“Soft despotism is a term coined by Alexis de Tocqueville describing the state into which a country overrun by "a network of small complicated rules" might degrade. Soft despotism is different from despotism (also called 'hard despotism') in the sense that it is not obvious to the people."

Monday, April 16, 2018

The Constitution expressly gives Congress significant power over the military.

Most notably, Congress has power to “make Rules for the Government and Regulation of the land and naval Forces.” Nothing in the Constitution requires these “Rules” to be consistent with the President’s desires:

The president is not our ‘commander-in-chief’

Politicians should stop referring to the President of the United States as “the commander-in-chief,” as he is often referred to.  Most recently Hillary Clinton, who I admire, said the following about Republican senators who wrote an open letter to Iran:

“Either these senators were trying to be helpful to the Iranians or harmful to the commander-in-chief in the midst of high-stakes international diplomacy.”
But the president is not the commander-in-chief for purposes of diplomatic negotiations.  This characterization mistakenly implies that President Obama—or any president—is our commander, and that his decisions should receive special deference.  This is a misreading of our constitution, which creates a presidency that is subject to the checks and balances of co-equal branches of the government.  The president is only the commander-in-chief of “the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.” This provision was intended to assure civilian control over the military and to serve as a check on military power. 
The only people he is empowered to command are soldiers, sailors and members of the militia—not ordinary citizens. 

This important limitation on the president’s power is highly relevant to the current debate about Congress having the authority to check the president’s decision to make the deal, currently being negotiated with Iran.  The Constitution is clear about this.  The president is not the commander-in-chief of our nation’s foreign policy.  When he is involved in “high-stakes international diplomacy,” his involvement is not as commander-in-chief of our armed forces, but rather as negotiator-in-chief, whose negotiations are subject to the checks and balances of the other branches.

As president, he cannot even declare war, though he can decide how a war should be fought after Congress declares it.  He cannot make a treaty without the approval of 2/3 of the Senate.  He cannot appoint ambassadors without the consent of the Senate.  And he cannot terminate sanctions that were imposed by Congress without Congress changing the law.  Were he the “commander-in-chief” of our country—as Putin is of Russia or as Ali Khamenei is of Iran—he could simply command that all of these things be done.  But our Constitution separates the powers of government—the power to command—into three co-equal branches.  The armed forces are different: power is vested in one commander-in-chief.
To be sure when politicians call our president the “commander-in-chief,” they are using that term rhetorically.  But it is dangerous rhetoric, because it suggests a concentration, rather than a division, of power.  Military metaphors are as inappropriate in a democracy as is martial law, which does empower the executive to act as the commander of all people, but only in cases of extreme emergency. 
So let’s describe the president by his actual constitutional role:  the head of the executive branch of our tripod government that stands on three equal legs.  As the head of the executive branch, he gets to negotiate treaties, agreements and other bilateral and multilateral deals.  But Congress has a say in whether to approve what the president has negotiated. 

Turning to the deal with Iran over nuclear weapons, there are sharp disagreements between the executive branch and the legislative branch over the merits of what appears to be the deal now on the table.  No agreement has yet been reached, but assume, for argument’s sake, that the president negotiates a deal with which a majority of Congress fundamentally disagrees.  Who gets the final word?  That depends on several factors.  

First, of course, is whether the deal negotiated by the president constitutes a “treaty,” within the meaning of the constitution.  If it does, then it requires the formal ratification of the Senate.  The Obama administration has taken the position that this is merely an executive agreement and not a treaty.  That of course is a knife that cuts both ways, because treaties are binding until formally revoked, whereas executive agreements can be undone by future presidents.  The law is anything but clear as to what makes a bilateral or multilateral agreement a treaty, but this one has elements that are treaty-like in its content.  So even if it does not formally meet the definition of a treaty, this agreement should require some form of approval by the legislative branch, particularly if it is to remain an enduring part of American foreign policy. 

Another factor that impacts the role of Congress is whether the agreement requires Congress to remove existing sanctions that were put in place by congressional action.  If it does, then the approval of Congress in the removal of such sanctions will be required.  The president does have some sanctioning power and he can remove sanctions that he or past presidents have imposed.  This deal would seem therefore to require congressional approval, since it includes the removal of congressional sanctions. 

These important issues will be debated over the next weeks and months, but what should not be debated is the role of the president in a democracy based on the separation of powers.  So let’s stop calling the head of our executive branch the “commander-in-chief,” and let’s stop creating the false impression that the president alone can make an enforceable and enduring deal with Iran regarding its nuclear weapons program. 

