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David B. Rivkin, Jr. and Lee A. Casey are attorneys who worked in the Bush administration; when virtually all the legal academic articles came out in favor of US ratification of the International Criminal Court, Lee Casey wrote in the Fordham International Law Journal that the Constitution and an ancient Supreme Court case (Ex parte Milligan,  71 U.S. 2 [1866]) forbid the US from even assisting in the prosecution of US citizens by a foreign court:

“Vesting this power in the ICC would directly contravene the Constitution’s requirements, as articulated in Ex parte Milligan, and neither the President nor the Senate may take such action.” (25 Fordham Int’l L. J. 840, 857 [2002])

However, by 2005, Casey in league with Rivkin came up with this justification for military tribunals for alleged terrorists, even if they were citizens of the United States:

“Indeed, in the 1942 Ex parte Quirin case, the Supreme Court made clear that an American who ranges himself against the United States is fully subject to the laws of war as an enemy combatant.”  (Rivkin and Casey, Supreme Court Rulings in a Time of War, National Review, May 17, 2004, n. 35, para. 4.)

While Rivkin and Casey have done some useful services to our nation such as defending the so-called torture memos and attacking Obamacare as unconstitutional, they also strongly support indefinite detention and denial of civilian trials to alleged terrorists even if they do crimes in the United States:

Rivkin and Casey began unpromisingly, by stating, “Trying captured al-Qaeda, Taliban, or allied terrorists in United States civilian courts is a bad idea,” and then claimed that the “near-acquittal” of Ahmed Khalfan Ghailani, a former Guantánamo prisoner and CIA “ghost prisoner,” who was convicted in a federal court in New York last month for his involvement in the 1998 African embassy bombings, but only on one of the 285 charges he faced, “proves as much.”

Now Rivkin and Casey have come out in support of the Libyan attack!  I can’t make this up.  Here’s a highlight:

U.S. airstrikes against Libya have reignited the perennial debate over whether the president can launch military operations without first securing congressional approval. The answer is found in the Constitution’s text and history, and it must be the same regardless of the president’s political party. Those Republicans accusing President Obama of exceeding his legitimate authority should consider whether they would make the same claims if a Republican were president, as many Democrats previously have done.

Of course Rep. Ron Paul has consistently criticized unnecessary military incursions, whether if it is a Democrat or a Republican administration!  But Rivkin and Casey argue that the limited military action against Libya is justified due to its limited nature under the Commander in Chief power (as opposed to the war power) and that the Libyan leader is a enemy of the United States.

I agree there are situations when limited military incursions are appropriate when it is in a clear, urgent national interest to do so.  Otherwise, the President needs to consult with Congress.  I actually disagree a bit with Paul on this:  I contend that when Congress gives authority for military action, say in Afghanistan or Iraq, it is the modern equivalent of a declaration of war.  To do otherwise is to exalt form over substance.  However, Rivkin and Casey conclude their article with this outrageous contention:

The Obama administration, however, has not suggested anything so ambitious. The stated goal is to enforce a U.N. Security Council-approved “no-fly zone” as a means of limiting Gaddafi’s ability to attack his citizens. The United States has a right and an obligation as a U.N. member assisting in the implementation of a binding Security Council resolution to take this action — and it is not of a character that would constitutionally require Congress’s approval.  (emphasis mine)

A WHAT?  An “obligation [to enforce] a binding Security Council resolution”?  Binding on whom?  The United States of America?  By virtue of what?  I suppose some international lawyer could cobble together an argument asserting that Security Council resolutions are in deed binding under international law.  But I say NEVER!  There are only two documents binding on the United States of America:  The Bible and the Constitution!

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land”  [Article VI, Section 2]

On this I will take my stand forever.  If Rivkin and Casey are right, then the US should get out of the UN.  It is just that simple.  I am not ready to endorse that due to the increase of the UN’s power that could be used against us and the limited good the UN agencies such the International Postal Union and the World Health Organization.  But no act or resolution of the UN is binding on the USA.  Any so-called conservative who says so needs to examine themselves; perhaps Rivkin and Casey will say, as a former mayor of the New York City once said to Ron Paul in a debate in 2007:

“…to withdraw that comment and tell us that he really didn’t mean that…”

Until then, friends of liberty and sovereignty needs to be careful who they support – not all conservatives are friends of liberty or sovereignty.




About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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