Inconvenient News,
       by smintheus

Wednesday, January 31, 2007

  Down the Memory Hole: George Bush on the crisis in Iraq

If you're like me, you gasped at the President's audacity in claiming that the US occupation of Iraq was going swimmingly right up until the Samarra bombing of Feb. 22, 2006. His bizarro version of history in the State of the Union address has been echoed repeatedly by the Vice President and various administration toadies.

In the last two years, we've seen the desire for liberty in the broader Middle East -- and we have been sobered by the enemy's fierce reaction... And in 2005, the Iraqi people held three national elections, choosing a transitional government, adopting the most progressive, democratic constitution in the Arab world, and then electing a government under that constitution. Despite endless threats from the killers in their midst, nearly 12 million Iraqi citizens came out to vote in a show of hope and solidarity that we should never forget.

A thinking enemy watched all of these scenes, adjusted their tactics, and in 2006 they struck back... In Iraq, al Qaeda and other Sunni extremists blew up one of the most sacred places in Shia Islam -- the Golden Mosque of Samarra. This atrocity, directed at a Muslim house of prayer, was designed to provoke retaliation from Iraqi Shia -- and it succeeded. Radical Shia elements, some of whom receive support from Iran, formed death squads. The result was a tragic escalation of sectarian rage and reprisal that continues to this day.


Responding to this blatant attempt to push more than a year of intense sectarian conflict in Iraq down the memory hole, McClatchy now reports on an interview with former Iraqi Prime Minister Ibrahim al-Jaafari. He says that he warned top American officials two years ago about the danger presented by Shiite militias, which were already infiltrating key Iraqi ministries. Al-Jaafari says that he repeatedly asked the Americans to do something to stop it, before the entire country should be paralyzed by these militias.

Iraq's first democratically elected prime minister said this week that he warned U.S. officials two years ago that Shiite Muslim militias were infiltrating the country's security services and that they would become entrenched in Iraqi society if they weren't stopped.

"But with deep remorse the friends did not help us," said Ibrahim al-Jaafari, who became Iraq's prime minister after elections on Jan. 30, 2005. "America didn't help us."

Al-Jaafari's recollection of his meetings with U.S. officials during his tenure as prime minister raises more questions about the Bush administration's assertion that Iraq's sectarian violence can be traced to the Feb. 22, 2006, bombing of a Shiite shrine in Samarra....

Al-Jaafari said that in meetings held twice a week in his office, he'd urged coalition forces to take action against the militias. In attendance, he said, was Army Gen. George Casey, then the top U.S. commander in Iraq, the U.S. ambassador, the British ambassador and a British general.


The report also mentions a famous incident from Nov. 15, 2005, in which US troops raided an Iraqi Interior Ministry building and rescued 173 prisoners (mostly Sunnis) who'd been abused terribly by the Shiite militiamen who had long since turned the Interior Ministry into a sectarian fiefdom.

The report obviously is attempting to fact-check Bush's re-writing of history. I wish only that McClatchy had done a more thorough job of it (though it's good to have the PM on record undercutting the administration's ridiculous version of history).

Yet I've been wondering for the last week, and continue to wonder, why journalists have not brought forth documentation to explode the claim once and for all. Why have journalists failed to remind people of one particularly famous document from January 2006? You know, the one reported by the NY Times last April...the one dated Jan. 31, 2006...the one that paints a picture of Iraq in crisis?

An internal staff report by the United States Embassy and the military command in Baghdad provides a sobering province-by-province snapshot of Iraq's political, economic and security situation, rating the overall stability of 6 of the 18 provinces "serious" and one "critical." The report is a counterpoint to some recent upbeat public statements by top American politicians and military officials...

Warnings of sectarian and ethnic frictions are raised in many regions, even in those provinces generally described as nonviolent by American officials.

There are alerts about the growing power of Iranian-backed religious Shiite parties, several of which the United States helped put into power, and rival militias in the south...

