This War May Be Legal, But Arrogant Diplomacy Could Kill Us

National Journal

President Bush asserts that America has the "sovereign authority to use force in assuring its own national security" and does not need a new vote of the United Nations Security Council. On the other hand, U.N. Secretary-General Kofi Annan has warned that "to go outside the Security Council and take unilateral action … would not be in conformity with the [U.N.] Charter." Russian President Vladimir Putin and many others have agreed that such an attack would be illegal.

Legal Affairs – Be Wary of the War Crimes Court, but Not Too Wary

National Journal

The first international court in history with the power to punish war crimes, crimes against humanity, and crimes of genocide committed anywhere in the world will officially become a reality on April 11 and, if all goes according to plan, will be up and running sometime next year. Like the more limited, ad hoc international tribunals established by the U.N. Security Council to pursue perpetrators of atrocities in the former Yugoslavia (including Slobodan Milosevic, now on trial at The Hague) and in the 1994 genocide in Rwanda, this new International Criminal Court embodies the noble aspiration to extend the rule of law worldwide. (See this issue, p. 988.)

Legal Affairs – How the Embargo Hurts Cubans And Helps Castro

National Journal

In the early 1960s, the CIA plotted to poison Fidel Castro’s cigars, to send Mafia hit men after him, and to make his beard fall out by dusting his shoes with a depilatory. These were not good ideas. Now the centerpiece of U.S. policy is the rigid, unilateral economic embargo and travel ban codified by the 1996 Helms-Burton Act. This is not a good idea, either. Nor are the Helms-Burton penalties on foreign companies that invest in properties expropriated by Castro 40 years ago.

Legal Affairs – Elian: An Excess Of Certitude And IdeologyOn All Sides

National Journal

Am I the only person in Washington who is not sure-absolutely, unequivocally sure-of the answers to all the big questions raised by the Elian Gonzalez drama? The only one who isn’t certain that the boy should go back to Cuba with his father-or that this would deliver him into slavery? The only one who has trouble deciding whether the predawn paramilitary raid that snatched Elian from the Miami home of his great-uncle Lazaro on April 22 was a triumph for the rule of law or a police-state abomination?

The Haiti Precedent: Limiting The Damage

Having accused President Bill Clinton of preparing " a near-fatal blow to the framers’ carefully crafted restraints on the president’s war-making power" ["A Betrayal of the Constitution," Sept.19 1994, Page25], I write now to concede (with some relief) that the not-quite-invasion of Haiti ended up doing less damage to the constitutional fabric than I had feared.

I also respond below to a rebuttal by Lee A. Casey and David B. Rivkin Jr. ["In Constitutional Interpretation, Read the Framers’ Words," Oct. 3, 1994, Page 24], who defend-as well as anyone could, perhaps-a position bordering on the frivolous: that the framers of the Constitution gave the president sweeping power to invade any nation in the world without congressional consent.

President Clinton committed an unconstitutional act (in my view) by ordering an invasion of Haiti on Sept. 18 without a prior congressional vote of approval. But the importance of that act as a precedent for future presidents planning unconstitutional adventures was limited, thanks to some careful lawyering by Walter Dellinger, head of the Justice Department’s Office of Legal Counsel (and thanks also to the last-minute deal with Haiti’s milijary that averted actual hostilities.)

In a Sept. 27 response to an inquiry from Senate Minority Leader Robert Dole and others, Dellinger offers a set of after-the-fact legal rationales for the unconsummated invasion that have the significant virtue of being narrow and Haiti specific. The assistant attorney general’s letter will be of less value to those claiming broad presidential power to launch future invasions than to those opposing such claims.

A Betrayal of the Constitution

In a sad display of Democratic hypocrisy-only cosmetically offset by a smaller dose of the Republican variety-President Bill Clinton is about to trash one of the Constitution’s cardinal principles: its solemn reservation to Congress of the power "to declare war."

If this would-be imperial president fulfills his lawless (and foolish) vow to invade Haiti without first seeking a congressional vote of approval, he and his congressional accomplices will have administered a near-fatal blow to the framers’ carefully crafted restraints on the President’s war-making power.

Already weakened by decades of Cold War strangulation-most recently by Presidents Reagan and Bush-those restraints may not survive this betrayal by their supposed Democratic guardians. Senate Majority Leader George Mitchell of Maine, House Speaker Thomas Foley of Washington and many others have abdicated their constitutional responsibilities and bowed to Bill Clinton’s power grab.

The planned 20,000-troop invasion of Haiti would surpass recent Republican rapes of the Constitution in at least one sense: It would be the first time a president has launched an invasion without seeking congressional consent solely because he couldn’t get it. It will also apparently be the first time an invasion has been sped up to pre-empt Congress from voting to forbid it.

