Will Obama Administration allow strict 'Sharia law' to be imposed on the freed Libyan people?

So the six month time limit under the War Powers Resolution Act for the President to either withdraw from “military intervention” in the Libyan civil war or receive Congressional approval came and went without much adieu.

True to form and our prior analysis, (see here and here), that leaves the progressive presidency of Barack Obama on record as entirely at one with the policy of the more conservative Reagan, Bush 41 and Bush 43 Presidencies in his assessment that the War Powers Act is something that can not only be unilaterally deemed “unconstitutional” by the Executive branch, but can, for all practical purposes, be ignored altogether, (how's that for the “Rule of Law” instead of men?!)

We shall leave aside that the actions of this Administration in doing so have arguably given this landmark culmination and compromise in our constitutional framework stemming from the political activism of the 60's “peace and flower” movement less respect than any previous one in history except perhaps Bill Clinton's, (and noticeably different from either of the Bush's, who in fact sought, and received, Congressional approval for the war in Afghanistan and both Iraq actions), and that this is the very sort of thing that used to tie liberal panties in a string, (remember all that media focus on the alleged “cowboy recklessness” of George W. Bush?)

Be that as it may, it is small potatoes compared to the bomb dropped this week, (no pun intended!) that the victors in the Libyan “civil war,” the so called “National Transitional Council,” intend on imposing Sharia law as the basis for the new Libyan Constitution. Excuse me?!?

Please tell me that we did not place our brave American servicemen and women in danger and spend almost 10 billion American taxpayer dollars in this impromptu― and some say extraordinarily bungled hesitant and late entry of the Obama Administration into the conflagration weeks after the rebels asked for help, see here― to simply replace one form of tyranny for another over the Libyan people.

It would be a cruel irony indeed if we replaced one brutal dictator with the entire oppressive legal framework of Sharia law that routinely denies women the most basic rights and brutalizes everyone who doesn't adhere to its tenants, (including denying Christians and Jews, who would inevitably be the minority in such a government), the right to worship and share their beliefs freely, see here and here).

  So ominous and, yes, dare we say un-Democratic is the likely result of Sharia law that it has even come up in the American Presidential race to replace Barack Obama in 2012, (see here, here, here, here and here).

For those unenlightened Sharia law is a strict implementation of Islamic law that does not allow women to vote or own property, bans all music and consumption of alcohol, and executes homosexuals and Christian converts from Islam alike, (see details here). 

  In short, it would be a disaster for the Libyan people who have so long yearned for freedom and make a mockery of our sacrifice to free them from Gadaffi's grip, (of course, judging from Obama's own history and attendance at Islamic Madrassas in Indonesia where he spent the majority of his formative years, we don't expect the Administration to care about the results that imposing strict Sharia law would have on the Libyan people's freedoms, not to mention our countries own legal traditions, see here). 

  Accordingly, perhaps it should come as no surprise that Mustafa Abdul-Jalil, the President of the National Transitional Council and the de facto (if temporary) ruler of Libya, should state that Sharia will form the "basic source" of Libyan law going forward and that laws in opposition to it will be nullified. 

  Indeed, contrary to the former Libyan Constitution of 1951 which under Article 11 guaranteed secular and equal rights to all regardless of religious affiliation but now seems likely to provide greater freedoms than the "new" Libyan Constitution will to its citizens, it has become abundantly clear that the new and imminent Constitution, (which is expected within 60 days of elections for a national legislative body, i.e., "Public National Conference" scheduled to occur within 8 months), will be based upon “Sharia law,” see here and here.  (And this in spite of the political left openly mocking those who warned of the possibility of influence from radical elements of the Muslim Brotherhood in the nations being convulsed by the "Arab Spring" resulting in a less than an apple pie and American-flag- waving-outcome, see here, here and here).   

 The Congress and State Department ought to do everything it possibly can to discourage this turn of events and convince the new leadership of the Libyan “republic” that America will take an extremely dim view of Sharia law being imposed and that such an outcome would unequivocally result in a cutting off of any financial or reconstruction aid Libya might otherwise expect in the post “intervention” period.

And while we're at it, we might also send them a bill for our investment to date in freeing them from Ghadafi's iron grip.

After all, if we're going to act like the world's policeman, it's only fair we be compensated for it. jp

Obama's Libyan War and the War Powers Act- Part Three. Unlawful application of the U.N. and NATO charters?