The writers included officials from the American Embassy's political branch, reconstruction agencies and the American military command in Baghdad, Mr. Speckhard said. The authors also received information from State Department officers in the provinces, he said....

A copy of the report, which is not classified, was provided to The New York Times by a government official in Washington who said the confidential assessment provided a more realistic gauge of stability in Iraq than the recent portrayals by senior military officers. It is dated Jan. 31, 2006, three weeks before the bombing of a revered Shiite shrine in Samarra, which set off reprisals that killed hundreds of Iraqis. Recent updates to the report are minor and leave its conclusions virtually unchanged, Mr. Speckhard said.


For that matter, why haven't journalists also pounded home the point that for most of last year the administration insisted that things were going well in Iraq despite the Samarra bombing? For example, in the same NYT article we read...

The general tenor of the Bush administration's comments on Iraq has been optimistic. On Thursday, President Bush argued in a speech that his strategy was working despite rising violence in Iraq.

Vice President Dick Cheney, on the CBS News program "Face the Nation," suggested last month that the administration's positive views were a better reflection of the conditions in Iraq than news media reports.

In their public comments, the White House and the Pentagon have used daily attack statistics as a measure of stability in the provinces. Maj. Gen. Rick Lynch, a senior military spokesman in Baghdad, told reporters recently that 12 of 18 provinces experienced "less than two attacks a day."

Gen. Peter Pace, the chairman of the Joint Chiefs of Staff, said on the NBC News program "Meet the Press" on March 5 that the war in Iraq was "going very, very well," although a few days later, he acknowledged serious difficulties.


Talking out of both sides of one's mouth. The only skill that seems to matter in the Bush administration.

Monday, January 29, 2007

  The White House is talking behind your back

A few weeks ago I wrote about an interview of Dick Cheney on Fox News Sunday. Trotted out to make the case for Bush's ill-starred escalation in Iraq, Cheney made an even greater hash of things than might have been predicted. It was hard to decide whether the VP was now more confrontational than delusional.

Since then, he's given further disastrous interviews, especially one at CNN's Situation Room. The news media at long last began to report upon Cheney's preposterous assertions. We might speculate about why journalists suddenly have begun studying his remarks in broadcast interviews, given that the VP has been making similarly bizarre pronouncements for years. Anyhow, the fact that these interviews were also available almost immediately on the cable news networks' websites made it much more likely that reporters and pundits would check up on Cheney's comments.

With that in mind, take note of this un-reported fact: In the last year, especially the last 6 months, the White House has been making it much harder to track down the broadcast interviews given by administration officials.

Here is the White House Radio page. It links to another page with all of Bush's Saturday radio addresses. The White House clearly wants to make these scripted speeches readily available to the public.

More importantly for our purposes, however, it links to monthly compilations of radio interviews given by administration officials. Here, for example, is the compilation for June 2005 with 10 interviews, including 3 by Cheney. Most such interviews are with local radio programs.

Without explanation, the monthly compilations end in August 2006 -- as if administration officials had given no further radio interviews since then! Upon closer examination, it becomes clear that these compilations were including fewer and fewer interviews in the months leading up to the abrupt suspension of the list. For the period March to August 2006, there are a total of 12 interviews linked in these compilations. For the same period in 2005, by contrast, there were 33 interviews.

It's not as if administration officials have stopped giving interviews with local broadcasters. On October 24, 2006, in fact, the White House held a "Radio Day" in which scores of right wing radio personalities were invited to multiple interviews with administration officials. You may recall that that was the occasion when a nutty radio host from Fargo, Scott Hennen, egged Dick Cheney on to publicly endorse water-boarding (a story that I broke here). In any case, given the large number of radio interviews recorded at the White House alone on that one day, it is quite striking that not a single one of them has been added to its "Radio Page".