Worse still, the White House claims power to launch an invasion even if Congress does forbid it. Or, at least, so one anonymous official told The New York Times, " ‘Either the [congressional] leadership figures out a way not to have the vote, or we find some compromise, or we lose and go ahead with the invasion anyway.’ " Having thus posited a presidential predisposition to commit an impeachable offense, this official blandly added, " ‘Politically, there are no great options.’ ”

Clinton Flouts the Rule of Law

President Bill Clinton’s embrace of a policy that candidate Clinton had unambiguously denounced is immoral and "illegal" is a discouraging sign for those of us who have looked to him to restore executive-branch respect for the rule of law.

Last July 29, Clinton said: "The [U.S.] Court of Appeals [for the 2nd Circuit] made the right decision [today] in overturning the Bush administration’s cruel policy of returning Haitian refugees to a brutal dictatorship without an asylum hearing."

But on March 2, President Clinton sent a Justice Department lawyer to the Supreme Court to urge reversal of the 2nd Circuit and to bless his perpetuation of the Bush policy, which critics have aptly dubbed a "floating Berlin Wall."

President Clinton, like President George Bush before him, is blocking Haitians from fleeing their island prison for the United States or anywhere else, by seizing them on the high seas and forcibly returning them to their persecutors, without even a cursory hearing for those seeking refuge from political terror.

Here’s how the president explained this flip-flop, on March 2: "I mean, you know, something that was never brought up before , but is now painfully apparent, is that if we did what the plaintiffs in the court case want, we would be consigning a very large number of Haitians, in all probability, to some sort of death warrant." Many would swamp and drown after setting sail in rickety boats, he suggested.

President Clinton’s claim that the danger of drownings "was never brought up before" is simply false; the Bush administration had proclaimed that danger since the May 24 executive order that created the floating Berlin Wall.

Go Back, Huddled Masses?

How desperate must people be to leave their homes and families, crowd into rickety boats, and brave death at sea in the forlorn hope of drifting hundreds of miles to foreign shores, where prison camps await them? Are they driven by poverty? Or by persecution?

President Bush doesn’t want to know. He just wants to send Haitian boat people back to whatever fate awaits them, no questions asked. And so, it seems, do most of the rest of us.

The Bush policy, aptly termed a "floating Berlin Wall" by critics, is to intercept all Haitian boat people on the high seas and return them promptly to their island prison-perhaps to be murdered by their persecutors-without pausing for even a perfunctory hearing of their claims to political asylum.

Announced on May 23, this policy was found illegal by the U.S. Court of Appeals for the 2nd Circuit on July 29 but remains in force by virtue of a 7-2 Supreme Court vote to issue a stay while weighing the administration’s appeal.

Illegal or not, the naked inhumanity of the Bush policy goes largely undenounced, even by Democrats. It rates only perfunctory press attention and far less public outcry than, say, the plot to move the Washington Redskins to Virginia. Most voters in South Florida want to keep the Haitians out. The rest of us would rather not think about them.

Why are we so callous?

A confession: When I force myself to focus on the boat people, my first impulse is to let them in-all of them. But then irresolution creeps in.

The first impulse is that the entire distinction between political refugees and economic migrants, which has been used for years to fence out most Haitian boat people, seems obscenely legalistic in the face of their desperate flight. The Bush administration’s relentless tightening of the screws, and the fact that these unwelcome refugees all happen to be black, only makes an ugly situation worse.

Should We Just Kill Saddam?

"We have not been targeting Mr. Saddam Hussein," says Gen. Colin Powell. "We’re not targeting any individual," says President Bush. "That’s not the way we fight wars anyway," says Gen. H. Norman Schwarzkopf.

Well, why not?

The man took power by assassination, kept it by murder, left a million dead in a war of aggression against Iran, gassed the Kurds, and obliterated Kuwait. He bombs Israeli civilians, tortures prisoners, fouls the sea with oil, and threatens chemical and biological warfare.

Why not just kill him? Or-to be more precise-now that our bombers have leveled his palace and scoured the skies trying to get a bead on him, why pretend he is not a target?

People make three basic arguments against targeting Saddam. Two of them are unconvincing. A third has some substance-and pretty much assures that no American leader is going to admit to targeting a foreign leader.

Morality. Some argue that it is-immoral to target anyone for assassination, even a person as evil as Saddam.

Whether retributive killing is ever justified poses a nice moral question. Thus we argue endlessly about the death penalty.

But we would not be killing Saddam solely to punish him for crimes he has already committed. We would be killing him to save tens of thousands of other, innocent lives by ending the war, or at least shortening it. Most lives thereby spared would be Iraqi. Many would be American.

The last refuge of the moralists is that it is somehow worse to kill an identified person by design than to kill anonymous souls who happen to be in the way of a thrust at a military target. But Saddam is a military target. And while planned killings are worse than accidental killings, deaths caused by an allied thrust into Kuwait would hardly be accidental.