The current beltway and media narrative on the various hair on fire responses to President Obama's Executive Action to defer deportation of certain classes of undocumented immigrants has tended to hit on one note.
Reagan, and Bush, and W. Bush did it too - so what exactly is the big deal about Obama doing it too?
Typically these discussions range on comparing the following history of actions going back decades.
Although critics have argued that these prior actions were only done pursuant to existing law, that isn't entirely the case.
In 1961 President Kennedy implemented a "Cuban Refugee Program" protecting them from deportation before Congress eventually acted with the Migration and Refugee Assistance Act. Starting in 1975 Presidents Ford and Carter allowed Vietnamese, Cambodian & Laotian refugees ("The Boat People") to enter the U.S. without documentation or fear of deportation without prior Congressional Approval. In 1987, Attorney General Edwin Meese, under President Reagan allowed Nicaraguan exiles living in the U.S. to remain without fear of deportation. And in 1989 President G.H.W. Bush vetoed a bill to provide relief for Chinese refugees in the wake of Tienanmen Square because he was already providing that relief administratively and that he “opposed congressional micromanagement of foreign policy.” In 1990 Bush formalized his non-congressional administrative actions with Executive Order 12711.
To say that actions without Congressional approval akin to Obama's recent move on immigration are "unprecedented" would be a bald-faced lie. Under the Constitution the responsibility for handling our borders and for dealing with foreign policy remains very strongly with the President, not the Congress.
Also the President, has the power to Pardon those accused of crimes.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States ... and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States
What's "unprecedented" isn't the action itself, it's the size and scope of that action which previously had affected hundreds of thousands of individuals may now affect the lives of Millions.
But that isn't the real point or the real issue.
The charge has been made that this President has been somehow exceedingly unlawful in performing his duties compared to past Presidents. But there are many far better comparisons when it comes to using claims of Executive Authority to circumvent the will and powers of Congress.
Follow me over the flip for a couple choice examples.
Exhibit A) Iran-Contra
In 1981, without the consent or prior approval of Congress, President Ronald Reagan ordered U.S. intelligence agencies to aid the Right-Wing Contras in Nicaragua in their battle to overthrow the Leftist Sandinista Government.
When Congress discovered this were they supportive? No, they were not.
Eventually, Congressman Edward Boland (D-MA), Chairman of the House intelligence committee, offered an amendment “prohibiting the use of funds ‘for the purpose of’ overthrowing the government of Nicaragua or provoking a war between Nicaragua and Honduras” which became law on December 21, 1982.
Did President Reagan abide by this law? No, he did not. His administration argued that the use of the funds was not to "overthrow the government of Nicaragua" - even though the money was going to the Contras who did have the exactly goal in mind - therefore, the money continued to flow despite what Congress had to say about it.
Hence, there was a second Boland Amendment after it was discovered that the CIA had placed mines in Nicaragua's harbors.
No appropriations or funds made available pursuant to this [authorization bill] to the Central Intelligence Agency, the Department of Defense, or any other agency or entity of the United States involved in intelligence activities may be obligated or expended for the purpose or which would have the effect of supporting, directly or indirectly, military or paramilitary operations in Nicaragua by any nation, group, organization, movement, or individual.
This dried up Contra funding. Temporarily. Until President Reagan began another program not authorized by Congress to trade missiles to Iran in exchange for their aid in freeing U.S. hostages being held by Hezbollah in Lebanon. As these transactions began, first fronted by the Israelis and then by independent brokers - the process began to turn a profit. Members of Reagan's National Security Council (NSC) then decided to convince the independent brokers to share this profit with the Contras by purchasing weapons for them.
The argument then made by members of the Reagan Administration to Congress when all of this was ultimately discovered in 1986 was that since the NSC wasn't specifically named in the Boland II Amendment, and because the NSC didn't normally engage in "intelligence activities" - even if they actually did, just not on paper - the Amendment therefore did not apply to them.
So, a law is not a law, if you can pretend that the people the law is specifically intended to include - are not included under that law. Got that? Remember it. This is a portent of things to come.
Fortunately Congress didn't buy this bullcrap story. And neither did the American people as many members of the Reagan Administration ended up either indicted or in jail. Those that didn't go to jail were Pardoned before their Trial by Reagan's successor, then Vice-President George H.W. Bush.
1. Caspar Weinberger, United States Secretary of Defense, was pardoned before trial produced by George H. W. Bush
2. Elliott Abrams agreed to cooperate with investigators and in return was allowed to plead guilty to two misdemeanor charges instead of facing possible felony indictments. He was sentenced to two years probation and one hundred hours of community service. He was also pardoned by Bush on December 24, 1992 along with five other former Reagan Administration officials who had been implicated in connection with Iran-Contra.[22]
3. National Security Advisor Robert C. McFarlane, pleaded guilty to four misdemeanors and was sentenced to two years probation and 200 hours of community service and was ordered to pay a $20,000 fine.[22] He was also pardoned by Bush.
