So much for the First Amendment

[bascule]

As a libertarian I'm appalled by this story...

 

http://seattletimes.nwsource.com/html/nationworld/2002112639_diss08.html

 

In a nutshell:

 

In an apparent reversal of decades of U.S. practice, recent federal Office of Foreign Assets Control regulations bar American companies from publishing works by dissident writers in countries under sanction unless they first obtain U.S. government approval.

 

Is this not diametrically opposed to the idea of the First Amendment? I think it is blatantly unconstitutional to have any government oversight of what written works are being published. What was the government's response?

 

Officials from the U.S. Treasury Department, which oversees OFAC, declined comment on the lawsuit, but spokeswoman Molly Millerwise described the sanctions as "a very important part of our overall national security."

 

So once again, we're getting the "We need to take away your freedom to keep you safe" line. Is anyone else getting tired of this?

 

Give me liberty or give me death...

[Severian]

Give me liberty or give me death...

 

Your place or mine?

[Sisyphus]

I don't understand what anyone is supposed to gain by this...

[bascule]

Your place or mine?

 

Yikes!

[wpenrose]

 

Give me liberty or give me death...

 

It may not be as long as you think until the People's Government will be happy to oblige.

 

In the meantime, watch for drunken VPs carrying shotguns.

 

Dangerous Bill

[Helix]

This is absurd. Not only does this violate the 1st Amendment, it disregards the sovereignty of foreign nations to make their own decisions regarding dissidents. The U.S., one, has little say in the matters involving publishing but in another country?? We have NO say in what companies do abroad. The VP of GeneriCO Inc can burn the flag in Anytown, Iran if he so desires because the US gov't has no authority.

 

This all speaks to the trend of the United States government expanding its power unilaterally and disregarding the basic rights of other nations. The wiretapping incident was also similar to this, but not in a way most people would think. Most Americans view this as an affront on civil liberties, as they should. It was blatant misconduct, in violation of both the 4th Amendment and FISA. But many tend to forget the other half: that the gov't was spying on people abroad. They were monitoring calls in which one party wasn't in the US. That's illegal. The US has no jurisdiction overseas. Plain and simple. It's sad in this turbulent time the ones we (supposedly) look to for aid turn out to be the ones causing most of the problems.

[Jim]

As a libertarian I'm appalled by this story...

 

http://seattletimes.nwsource.com/html/nationworld/2002112639_diss08.html

 

In a nutshell:

 

 

 

Is this not diametrically opposed to the idea of the First Amendment? I think it is blatantly unconstitutional to have any government oversight of what written works are being published. What was the government's response?

 

 

 

So once again' date=' we're getting the "We need to take away your freedom to keep you safe" line. Is anyone else getting tired of this?

 

Give me liberty or give me death...[/quote']

 

 

But see: http://www.treas.gov/press/releases/js2152.htm

 

The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) today issued a new rule clarifying the extent to which publishing activities with persons in Cuba, Iran and Sudan are authorized, notwithstanding the U.S. embargoes against those countries. Today's action addresses a series of issues that have come to the attention of the Treasury during the past year.

 

"OFAC's previous guidance was interpreted by some as discouraging the publication of dissident speech from within these oppressive regimes. That is the opposite of what we want," said Stuart Levey, the Treasury's Under Secretary for the Office of Terrorism and Financial Intelligence (TFI). "This new policy will ensure those dissident voices and others will be heard without undermining our sanctions policy."

 

The new rule enables U.S. persons to freely engage in most ordinary publishing activities with persons in Cuba, Iran and Sudan, while maintaining restrictions on certain interactions with the governments, government officials, and people acting on behalf of the governments of those countries. The rule entails the issuance of general licenses in the Cuban Assets Control Regulations, 31 CFR part 515, the Iranian Transactions Regulations, 31 CFR part 560, and the Sudanese Sanctions Regulations, 31 CFR part 538.

[Jim]

It appears that even before the 12/04 rule clarification, the OFAC had issued a rule that "exempts peer review, editing and publication of scholarly manuscripts submitted to IEEE by authors living in countries that are under U.S. trade embargoes, such as Iran and Cuba." http://www.ieee.org/portal/pages/newsinfo/OFACruling.html

 

This is stuff I found with five minutes of research on google. I bet I could find some real subtleties to this issue if I dug in deeper.