Nor is it the case that the White House has just forgotten all about providing links, as if in a fit of absent-mindedness. Cheney's website Speeches and News Releases continues to include transcripts to broadcast interviews alongside his print interviews and speeches. From late October to mid January, in the wake of his embarrassment over the waterboarding fiasco, there are no interviews of Cheney. But that could be due to a desire to avoid awkward questions; I've found no evidence that Cheney's staff is suppressing information about interviews that he's given.

For George Bush, however, on the main pages of the White House website, I look in vain for links to interviews that he has given recently. It's not just the suspension of the compilations on his "Radio Page". It's also the case that Bush's Current News page now seems to exclude transcripts of recent interviews by Bush.

For example, Bush gave four interviews to local stations eleven days ago. I commented here about one such interview, with a Dallas station on January 18 during which Bush remarked that "most members of Congress support" the troops. (Others, apparently, do not; who knew?)

Oddly enough, none of those interviews is linked on the President's Current News page for January. In fact, interviews with the President don't appear to have been linked at the White House site since last summer. There are transcripts for several dozen interviews with George Bush at whitehouse.gov from the start of his presidency up until late last spring. From that point onward, however, there appears to be no further transcripts for Bush interviews.

~~~~

So what happened and why?

As I remarked last summer, when I exposed some scripted radio interviews that Donald Rumsfeld had given, the Bush administration believed (with some justification) that it can communicate directly with its hard-core base via local conservative talk-radio programs. For a long time, almost no journalists or bloggers paid careful attention to what these officials were saying in local interviews.

It could be, however, that people around Bush began to realize last summer that that was beginning to change. I got the impression last July that reporters from at least one news organization, McClatchy's Washington Bureau, were looking into some of the administration interviews (at least out of the Pentagon, if not the White House).

It's also possible that the White House decided, in advance of the November election, to make it harder for reporters to check up on its lies, evasions, and half-truths.

I don't claim to understand why the administration is shutting down access to basic information about who is saying what to whom. I do think it's remarkable that they are doing so, however.

Furthermore, I'm not entirely sure that Dick Cheney is on board with the new policy of caution. Nowadays his interviews, and only Cheney's interviews, are being linked anywhere on White House web pages. There's also the fact that he's been behaving, even more so than normally, like a bull in a china shop.

Monday, January 22, 2007

  Traitors in Congress

There are members of Congress who don't support our troops, and I want to tell them all point blank: You're very bad men!

Image Hosted by ImageShack.usGeorge Bush made this point on Thursday in an interview with a Dallas station, WFAA. He'd been asked by the interviewer about the proposed non-binding resolution on Iraq that has been introduced in Congress, and Tony Snow's statement that members of Congress need to be careful about the message they're sending by supporting it. President Bush upped the ante against Congress, so to speak:

"Now one thing it's fine to have a debate, but I don't want our kids [actually, he means 'our troops fighting in Iraq'] to be dispirited or discouraged. Because I support them and most members of Congress support 'em too, don't get me wrong."


Image Hosted by ImageShack.us So there. It's up to the members of Congress who are not traitors to single out those who are. Indeed, longtime war-cheerleader and hail-fellow, William Kristol, would go farther. He thinks (Democratic) members of Congress have no business even criticizing this President's war policies. Kristol argued on Sunday that they should just shut altogether for an extended period of time. He thinks that "six to nine months" (one to one-and-a-half Friedmans) is about the right length for their vow of silence.

They’re playing — they’re leap-frogging each other in the degrees of irresponsibility they’re willing to advocate. And I really think people are being too sort of complacent and forgiving almost of the Democrats. ‘Oh, it’s politics, of course. One of them has a non-binding resolution. The other has a cap.’ It’s all totally irresponsible. It’s just unbelievable. The president is sending over a new commander, he’s sending over troops, and the Democratic Congress, in a pseudo-binding way or non-binding way, is saying, ‘It won’t work. Forget it. You troops, you’re going over there in a pointless mission. Iraqis who might side with us, forget it, we’re going to pull the plug.’ It’s so irresponsible that they can’t be quiet for six or nine months and say the president has made a decision, we’re not going to change that decision, we’re not going to cut off funds and insist on the troops coming back, so let’s give it a chance to work. You really wonder, do they want it to work or not? I really wonder that. I hate to say this about the Democrats. They’re people I know personally and I respect some of them. Do they want it to succeed or not?


