[Fortsetzung von: Überlegungen zur US-Constitution. Teil A.]
At first I should complement and correct my former explanations in so far as that the fact that in Article II Section 2 are used two different expressions for first officers (“principal officers” in the first subparagraph respectively “Heads of Departments” in the second one), regarding the further fact that subparagraph 1 deals, in one and the same sentence, firstly with the function of Commander in Chief and secondly with administration departments in general (“principal Officer in each of the executive Departments”) seems – subject to the condition that one sees especially the fighting troop as something else than part of general executive administration – to have a special meaning to the effect that the obviously intentionally used connection shall express
a) the President’s Power as Commander in Chief (in the clause not mentioned at all but resulting from his power as Commander) to require such opinions from military officers, in writing or orally, too, who, if given, are standing outside of the administrational chain of command of the Department of Defense or, respectively, are subordinated directly to the President, and
b) that the term “Heads of Departments” does not mean “Secretary” (=”principal Officer”) but heads of any separate or segregated (sub-)department of the “office of a Secretary”, for example a sub-unit in the Department of Justice,
which results from the passage “upon any Subject relating to the Duties of their respective Offices” whereby the plural of the word “offices” in the concrete sentence syntactically can be understood only as referring to (several) such organizational (sub-)departments in one and the same Department of a Secretary (and even not to the fact, that the addressed principal officers, then eventually understood as heads of sub-units of Departments [!], are, for example because of the used plural of “each of the executive Departments”, grammatically put in the plural: such a understanding is forbidden by the term “respective” which can only refer to each of such officers) – but obviously my knowledge of the English language, here, is too insufficient to resolve that very important question, from which depends whether or not the President has the Power, too, to require such opinions from officers of lower degree (below the Secretaries), which under certain circumstances could make sense, regarding the fact that principal officers some times are tending to withhold or gloss over mismanagement at lower levels.
Because in my opinion there must be a meaning in the use of these different terms of “principal officers” on the one and of “Heads of Departments” on the other side. And the respective meaning of these two terms to me seems to depend from the answer to the question how this plural has to be understood! Crazy, I know, but I see no other resolution: I mean principal is really very high, but head can also be just a first inside one of many lower units under such a principal, which shows, too, the importance of the Lewinsky affaire in which Mr. Clinton eventually had not to take responsibility for having oral sex but much more for the fact that he had it with a lower practicant instead of with a principal officer! No joke!
Secondly I have to say that Douglas R. Hofstadter in his book about Gödel, Escher, Bach, describes very nicely the difference between provability and truth, which difference is of eminent importance also for my legal position in all these proceedings against, especially, the Austrian State, which or its officers and judges ignored this difference completely and unlawfully! – So that is a wonderful evidence of the immeasurable and philosophical usefulness of mathematics for every day live and problems.
Because you as a citizen not at all are always sitting on the shorter branch just because a fact favourable to your claim cannot be proven: this does not apply especially in criminal proceedings, and it must not apply, too, in proceedings concerning a fathers rights towards his child, because it is contradictory to human rights to sentence a defendant based on presumptions as well as to deprive a father of his such rights based on the not proven presumption that he is mistaken concerning a presumption of a crime committed against his child.
It is really disgraceful that Austrian authorities are mistaken here that bunglingly.
Even still Nazis and blind of absurd rage and jealousy towards a really loving father which such one nobody of them never ever has experienced in this war infested country!
