Protections for War Criminals?

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America's top military lawyers came out in opposition to the Bush Administration's proposed secret military tribunals at Congressional hearings yesterday. Apparently, these military officers understand their obligation to uphold the Constitution better than the civilians in the Bush White House. Let' s hope that Congress will listen to the concerns of these officers and reject secret tribunals.

However, another issue arose at yesterday's hearings–what to do with service personnel who may have perpetrated war crimes? According to the Washington Post:

[U.S. Attorney General Alberto] Gonzales also confirmed a report last week in The Washington Post that the administration plans to include language in the legislation designed to protect service personnel and civilians from domestic war-crimes prosecutions for any violations of the international laws of war that are committed under administration policies that have been withdrawn or ruled illegal.

"It seems to us it is appropriate for Congress to consider whether or not to provide additional protections for those who've relied in good faith upon decisions made by their superiors," Gonzales said.

Perhaps so, but that ignores the question of what to do with the "superiors" who ordered service personnel to violate the law. They cannot use the excuse "I was only following orders" because they were the ones who gave the orders. Of course, anyone who intentionally violated the laws of war while not following orders should be prosecuted.

Whole article here.

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  1. “Let’ s hope that Congress will listen to the concerns of these officers and reject secret tribunals.”

    You know, like they listend to Shinseki about troop levels. Or the NSF about global warming. Or the FDA’s scientists about Plan B. Or how they made sure to staff the CPA with experts with a thorough understanding of local conditions.

    “Perhaps so, but that ignores the question of what to do with the “superiors” who ordered service personnel to violate the law?” Good luck prosecuting them, after they’ve granted immunity to everyone would could potentially be induced to testify against them.

  2. I would contest your “perhaps so”, Ron–that was what the rejection of the “Nuremburg defense” was all about. You may not apportion blame, and punishment, in the same manner to people “just following orders”, but you cannot give them a “get out of jail free” card, either. If you expect people to act morally, there must be consequences to their actions, and that applies all up and down the line.

    Still, I join other recent posters in welcoming your posts on areas other than science and technology (althoughI greatly enjoy those, too). More Bailey, more often is a good thing.

  3. Countdown to John chiming in to slander Gen. Scott C. Black, Maj. Gen. Jack L. Rives, Feingold, and Graham for being seen among those who would deign to defy the president…three…two…one…

  4. Gonzales is an idiot. You can’t have tribunals where the defense attorney can’t share the evidence with his client. No defense attorney in their right mind would agree to defend a client under those circumstances. More importantly, the whole secret evidence issue is stupid. These guys are not getting out. Its not like they are out on bail and are going to share the information with their colleagues. Moreover, even if they are acquitted you can just declare them a POW and keep them that way. There is no reason not to share the evidence with them.

    The Geneva Conventions work. It is not that hard. You have an Article 5 tribunal to determine if these clowns are entitled to POW status and then if they are not you try them as criminals under the UCMJ. That does not mean that you give them all of the protections currently in the UCMJ. All the President has to do is go back to Congress with a workable tribunal system and get Congress to sign off on it. The Courts will never take on both Congress and the President over this issue. The problem is that no one is going to sign on to no right to see the evidence and evidence admissible when obtained by torture or under duress.

    I am very sympathetic to the idea that you can’t do terror trials without some changing of the normal evidentiary rules used for ordinary crimes. Look, there are perfectly responsible, democratic governments who in handling criminal cases do things like allow hearsay, have no right against self incrimination, and limited rights to confront witnesses. It would not be that hard to come up with a military tribunal system that recognized the special issues of prosecuting terror cases while also guaranteeing some order of fundamental fairness. The military has been thinking about these issues for years and has the collected experience of doing them in World War II and before. This is not that hard of a problem to solve.

    The bottom-line is that the Justice Department, the Office of Legal Council to the President and ultimately the President himself for listening to these idiots has totally fucked this thing up.