  As the now Nato-led "coalition" remains divided over what next steps should be taken in Libya, (see here, here and here), and the Libyan military excursion under United Nations Security Council Resolution 1973 drags on with no end in sight, (so much for being a matter of "days or weeks" as President Obama promised, see here and here), it's finally time to get back to our examination of the basis in law-- or not-- of the legality of President Obama's decision to attack Libya to protect the Libyan rebels and civilians on the ground from pro Ghadaffi forces.  We've already established, in line with our four primary questions we set out to answer, see here, that the President in this case belatedly acted at the behest of the United Nations Security Council with no clear end game or understanding of what American interests would be served absent specific authorization for regime change in Libya, (which the U.N. resolution does not address).  


  And we've seen how President Obama has thumbed his nose at the War Powers Resolution Act of 1973 and cursorily examined some of the claims made in his speech to the nation on the subject and briefly alluded to what an inherently and inexplicably hard-to-define and inconsistent justification for war application of the "Obama Doctrine" really is, (and for those who missed the previous parts of this discussion I refer you to the prior posts here and here, also here and here on this blog for Obama's dithering and its effects on both the Libyan and American people). 
 
  But as the debate continues over the constitutionality of this "military action," (see also here and here), one which seems more and more destined for quagmire in what some on the left have already "affectionately" begun calling "Obama's war of choice," see here and even claimed justify impeachment, see here-- indeed, it would be hard for Obama to blame this one on George W. Bush or to avoid such calls in light of the left's previous and vociferous criticism of the Iraqi wars--  what remains is to address in more detail the American interests at stake in Libya and answer the last two questions most salient to our discussion of legality vis a vis the way in which this action was begun.


  Namely, under what basis in international law under the relevant U.N. and Nato treaties could the Libyan action taken by the President be legally justified?  (We leave aside for now the complete reversal of then Senator Obama who stated in no uncertain terms in December of 1997 when asked if President Bush had the authority to bomb Iran without seeking explicit authorization from Congress that, "The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation," see here and here). 


  First, however, as alluded to above, we begin where we left off with a recap of this new development of interventionist doctrine proffered by the Obama Administration before addressing the more weighty issues pertaining to the substantive questions remaining in our inquiry below.

         In a nutshell, and all things considered, the so-called Obama doctrine, (which really isn't "Obama's," see below), seems to consist in the idea that American military intervention, and by implication, international intervention as well, is justified whenever genocide or extreme human suffering of a people may be engendered at the hands of (or inaction of?) one's own government.

  Initially, we should point out that it is not as though this is an entirely "new" doctrine.  Indeed as pointed out by one of our readers recently, (see comments to prior post here), other President's have relied on similar reasoning in ordering intervention or involvement of American military force in various foreign conflagrations in recent history, (although both Bush's Iraq wars were initiated after seeking and receiving Congressional authorization pursuant to the War Powers Resolution.  Moreover, as the article linked above in U.S. News and World Report-- and as used to be heard on the schoolyard-- "two wrongs" don't make a "right.")  And it is not as if we are the only ones who have noticed President Obama's inconsistencies and contradictory statements on the Libyan war, see here and here.


 Further, even President Clinton, who used a modified-- if slightly less forthright-- version of this doctrine to justify American and Nato intervention in the war in Kosovo and former Yugoslavia at least communicated with (and was subsequently subject to) various votes in Congress which saw the legislative branch refuse to stop American involvement in the Yugoslavian civil war, (for full details and history of Presidential compliance see here).  Thus it is not at all clear you can fairly compare the two in practice, (at least Clinton "consulted" with Congress within 48 hours pursuant to the W.P.R.A.'s reporting requirements and "both chambers of Congress supported action but not by legislation authorizing the use of force," even if "the House and Senate could not come to consensus on any single measure," (see here and scroll down to Yugoslavia/Kosovo).     


  And it remains to be seen if Obama, pushing up against the "60 day reporting period" designated in the War Powers Resolution Act will in fact comply with its more substantive terms by approaching Congress with the statutorily-required "report" on the Libyan intervention and seeking the Legislature's approval or disapproval, (even if he didn't do so within 48 hours as required by the War Powers Act, that is, if he even had the authority under the Statute to use military force absent American forces or interests being in danger of imminent attack, as former Senator Obama himself pointed out, see above).    