Dershowitz is a lawyer, constitutional scholar, commentator and author, whose latest book is an e-book titled Terror Tunnels: The Case for Israel’s Just War Against Hamas (Rosettabooks 2014).


  1. Bill Clinton, Barack Hussein Obama, George W.Bush, Donald Trump:

    What possible qualifications did any of these men have vested to be a "Commander and Chief"? Could any system be more absurd?

    Yes, giving the power to a body that consists of the majority of the ass clowns in the US Congress.

    1. :)

      Rather than the ass clowns in Congress, pick someone out of the first 500 names in the phone booth, as William F. Buckley might suggest.

      Could that person be any worse ?

  2. I was just listening to Dershowitz on Fox.

    The Donald should begin to treat Mr. Magoo with some kindness and respect.

    While Magoo recused himself from the Rooskie/Mueller business, which isn't coming to anything anyway, Magoo is The Boss of the persecutors in the Southern District of New York, who have the Cohen case, which is where some dangers may lurk for The Donald.

    I tell ya, what a situation.

    The whole thing.

    'What a revoltin' situation'

    1. Strike the last line above and replace with:

      "What a revoltin' development this is!"

      Life of Riley

      Jackie Gleason

    2. Judge Napolitano on Fox just said the persecutors at the Southern District of New York can't be gotten rid of so I don't know who is right, he or Dershowitz.

  3. "Hillary Clinton, who I admire"

    O come on, Alan

    "and let’s stop creating the false impression that the president alone can make an enforceable and enduring deal with Iran regarding its nuclear weapons program"


    Thank you, Alan, for giving The Donald perfect leeway for scuttling the idiotic thing.

    1. Alan was a little grumpy this morning for some reason.

      Maybe indigestion.

      Or he didn't like the questions of the hosts.


    Robert Mueller’s Excellent Adventure


    ....Meanwhile, there is this breaking development. Just a short while ago, federal agents, apparently with guns drawn, raided St. Andrew's Episcopal in Maryland, where the president’s youngest child, Barron, who just turned 12, goes to school. Early reports are confusing, but this is sure to be a major story. One unnamed source close to the special counsel’s office has said that the feds are investigating suspicious interest in Russia among several teachers at St. Andrew's, some of whom travelled to Moscow during the 2016 presidential campaign, two of whom were photographed in sight of the Kremlin. There are also reports that one of the teachers placed near the Kremlin surreptitiously passed as yet undisclosed documents to Barron in a secluded hallway between classes. Barron himself was photographed speaking alone with a Russian student at school. Anonymous sources have identified the student as the youngest son of Sergey Kislyak, the Russian ambassador, whom Michael Flynn, President Trump’s first national security advisor, also spoke to. The special counsel is also said to be looking into irregular payments made to Barron Trump’s lemonade stand business, which The Washington Post—citing a source close to John Brennan, former head of the CIA under President Obama—claims was unregistered. Some pundits have expressed skepticism about the heavy-handed behavior of the FBI in this case, but Rachel Maddow expressed the consensus opinion in Washington when she said that the whole future of our democratic society is at stake. “Robert Mueller is a national hero, a real straight arrow,” she said. “It is imperative that we let him follow the evidence wherever it may lead.” Steven Hatfill, the government virologist whom Mueller wrongly fingered for the 2001 anthrax attacks, was unavailable for comment, probably because he is off somewhere enjoying the $5.8 million settlement he won from the government and various media outlets who hounded the poor man on the authority of Robert Mueller.....

    1. But again I misspeak: I say “investigation” but what I mean is “cover-up.” That’s what Lee Smith, in an important piece in The Tablet, calls it, and he is right.

      As director of the FBI during the post-9/11 period, when foreign intelligence surveillance and its abuses made regular front-page headlines, Muller knows exactly how the system can be abused—and what the penalties are. He also recognizes that Russiagate is evidence of how it was abused, and who abused it—including some of the same people he worked with during his 12-year tenure as FBI director.
      The purpose of the Mueller inquiry is therefore not to investigate the mostly ludicrous-seeming charges in the Steele dossier, but to protect the institution of the FBI, former colleagues, as well as the national security surveillance system. Therefore the inquiry has to cover up the sinful origins of the collusion narrative itself—which was born in repeated abuses of power and subsequent crimes committed by US officials in the intelligence bureaucracy and the Obama administration.