  5. If a the Prez and his supporters claim, these guys are so clearly “bad guys” why must these commissions be such kangaroo courts? The administrations almost perverse desire to give as little as possible makes me think they must be aware that in any fair process their charges will be unsupportable about a great deal of prisoners…That or they are just a bunch of authoritarian bastards…

  6. I know I’m just being silly in the extreme, but there is a (defendant’s) chair open at the Hague, now that Milosevic has gone to his Reward. Too bad we’ll never see George W Peron sitting in it.

  7. Hey Bungie

    Good timing. Dumb Ass. Too bad you are too stupid to actually listen to what I say. I have been down on Gonzalous and Justice on this issue since day 1.

  8. Oh, my bad, some of those guys are Republicans.

  9. “Oh, my bad, some of those guys are Republicans”

    It is just too funny that as you were writing that I was talking about how Gonzales and Bush are screwing this up. Too bad you couldn’t just have your own views on the subject.

  10. I have some sympathy for the administration’s opposition to the International Criminal Court, but this is ridiculous. I thought that the reason we could oppose the ICJ while retaining our principles was that we would do a very good job of enforcing war crimes laws on our own, in our own courts. But I guess the Bushies have decided that even that is asking too much. As for the ‘I was following orders’ defense, the Bushies are just begging for Nazi comparisons here, and for once such comparisons would be justified.

  11. No, it’s not my stupidity, John. Your shit is usually such tiresome boilerplate nonsense that I quickly lose my chubbo for any issue you might comment on. I’m with you on this one, but how long before we get lost in the blanket apologies for whatever the fuck the military has done or decides to do?

  12. Ken,

    I think the problem is that they fucked up with the guys in GITMO and didn’t try them early enough. We are like 5 years down the road since some of them were captured. There is no evidence left. Yeah, they are nasty guys who should not be let go, but after five years the evidence showing that is a little stale. If you have a fair system maybe some guilty guys get out because they fucked up so badly to begin with back in 2001. They have painted themselves into a real corner if that is true. It is just a guess, but I think that is a part of it.

  13. Yes bungie everyone who disagrees with you is just tiresome boiler plate and never actually thinks about anything. You are a typical Reason poster. I take it as a compliment though. People only toss personal insults and invective after you make good points that they can’t answer, so they start getting emotional.

  14. I have been down on Gonzalous

    Oooooh John. You naughty boy. Yyyyeeeeoooowwww!

  15. yo, i hate the government. when is our anarcho-capitalist birthright going to unfold? before technological singularity, i hope.

  16. I just want to say, John, that I admire your vitriol. You kick ass, and I am not being sarcastic.

  17. I just want to say, John, that I admire your vitriol

    Me too.

    I can imagine John with a fat cuban cigar, aviators and a loaded firearm (which he is qualified to wield) saying ‘I’m going to give you one chance to answer. And it better be what I wanna hear’…..

  18. “Good timing. Dumb Ass.”

    Um John, that was your opening volley.

    “People only toss personal insults and invective after you make good points that they can’t answer, so they start getting emotional.”

    You don’t say.

  19. People only toss personal insults and invective after you make good points that they can’t answer, so they start getting emotional.

    Is that why you spent most of yesterday calling Murtha a bottom-feeding scumbag liar for his criticism of the Marines’ cover-up of the Haditha massacre?

  20. This is one of the main reasons I mindlessly drone on about the Censor. In all seriousness, the fact that the Administration runs the military and the law enforcement/internal investigation arm of the government makes things a bit problematic. Someone with a less vested interest is needed to deal with such things, especially when they might have some popular support despite being unconstitutional (or, at least, immoral/unethical). Members of the same party as the POTUS in Congress simply cannot be trusted to conduct a no-holds-barred investigation.

    Naturally, the Attorney General and DOJ are going to support and defend the positions taken by the Administration. Their job should be to independently serve the interests of the country–not of the POTUS–but that’s not the way it works. Politics makes that very difficult. A permanent watchdog with teeth is necessary to keep the executive in line. . .and the legislative branch, too, while we’re talking abuse of power.