     But philosophically speaking, it would appear that, constitutional or not, see here, justification for war is now no longer just limited to the "old school" reasons for protection of American troops or citizens in immediate danger-- such as in Reagan's lightning fast "war" in Grenada--  or to situations in which clearly defined and critical "national interests" are at stake, (e.g. the wars in Iraq, even if available intelligence at the time from both U.S. and other allies was ultimately proven flawed. Indeed, in light of Libya only producing less than 2 percent of the world's oil you don't even have our nation's energy needs in event of war as a justification).    


  In short, such bothersome considerations of strategic national interests of America or its allies seems to have gone the way of the dinosoar along with such practical considerations as having a clear-cut mission, overwhelming force and logistical support, command and control to allow full support and protection for our troops and capabilities, and an understanding of the criteria for establishing when we've "won" sufficient to cease hostilities or an "exit strategy" when our objectives are not possible to meet.   

 Moreover, and key to the exercise of the Obama Doctrine, it seems armed force is justified-- even if not always prudent-- against other nation-states, 1) At the behest and approval of international bodies like the U.N. Security Council and/or 2) when murder and "great" human suffering of a repressed populace is about to take place.

  The trouble of course, as above mentioned, is that such a rationale fails the first and most important "old school" test for war, namely, that of our "national interests" in Libya, (although we acknowledge such an inquiry cuts both ways).

 For example, one could argue that by delaying the decision to intervene President Obama seriously undermined our ability to quickly prevail with minimal risk and thus nullified one of the legs in a comprehensive and initial determination, at the same time as he heightened our national interests in this troubled African country in other ways.  Indeed, one could cogently argue that now that we are involved in Libya, however tangentially, our national interest vis a vis preventing the rise of a newly emboldened Mid-East hotbed of Anti-American terrorist activity requires our finishing the job.  


  For now however, a more comprehensive analysis of such questions will have to wait even as we acknowledge an even more thorny one, namely this:  If the requirement for clear and vital national interests to justify military invention is no longer required for the use of American military force, might not one rightly ask, "What about all the other places in the world where people are being butchered or oppressed at the hands of their government such as in Sudan, Syria, or N. Korea? Are we going to attack there too?"  Undoubtedly, such questions raise difficult problems to any rational implementation of the Clinton/Obama doctrine. 


  Nevertheless, having shown that the Obama Administration's exercise of this doctrine is philosophically, if not in practice, an arguably poor justification for war and/or unlawful under the U.S. Constitution and relevant laws-- in particular the War Powers Resolution Act of 1973, (aka the 'War Powers Act') and Article 1, Section 8 of the U.S. Constitution-- we leave for now a more searching examination of what, if any, specific and vital American "national interests" in Libya could have justified our intervention and proceed to consider matters more in line with our purposes here at the ACLP.  Namely, whether this expanded doctrine as apparently practiced by the Obama Administration-- and by logical extension the Libyan military action specifically-- could be considered legal under any applicable theory of "international law," (e.g. the U.N. Charter and/or any other relevant international treaties or agreements of which the United States is a signatory, e.g.,  the North Atlantic Treaty Organization, or NATO).  I will begin with the latter and move on to the United Nations as time allows (before a final determination of whether a 'Part Four' in this series will be required).

  NATO, (short for the North Atlantic Treaty Organization), is the international treaty and military defense organization founded on April 4th, 1949 as an expanded successor to the 1948 Treaty of Brussels signed between Belgium, the Netherlands, Luxembourg, France and Great Britain, see wikipedia. 


  The signatories to the 14 article Nato treaty-- which is explicitly defensive in nature under article One of the Treaty and often refers to the supremacy and envisioned involvement of the United Nation's Security Council for its goals and contemplated actions, see here-- recognized the need for the industrial and militarily powerful United States to be a signatory to balance and effectively protect Western Europe in the post-WWII period from the threat of a militarily superior and expansionist Soviet Union (and threats of another cataclysmic world war generally).  


  Begun with just the original Treaty of Brussels' signatories in addition to seven more countries, the United States, Canada, Portugal, Italy, Norway, Denmark and Iceland-- along with the strategically critical addition of Western Germany in May of 1955-- Nato has grown over the years to include 10 "East Bloc" nations formerly under the dominion of the USSR and now constitutes a total of 28 countries.