The question answers itself. Why would any members of Congress spend so much time worrying about the disaster in Iraq, and getting all inquisitive-like, if they cared in the least about our troops?

From Unbossed

Sunday, January 21, 2007

  Just how fair are the new Pentagon rules for Military Commissions?

The administration and Pentagon have been assuring us, falsely, for five years that all the detainees held under appalling conditions at Guantanamo are "terrorists" and "the worst of the worst", and that they all were picked up on the battlefield. For the latest in outright lies, listen (if you can stand it) to the opening statement by State Dept. official John Bellinger on the Diane Rehm Show of Jan. 18.

Yet notoriously, Bush has failed to put any of these men on trial. Under pressure from the Supreme Court's ruling in the Hamdan case, last October Congress passed the almost certainly unconstitutional Military Commissions Act in order to "facilitate bringing to justice terrorists and other unlawful enemy combatants through full and fair trials by military commissions". On Jan. 18, the Pentagon released its manual of rules to implement military commissions.

So, will these trials—if they ever occur—be fair? A pretty important question, which until now has received fairly cursory treatment for the most part.

A few journalists have weighed in last Thursday, highlighting some of the most glaring objections to this new manual of rules—particularly the fact that 'coerced' testimony and hearsay evidence may both be introduced.

Democrats said they were concerned that the manual - based on a law passed last year in the Republican-run Congress - tramples on basic legal rights that should be afforded to military prisoners. This, they say, puts U.S. troops at risk of mistreatment if captured.

Sen. Christopher Dodd, D-Conn., said he is working alongside Democratic Sens. Patrick Leahy of Vermont and Russ Feingold of Wisconsin on a bill addressing flaws in the manual "that are impediments to the effective and credible prosecution of suspected terrorists."...

Under the bill signed into law last fall, only detainees selected for trial by the military are able to confront charges against them. This leaves a vast majority of the thousands of military detainees in custody in Iraq and elsewhere without a chance to plead their case.


Yet so far, the news media have not provided detailed analysis of the manual's contents. There's been no follow-up reporting. The glowing news release from the Pentagon, though not entirely inaccurate, avoids mentioning any criticism of the commissions whatever. And bloggers have been pretty much silent, though this is a subject where they ought to be able to contribute a good deal simply by vetting the manual.

So, I've tried to remedy that gap by working through the Pentagon Manual for Military Commissions section by section. In what follows, I highlight the areas of concern that arise in Part II of the Manual ("Rules for Military Commissions"). They are arranged topically.

The Manual's rules largely follow standard procedures in military trials generally, so I have not unduly stressed the obvious qualities of the military court system (however unfair). But there is no reason I can see why men who were not captured in battle (most of those detaineed at Guantanamo were sold to US forces by kidnappers) should be tried by a military court at all. Therefore I've adopted the perspective of the defendant, or defense counsel, who would rightly believe that the accused should be tried in civil court. The question I posed as I examined the rules was this: Does this make for an unfair trial, given the normal expectations of fairness in civil court proceedings?

In a subsequent post, I'll comment on Part III of the Manual ("Military Commission Rules of Evidence"). This is the section that specifies, among other things, the highly controversial rules that permit testimony acquired through 'coercion' but NOT (curiously enough) through 'torture'.

~~~~

How fair will the military commission trials be under the Pentagon rules?

The officers who will constitute the commissions

The new Pentagon Manual prohibits military personnel from using coercion or reprisals against commission officers for the way they rule in a trial, but it provides no penalties or means of recourse in case of coercion or reprisal. (II Rule 104) This is partially restated at (II Rule 502 c 4), but again without any mention of recourse or penalties in the event of reprisal. (I'd venture that no officer who's even half-awake is likely to dismiss so easily the prospect of being passed over for promotion if he votes the wrong way on a high-profile commission. Who will forget the Navy's treatment of Lt. Cmdr. Charles Swift, for example?)