  21. PL:

    …independently serve the interests of the country…

    Isn’t that what SCOTUS is supposed to do? See Hamdan v. Rumsfeld.

  22. Ron,

    To some extent. The problem is that the SCOTUS is somewhat weak on investigatory and enforcement powers. It’s made so, of course, but I think when it comes to dealing with the abuse of power within the federal government, another branch is needed. The factionalism inherent in the system has dramatically weakened the inter-branch competition that was intended to protect us from any branch going too far afield. In my opinion, anyway.

    The presidency isn’t our only problem, of course. Other than the latest shenanigans (post 9/11, I mean), I have usually worried more about the imperial Congress than about the imperial presidency.

    You seem like a reasonable fellow. Want to be the first Chief Censor? The job comes with a toga. . .with nice purple fringes πŸ™‚ And I picture the Censor’s Residence as a marble-clad Roman villa, with lovely statuary. The job pays well, with a bounty for each official chastised, berated, humiliated, and removed forthwith.

  23. Ron,

    To some extent. The problem is that the SCOTUS is somewhat weak on investigatory and enforcement powers. It’s made so, of course, but I think when it comes to dealing with the abuse of power within the federal government, another branch is needed. The factionalism inherent in the system has dramatically weakened the inter-branch competition that was intended to protect us from any branch going too far afield. In my opinion, anyway.

    The presidency isn’t our only problem, of course. Other than the latest shenanigans (post 9/11, I mean), I have usually worried more about the imperial Congress than about the imperial presidency.

    You seem like a reasonable fellow. Want to be the first Chief Censor? The job comes with a toga. . .with nice purple fringes πŸ™‚ And I picture the Censor’s Residence as a marble-clad Roman villa, with lovely statuary. The job pays well, with a bounty for each official chastised, berated, humiliated, and removed forthwith.

  24. “To some extent. The problem is that the SCOTUS is somewhat weak on investigatory and enforcement powers. It’s made so, of course, but I think when it comes to dealing with the abuse of power within the federal government, another branch is needed.”

    We kind of did that Pro with the Independent Counsel statute and we ended up investigating the President’s blowjobs. The problem is that once you create such a beast, it must eat to live meaning that it has to find some abuse of power somewhere at all times to justify its existance. You might get a good investigation into what you are originially outraged about, but after that you will just have this bureaucratic monster out turning political disagrements into criminal matters.

  25. budgie,

    John has been consistent in his criticism – on both practical and ethical grounds – of the kangaroo court system that the Bush administration has attempted to foist on the unwilling military.

    John,

    I’ve been impressed by your informed and reasoned take on this issue. It seems to me that the administration is ignoring the experts in the field, and the thoughtful positions they stake out on the practical, professional, and ethical issues involved, in favor of “my way or the highway” thugishness and simplistic, right-authoritarian, self-serving efficiency. In the process, they have often insulted these professionals, and attributed their objections to a political conspiracy and a lack of balls.

    I’d like you to consider the possibility that they, and quite frankly you, have engaged in the same behavior to the professionals in the fields of intelligence, diplomacy, foreign aid, climate science, Constitutional law, and military strategy.

    Don’t you find it odd that, in the one field that you seem to be somewhat of an expert it (military law), you recognize what is happening immediately and object to it, but when the administration gets into a very similar fight in other areas, you take them at their word and accept their demonization of the professionals?

  26. Well, John, my first thought is that I don’t mind a few politicians and appointees getting tossed on their asses, even if they’re relatively innocent.

    However, I agree that a professional witch hunter is a real danger with something like the Censor. I don’t believe that the IC really had sufficient safeguards built into it to prevent overly politicized investigations. And, as I’ve said elsewhere, preventing that sort of politicization may be a fool’s errand.