  The defensive nature of NATO-- technically a treaty dedicated to the security and freedom of nations in the "North Atlantic" region and encompassing Greater Europe and the Baltics-- is explicitly made clear in Article One of its charter, which states:  

"The parties undertake, as set forth in the Charter of the United Nations, to settle any international disputes in which they may be involved by peaceful means in such a manner that international peace and security, and justice, are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations."  Ch. 1, Art. 1, NATO Charter. 


 Moreover, the Alliance's explicit deference to the U.N. charter and resolutions of the United Nation's Security Council, if not clear from Article One of Nato's charter, is made explicitly clear in Article 7 of the Treaty, which states: 

This Treaty does not affect, and shall not be interpreted as affecting in any way the rights and obligations under the Charter of the Parties which are members of the United Nations, or the primary responsibility of the Security Council for the maintenance of international peace and security.  Art. 7, Nato Charter.


 Article Four states, "The Parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened," and Article Five explicitly makes clear the military purpose of the Treaty to bind all member states (i.e. signatories) to come to the aid of any individual member state of the alliance in the event of attack or aggression against it by any nation outside the alliance., to wit: 
The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area." Art. 5, Nato Charter

 As such, it is clearly designed as a "defensive" mutual assistance treaty. Furthermore, and critical to our purposes here, Article Five of the Treaty goes on to state, "Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security." 

  Thus we come to a critical issue in our discussion regarding the lawfulness of President Obama's actions, i.e., "Was the attack against Libya legally justified from a perspective of International law?"  (Of course, even if it was, that doesn't establish that the President's disregard of American law and Constitution is legal, as we've already fairly conclusively shown; we are, after all, not "world citizens" but Americans, governed by American law as set out in our Constitution for good reason, in case you missed our touching on this subject here or the debate between Supreme Court Justices Breyer and Scalia see here, here or here for video). 

  But in light of our purposes in the present discussion-- indeed, the President declared his explicit reliance on the U.N. Security council's Libyan resolution to justify his intervention in Libya-- and the fact that we've now seen the Nato Charter specifically reference the United Nation's Charter and the Security Council's supremacy over Nato, we would be remiss not to engage in a quick review of the provisions of the U.N. Charter (i.e. treaty) as well. 

  The United Nations treaty and Charter was signed June 26, 1945 in the aftermath of world wide war in order to "save succeeding generations from the scourge of war," (Preamble to U.N. Charter), and now encompasses a total of 192 nations, the largest treaty organization of its kind in history.  

 Though the wisdom, fairness or efficacy of the U.N.'s programs, goals, and innumerable "resolutions" are not at issue in today's discussion, we only address its terms because, in lieu of any Congressional vote of approval under the War Powers Resolution Act, the President has previously and expressly cited the U.N. Security Council resolution as authority for his Libyan incursion, see here.  Chapter 1, Art. 1, par. 1, states the overall purposes and philosophy of the treaty as the following:    

"To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; Art. 1, Ch. 1, par. 1, United Nations Charter.  

 Moreover, at first blush, the treaties provisions regarding the justified use of force against a member state, (or even in general), seem pretty clear to our unlearned minds:

1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. Ch VI, Art 33 (1.) U.N. Charter

  Additionally, while Article 51 specifically references the right of "self defense if an attack occurs against a member of the United Nations," the whole passage reads as follows:

"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."  Art 51, Ch. 7, U.N. Charter. 

  Finally, we quote the "first principles" of the U.N., which we find laid out in Article Two of the Charter as follows:  

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

1. The Organization is based on the principle of the sovereign equality of all its Members.

2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.

3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and. justice, are not endangered.

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.

6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.

7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.  Chapter 1, Article 2, United Nations Charter. 

 So there you have it, all laid out in black (and green?).  