 

Anytime I see an article which trumpets the falling of the sky these days, from the left or right, my instinctive reaction is to doubt. Any other response is dangerous given the hype that comes out from both sides these days.

[Jim]

Again, I've not the energy this Friday evening to dig into this issue as I'm sure it would require hours to understand. However, please note that this is not the first time someone has claimed that the sanction program violated the First Amendment:

 

http://www.findarticles.com/p/articles/mi_qa3791/is_199904/ai_n8843463/pg_2

 

Over the past forty years, the courts have addressed various aspects of OFAC's economic sanctions programs. They have ruled on questions of statutory and regulatory interpretation; the scope of congressionally delegated powers; the impact of sanctions regulations on First Amendment freedom of speech guarantees, Fifth Amendment taking, equal protection and other due process issues; the deference to be given the executive branch on matters of foreign policy; and such recurring issues as the nature of the interests affected by a given sanctions prohibition and the meaning of ubiquitous prohibitions on evasion or avoidance.

 

See also, Teague v. Regional Commissioner of Customs, 404 F.2d 441, 445 (2d Cir. 1968), cert. denied, 394 U.S. 977, 89 S. Ct. 1457, 22 L. Ed. 2d 756 (1969) (regulations governing book imports from China and North Vietnam had only incidental First Amendment effect, with primary purpose to restrict dollar flow to hostile nations); American Documentary Films, Inc. v. Secretary of Treasury, 344 F. Supp. 703 (S.D.N.Y. 1972) (rejecting TWEA First Amendment challenge when government refused to issue retroactive license, because film distributor would not divulge sources of Cuban film)); But see RAMON CERNUDA & EDITORIAL CERNUDA, INC. v. HEAVEY, 720 F. Supp. 1544 (S.D. Fla 1989).

 

Again, I've not the energy to dig into how the 2004 change in regulations fit into all of this context. Apparently, the rules were relaxed in 4/04 to exempt scholarly articles, thought to be restricted in early 12/04 and then "clarified" more liberally in later 12/04.

 

Any way you slice this, I'm confident that the actual history does not support a conclusion of "so much for the First Amendment."

[Jim]

But many tend to forget the other half: that the gov't was spying on people abroad. They were monitoring calls in which one party wasn't in the US. That's illegal. [b']The US has no jurisdiction overseas.

 

You've really lost me here. You think that it is illegal for the NSA to monitor suspected communications by the enemy in a war even where the communications are entirely in a foreign country? Therefore, the enigma program in WWII was illegal?

[Helix]

No, you just said 'in war'. In war we are bombing foreign countries, therefore I think spying is pretty tame in comparison. I'm speaking about peacetime operations, such as the ones we have now. We are not in war time. The War on Terror isn't actually a real war as it hasn't been declared by Congress. All they have done is approved the AUMF, giving Bush permission to 'use force' against terrorists/terror advocates. Not a war.

[swansont]

But many tend to forget the other half: that the gov't was spying on people abroad. They were monitoring calls in which one party wasn't in the US. That's illegal. [b']The US has no jurisdiction overseas. Plain and simple.

 

Illegal by the local foreign law, perhaps, but not US law, AFAIK. That's what the NSA and CIA do: spy on people.

[Jim]

No, you just said 'in war'. In war we are bombing foreign countries, therefore I think spying is pretty tame in comparison. I'm speaking about peacetime operations, such as the ones we have now. We are not in war time. The War on Terror isn't actually a real war as it hasn't been declared by Congress. All they have done is approved the AUMF, giving Bush permission to 'use force' against terrorists/terror advocates. Not a war.

 

Are you certain the distinctions you are making are legally valid?

[Helix]

Are you certain the distinctions you are making are legally valid?

 

The distinction of war-time versus peace-time? Yes, I do. During a time of war the powers of the president are greatly expanded, for example invading other countries and spying anywhere. I hope we can agree on that. So, what I am saying is that we are not in a time of war as one has not been declared by Congress. Therefore, the gov't simply cannot do the things it's doing. The wiretapping debacle, this post's topic and other events are all illegal because we are not at war. If this were a wartime, many things Bush has done would be completely legal; such as this topic of using sanctions to quell dissenting expression (that’s legal but highly immoral, in my view). But it’s not wartime! The distinction of wartime/peacetime not only is legal, it’s the crux of the argument.