    However, that’s really true of the whole system–all of the checks and balances are subject to abuse and have failed on far too many occasions. That doesn’t mean that we throw them out, though–they do much more good than evil. I see the Censor as a refinement of and as an additional check on a government grown far too powerful. If we could reduce the scope and power of the federal government, I’d stop mumbling about this so much πŸ™‚

    In any case, a lot of controls would be needed to avoid the risk that you’ve noted. Not enough to emasculate the office but enough to make it effective. The SCOTUS is a model of sorts, though I’d go beyond that a bit to avoid too many purely politically motivated removals and chastisements.

    It’s been too long since I’ve read The Federalist Papers and other Constitutional literature, but I wonder whether anything like this was ever contemplated by the Founders? They were heavily influenced by the Greek and Roman political models (they read Polybius as closely as Locke or Montesquieu)–for instance, they did consider a consular-style executive at one point, with two consuls or even one from each region of the country instead of a single executive. Any analysis of the feasibility and desirability of our toga-clad Diogenes, the Enforcer should start with the Founders, anyway.

  27. Pro Lib,

    What if, instead of a Censor, we were to give SCOTUS direct control of the Federal Marshals?

    “The Chief Justice has made his ruling; now let him enforce it.”

    “Um, ok. Major, take this restraining order and a battalion of your men, and go defend the Cherokee.”

  28. I don’t know, joe. I fear giving executive power to the judiciary. We might end up with some sort of House of Lords, that way.

  29. PL-

    It sounds all well and good to say that if we change the system in a certain way then it will react predictably and so things will improve. Hell, I’ve often entertained thoughts like that.

    However, while others fear an overly aggressive Censor, what if factionalism produces the opposite effect? What if the Censor becomes just as partisan as anybody else and adopts a “hear no evil, see no evil” attitude toward those from his side and the opposite approach to the other side? What if the process of choosing the Censor, however it’s conducted, is captured by the same interests that seek to influence every other process, so the Censor is noticeably blind to certain types of misbehavior?

    I’m a big fan of our system of checks and balances. It’s a great concept, and it works better than a lot of other systems around the world. But to the extent that it doesn’t always work, I’m by no means convinced that adding even more to it will somehow remedy the breakdowns.

    I suspect that what we’ve got is about as good as it gets, as far as structure is concerned.

  30. I don’t think it’s possible to develop a system immune to internal corruption.

  31. There’s no perfect solution, of course. However, I think this could improve things a bit. I doubt many here believe that the system the Founders set up was bulletproof. It worked very well and still works okay, but the growth of government has not been prevented, and the threat to liberty grows ever greater. We either modify our system in some way, or we face a truly oppressive government in our future. It’s that simple. My first and best wish is to change the system to one much more closely like the one we started with (with some obvious changes), so that the power we’re worried about being abused would be so limited as to minimize the significance of the abuse.

    Unfortunately, I don’t see any radical return to our Constitutional roots happening anytime soon. I do think that a reformist, anti-corruption campaign to install something like the Censor (via Constitutional amendment, of course) is barely possible. And I also think that we could design the thing well enough to minimize, though not eliminate, the politicization of the investigation/removal power.

    Naturally, if we’re talking a fourth branch, it’ll need sufficient checks on its power, too. I’ve suggested having the SCOTUS involved in the appointment process and the idea of some sort of censorial override in the other branches. You could also limit the Censor’s powers to only investigation and prosecution, leaving the hearings to the federal judiciary.

    Another thought is that we could tie the states into the appointment process, though I have to acknowledge that it’s late in the day for Federalism to return to vogue. Very late in the day.

  32. Thank you Joe,

    I wouldn’t want to always say leave it to the professionals. The professionals are wrong a lot. I know several people who worked in Justice when all of this started in 2001. Their story is that DOD had plans to do exactly what was required by the conventions. At this point, Justice and Office of Legal Counsel to the President, at that time headed by none other than our friend Alberto Gonzales, jumped in and told DOD to take a hike. No one in those offices had any real expertise in the field. I think they were all very gung ho and wanted to do the right thing, but got caught up in the post 9-11 fever. They didn’t understand that there were ways to accomplish what they were trying to do. They really thought that, this is a new kind of war and the Conventions don’t apply and if we try to apply them we will loose. This combined with the institutional arrogance of Justice and OLC. They are the Ivy Leaguers with all of the political contacts and brains and the DOD lawyers were second rate. Only they were smart enough to figure the whole thing out and win the war.