In constituting a military commission, the defense is permitted only a single peremptory challenge to members appointed to it. (II Rule 912 g) "A member shall be excused for cause [from serving on a military commission] whenever it appears that the member...Should not sit as a member in the interest of having the military commission free from substantial doubt as to legality, fairness, and impartiality." (II Rule 912 f 1) And since many well-informed observers have grave doubts about the "fairness" of these military commissions, if the point is meant to be taken seriously then this rule ought to mean that no officers whatever should serve on one of these, in the interest of not convening any military commissions to which substantial doubt attaches about their fairness. But I digress.

Appeals

Under the Military Commissions Act, if a person put on trial has not already been found to be an "unlawful enemy combatant" under a Combat Status Review Tribunal, then he has no right of appeal to federal court to challenge the jurisdiction of the military commission. All he can do is file a motion to dismiss. (II Rule 202)

Military not responsibile for investigating the facts and the law

A trial may proceed even if there has been no report of an investigation into the allegations against the accused. (II Rule 406 b 2)

Before a trial proceeds, a legal advisor under the "convening authority" (SecDef or subordinate) must first assess the allegations and make a personal recommendation about whether action should be taken. However "the advice need not set forth the underlying analysis or rationale for its conclusions." Defects in pretrial advice "are not jurisdictional". All that is required is that information in it should be "accurate" and not "so incomplete as to be misleading". In other words, if the advice given proves to be based on half-truths, suspicions unsupported by evidence, faulty reasoning, or the misapplication of the law, so what? (II Rule 406 Discussion)

After a military commission rules, but before sentence is enacted, another legal advisor must examine the record and make recommendations. However, as before, the legal advisor does not need to actually investigate whether the commission's actions were legally correct. "The legal advisor is not required to examine the record for legal errors." And if defense counsel raises any complaints about legal error, they may be rejected by the legal advisor without supplying a rationale. (II Rule 1106 c 4)

Submitting, manipulating, withdrawing charges

Charges may be submitted (in writing) by anyone who "has personal knowledge of or has reason to believe, the matters set forth therein; and that they are true in fact to the best of that person’s knowledge and belief." This means that hearsay evidence is permitted, as long as the accuser is willing to state that he/she believes the accusation. "The accuser’s belief may be based upon reports of others in whole or in part." (II Rule 307) In fact, the entire set of charges "may be based on hearsay in whole or in part." (II Rule 601 d)

In the charges submitted, any time the prosecution neglects to cite or "errs" in citing the M.C.A., or federal law, or the law of war, it will not be grounds for dismissing the charges or reversing the penalties as long as it did not "prejudicially mislead the accused." How the accused (presumably ignorant of the law) is supposed to prove that he was misled, and was misled with prejudice, is not specified. In other words, the door is wide open to prosecutorial misdirection and gross incompetence. (II Rule 307)

Charges may be withdrawn after a case goes to trial, then re-submitted later to another military commission. (II Rule 604)

Even if all charges against an accused are dismissed, he need not necessarily be told of that fact ("ordinarily [he] should be informed"). {Interestingly, however, the manual also states that "a charge should be dismissed when it fails to state an offense...[or] is unsupported by available evidence"; the Seton Hall study of military tribunals found that 55% of the detainees had not even a single accusation leveled against them.} (II Rule 401)

Defendant's right to mount an effective defense

The charges are to be told to the accused "as soon as practicable" in English, "and, if appropriate, in another language that the accused understands." There is no rule requiring a translation, nor specifying that it must be an accurate and complete translation. (II Rule 308)

The court is permitted but not required to have interpreters on hand for the defendant. (II Rule 501 d) The defendant may have to pay for his own interpreter. (II Rule 502 e 3)