“he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices,”
indicates that he, the President shall be entitled to require the opinion upon any subject relating to the duties of their respective offices: so let’s ask,
who’s offices? – Their respective offices, which means the offices (in the meaning of functions or assignments but not of bureaus) of each executive department (whereby “department”, here, means each of the several departments as supreme units of the executive branch, for example the Department of Justice);
from whom he shall require that opinion? – From the principal officer;
where will he find that officer? – he will find him in each of the executive departments, which “department”, here, does not mean a supreme unit of the executive branch, for example the Department of Justice, but just any segregated, self organised, subordinated (sub-)department in the sense of a unit which acts by it’s own, except, of course, that it is receiving orders from above;
so, then, who is meant by “principal officer”? – Well, arguing that it should be rather uncommon to regard the “Heads of Departments” in Article II Section 2 subparagraph 2 USC as being someone else than the Secretaries, the principal officers have to be someone below them (if not to say below and/or next to them – but this again takes us amidst the hairy problem about the role of political parties), so that thereby is meant any officer who, in any (sub-)department of the executive branch, respectively in its hierarchy is entitled to give orders to servants of the executive branch subordinated to him, so that principal only means “not the last one in the chain of command”, or, at least, any officer who is superior to a organizationally relevant sub-unit of any executive Department;
so, what about “executive departments”? – This term is a semantic hybrid. It means both referring to the “respective offices” the supreme units and (as parts of them) referring to the principal officers any sub-unit, sub-department; depending on the point of reading that clause, as shown above;
are there any impacts for those principal officers by that President’s Power? – Well, we should say, that there is, arguing that where the President is entitled to require such opinions, every principal officer should be regarded as entitled, also without being asked by the President, to communicate to him such opinions; at least we should say, that such a right should be regarded as rather difficult to deny, because where he shall require them he must be entitled to receive them without having asked for, too (so that there wouldn’t have been, by the way, any illegal break of the chain of command, at all, in this movie about Guantanamo Bay, if only he would have contacted directly the White House as the Presidential Office, the Office of the Commander in Chief, which, as well as the same Office of the President acting as Conductor of the other Powers a)-j) in Part V of this essay, of course will have to engage his own staff of officers, but not beyond the USC nor in particular beyond impeachment!); the President is responsible for all the execution by the administration; therefore it would be absurd and even inexpedient to deny the legitimacy of such a communication of a not required opinion;
but it should be clear that the President under normal circumstances won’t have any reason to require from a principal officer of the fire department an opinion about, for example, subjects relating to the duties of the police drug department (both departments being subunits, as I suppose, of the Department of the Interior), but, nevertheless, he should be entitled to do so, because of security and emergency reasons, so that, in any case, there are good and many arguments to have interpreted this clause of the USC, this Power of the President as well as the rights of the principal officers resulting from it, extensively, although not in a manner which could inundate the President’s Office, which requirement indicates a general direction by the President regulating that issue as far as possible and appropriate.
Revision of exactly no nothing
Wherever a state’s administration (or army) in any area of sciences relevant to their duties deems not to be on highest and newest level this state is in danger. That is a fact which should not be to be explained more detailed.
Focussing one’s view under this aspect onto Article II Section 2 subparagraph 1, once again, one can see that the President’s power to require Opinions set forth there has to indicate that the administration (and the Army) has to deploy specialists in a sufficient number and quality to meet the said requirements; which, of course, shall not mean that in an emergency the President should not be allowed to consult an external (privately practising) specialist whose opinion to be asked deems in that special and urgent case to be unavoidable to satisfy an administrational duty for service which, until now, had not been realised and therefore not yet covered by administrational special staff.
Having once stated this it is only a short step to the next conclusion inherent in the clause referred to above and in Article II Section 3 last half-clause:
The President is not in a position to be able to fulfil his duties under the clause cited last when, for example, there are (private) organizations (NGOs) deployed to the purpose to receive governmental money to be spent for humanitarian aid reasons.
Even if that would be provided for expressively in the laws (and even not only, that, roughly, these monies “are to be spent for aid or humanitarian reasons”, without mentioning whether or not there shall be deployed a NGO in between the administration and the beneficiaries) it would be in contradiction to the USC, because the President towards these NGO, regardless the powers of criminal prosecution, has not the instruments of the USC to oversee them.
