist organizations are earmarks of tyranny, not liberty.
What Does It All Mean?

The problem with this debate is that both sides claim to be conservatives, following the explicit instructions they find in the US Constitution, yet their conclusions are diametrically opposed. Yoo thinks the president can order waterboarding and spying on Americans. Fein thinks he can't.

For these two lawyers, the question is an intellectual exercise. For the rest of us, as we attempt to assert our rights in courts and on the streets, the question of what the Constitution protects or guarantees is more practical. We want to know, what can the police officer do to me? The answer would seem to be that the police can do whatever they like, just as the president does.

I suggest that the constitutional experiment has failed.

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