4. Alan D. Fiers was the Chief of the Central Intelligence Agency's Central American Task Force. He pleaded guilty in 1991 to two counts of withholding information from Congress and was sentenced to one year of probation and one hundred hours of community service. He was also pardoned by Bush.[22][23]
5. Richard R. Miller - Partner with Oliver North in IBC, an Office of Public Diplomacy front group, convicted of conspiracy to defraud the United States.[22][24]
6. Clair George was Chief of the Central Intelligence Agency's Division of Covert Operations under President Reagan. George was convicted of lying to two congressional committees in 1986. He was pardoned by Bush.[22][23][25]
7. Richard Secord was indicted on nine felony counts of lying to Congress and pleaded guilty to a felony charge of lying to Congress.[22][26]
8. Thomas G. Clines was convicted of four counts of tax-related offenses for failing to report income from the Iran/Contra operations.[22][27]
9. Carl R. Channel - Office of Public Diplomacy, partner in International Business- first person convicted in the Iran/Contra scandal, pleaded guilty of one count of defrauding the United States[22][24]
10. John Poindexter, Reagan's national security advisor, was found guilty of five criminal counts including lying to Congress, conspiracy and obstruction of justice. His conviction was later overturned on grounds that he did not receive a fair trial (the prosecution may have been influenced by his immunized testimony in front of Congress.)[22][28]
11. Oliver North was indicted on sixteen charges in the Iran/Contra affair and found guilty of three - aiding and abetting obstruction of Congress, shredding or altering official documents and accepting a gratuity. His convictions were later overturned on the grounds that his immunized testimony had tainted his trial.[22][29]
12. Duane R. Clarridge (US Republican Party) also pardoned before trial by Bush
13. Albert Hakim pleaded guilty to supplementing the salary of North.
14. Joseph F. Fernandez indicted on four counts of obstruction and false statements; case dismissed when Attorney General Richard L. Thornburgh refused to declassify information needed for his defense
So, when we want to talk about an "Unlawful President" there's a whole lot of
Unlawful here to talk about. And allegedly the only reason President Reagan himself wasn't included in this list of indicted, convicted, pardoned and/or
Impeached persons - is because he apologized. Which was after he claimed he didn't know anything about it, except that he had specifically authorized all of it, but he didn't think it was, what it actually was.
Reagan: A few months ago I told the American people that I did not trade arms for hostages. My heart and my best intentions still tell me that's true. But the facts and the evidence tell me it is not.
Exhibit B) Guantanamo Bay, Secret Prisons and Torture.
When President George W. Bush decided that he would create a special detention center in Cuba for captured members of the Taliban and al Qaeda, as well as other secret detention centers in the former Soviet Block, and then authorize techniques and tactics that directly violate the War Crimes Act - did he first go to Congress to get permission?
He did not.
On Sept. 17, 2001, six days after the terrorist attacks in Washington, D.C., President George W. Bush sent a 12-page Memorandum of Notification to his National Security Council. That memorandum, we know now, authorized the Central Intelligence Agency to set up and run secret prisons. We still don’t know exactly what it says: CIA attorneys have told a judge the document is so off-limits to the courts and the American people that even the font is classified. But we do know what it did: It literally opened a space for torture.
The War Crimes Act, established in 1996 during the Bosnian War, essentially prohibits our armed and civilian forces from engaging in any "grave breaches of the Geneva conventions" and specifies that persons committing such a breach...
...shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
So what then is a "Grave Breach" of
Geneva?
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: willful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
You would think that ordering that people could be Slapped, Exposed to Extreme Cold, Loud Music, Sleep Deprivation, Stress Positions (which can cause renal failure and death), Water Boarding (which can cause "
Dry Drowning" and also - Death), placing people in unlawful confinement following an extra-judicial deportation,
kidnapping (for which 23 CIA Agents were convicted in Italy), denying their rights to be seen before a regular and fair court -
and also Murder - might raise a few alarms bells for the Bushies, and it did.
So how exactly did the Bush Administration devise to overcome this little technical loophole of the possible death penalty being applied if one of the subjects of their little Clockwork Orange experiment happened to croak?
They simply claimed that the people they intended to put through this treatment, were not included in the Geneva Conventions.
JAN. 25 Alberto R. Gonzales, the White House counsel, in a memorandum to President Bush, said that the Justice Department's advice in the Jan. 9 memorandum was sound and that Mr. Bush should declare the Taliban and Al Qaeda outside the coverage of the Geneva Conventions. That would keep American officials from being exposed to the federal War Crimes Act, a 1996 law that carries the death penalty.