    I have generally found justice lawyers with some exception to be insufferable. You would think they would be models of professionalism. They are not.

    This time they really screwed up. The problem is that the U.S. is not China or even France. The U.S. cannot just throw these guys in prison and forget about them or just shoot them like any other country could do and get away with it. Hypocrisy or not, the U.S. has got to follow the rules with these guys even though no one else in the world does. I think that what is going on here is that the Administration dicked around so long that a lot of the cases against these guys have gotten so stale that it is impossible to get convictions against them under any fair process. People are not dumb; they know what a tribunal looks like. The fear is that if we have them the evidence will be stale and some very bad people might get off and end up being held as POWs not criminals. Make no mistake; a lot of the people at GITMO are very bad folks. The problem is that if you can’t convict them by a fair process, because you waited so long and tried to deny the inevitable, what do you do? My guess is that they will end up walking. It may take a decade or so, but outside the big name ones like KSM, they will all be let go and continue their war against the U.S. When that happens, it will Gonzales and Bush’s fault. There was just no excuse for not setting up tribunals with congressional authorization right from the beginning.

  33. PL and Jennifer-

    I’m not saying that we should abandon checks and balances just because there will be corruption and partisanship. Rather, I’m saying that once you have a certain amount built in, adding more might become redundant. If the guy who was supposed to be supervising something has become unreliable (or maybe too reliable?), putting his office in a new building and giving him a new title might not make as much difference as you hope. Going from a dictator to 3 branches is a big step. Going from 3 branches to 4, with the new branch bearing a suspicious resemblance to some elements of the other 3, may not be as big of a step as you’re hoping for.

  34. I’m not saying that we should abandon checks and balances just because there will be corruption and partisanship. Rather, I’m saying that once you have a certain amount built in, adding more might become redundant.

    Oh, I agree. My comment was addressed to the general idea “all we need to do is X and then we’ll have no problems.”

  35. We have a gaping whole in our system when it comes to dealing with abuses of power and corruption. Some attempt has been made to plug that whole with the various IC laws, but that hasn’t worked well at all. Housing too much intergovernmental investigative power in any existing branch that holds other powers is placing too much power in that branch. Not to mention that at least two of the three branches are so politicized as to be incapable of anything less than a witch hunt against members of the minority party.

    Personally, I like the vision of politicians and political appointees constantly looking over their shoulders in fear of being nailed for the bad stuff most of them are doing. Yes, what I’m proposing will add another layer of inefficiency over the government. So what? Wasn’t our system designed not to work very well? In fact, isn’t the failure of the Founders to make the federal government inefficient enough the whole problem? I blame Hamilton, myself πŸ™‚

    I never said this would SOLVE the problems, incidentally.

  36. PL-

    The concern isn’t that a 4th branch would add inefficiency for the purpose of slowing things down and making sure there’s no funny business. The concern is that the 4th branch would suffer the same defects as the others and hence do no better than the status quo.

    You have an interesting idea, but a Devil’s Advocate is definitely needed in this discussion.

    What method do you propose for the selection of the Censor? Election? Appointment? Draw lots? Some hilarious trial by peril?

  37. Hmm, Thunderdome?

    You’re absolutely right–the great trick is selecting the right people to serve in the Office of Censor. I’m sure that we need a panel of Censors as opposed to one guy/gal, which would help avoid some of the problem. I did have the idea that we could have a majority of the Supreme Court appoint the Censors, with the same advice and consent role for the Senate that comes with presidential appointments. I’m not sure that makes sense, but the one thing I like about the idea is that it moves the appointment one small step away from the political process.