[Jim]

The distinction of war-time versus peace-time? Yes, I do. During a time of war the powers of the president are greatly expanded, for example invading other countries and spying anywhere. I hope we can agree on that. So, what I am saying is that we are not[/b'] in a time of war as one has not been declared by Congress. Therefore, the gov't simply cannot do the things it's doing. The wiretapping debacle, this post's topic and other events are all illegal because we are not at war. If this were a wartime, many things Bush has done would be completely legal; such as this topic of using sanctions to quell dissenting expression (that’s legal but highly immoral, in my view). But it’s not wartime! The distinction of wartime/peacetime not only is legal, it’s the crux of the argument.

 

Er, no. The distinction between a formal declaration of war and what we have now with the authorization of force resolution. We haven't had a formal declaration since WWII.

[Helix]

Jim,

Oh the distinction between the AUMF and a formal declaration of war? The distinction is completely legal, they’re two different things. Maybe you mean is the distinction relevant? To that, I think it’s somewhat relevant. In a time of all-out war, barring companies from publishing certain books in foreign countries would be allowed, as there literally would be a war raging on.

 

But the AUMF isn’t a declaration of war; it’s far too general. It only gives Bush permission to ‘use force’ against terrorist organizations or those who aid terrorists. The difference between ‘war’ and ‘force’ is totally a legal issue; I would argue that the Vietnam ‘War’ was in fact a war, although no war was declared, as you said. I would also say the same for Korea and Iraq I. But from a legal perspective the distinction is very important. If there’s no ‘war’, just the isolated ‘use of force’ (as in surgical strikes against terrorist compounds), Bush simply doesn’t have wartime powers.

 

That’s the issue: we are in peacetime so no matter how many ‘police conflicts’ or ‘interventions’ the U.S. wages, all of which I would argue are wars in the traditional sense, because they are not declared by Congress, Bush doesn’t have the associated powers of espionage and sanctions on corporations. I do agree that the gap between what the AUMF allows and a ‘real’ war is slight; but that gap is what bars Bush from using those wartime powers. So, again, Bush just doesn’t have authority over U.S. companies overseas while there isn’t a war.

[Jim]

Jim' date='

Oh the distinction between the AUMF and a formal declaration of war? The distinction is completely legal, they’re two different things. Maybe you mean is the distinction relevant? To that, I think it’s somewhat relevant. In a time of all-out war, barring companies from publishing certain books in foreign countries would be allowed, as there literally would be a war raging on.

 

But the AUMF isn’t a declaration of war; it’s far too general. [/quote']

 

 

I agree with you that this is a different kind of "war" and that we may need new laws and understandings in dealing with a "war" that will never end. However, the issue of the need for a formal declaration of war is very much in dispute. Here's the opening section of one of many law reviews on the subject:

 

 

Introduction

 

Has the United States declared war on any occasion since 1941? Modern commentary almost universally assumes it has not. 1 The starting place for almost every discussion of modern war powers under the U.S. Constitution is that wars are no longer formally "declared." The United States, this commentary observes, has declared war on only five occasions in its history, the last being in World War II, and has fought numerous "undeclared" wars since then. When the modern Congress acts to authorize the use of military force, as it has three times since 1990, it does not characterize what it is doing as "declaring war." 2 When critics accuse Presidents of engaging in armed conflict without congressional approval, it is the lack of approval, not the lack of a declaration, for which Presidents are criticized. 3

 

The supposed fading of the declaration of war greatly troubles modern discussions of constitutional war powers. While modern practice and commentary generally agree that wars are no longer "declared," there is [*323] little agreement about the implications of this observation, both with respect to the power to initiate the use of armed force, and with respect to powers during wartime.

 

The Constitution grants Congress the power to "declare War," 4 and by implication denies it to the President. 5 Yet we are told wars are now no longer "declared"; how, then, can we apply this language to the modern practice of "undeclared" hostilities? Is Congress' power, like declarations themselves, a historical anachronism 6 - or must we depart from the Constitution's literal text to capture the general sense of "declaring" war in a post-declaration era (whatever that may be)? Similarly, efforts to impose constitutional limits upon the modern President's ability to initiate armed conflict may be met with the claim that such initiations do not amount to "declaring" war. 7 If the key modern question is, as one commentator says, "the president's power to wage formally undeclared wars," 8 the Constitution's text may not appear to have much to say on the matter. Further, Presidents may claim that the constitutional Commander-in-Chief authority 9 contains special wartime powers - as, for example, the establishment of military commissions and the detention of enemy combatants. 10 Yet the scope of those wartime powers in modern conflicts may be clouded by the suggestion that a war has not, in fact, been "declared," and that the President's extraordinary wartime powers arise only in a declared war. 11