 In light of the relevant text in the documents themselves, and regardless of what you think of Obama personally, your politics, or your compassion for the Libyan people-- who sadly are the ones paying for the incompetence of Western leaders in dealing with this crisis as well as their own bloodthirsty, corrupt government-- it is not open to serious doubt that the Libyan military "intervention," initially led by the U.S. but more recently "punted" to Nato, has arguably been entirely illegal from the getgo, (at least if you're going on source documents and the President's own words).   As we've said all along, there really is no substitute for the wisdom of the American people through their elected leaders, (which is why the Executive branch was denied by the Founders of the right to declare war without the Legislative branch's signing off first).  Of course, what to do about this whole mess is another matter entirely.  Do we arm the rebels? Or redouble our efforts with a clear mission, put boots on the ground, and oust Ghadaffi once and for all? (Though certainly more painful in the short term it sure beats staying "half-in half-out" for two years while the price of oil skyrockets, and certainly beats appointing "commissions" to investigate what to any thinking person is the obvious reason for the jump in gas prices of late).  

  Of course, ultimately such policy preferences are up to the American people, through their elected leaders in Congress to decide, the President to execute, and ultimately, the American people to ratify (or not) in 2012. 

  

  And it's true that Obama may in fact yet attempt to successfully find his way back on this issue-- as he did in the recent budget compromise-- by setting in place a more firm grasp of our goals, (i.e., regime change), approaching the U.S. Congress for it's wisdom and guidance pursuant to the War Powers Resolution and once again taking the reigns of leadership to use overwhelming force and oust Ghadaffi before any (more) damage can be incurred to the Libyan people or our own long-term strategic interests in the region, (though we aren't quite sure how one could wrest back control from Nato at this point without quite a bit of damage to our credibility amongst allies and enemies alike, even if we are already sustaining such damage based on the indecisive way in which this whole matter has been pursued).  


  But in light of the serious harm the President has already done (and continues to do) to our image and system of laws upon which we are based and the ambivalence of the American people over this poorly articulated and thought-out mission prior to placing the men and women of our armed forces in harms way, we really see no other choice if there is to be a better ending and an upholding of our legal principles.
  
  We urge the President to do so with all haste and hope it's not too late. jp

Has the President given his approval to Libyan regime persistency?

The approval by the U.N. Security Council Thursday for sovereign nations to use "all necessary measures" (see news brief here), to enforce a "no fly zone" over Libya and defend the civilian populace is, while perhaps too late to force out the regime of 41 year dictator Muammar Gadaffi, a welcome development.  Leaving aside the significant paradigm shift of a reduced stature of America in the world that European leadership-- it was after all French President Nicolas Sarkozy who led the international effort-- in getting the U.N's "permission" on this perhaps presages, of much more immediate concern is the apparent willingness of the Obama Administration to allow the Libyan regime to persist even after imposition of the Security Council's directive. In the words of President Obama yesterday,"If Col. Gadhafi does not comply with this resolution, the international community will impose consequences" (read full coverage by clicking here, for background see also here).

Of course, the operative term in the President's statement is "If."

To that end, Obama's statement is as interesting in what it says as the implications in what it doesn't say, (e.g. does it mean that if Gadaffi stops his brutal assault and advance on the rebels and civilian populace in Benghazi he might be allowed to hold on to power?).

Moreover, in line with the President's tendency towards ambivalence and prevarication, (see previous post on this blog "Obama's dithering dilemma, Part Two," posted March 17, 2011), this development means little to residents who have seen their hopes for a free and Democratic country recede as rapidly as the rebels without international support have lost ground in the last two weeks, (tracking an offensive launched by the African dictator against the rebels largely with paid mercenaries and a small core of loyal soldiers with heavier weaponry). 

Such prevarication of the President seems to bely a rift in his own administration, see here and here, with indications that Secretary of State Hillary Clinton's previously expressed support for taking a "tougher line" and her behind-the-scenes consultation and insistence along with U.N. Ambassador Susan Rice and the influential Office of Multilateral and Human Rights Director Samantha Power to argue for airstrikes played a significant role in the President coming out in support of Libyan intervention and seeking the U.N. bodies approval (see here).

We sincerely hope that President Obama, having now received the international "consensus" it so craved on this matter, will now move forward with decisive action. 

Indeed, the world is watching whether the U.S. Administration is willing to do more than just "talk an issue to death" but will extend to defending both the aspirations of a people for freedom as well as the reputation of the United States, (which has been damaged by its ambivalence in the previous Egyptian uprisings and its approach to the Mid-east generally, click here).

It is our considered opinion that to leave this dictatorial regime in place would only insure one outcome, to wit: It would insure increased support for worldwide terrorism from an emboldened Libyan regime and future and escalated battles with the West.