    I’ve also gone back and forth in my head about whether there’s any need for “balancing” the office between the parties. My tentative conclusion is no. Federal commissions are sometimes structured that way, and they are wholly partisan. I think some strong ethical, not-openly partisan requirements would need to be imposed on the Censors, too. They should be removable themselves by joint action by the other branches (with supermajorities and maybe action by all three other branches required?). Censor actions should be reviewable by the Court, of course. Probably we should make it impossible for a Censor to have served or ever to serve in federal office again, too. Maybe short terms–a year?–would be a good idea?

    Still, what happens in a situation like today, where one party controls everything? Does the Censor get loaded up with GOPers looking to strengthen their political advantage by zapping Democrats? How do we avoid that situation? You could appoint all Libertarians, I suppose πŸ™‚ Or breed a honorable group of philosopher kings to assume the mantle.

    Nobody said mucking with our Constitutional structure was easy, you know. Oh, and here’s a bone for you, thoreau: The Censor would be absolutely immune from any claims of national security or privilege, except to the extent of being restricted from publishing such information. Meaning that the administration couldn’t hide behind “national security” to hide bad things that it is doing, has done, or plans to do. The Censor could be given the power to look at records from previous governments, too, to strike more terror in the hearts of men.

  38. Too late to the party, I suppose, but my response to the Pro Libertate Proposal is that the Wise Elder, i. e. the Censor, relies too much on concentrated power, and concentrated goodness. I would be happy under the dictatorship of a philosopher king, only so long as I were he. If I understand the proposal correctly, and I freely admit that I may not, there is a tremendous power vested in the Censor. This power may be for the most part negative, but it is excessive, nonetheless.

    My belief is that the failure of our political system has overwhelmingly to do with the tenure of the Legislators. How long has Byrd been in Washington? How many of those people have ever even had a real job? I freely admit that term limits are a crude tool, but I think they have become necessary. Six years in an office (three terms in Congress, one in the Senate) is plenty, with an obligatory six year “sabbatical” before a jump from one body to the other. We no longer have a government composed of citizen Legislators; it has devolved into something populated by a close approximation of an imperial caste. It has been pointed out many times that the House of Lords has a higher rate of turnover than the United States Congress. The mechanics of such a change would be extremely difficult, but not likely more so than inventing a fourth branch from scratch.

    The imbeciles and sociopoaths who infest the Congress have no idea of, and no real interest in, the effects of their actions on the wider world (me). If we want better governance, we ought to try to bring a little fresh air, and fresh thinking, into the halls of government.

    so there

  39. Pro Liberate:

    “I did have the idea that we could have a majority of the Supreme Court appoint the Censors, with the same advice and consent role for the Senate that comes with presidential appointments. I’m not sure that makes sense, but the one thing I like about the idea is that it moves the appointment one small step away from the political process.”

    The last time a majority of the Supreme Court appointed someone was hardly removed from the political process. With apologies for speaking ill of the dead (and the brain-dead), damn Rehnquist, O’Connor, Scalia, Kennedy and Uncle Thomas.

  40. Hmmm. There’s always just the popular vote. The whole country votes for the guys who promise to kick the most ass in Washington.

    I do think that the scope of the office would have to be fairly narrow, and any prosecution or suggestion that someone be censored or removed would require proof, due process, etc. I’m not suggesting the Roman model, where the censor just struck people off the rolls because they weren’t married, didn’t have enough wealth, or looked at me cross-eyed last week.

  41. So, treat them like POWs and let them rot until al Qaeda and the Taliban surrender.

    In the meantime, let them volunteer for the kangaroo court if they want a chance to go free.

    Why does the POW-designation crowd not understand that POW-status means these guys rot forever? It doesn’t mean that they get to befriend the guards and make periscopes out of coffee pots.

  42. “So, treat them like POWs and let them rot until al Qaeda and the Taliban surrender.”

    The Afghan government for which these people may or may not have been fighting was overthrown years ago. If they are POWs in a war which has ended, then they should be freed immediately. Or do you believe the Hysteric-in-Chief when he says that no war is over until he says so? What is the meaning of “is” and who defines it? When is “is” “is” and when is “is” “was”?