The military court must agree before a defendant is permitted to be represented by his civilian counsel. (II Rule 501 a 3) See also (II Rule 502 d 1). Only US citizens are permitted. (II Rule 502 d 3) The court may replace the defense counsel without cause, as long as it does so "before an attorney-client relationship has been formed". (II Rule 505 d 2) All that aside, however, we're told that the defendant has the right to be represented by a civilian counsel. (II Rule 506 a)

Classified evidence may be used by the prosecution without disclosure to the defense counsel "if disclosure would be detrimental to the national security". (II Rule 701 f) There is by contrast no provision for the defense to use classified information without disclosing it to the prosecution. The judge may, but is not required to, ensure that the defense gets a redacted or summarized version of classified evidence. Among the factors that the judge may weigh in making such a decision is how long it would take and how great a "burden" it would be for the government to produce an unclassified version of the evidence. (II Rule 701 f 2-4) If the classified evidence is actually exculpatory, then the defense will get "an adequate substitute". (II Rule 701 f 5)

Mental competence

If the court orders an examination of whether a defendant is (or was at one time) mentally incompetent, it may establish a board of inquiry that does not include even a single psychiatrist (by substituting a psychologist instead)--even though the board must present a finding on "the clinical psychiatric diagnosis". (II Rule 706 c) This is perhaps a reflection of the notorious support that the American Psychological Association has rendered the government in its abusive and psychological degrading treatment of detainees.

Furthermore, the standard by which competence is measured seems unusual. "Trial may proceed unless it is established by a preponderance of the evidence that the accused is presently suffering from a mental disease or defect rendering him or her mentally incompetent to the extent that he or she is unable to understand the nature of the proceedings or to conduct or cooperate intelligently in the defense of the case." (II Rule 909 e 2) It would be very hard to specify what 'intelligent' cooperation means. The normal basis for making a judgment about competence is the ability to cooperate 'effectively' in one's defense.

In any case, what to do with a defendant who is found to be mentally incompetent is ultimately left up to the Secretary of Defense (II Rule 909 f) who presumably may order that he be left to rot in confinement forever without trial (II Rule 1107 b 4).

The appearance of fairness in verdicts rendered

A defendant is found guilty of any charge if just two-thirds of the commission members so vote (though a charge carrying a mandatory death penalty requires a unanimous vote). (II Rule 921 c 3) "Deliberations of the members ordinarily are not subject to disclosure... Unsound reasoning by a member, misconception of the evidence, or misapplication of the law is not a proper basis for challenging the findings." (II Rule 923) Once again, there is no appeal in case of a total screw-up by the military.

Grounds for the death penalty

Some of the aggravating factors under which a commission may vote for the death penalty are rather vague, for example: "That the offense was committed with the intent to intimidate or terrorize the civilian population". (II Rule 1004 c 12) No specific civilian population is identified, nor are the terms 'intimidate' or 'terrorize' defined in the manual.