      I think this is exactly right. But what does it portend? Lee Smith explains that, too. “[B]y using the justice system as a political weapon to attack the enemies of the country’s elite, Robert Mueller and his supporters in both parties are confirming what many Americans already believe. That in spite of all the fine rhetoric, we are not all equal under one law. There is in fact a privileged class, a ruling class that sees its own interests as identical with the public good, and never pays a price for its failures, its abuses, and its crimes.”....

      ....But then Donald Trump performed the impossible and won the election. John Brennan James Comey, Andrew McCabe, love birds Peter Strzok and Lisa Page, Rod Rosenstein, James Clapper, Hillary Clinton, Bruce Ohr and his wife Nellie -- they and many others were suddenly exposed. It’s a felony to leak classified information, to unmask individuals for partisan gain or to turn the FBI against citizens to assure a certain political outcome. Had Hillary been elected, none of this would be news. We’d never have heard of it. Robert Mueller was appointed to make sure nothing comes of it and that the elites, including his good friend James Comey, are protected. It is a disgusting spectacle, dangerous to the the integrity of our institutions, and it should be shut down now.


  5. Moscow has ‘irrefutable’ evidence chem attack in Syria’s Douma was staged – Russia’s envoy to OPCW

  6. Inspectors from the global chemical weapons watchdog have been unable to access sites controlled by Russia and the Syrian regime in the town of Douma to investigate an attack on 7 April that killed dozens and prompted US-led missile strikes over the weekend.

    The director-general of the Organisation for the Prohibition of Chemical Weapons told a meeting of the OPCW executive council that inspectors had not been allowed to visit the town outside Damascus, the UK delegation tweeted. “Unfettered access essential. Russia & Syria must cooperate,” the delegation tweeted.

    According to Petter Lycke, Sweden’s representative at the OPCW executive council, Syria and Russia told the inspectors that their safety could not be guaranteed.

    In remarks that could indicate an attempt to bog down the OPCW team, Russia’s deputy foreign minister, Sergei Ryabkov, said the inspectors will not be allowed to access the site until they produce an appropriate UN permit.

    Russian military officials were at the site of the Douma attack days before the OPCW reached Damascus, leading to fears that the site might have been tampered with.

    1. OPCW inspectors need an appropriate United Nations permit ?

      Dang !

      That makes things tough.

      I wonder what the fee is ?

      I've concluded over my life that, really, Russians are mostly a bunch of assholes.

      These days they are losing population as they are drinking themselves into the early grave.

      So be it.

      The women can't find a sober man to form a family with, so they go to the international advertisers, and try to get out of the predicament that way, finding someone somewhere else.

      One ad site they use is Q-Mates, International, mating people up out of Detroit, Michigan.

  7. Michael Cohen and the End Stage of the Trump Presidency

    By Adam DavidsonApril 14, 2018

    Remember, this is The New Yorker you're reading. But good article.



  9. What a hoot.

    Stormy Daniels was in court today at the Cohen hearing.

    She was both spectator and spectacle.

    1. Good God, I think Fox just said the third unidentified client of Mr. Cohen was Sean Hannity !


      I can't believe this tale told by an inebriated deity.

    2. I'm beginning to believe Cohen is a crook, but not very high level like say Hillary.

  10. Donner Lake, April 16

    1. Truckee

    2. I think I've been by Donner Lake, in the long ago, when a kid.

  11. On The War Powers Resolution And Syrian Air Strikes

    TAYLOR MILLARDPosted at 2:31 pm on April 16, 2018

    The War Powers Resolution will probably be something brought up over the next week or so while people discuss the constitutionality of President Donald Trump’s airstrikes on Syria. The other discussion might be just what exactly the U.S.’ role in Syria is after UN Ambassador Nikki Haley told Fox News Sunday it was “up to Assad” on whether more strikes would happen, and promised more strikes would happen to hurt Assad if he still uses chemical weapons. All these strikes are happening despite no vote in Congress allowing the president to use the military against Assad, just like it didn’t happen in 2013 when former President Barack Obama did similar strikes and the Pentagon sent troo-err-military advisers into Syria.