Indeed, the increasing realization in the world that "talk is cheap" due to the West's persistent lack of resolve against Iran's expansion of its nuclear program and suspected development of nuclear weapons raises questions of American impotence and ability to accurately predict imminent changes in the political landscape and may, be encouraging other rogue regimes, actually endanger American lives in the future.  (After all, we all know what happens when you don't confront a bully, but if you don't, click here.  This aptly illustrates the truth that the right of self-defense is, as among individuals, an inherent natural right of all sovereign nations.)

Even more damaging to American global interests is that the United States, once considered a global and stalwart supporter of freedom, may now appear helpless to effect postive change in the world and this volatile region in particular, (and underscoring an unspoken fear on the part of many countries that they will be the next American "ally" who is hung out to dry, as the President's back and forth on American Mideast peace ally and partner in the war on terror that was Egypt under the Hosni Mubarack Administration highlighted in the minds of some, see here, here and here).  

So as the free world ponders what this latest statement of the President means, and watches to see, in fact, if there is any teeth left in this tiger that is still the world's most powerful superpower, (with all its attendant obligations), it waits with baited breath to see what exactly all this talk means in actual practice.  

So do we, Mr. President, so do we.  jp

UPDATE: SENATE RATIFIES START TREATY

Well, it's now official, by a vote of 71 to 26 the U.S. Senate has just passed the "New" Start nuclear arms treaty with Russia in a stunning victory for the Obama Administration after the Nov. 2nd mid-term elections saw Democrats lose control of the U.S. House of Representatives by historic numbers and their power trimmed significantly in the U.S. Senate.

Today, however, it was all eyes on the upper chamber's members, as under Art. 2, Section 2, Clause 2 of the U.S. Constitution it is the Senate which has the constitutional prerogative to accept or reject international treaties negotiated by the Executive branch.

When it came down to it, and in spite of this party's best efforts in contacting several Senators to urge them to reject this ill-advised treaty, the U.S. Senate has now ratified it by the "supermajority" required by the Constitution making it the "law of the land" as much as any other law or constitutional provision, (stay tuned for a discussion on the desirability of such an outcome and the historical context of the applicable constitutional provisions adoption by the Continental Congress, spoiler warning for inquisitive minds, google "Bricker Amendment").

Senate Republicans, in spite of their initial opposition to the treaty, had in the end seemed mollified by agreement from Senate Democrats to include "side amendment" language assuring that the pre-amble of this controversial treaty would not inhibit the right of the U.S. to develop and field a "missile shield" defense system that could protect the United States from surprise attacks from terrorists or rogue political states like North Korea and Iran, (which the West has tried impotently for years to sanction into compliance with international norms and proliferation agreements very similar to the treaty ratified by the Senate today).

Some holdouts continued to insist that language in any such side amendment was not effective and that the treaty failed to address critical issues such as the inequality in Russian tactical (battlefield) nukes versus American, but in the end the Senate chose to ratify the treaty anyway after an intense lobbying effort from Administration members including Secretary of State Hillary Clinton and Vice President Joseph Biden, (both previous U.S. Senators with many friendships and links to the historic chamber of quaint procedural rules and niceties). 

While it remains to be seen if such side agreements between Senators can, in the words of former U.N. Ambassador to the United Nations John Bolton and sticking with the grade school analogy in my previous post, have any more effect than a "letter from my mother" upon treaties the legislators are not even parties to, (as in spite of its importance in our Constitutional scheme the U.S. Senate is not after all technically a legal party to a treaty between the sovereign states of Russian and America), there is no doubt that this vote is a humongous victory for an Administration that some had already written off as a "one term presidency."

Indeed, the passage of the Start treaty caps a week of astounding successes for the Obama Administration after a fitful first two years, including elimination of the Clinton era "Don't ask Don't tell" compromise that allowed gay service men and woman to serve in the military as long as they did not openly trumpet their sexual orientation, a "stimulus two" economic compromise that retains the Bush Tax cuts for two years as well as cuts social security payroll taxes, extends unemployment benefits and reinstitutes the death tax, (albeit at a lower rate than it was scheduled to come back at next year), and a 4.3 billion dollar bill to provide health care for first responders who claimed long-term injuries in the aftermath of the Sept 11, 2001 terrorist attacks on the world trade towers in the heart of Manhattan. 