Their argument was that al Qeada fighters weren't really "soldiers" because they weren't fighting in the service of a national government. Somehow though they managed to rope the Taliban into this also even though
they were at the time part of the actual Afghanistan Government. The point being that they weren't really looking for a reason to escape being prosecuted for War Crimes as much as they were looking for
an excuse. They also in the process ignored this portion of Geneva, which covers any persons who may be captured in a War Zone, but isn't part of an official military unit.
Art. 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.
Now although the Convention does that that Nationals of States not bound by the Convention are not protected by it, it also says this:
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following
provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Because we, the U.S., have signed the Geneva Conventions we are therefore
bound to it and as a treaty when ratified it becomes part of
Our Constitution, it becomes part of
Our Law. Thus we have the
War Crimes Act, a U.S. Law that is directly tied to the Geneva Convention Treaty.
In conflicts with States or Parties that have not agreed to the Conventions, we are still bound to abide by them - the rules don't go out the window, they still apply - if not in granting those person we capture full protected P.O.W. status, but at the very minimum, normal protections under the law which would be afforded to all other persons.
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.
So it's pretty simple, someone is either a P.O.W. if they are in a captured in a War or they are a Criminal who should go on Trial in a normal court. There is no magical
Third Option, or at least there wasn't until George W. Bush
waved his pen and created one with a pile of memos, outside of the view and authorization of Congress.
Bush claims the "Lawyers Decided", but they really decided exactly what Bush wanted them to decide.
To avoid all of the rigamarole the Bush Administration simple said this: A law is not a law, if you can pretend that the people the law is specifically intended to include - are not included under that law.
Yeah. um... No.
And just for good measure, if the Geneva dodge didn't work, the Bushies also argued not only that Geneva wasn't really Geneva - but that Torture Wasn't Actually "Torture".
AUGUST A memorandum from Jay S. Bybee, with the Office of Legal Counsel in the Justice Department, provided a rationale for using torture to extract information from Qaeda operatives. It provided complex definitions of torture that seemed devised to allow interrogators to evade being charged with that offense.
Apparently the video tapes of these interrogations were so explosive, members of the CIA destroyed them in direct violation of a court order - and yet -
no charges were filed for what was very clearly and obviously a crime.
Unlike Reagan, Bush have Cheney have certainly not been willing to admit that they were wrong. Dead wrong. They've gotten away with it, smiling.
In the passage of time, all of these legal wranglings and rationales have come crashing down. The Supreme Court found repeatedly in Hamdan V Rumsfeld, Hamdi v Rumsfeld and Boumediene v Bush that the Geneva Conventions Did Indeed Apply both to members of al Qeada and the Taliban.
Bush's defense this entire time was the Geneva didn't apply, however once the Supreme Court said that it did, the possibility of a War Crimes prosecution was immediately back on the table just as Alberto Gonzales had warned in his Jan 25, 2002 memo to the President.
Congress on the other hand, under the Bush Administration's self-serving direction and guidance, rather than being outraged at this lawlessness instead decided to codify and sanctify many of Bush's other rationales on Detention and Special Military Tribunals with the Military Commissions Act of 2006, an act which re-wrote much of the War Crimes Act in contravention to Geneva and IMO has made after-the-fact prosecution of these crimes highly unlikely if not impossible as shown by the lack of an indictment filed in the stress position and thermal exposure related deaths of two Abu Ghraib detainees.
Let's be clear it's not like these weren't legitimate cases with clear and obvious laws being broken, it's just that some got away on technicalities, and some got away due to Presidential Pardons being handed out like candy-mints.
When it all comes down to it, that's a whole lot of "Unlawfulness" there.
If people are going to say that President Obama has been "Lawless" because he decided to postpone implementation of an employer mandate, and because he choose to re-prioritize the deportation of actual criminals over people who've shown for at least five years that they are no actual threat to the safety and security of the nation - in the same way that the Boat People, the Cuban Refugees, the Nicaraguan Refugees and the post-Tienanmen Refugees were no threat to us - then we have to virulently reenforce the truth that Obama is not even in the same ball park, zip code, state or CONTINENT of "Lawlessness" contrasted to the direct and brazen crimes of the Reagan and W. Bush Administrations.
Changing a few internal government rules around and shifting priorities is common and nothing compared to Selling Missiles to a Known Terrorist State, for which we got back Zero Hostages, then turning around and Arming Death Squads In Nicaragua with the profits from those arms sales, and then when you can include Kidnapping, Rendition to Secret Gulags, Torture and yes, even Murder, as a result of which not a single threat to the U.S. was thwarted - all under the singular authority of the President and without consent of the Congress, you're talking about Real Criminal Masterminds Folks.
And I didn't even bring up Nixon.
Vyan