    SEE ALSO: Jonah Goldberg’s Suicide of the West

    The War Powers Resolution/Act is a continuous source of debate within U.S. foreign policy circles. The Constitution says in Article 1, Section 8 only Congress can declare war. Congress passed the War Powers Resolution in 1973 overriding a veto from Richard Nixon, in hopes of pushing back a little against executive overreach on issues of military action. The legislative branch was hoping to correct an abysmal mistake from 1950 where no vote on getting involved in Korea ever happened, nor was any resolution sent to Congress on the issue. The prevailing theory appears to be the War Powers Resolution allows the President to involve American troops in any combat, so long as he or she tells Congress about it within 48 hours. This comes from Section 4 of the act.

    Trey Gowdy: Comey was willing to put all of his supposed problems with Trump aside to keep his job
    (a) Written report; time of submission; circumstances necessitating submission; information reported. In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—

    (1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

    (2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

    (3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;

    the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth—

    (A) the circumstances necessitating the introduction of United States Armed Forces;

    (B) the constitutional and legislative authority under which such introduction took place; and

    (C) the estimated scope and duration of the hostilities or involvement.

    There’s also Section 5b which includes has the 60-90 day timeline, typically discussed as to how long U.S. military action can go on.

    (b) Termination of use of United States Armed Forces; exceptions; extension period

    1. Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543(a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

      But one thing Michigan Congressman Justin Amash explained on Twitter, is the fact Section 2 tends to be ignored in public discussion (emphasis mine).


      SEC. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.

      (b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.

      (c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

    2. The question now becomes whether Section 4 runs askew of Section 2. The former could be read as allowing the President to get troops involved in combat, then inform Congress of what’s going on. I believe this was something addressed in Clear and Present Danger by Tom Clancy where the Army Rangers were involved in an attack on a drug cartel without the knowledge of Congress. Clancy’s interpretation (and he was much smarter than I’ll ever be) was the traditional one regarding Congress knowing when troops were going into combat.

      Yet, it’s possible the actual interpretation involves troop movements, not necessarily inserting them into combat. Example: If Trump had told Congress he was sending a carrier group to the Arabian Sea, then it would fall under the auspices of the War Powers Resolution. The same could be said if more troops were headed to Iraq or Afghanistan, where the U.S. still has active wars, or if there was an increase in troops in any of the other U.S. bases on foreign soil. It would still be up to Congress to approve whether the U.S. gets involved into any offensive action, say, airstrikes in Kosovo or Syria before those strikes could begin.

      This is only a possible interpretation, not necessarily what the resolution actually means but it certainly seem plausible, given the constraints laid out in Section 2 and the Constitution itself. It’s why Trump-and, previously, Obama may have violated the War Powers Resolution and the Constitution by involving the U.S. military in offensive actions against Syria, without authorization from Congress. There needs to be a vote in Congress as soon as possible on whether the military should be involved in Syria (it shouldn’t). Senator Bob Corker claimed to be working on a new Authorization for Use of Military Force, but the text has yet to be released. He should do this sooner, rather than later, so Congress can debate and vote on the issue.

      Whether they will is anyone’s guess.

  12. Lindsey Graham is annoyed that Trump didn't use thermonuclear weapons to take out Damascus and Moscow just for good measure.

    1. That would indeed insure that the little kids of the area don't die of poison gas.

  13. Comey's girls.



  14. Timber Sycamore was a classified weapons supply and training program run by the United States Central Intelligence Agency (CIA) and supported by various Arab intelligence services, most notably that of Saudi Arabia.
    Launched in 2012 or 2013, it supplied money, weaponry and training to rebel forces fighting Syrian President Bashar al-Assad in the Syrian Civil War. According to U.S. officials, the program has trained thousands of rebels.[1][2]

    President Barack Obama secretly authorized the CIA to begin arming Syria’s embattled rebels in 2013.[3] However, the CIA had been facilitating the flow of arms from Libya to Syria "for more than a year" beforehand in collaboration with "the UK (United Kingdom), Saudi Arabia and Qatar."[4]

    The program's existence was suspected after the U.S. Federal Business Opportunities website publicly solicited contract bids to ship tons of weaponry from Eastern Europe to Ta┼čucu, Turkey and Aqaba, Jordan.[5]

    One unintended consequence of the program has been to flood the Middle East's black market with weapons including assault rifles, mortars and rocket-propelled grenades. The U.S. delivered weapons via Ramstein - supposedly in breach of German laws.[6]

    1. I could use some rocket propelled grenades.

      What for, I don't know, but it would be nice to have some around.

    2. .

      It's the only way you or Wayne could possibly out a wolf.