Though only time will tell the lasting impact of such policies-- which as a separate matter this blog will undoubtedly devote considerable time to examining in the days and weeks ahead-- in hindsight it may very well be that, taking a page from former Predident Bill Clinton's play book after the 1994 elections, the recent mid-term victories by Republicans may end up being a better Christmas gift to the Administration than it could have chosen for itself if it results in Obama moving to a more centrist and pragmatic position of compromise with Republicans that results in passage of more popular legislation in the future that could lift his poll numbers and propel him to a second term.  For that we shall just have to see.  jp

Start Treaty- The U.S. Senate's Rush to Judgment?

By all accounts the United States Senate seems poised to pass the new “Start” Nuclear Arms Treaty with Russia that the Obama Admistration has “negotiated” and is actively attempting to force through the lame duck session of Congress. This is the same treaty that the current President of Russia, along with their military industrial complex and former and Anti-American President Putin, strongly supports and has warned the United States “is not subject to any modification” lest they pull out from the treaty altogether. And no wonder! The treaty, as currently written provides for less stringent inspection and verification than its predecessor and has very little in it that is not favorable to their position.

Most troubling to the interests of the United States is the language in the treaty's preamble-- which the Russians have made clear they interpret as forbidding the U.S. from building and/or employing any “star wars” type of missile shield to protect innocent American cities and civilians from surprise attack at the hands of terrorists or rogue states like Iran and North Korea-- and gives the Russians a distinct advantage by handicapping America from being able to protect herself and allies around the world from unprovoked rogue attacks.

In fact, other than allow resumption of limited visits from U.S. inspectors to “verify” the total number of Russian nukes, (with reciprocal rights for Russia, of course), it is hard to see what's in it for the U.S. and the freedom-loving world. Notably, the treaty does nothing to reign in the threat to the Western world posed by the significant arsenal of “tactical” nukes that are mobile and can be quickly deployed (and used) in actual battlefield scenarios and would leave the Russians and her closest neighbor and Ally, China, with a distinct advantage on the ground in the event hostilities ever were to break out in that part of the world.

Indeed, this treaty leaves the Russians with their current ten to one superiority over the U.S. in tactical nuclear weapons, arguably a much more destabilizing and threatening aspect to the current state of international relations and affairs than the simple and much less strategic “inspection focused” regime envisioned by the treaty, (especially with its less stringent provisions).

Then too, other than for the very "imperialism" the left constantly bemoans and often denigrates it's more pro-American countrymen for, the insistence of doing this “now” in the "lame duck" session of the outgoing congress smacks of its own "intellectual imperialism" to the point of the irrational.  I mean, let's face it, as old as it is, the still existing "MAD" nuclear framework which assures both sides of their ability to respond with overwhelming force and blast each other off the face of the earth if attacked first will essentially be left unchanged regardless of whether or not this treaty is ratified. 

What will be changed however, in the Obama Administration's myopic insistence on forging ahead with its attempts to “reset” relations with Russia after the Georgian invasion and War in Chechnya-- both of which the U.S. opposed but were forced to stand by idly while thousands of innocent civilians were massacred, raped, and pillaged in the name of Russian rights to preemptively defend her “sovereignty” and “geographical homogeny” in that part of the world, click here and here-- is the U.S.'s ability to move forward with our already well-underway efforts to protect our population and military and strategic national interests from both terrorism and aggression in the midst of an ever more chaotic and uncertain world.

Coming on the heels of the Obama Administration's decision to “leave our allies at the altar” in the decision to reverse the Bush Administration's promise to protect our stalwart allies and new Nato members Czechoslovakia and Poland with regionally based missile defenses this is proving no small feat; indeed, one has to question whether such decisions are being made out of any real military or strategic analysis or simply as a result of Obama's now evident adoption of the long-discredited ideology of “peace at all costs,” (google "Neville Chamberlain" circa pre-World War two if you are not familiar with this concept). 

This ideology, a core part of the now aging liberal paradigm of the 60's based on equal parts Anti-American “imperialism” and equal parts “liberal guilt”-- as well as a naïve view of international affairs and the human condition-- wrongly assumes that if someone is mad at us it must be “our fault” for being the world's largest superpower and if we just “play nice” and appease our enemies they will return the favor in kind, is as dangerous as it is incorrect. (Indeed, as any school child of tender years can tell you, there is only one way to deal with a bully, a fact just as true in international relations as on the school yard, and no, it is NOT by giving him your lunch money!).