So, as International Herald Tribune (August, 25th), p. 6, reports under: “Plan to check charities for terror ties is under fire”, it is not at all enough only to provide, at all, for bureaucratic mechanisms or, respectively, those organization’s duties to report and account, but the administration has to be in a position to oversee effectively at any time of spending such money to end-recipients intended by law its dedicational usage; otherwise one cannot speak of legitimate employment of such (tax) monies.
It is clear that this must be confronted with the practical problem that those end-recipients in the case of humanitarian aid for third world countries, for example, are (directly) unreachable for the US administration without being in conflict with sovereignty assertions of the third world state concerned.
Not only because we could have seen for decades that it does not work like this, that conflict should not be bypassed by the employment of such NGO’s, national or international, but the problem has to be resolved by removing the reasons for the suffering of the people in need, which only can mean to remove inequalities in world trade, in the first place, which leads me to the next point about Russian oil supplies for Germany, reported on by the same Paper, p. 11:
Obviously this subject shows some certain connexion to the OMV/MOL story, which I see against the backdrop of Austrian post war reconstruction legislation concerning “German directed” Austrian banking engagements in the later Eastern Bloc, nowadays used to extort some illegitimate advantages and to perpetuate and maintain hide and seek structures.
In what I would be interested most, for the time being, is the role of Iran (Persia) in this play, because it cannot be overlooked that at the Tehran Conference, at the latest, there must have been arrangements concerning, in the sense of the plan, favourable behaviour of Persia towards this Palestine issue, then resulting in phenomena like Hezbollah, Iraqi-Iranian war and Lombard allocations by Suddam Hussein’s administration, for example, which all is nothing else than the next link in the chain to which the League of Nations’ Saar mandate is a link, too, and to which, in between them, The Peace of Constance of January 25, 1183, is an extraordinarily important early link (for an excerpt of that treaty see http://www.fordham.edu/halsall/source/barbarossa-lombards.html).
So it seems, what under a sober view could be of clear sight, as if some circles of even not low influence around the world would not have accepted (especially) European post-medieval upheavals that easily.
In that sense the lieu of visit in Styria may be chosen not bad or, at least, well reflected, but cannot mislead those circles nor me.
This background indicates the legitimacy of a doubting question after the future of a sovereign Iraq.
Außerdem beschäftigt mich die rhetorische Frage, ob ein Spekulant in den Diensten einer Bank derart riskante Geschäfte auf deren Rechnung selbst dann überhaupt tätigen darf, wenn er die Zustimmung des Vorstands (und des Aufsichtsrats, ja unter Umständen des Gläubigerschutzes sogar der Aktionäre!) dazu erhalten hat; oder ob er selbst in einem solchen Fall der erhaltenen Zustimmung nicht Zweifel an deren Legitimität hegen und (fungiert er doch faktisch als verlängerter Arm des Vorstands der Bank) zur Bestätigung derselben rigorose Einsicht in die Bücher der Bank zwecks Eruierung deren Vermögensstandes verlangen muss, um die Gefahr der Intention des Vorstands und daraus im Ernstfall resultierenden Schaden für die Gläubiger der Bank zu bannen, durch seinen Einsatz lediglich strafrechtliche Verantwortlichkeiten aufsplittern zu wollen! Letzteres insbesondere im anzunehmenden Fall, dass ihm nicht verborgen geblieben ist, dass die Existenz der Bank empfindlich belastende Verluste bereits eingetreten sind. – Dies alles noch nicht einmal unter Berücksichtigung der mehr als bloß fragwürdigen Konformität solcher Geschäfte mit den Artikeln des IWF.
Sie grunzt schon nur mehr röchelnd, die ganz große Sau.
Guantanamo Bay, Part II
In Hamdan vs. Rumsfeld, 548 U.S. 3 (2006) (Art. 2) the US Supreme Court made the following statement: “The Government has identified no countervailing interest that would permit federal courts to depart from their general duty to exercise the jurisdiction Congress has conferred on them.”