 

[*324] This Article argues that these debates are fundamentally misconceived. Far from being a historical anachronism, the declaration of war, in the constitutional sense, is commonplace in modern practice. The United States has made such a declaration in most if not all of its major modern conflicts. These declarations have been made, however, not by Congress, but by the President. Perhaps out of a sense of constitutional unease, we have avoided actually calling them "declarations of war." But, as discussed below, the essence of a formal declaration of war has long been simply the public announcement that the nation is entering into sustained military hostilities, together with a statement of the reasons for, and the goals of, the conflict. 12

 

In modern practice, the President routinely makes such a formal public statement, as can be seen from events surrounding the 1991 Gulf War, the 1999 campaign to protect Kosovo, the response to the 2001 terrorist attacks, and the 2003 conflict in Iraq. In each of these conflicts, the President issued a statement publicly and formally announcing that the United States was entering into an armed struggle, articulating its reasons for doing so, and describing the conditions upon which peace would be made. This is all that a declaration of war is, and all it was in the eighteenth century when the Constitution was drafted, despite some commentators' efforts to give it more (or less) meaning. 13

 

Once we recognize that modern armed conflicts typically begin with a public presidential proclamation, we can see that much of the modern hand wringing about the difficulty of applying the Constitution's text to modern practice is simply misplaced. Most modern conflicts are not "undeclared" wars, but rather wars declared by the President.

 

Ramsey, Michael D., "Presidential Declarations of War" . UC Davis Law Review, Forthcoming Available at SSRN: http://ssrn.com/abstract=449021 or DOI: 10.2139/ssrn.449021

 

I couldn't find a full article available for public view but here is the abstract: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=449021

[Helix]

That's an interesting review, and it's something I, at least in part, agree with. It says that we need to expand our definition of war to give Congress back the power to have the say in when we fight, and I agree with that:

 

The Constitution grants Congress the power to "declare War," 4 and by implication denies it to the President. 5 Yet we are told wars are now no longer "declared"; how, then, can we apply this language to the modern practice of "undeclared" hostilities? Is Congress' power, like declarations themselves, a historical anachronism 6 - or must we depart from the Constitution's literal text to capture the general sense of "declaring" war in a post-declaration era (whatever that may be)?

 

 

Republicans (and democrats) shouldn't be allowed to use euphemisms to side-step Congress. But the thing is, Bush succeeded in pulling a fast one over people so in his case, it isn't a war. I agree that we should broaden our definition - but we can't do that for events in the past. Thus, the Iraq conflict wasn't a war (though it should have been declared as one), so Bush doesn't receive wartime powers. No matter what should have been done in 2003, what did happen was Bush used the authority under the AUMF to invade Iraq. But the invasion was not a war, so he doesn't have wartime powers. Similarly, though he has the authorization to use force on terrorists, he just doesn't have wartime powers. With no wartime powers, he can't suspend the constitution.

 

As an aside, do you think the Iraq war was justified?

[pcs]

Two questions.

 

1. What is the prevailing legal definition of a declaration of war? What's it's purpose and zone of concurrent action?

 

2. Is a DOW an authorizing instrument?

 

3. Where does the current case law stand on whatever distinction may exist between AUMFs and DOWs?

[Jim]

That's an interesting review' date=' and it's something I, at least in part, agree with. It says that we need to expand our definition of war to give Congress back the power to have the say in when we fight, and I agree with that:

 

 

 

 

Republicans (and democrats) shouldn't be allowed to use euphemisms to side-step Congress. But the thing is, Bush succeeded in pulling a fast one over people so in his case, it isn't a war. I agree that we should broaden our definition - but we can't do that for events in the past. Thus, the Iraq conflict wasn't a war (though it should have been declared as one), so Bush doesn't receive wartime powers. No matter what [i']should[/i] have been done in 2003, what did happen was Bush used the authority under the AUMF to invade Iraq. But the invasion was not a war, so he doesn't have wartime powers. Similarly, though he has the authorization to use force on terrorists, he just doesn't have wartime powers. With no wartime powers, he can't suspend the constitution.

 

As an aside, do you think the Iraq war was justified?