  43. PL-

    Short terms would be a bad idea. Somebody could stack the deck if they got consolidated control of the gov’t for a short time. Long, rotating terms are better.

    One obvious person to put on the panel of Censors is the runner-up in the Presidential election. Maybe give the Supremes the power to put somebody on there. Then give each house of Congress a few members, but give each member one vote only and say that the top 3 get in. This way, each party would get one and then the mavericks would get one as well.

  44. “So, treat them like POWs and let them rot until al Qaeda and the Taliban surrender.”

    Head I win, tails you lose. This is a new kind of war which requires new powers to deal with it, except when it’s exactly like the old wars, and the old ways of dealing with it are to be followed precisely, regardless of how radically different the context and outcome are.

    Don’t worry, bubba and dubya will let you know, on a day-to-day or even hour-to-hour basis, whether this a new war or an old one.

  45. John,

    What about the idea that the same dynamic you describe – we’re from the Bush team, we don’t need you bureacrats with your quaint ideas, our righteous fury makes us correct, you’re just a government lifer, not even a movement conservative – that you describe in regards to this issue is relevant to, say, the creation of Feith’s Office of Special Plans, or the dismissal of the NSF climate change report as “the report from the bureacracy?”

    Also, all of this attempt to fob this off on Gonzales is just so much “if only czar knew.” Gonzales is a longtime Bush crony from Texas, yet another sub-par performer who was kept close to the clan for his loyalty. Have you ever seen him questioned before Congress? He’s an obedient functionary who couldn’t come up with the stuff on his own if he tried. His post-facto justification of why torture isn’t torture (it’s only torture if your organs shut down? What the hell was that?) shows a mediocre mind deeply devoted to the service of walking behind George Bush with a pooper scooper. Put the blame for this where it belongs.

  46. thoreau,

    Good ideas, though I reject your presidential loser reality and substitute my own πŸ™‚

    I’m definitely leaning towards SCOTUS appointment. Your suggestion of a special voting process to ensure that no party completely controls the appointment of the nominees is an excellent one. Maybe through use of a proportional ballot? Or weighted votes? Or preferential voting? You know, we could just select Censors from a large pool of candidates at random, too. Just a thought.

    As for the terms, I suppose longer terms are okay, provided that the Censors’ terms are staggered. That would complicate matters for the first group of Censors, but, thereafter, staggered terms would help to prevent a party from absolutely controlling the appointment process.

    Substantively, the Censor could serve as more than a independent watchdog. It could also conduct investigations related to impeachment proceedings and Congressional punishments/removals. Since the Censor’s sole purpose would be to investigate and prosecute abuses of power, it could be given the ability to raid Congress or the White House without the “branch prerogatives” argument being raised. Obviously, that power would require some serious limitations and checks, but it would solve one problem.

    The way I see it, the Censor is almost an anti-branch of government πŸ™‚

  47. Your suggestion of a special voting process to ensure that no party completely controls the appointment of the nominees is an excellent one. Maybe through use of a proportional ballot? Or weighted votes? Or preferential voting?

    The thing is, if you have a small number of voters (e.g. 100 to 435) who are in communication with each other and collaborate on strategies as a matter of routine, almost any proportional voting method will give the same result as what I proposed.

  48. Probably true enough. I imagine that there’s some data out there on different types of voting by small populations (collected and analyzed for corporate voting but still serviceable for our purposes, I’m sure).

    Aside from the procedural issues, what do you think the Censor’s powers should be? I go back and forth over whether the basis for removal/censure should be set out in particular terms (it probably should be at least outlined) and over whether it should have the power to deal with officials who act unconstitutionally. The libertarian in me just loves the latter idea, but the realist in me says that such a thing is unworkable. Most federal actions could be deemed “unconstitutional” in some way.

  49. It seems to us it is appropriate for Congress to consider whether or not to provide additional protections for those who’ve relied in good faith upon decisions made by their superiors.

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