The Constitution Supersedes Treaties

by: Jacob Freeze

Tue May 26, 2009 at 15:57


Now that apologists for Obama are trying to justify his plans for indefinite "preventive detention" with a perverted application of the Geneva Conventions' allowance for detaining prisoners of war for the duration of a war, and some especially devoted Obamabots are even claiming that international treaties like the Geneva Conventions supersede the Constitution, and can accordingly over-rule the due process provisions of the Bill of Rights, it's probably worth recalling that the Supreme Court has already definitively ruled against this ludicrous interpretation of Article VI of the Constitution in Reid v.Covert.

The majority opinion in Reid v. Covert is clear enough...

The United States is entirely [354 U.S. 1, 6] a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.

(Quoting Article VI, Clause 2...) "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 . . . "

There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution.

Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result.

"The United States is entirely a creature of the Constitution. It can only act in accordance with all the limitations imposed by the Constitution."

I can't imagine how this language could be any clearer.

It's also probably worth mentioning that no Declaration of War has been voted by the Congress, and therefore the United States is not at war, as defined by the Constitution.

The detainees at Guantanamo and elsewhere are not "prisoners of war." They are simply the victims of a rogue executive branch of the United States government, which has illegally abrogated and continues to abrogate the due process provisions of the United States Constitution.

Jacob Freeze :: The Constitution Supersedes Treaties

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Exactly. (4.00 / 2)
We are engaged in a public discussion of the U.S. kidnapping, torturing, murdering people from other countries, setting up secret prisons, "disappearing" people, and refusing to enforce the law against those powerful and wealthy people in our country who have committed these crimes.  We have calm discussions about whether or not we should end the war of aggression we have been waging against Iraq -- a country that neither attacked nor threatened us, nor had any apparent ability to attack us.  We publicly debate these issues and pretend that reasonable people can have different views.  But the entire debate is insane.

We started a war of aggression, and we need to immediately withdraw then let somebody else figure out what we owe to the victims as reparations.  We have kidnapped people.  As you note, we have no legal basis for being in Iraq under any circumstances, and Congress never declared war in any event, so the entire assault and occupation should be seen as a crime, and those responsible should be tried and imprisoned.  The idea that we can kidnap people from a country that we illegally attacked, then have "trials" by anyone in the U.S. -- military tribunals or federal courts -- is ludicrous.  If these people are alleged to have violated some crime, take them back to Iraq and let Iraq and the people of Iraq try them.  

The entire debate is mad.  The Obama administration lends credibility to the insanity of its predecessors by debating "military vs. federal trials," when the fact is that these people were kidnapped and need to be returned to their own countries.

Most of Congress supports the continuation of this insanity.  I just read something saying the military is planning to occupy Iraq for 10 more years.  I figure more like 30 years, because that's when the oil runs out.

Maybe we need to go back to the drawing board and re-build the anti-war movement.  Demand the wars be ended.  Without that preliminary step, nothing else is likely to change.      


It's good to hear from you, NAB! (0.00 / 0)
I think that discussion of any given subject in the mainstream media is more like osmosis than any rational process. If the water gradually turns blue around an issue, Democrats like it, and if it gradually turns red, it's a Republican talking point.

So when you jump down through two or three layers of assumptions in one fell swoop, and relegate all the usual noises about military tribunals to a never-never land of historical trash, you might as well be speaking Hottentot to a mud-puddle, for all the resonance you can expect to awaken in public discourse.

But apart from that gnarly rhetoric, I actually have a couple of ideas to dump on your blog in the near future.  


[ Parent ]
Always Glad To Hear From You, Jacob. (4.00 / 1)
The points you make here are so true, yet completely ignored by the media.  They see our government as being a kingdom, or dictatorship, in which the president or congress are free to do whatever they want, by royal proclamation, and we the citizens have the burden of trying to set aside their conduct.  But the opposite is true.  We have specific limitations and laws that give narrow authority to the government, and everything they do outside of that is extra-legal and by definition unauthorized and wrong.  

[ Parent ]
Optimistic (4.00 / 1)
Your's is an accurate description of the situation. One part inparticular made me laugh: "Demand the wars be ended."  I seem to remember that, with regard the the invasion of Iraq, seeing massive rallys all across the world (including many cities right here in the belly of the beast) that were demanding that the war not be started in the first place.  My simple demand at the time was for a public debate and a vote ("up or down!", I think, was the catch phrase of the day) on a Declaration of War. Demanding wars be ended is pretty optimistic, especially when we could not even manage to stop one that hadn't even started yet.

I don't think the problem was only the hap-hazard and myopic "leadership" of the anti-war protests (Remember A.N.S.W.E.R.? I don't). No, a good portion goes to the so-called "opposition" party in the US congress at the time. I'm not absolving the Neo-Con Junta, certainly, but not a single congress person stood to suggest that they do their duty and put forward a Declaration of War for debate and voting. Too busy jockeying for a pose that would best serve their future political ambitions and/or sucking up to political donors.

So, yeah, "rebuild" the anti-war movement - but let's not pretend that such marches and rallys can pierce the veil that separates our interests from those pursued by our "leaders" in our name.


"It sounds wrong...
     ...but its right."


[ Parent ]
You are right. (4.00 / 1)
I read a good article in Z Magazine this morning, talking about the disappointment among liberals in what they've seen so far from the Obama Administration:  escalating the war in Afghanistan, starting a new war in Pakistan, affirming the never-ending war in Iraq, billions in bailout for Wall Street with "entitlement cuts" on the board for the citizens, no jobs, no job programs.  It's hard to find anything to cheer about.  

But I do think the war issue must be central, and the economic devastation suffered by most people in this country must be tied to the wars.  As long as our money continues to be poured into the formalized slaughter of others, we will go further into the hole.  It's a specific, concrete issue.  If we can show people that the same politicians who ignore us in our demands that the war be ended are also ignoring our demands for jobs, and that the two things are connected, that is how to build an anti-war movement.  

Unfortunately, racism will prevent many Americans from caring about the slaughter of the children of Iraq.  But if we appeal to the pocketbooks of Americans, show that the war funding is coming from them, that the failure to have jobs programs is a result of the neverending wars, the proposed slashing of education, Social Security and Medicare is all because of these wars, then maybe we can get millions of people in the streets.  

Both parties and the corporations that rule them fear a mass-movement of pissed-off Americans.  They want us home, complacent, isolated, afraid.  So maybe tie anti-war and economic/jobs issues together, and use that to organize around issues, not politicians or personalities.    


[ Parent ]
No doubt (4.00 / 1)
I've always felt that the protests and rallies are better referred to as Pro-Justice, rather than Anti-War. There are times when simple opposition is needed, but at this time, a viable alternative should be presented. If not war, then what? Reparations?

Where are your tax dollars better spent? Buying pilotless drones that will only serve to increase the anti-American sentiments by killing civilians at a 49 to 1 rate over those deemed "terrorists", or helping your fellow citizens to climb out of their under water mortagages?

I don't expect leadership on these issues from the President, or any other politician. They'd just be setting themselves up for a GOP take down. We, the people, need to demonstrate that opening these discussions is not a dangerous can o' worms. I'd love to see an occupation of of the Mall in DC and round the clock protests. Put it in Obama's face and see what happens. Explicitly tied to the economy and justice issues, it would be very hard for a President like Obama to stay out of the debate (I think).



"It sounds wrong...
     ...but its right."


[ Parent ]
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