 

I'm not saying yours is an unreasonable position but it is hard to square with the 2004 US supreme court decision of Hamdi v. Rumsfeld written by Justice O'Connor. I just don't think that declarations of war are required any more to fight wars. All of this said, a war against not a government but against an amorphous and shadowy group of people does concern me. On the one hand, we need to treat this as a war and Carl Rove's comments that we must not have a pre-9/11 mentality are absolutely correct. On the other hand, although the concern re the NSA program was way overblown, we do need to start having the discussion as to how much power a president is given in this kind of "war" against terrorism

 

I do think the war against Saddam was justified although I also think that it was unnecessarily oversold. I'm not referring to WMDs here - they did exist and something happened to them. Bush's mistake was after it was obvious the WMDs had been "lost" by Saddam, in too directly linking the success or failure of the war to the creation of a working democracy. That objective is all too easy to frustrate.

 

The actual facts did not require the installation of a democracy to declare victory: (1) Saddam invaded a strategically important US ally, lost and agreed to account for his WMDs, (2) Saddam violated his agreement to account for the WMDs, (3) Saddam was very unstable and capable of grave miscalculations (the initial invasion, attempting to assassinate Bush Sr and then not accounting for the WMDs even as the US gathered forces to invade), and (4) Saddam was not adverse to the methods of terror and not going to change his stripes and, eventually, would have acquired WMDS or relocated the ones he somehow "lost."

 

As a side note, I think the message we sent in this invasion was very significant if we do not dilute it with weakness now - invade a US ally and we own you. You certainly are not going to be allowed to play games with whether you do or do not have WMDs.

 

This strategy has already caused the dismantling of a highly advanced chemical, biological and nuclear program. In March of 2003, about the same time the war in Iraq began, Libya approached the United States to voluntarily disclose that it had chemical, biological and an advanced nuclear program which had nuclear material and centrifuges. Libya’s nuclear program was much further advanced that the United States intelligence had believed.

 

Libya has now worked with the International Atomic Energy Agency and signed an additional protocol to permit greater IAEA inspections of its nuclear programs. This one factor alone justifies the cost, both economic and humanitarian, of the war.

 

In short, I wish our rationale had been more keyed to the removal of Saddam as opposed to what kind of WMDs we found at the precise moment of invasion or the installation of a working democracy.

[pcs]

I just don't think that declarations of war are required any more to fight wars.

 

I can't find any case law suggesting that they were ever necessary, and one to two hundred years ago the vast majority of actions against other nation states conducted without the cover a declaration. Hell, even the Hague Convention on opening hostilities didn't come until near the turn of the century.

[Jim]

Two questions.

 

1. What is the prevailing legal definition of a declaration of war? What's it's purpose and zone of concurrent action?

 

2. Is a DOW an authorizing instrument?

 

3. Where does the current case law stand on whatever distinction may exist between AUMFs and DOWs?

 

I had a better article on DOWs that I can't find this weekend. I'll see if I can't find it tomorrow. Essentially, it was saying that the DOW process is an anachronism. Hamdi sure seems to allow a president wartime powers even in the absences of a DOW.

 

Excepting Hamdi, I'm not sure if there is any recent case law on the distinction.

[Jim]

I can't find any case law suggesting that they were ever necessary, and one to two hundred years ago the vast majority of actions against other nation states conducted without the cover a declaration. Hell, even the Hague Convention on opening hostilities didn't come until near the turn of the century.

 

I'll try to find this article which did give a lot of context. I'm kind of a literalist though and I'll admit to being a little bugged that the language in the constitution is overlooked. It should mean something... heh, otoh, it's not for me to say.

 

I also do think we may need something other than an "on/off" switch for wartime powers if we are going to be in a war that will last for the rest of our lives.

[Helix]

I also do think we may need something other than an "on/off" switch for wartime powers if we are going to be in a war that will last for the rest of our lives.

 

I agree; but I think it would be far better to just not have a war that lasts that long. If we can't accomplish this war on terror in a decade, I think the US needs to re-think their strategy. A diplomatic approach would be more well received and, obviously, less violent.

[Saryctos]

I agree; but I think it would be far better to just not have a war that lasts that long. If we can't accomplish this war on terror in a decade, I think the US needs to re-think their strategy. A diplomatic approach would be more well received and, obviously, less violent.

What is the reasoning behind choosing 10 years for your time frame?