This statement is a extraordinary remarkable one for the following reasons:
Article III of the Constitution of the United States of America (USC) reads, in parts, as follows:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;– between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
After these extracts of the USC there cannot be the slightest doubt that judicial Power of the Supreme Court in the Cases mentioned in Section 2 paragraph 1 need not be vested in it by Congress, but can only be gradually diminished by them in so far as concerning the question on whether the appellate jurisdiction of the Supreme Court, set forth in Section 2 paragraph 2, shall be fully both as to Law and Fact, or reduced, in certain groups of cases or matters and/or regarding certain aspects of available Law, to Law or to Fact or to both, as Congress may determine.
Because otherwise, if the USC would have wanted to give Congress power to completely exclude supreme Court in certain (groups of) cases or matters, respectively, of appellate Jurisdiction, at all, then the clause “, both as to Law and Fact” would need to be put before the foregoing word “appellate”. As it does not, it is clear, that the power to make exemptions of the Supreme Court’s appellate Jurisdiction is only a gradual one, but not a comprehensive or possibly completely excluding one.
On the other hand, it must be clear that when congress makes such exemptions of supreme Court’s Jurisdiction as to Law or Fact or both, they must provide instead of this for a sufficient capacity of inferior Courts to be ordained and established after Section 1 and supplied with necessary procedures and means, personal and material, as to be able to deliver guarantee of constitutionally granted rights, especially those after the 14th amendment.
So, when the US Supreme Court, as cited above, states, that Government in the present case, which it then decided negatively in government’s point of view, has not identified any countervailing interest “that would permit federal courts to depart from their general duty to exercise the jurisdiction Congress has conferred on them”, then it can only mean inferior courts; and when it – one clause before, at the same place – stated, that in Ex Parte Quirin, the Court, “far from abstaining pending the conclusion of ongoing military proceedings, expedited its review because of (1) the public importance of the questions raised, (2) the Court’s duty, in both peace and war, to preserve the constitutional safeguards of civil liberty, and (3) the public interest in a decision on those questions without delay”, then it made very clear, that any Military Commissions or other legislative measures diminishing its general constitutionally in it vested Power to Jurisdiction in cases it is charged with by the USC, is horrifically adverse, if not to say massively contravening USC: this obviously in the light that section 1 of the 14th amendment (…”nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”) doesn’t make it dependent of citizenship, whether one have the right to due process of law and the right to equal protection of the laws.
So there needed to be substantially identified objective reasons able to equitably warrant a law, to be duly passed by a congress, which regarding habeas corpus excludes detainees from access to inferior (federal) courts; but never ever it could in this matter legitimately exclude them completely from access to appellate Jurisdiction of Supreme Court! And even if the jurisdiction on detention matters is vested in Military Commissions their procedure has to be ruled by law, otherwise they are not allowed to deprive of liberty; but vesting it in such commissions only could be to give them another name for a federal inferior court, because other institutions for executing jurisdiction the USC does not provide; and deciding on whether or not depriving a person of their liberty substantially is nothing else then jurisdiction.
This is how US Constitution’s fathers laid it down.
Congress themselves are aware of these associations which is shown by the fact, that section 2 of the Bill To facilitate bringing to justice terrorists and other unlawful enemy combatants through full and fair trials by military commissions, and for other purposes (leading to the Military Commissions Act 2006) which originally contained findings that obviously have been removed so that the said Act of 2006 atypically does not include any findings.
So the Supreme Court has obviously already concluded that he cannot make out any such reasons for it not to observe its general constitutional duties. This is why I do wonder, how Military Commissions Act 2006 should have altered that, since the fact finding situation meanwhile has even rather got defused than more compelling.
Some time ago I already have said some words about the US Constitution (USC) as I see its meaning.
For systematic reasons during my following considerations of the issue I will first ignore the fact of existence of the North Atlantic Treaty Organization.
It may well be that there are exemptions from those conditions but I cannot imagine that in general there would be any sense in combating an enemy not as effective and as fast as possible, under the condition of war.