Note however this entry in the list of aggravating factors: "That the crime was preceded by the intentional infliction of substantial physical harm or prolonged, substantial mental or physical pain and suffering to the victim or to another person... The term “substantial mental or physical pain or suffering” is accorded its common meaning and includes torture." (II Rule 1004 c 6) In other words, by the rules of this Manual, those who have abused and tortured detainees at Guantanamo could be subject to the death penalty.

~~~~~

That point, I'm pretty sure, has not come out in any commentary to date on the new Pentagon Manual. Ahhhh....wait. I'd nearly forgotten, these rules apply only to people whom the President has termed "unlawful enemy combatants", and he surely would not label one of our own torturers thus.

Wednesday, January 10, 2007

  When will a governor put His Petulance on notice?

His Petulance cannot hope to escalate farther down into the abyss without sending more members of the state militias, also known as the National Guard, to Iraq. Congress can stop the escalation by refusing to permit those troops to be called up to active duty. But a courageous governor could also block Bush, and change the entire dynamic of the national debate on Iraq, by refusing to permit the federal government to take control of the forces under the governor's command.

Why has a revolt of the governors not occured yet? Surely because they feel stymied by a deeply flawed ruling of the Supreme Court. In 1990 SCOTUS upheld the language of an Act of 1987, which stated that governors may not block the federal government's deployment of their own National Guard troops on the grounds of "location, purpose, type, or schedule of such duty".

But SCOTUS evaded the fundamental fact that the Constitution allows state militias to be federalized only for a few domestic purposes. Since the invasion and occupation of Iraq do not by any stretch of the imagination fit into the circumstances identified by the Constitution, it seems to me that a governor would be justified in challenging any further National Guard deployments.

The issue was brought before SCOTUS in 1990, after the governor and state of Minnesota refused to allow the Minnesota National Guard to be dragged off to Central America for "training". For most of the nation's history, governors retained the right in some circumstances to refuse a federal request for state militia troops.

Congress decided to change that tradition with the National Defense Authorization Act for Fiscal Year 1987. The Montgomery Amendment to the Act revised federal law to provide...

that a governor cannot withhold consent [to the federal government for bringing National Guard troops into active duty] with regard to active duty outside the United States because of any objection to the location, purpose, type, or schedule of such duty.


In 1990, SCOTUS unanimously upheld the 1987 Act and rejected the case brought by Minnesota. Find Law But to my mind, the ruling has some truly basic flaws:

Since 1933, federal law has provided that persons enlisting in a State National Guard unit simultaneously enlist in the National Guard of the United States, a part of the Army. The enlistees retain their status as State Guard members unless and until ordered to active federal duty and revert to state status upon being relieved from federal service. The authority to order the Guard to federal duty was limited to periods of national emergency until 1952, when Congress broadly authorized orders "to active duty or active duty for training" without any emergency requirement, but provided that such orders could not be issued without the consent of the governor of the State concerned. After two State Governors refused to consent to federal training missions abroad for their Guard units, the gubernatorial consent requirement was partially repealed in 1986 by the "Montgomery Amendment," which provides that a governor cannot withhold consent with regard to active duty outside the United States because of any objection to the location, purpose, type, or schedule of such duty....

Held:

Article I's plain language, read as a whole, establishes that Congress may authorize members of the National Guard of the United States to be ordered to active federal duty for purposes of training outside the United States without either the consent of a State Governor or the declaration of a national emergency.

(a) The unchallenged validity of the dual enlistment system means that Guard members lose their state status when called to active federal duty, and, if that duty is a training mission, the training is performed by the Army. During such periods, the second Militia Clause is no longer applicable. ...

(c) This interpretation merely recognizes the supremacy of federal power in the military affairs area and does not significantly affect either the State's basic training responsibility or its ability to rely on its own Guard in state emergency situations....

(e) Thus, the Montgomery Amendment is not inconsistent with the Militia Clauses. Since the original gubernatorial veto was not constitutionally compelled, its partial repeal by the Amendment is constitutionally valid.


I think you will search in vain in the ruling for any decisive demonstration of the sweeping assertion, "Article I's plain language, read as a whole, establishes that Congress may authorize members of the National Guard of the United States to be ordered to active federal duty for purposes of training outside the United States without either the consent of a State Governor or the declaration of a national emergency." Read as a whole? The argument is, in effect, that because Article One gives Congress some powers to organize the militias, therefore it also permits Congress to ignore Article One's plain language about the limited circumstance in which militias may be federalized.