At stake however is far more than a school child's psychology lesson. In light of the Russian governments military exploits in Chechyna and Georgia and manifest willingness to persecute (and even murder!) its own citizens who they feel could pose any “threat” to their current authoritarian regime, see here, here and here, as well as exhibiting its willingness in recent years to use energy supplies as a geo-political weapon by threatening and actual shutting off of natural gas supplies to Ukraine upon which greater Europe relies to heat its cities during their brutal winters, see here-- it is entirely non-sensical to reward them with the ratification of this lopsided treaty. 

Indeed, to do so in light of the above actions revealing the “new” and “democratic” Russia to be more akin to an international “bully” than a reliable international ally for “peace and goodwill towards men” could actually embolden them to take other actions with an air of impunity that could in fact RAISE the chances for conflict between our two countries.  It also will have the collateral inhibiting effect on the present Administration and policy makers to not take any actions that might "upset" the Russians so as to cause them to pull out of the Treaty, (indeed, such is inevetible in light of the President openly saying the U.S. is proceeding with its plans for a defensive missile "shield.").    

In light of these facts the rush to ratify this treaty during a lame duck session of Congress in which the people's representatives cannot delve into such questions and their ramifications seems particularly ill-advised and raises the question, if this Treaty is so good and “fair” to American interests, why can't it withstand the heightened scrutiny it would come under if the time were taken to properly analyze it when the new Congress takes over in January?

To the contrary, the solemnity which should attend entering into such international obligations, (which once ratified carry the same force and weight under our Constitution as our Bill of Rights), demands that the utmost care and full analysis and debate be undertaken before proceeding, (especially since the Russians seem so happy with its terms as is).  At worst such a delay would allow time for clarification by the Russians that the pre-ample to the Treaty does NOT preclude a defensive missile shield sufficient to protect against rogue nuclear states or terrorist attack, at best it could result in a complete reworking of the terms of this treaty, (which in light of the the current provisions, would not, in our view, be a bad thing).

    

Treaty supporters are quick to point out that various previous political leaders and “every previous American head of state” supports passage, including Henry Kissinger and current Secretary of State Hillary Clinton, but a close examination of their comments and recent editorials on the subject in fact shows many, including Henry Kissinger, have actually raised several concerns, including with the verification system and the question of tactical nuclear weapons, that are shared by those who wish to simply take a closer look at this treaty before ratification.

And while Republicans in the Senate, with their traditional deference to the Executive branch in affairs of national security, do not wish to appear partisan or as if they are “playing politics” on such important matters, neither should they simply “rubber stamp” whatever the Administration presents them instead of exercising their own independent judgment as is befitting of Senators in light of the critical effect this treaty has on our ability to defend ourselves against rogue attacks in an age of terrorism.

Moreover, and even more tellingly of this Administration's modus operandi, the executive branch's forging ahead in spite of the recent and significant congressional losses in the U.S. Congress can only be seen as a further slap in the face of the American people that the recent repeal of “Don't ask Don't tell” by a Congress whose agenda has just been repudiated by the voters seems to be and is reminiscent of the kind of back room deals and hard-ball political tactics used to pass the huge Obama Care legislation by any and all means when it was far from clear the American people either wanted nor needed such legislation, (hmmm, can you see a pattern here?)

While such examples vis a vis the Administration's self-aggrandizing arrogance are beyond the scope of the present post, the growing penchant this administration seems to have for ignoring the expressed will of the American people as exhibited in the ramming down our throats (no pun intended) of such controversial and politically charged “agenda items” as the repeal of “Don't ask Don't tell” (long on the political wish list of the liberal set in Washington) reveals a troubling lack of proper priorities and contempt for the American people when it comes to either discerning (or listening) to their wishes.

Indeed, such concerns, (as well as those attending rushed passage of this incredibly flawed and one-sided agreement), seem to have fallen on deaf ears in the Obama Administration's all-out push to force through the Start treaty's ratification in the lame duck session without a chance for a full and thorough consideration of this binding agreement's ramifications upon the cause of a lasting international peace and the security of these United States.

Hopefully, the United States Senate has a better sense of hearing. jp