So when Article I Section 8 of USC declares that
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
then that must mean that – once declared war against any enemy – Congress should appropriate such monies which, in addition to the means which are available for common defence (during times of peace), are necessary to certainly effectively defeat the enemy in as short a time as possible and, under the given circumstances and conditions of “the battlefield”, as expedient.
So when after a period of two years, whilst war has been going on, enemy is not yet defeated, it need not necessarily be the armies where the trouble lies, but it can also be Congress who’s appropriations were too short.
To make one more step forward you have to say that the connection between the Presidents function of Commander in Chief on the one and his competence to recommend measures to Congress (Article II Section 3 USC) on the other hand leads into the modality that it should be the President as Commander in Chief who (supported by the opinion of his Secretary of Defence, sought after Article II Section 2 USC) proposes to Congress a bill containing means necessary for defeating enemy in that sense.
Although the period of time of two years mentioned in the above cited clause clearly cannot mean that after it has exhausted without the United States being victorious, they should be thought before the decision either to capitulate or to hope that their Congress this time approves enough monies.
So, regarding the problem from this point of view, it might not be that abstruse to read the above quoted clause about raising and supporting the armies in a way which focuses on the actual fact of raising and supporting of armies (which in this case would mean troops beyond the strength for common defence), meaning to give by an act green light, at all, and further the specific conditions for recruiting and, respectively, expropriating for such raising and supporting, whilst the concrete extent and (in consequence) costs (in a meaning of making use of these conditions) does not lay in the competence of Congress but in that of the Commander in Chief, determined while doing so only by the mentioned period of time (during which he is allowed, to say it in a sarcastic way, to reach into the honey keg) and, of course, by his (general) responsibility under impeachment, which impels him to use only such means of equal seizure and of such costs which, in a cost-benefit analysis, furnish the best and the most secure instruments for the victory.
For this interpretation would plead, apart from practical reflections, the fact, that only the “common defence” has been put in connection with “collecting taxes” and other ways to earn revenues in the first Clause of Section 8, whilst the term “but no Appropriation of Money to that Use shall be for a longer Term than two Years” could be read as at least not necessarily making the appropriation of a certain amount of money an integrating part of an act to raise and support armies, which would mean, that it is left to Congress whether they pass a bill with or without concrete money appropriation (or even only one containing the conditions of recruiting and confiscating).
I cannot see any arguments why the term “war” in the above cited Clause should not be interpreted also as the state of self-defense (meant by Article 51 of the UN-Charta); because otherwise – after the reflections made herein – the consequence would be, that the status quo of the grade of armament during peace would be even the higher than that during war.
In my view, war (i. e. the use of military force of weapons) should be the ultima ratio which, at the same time, should be carried not only by the armies and troops but also by the common people of a nation in war. This guarantees both that the war industries’ tendency to unnecessarily perpetuate the state of war finds an effective bolt (which is anchored not only in Congress but also in the people itself), and that the nation’s people, which is said to be the sovereign, is compelled to notice the fact that their nation is in the state of war more directly and personally; both in consequence leads to a more restrictive use of the means of war (i. e. military force), which only can be in conformity with international laws and there especially the Charter of the United Nations.
Let me put it ahead: I have not searched the NATO-pact to verify whether this treaty, after its wording, could be interpreted in a way which does not cut the constitutional rights (especially) of the US-President as Commander in Chief of the United States’ Armies. But let me say that for very sure this treaty, if it should do so, would have needed, to become effective, to pass the procedure for amending the Constitution, given the fact that Article II Section 2 Clause 2 USC certainly does not give neither to the President to make nor to the Senate to consent to treaties contradicting the Constitution (without ratification by the States).
It now should be clear, in which way the word “equal”, I have underscored above, should be best interpreted, especially towards war industries.
God save America!
Inspired by Robert Gate’s and George W. Bush’s teamwork
reported in today’s Frankfurter Allgemeine Zeitung