SCOTUS denied in effect that there was a constitutional issue at all in the 1990 case. I think that the ruling is highly questionable. Indeed, it assumes the very issues that need to be addressed.

The question before it was, or should have been, when, how, and under what circumstances may the federal government take command over the state militias (aka National Guard, etc.)? SCOTUS argued instead that because Guard personnel have a dual role, as state militia members and as regular army members, the governors lose control over when and how the federal government gets to use them--whenever the federal government chooses to treat them as active duty troops.

This, to my mind, makes nonsense of the very distinction in the Constitution between state militias and federal forces. The SCOTUS ruling implies that militias are in all essentials federal forces whenever the federal government says that they are. But if that were indeed the case, why would Article One bother to specify the circumstances in which militias could be federalized?

In other words, it may be the current will of the federal government to ignore the distinction between National Guard and regular Army forces, but that conflicts with the actual Constitutional arrangements for state militias.

Here are the relevant sections of the Constitution:

Article I, Section 8; Clause 15

The Congress shall have Power ... To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.

Article I, Section 8; Clause 16

The Congress shall have Power ... To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

Article II, Section 2

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States...


The first selection is the most critical, for this question. What are the circumstances under which the Congress may call up and employ state militias? There are only three circumstances:

to execute the Laws of the Union, suppress Insurrections and repel Invasions.


These are all, entirely, domestic matters. Federal law cannot be executed except within the bounds of the US. The reference to "Insurrections" clearly is to domestic insurrection. And an invasion can be repelled only when it is inside the borders of the US.

There is not even a hint in the Constitution that Congress may use state militias to invade foreign countries, much less to occupy them.

Furthermore, it is the Congress which is permitted to make the decision to call up state militias, not the President. He becomes commander-in-chief of the state militias only "when called into the actual Service of the United States." That is to say, he becomes CiC only after Congress calls the militias into service. I think it is fair to say that the Framers of the Constitution denied the President any powers of his own to call militia/National Guard troops to active duty.

I am not talking through my hat, for once. The US Attorney General in 1912 issued a ruling that took the same position as I do on what the Constitution permits state militias to be used for. From the SCOTUS ruling in 1990:

"It is certain that it is only upon one or more of these three occasions - when it is necessary to suppress insurrections, repel invasions, or to execute the laws of the United States - that even Congress can call this militia into the service of the United States, or authorize it to be done." 29 Op. Atty. Gen. 322, 323-324 (1912).

"The plain and certain meaning and effect of this constitutional provision is to confer upon Congress the power to call out the militia `to execute the laws of the Union' within our own borders where, and where only, they exist, have any force, or can be executed by any one. This confers no power to send the militia into a foreign country to execute our laws which have no existence or force there and can not be there executed." Id., at 327.


The AG was rejecting the position adopted by a statute from 1908, which stated that militias may be employed "either within or without the territory of the United States." That statute was the first attempt to amend the 1902 law, the Dick Act, which established the modern system of state militias. The Dick Act, following the clear meaning of the Constitution, stated that the services of the federally-organized militia would "be rendered only upon the soil of the United States or of its Territories."

Until World War One, therefore, it was essentially accepted by all but a small faction of imperialists that state militias may be federalized only for the three purposes identified by the Constitution. It was the period of excess militarism, during World War One, which began to obscure that consensus and replace it with the idea that Congress and the President were within their rights to ship state militias overseas, to fight in Flanders Fields for example.

SCOTUS sided with the imperial adventurists in its 1990 findings, rather than with the clear meaning of Article One.

So, aside from this atrocious ruling by SCOTUS, why should governors submit to having their own militias called to active service abroad in the occupation of Iraq? Why should not at least one of them refuse to allow any more call-ups, and bring the constitutional issue to a boil?

The policy of His Petulance clearly is to keep stringing this unwinnable war along until he leaves office, so that he need not admit to defeat. If a governor were to defy him now, to refuse him any further National Guard troops from, say, Pennsylvania, on the basis that state militias may only be federalized for domestic purposes, what would the consequences be? I'm pretty sure that the issue would have to be litigated. And I'd like to think that would be the perfect response to the administration's policy of dragging matters out. Let SCOTUS decide whether there is a constitutional issue to be resolved. And meanwhile, let His Petulance just try to get his hands on the troops he needs to prolong the war.

From Unbossed