    3. .

      s/b 'take out a wolf'

      I don't think either of you guys could get close enough to determine if it was gay.


  15. Winner waits at Boston Portapotty.

  16. Hanalei saw more than 2 feet of rain — and then the rain gauge broke

  17. Federal Judge Who Rejected Trump’s Request For a Restraining Order Over Materials Seized in FBI Raid Officiated George Soros’ Wedding

  18. “The client has asked that their name be protected,” said Todd Harrison, one of Cohen’s attorneys. “In the future, this will affect people’s willingness to consult an attorney.”

    Harrison’s assertion that naming the client could endanger the entire legal system prompted widespread laughter in the courtroom.

    “I just can’t understand the argument that just because this undisclosed client consulted with Mr. Cohen that that is somehow embarrassing or an invasion of privacy,” Wood said.

  19. Me thinks Jimbo Coomey and Corey Booker should start dating.

  20. They could look and take each other's hands, check their coiffure or lack thereof, analyze each other skin tones and call themselves CoCo

  21. I haven't used this word in years, "Galoot" but watching Comey, he defines the word.

  22. FACTOID:

    When Trump's was boinking porn stars, he was a Democrat.

  23. During ABC’s much-anticipated interview with former FBI Director James Comey, the ex-lawman held virtually nothing back, from his views on impeaching President Trump to gossiping about hand size. Yet curiously, Comey brushed away one issue that he clearly didn’t want to discuss: his leaking of memos to the New York Times.

    “(W)hether you can leak unclassified information, I don't want to get involved in that,” he said firmly.

    That won’t come as a surprise to America’s working-level spies and law enforcement officers. They can see right through Comey’s charade of “leadership” and “loyalty” because they know the immeasurable damage he has caused.

    Here’s why.

    When a servicemember, covert operator, or G-man takes their oath of allegiance to the nation, it’s a moment of both joy and humility. It’s a covenant signifying sacrifice, fidelity, and mission.


    And then, on June 8, 2017, everything changed.

    On that day, Comey admitted to leaking notes of his conversations with President Trump to the New York Times. He used a friend – or “cutout” – to leak the memos so that he could hide his identity.


    But the most worrying of consequences was his demonstration to partisan spies and G-men that they too could successfully leak. How? Legal analysis explained that the disgraced leader followed a series of clear steps to avoid prosecution. They included:

    1. Resign or be terminated from your position. Inspectors General have little jurisdiction over a former employee.

    2. Ensure that any leaked information can be argued as an unclassified “personal reflection” written by “a private citizen” to “memorialize” past events.

    Leak to the Press

    1. But he was still employed when he wrote the memo.

    2. Yeah, that was my thought. Unless, he headlined the memo with Non-FBI Personal Reflections

  24. This headline from the once great Economist, now mostly rubbish:

    James Comey against the president

    The former FBI director says Donald Trump is morally repugnant

  25. Hopefully, CoCo has 12 foot ceilings so he can get on a chair to hang himself instead of the always messy blood splat again the wall and ruining the rug.


  26. CoCo forgot to wear his pink pussy cap on his interview with George Poppadoppaloss.

  27. Chief IlliniCake

    I would suggest that Comey could be deeply unhappy at home.

    Behold the evidence:

    The quintessential female leftist. She's got it all.

    Un-dyed gray hair? Check.
    Smarter than you are eyeglasses? Check.
    Aversion to lipstick? Check.
    Looks like smiling causes her pain? Check.
    Didn't take his last name? Check.
    Hillary supporter and Feminazi and pussyhat owner? Check, check, check.

    I'm guessing she was screaming at the sky on November 9th. Alternating with screaming at Jimbo.

    We all know women like this. I call them "women who hate the sound of men's laughter". The type that sucks that fun out of every room she enters.

    I almost feel sorry for the guy.


    1. :)

      God, poor Comey, he is pussy whipped, for sure.

  28. For decades, James B. Comey cultivated an image of purity as a lawman who stood above politics and politicians.

    Then came the book tour.

    With the release of his memoir this week and a set of high-profile media interviews to publicize it, Mr. Comey — whose firing by President Trump made him a hero to the president’s critics — has veered onto risky terrain, shedding the trappings of a high-minded referee and looking instead like a combatant in the country’s partisan battles.


    “Jim Comey is as upright, honest and decent a person and public servant as I have ever met,” said Jack Goldsmith, who served with him in the Bush Justice Department.

    As for his willingness to engage in Trumpian insults, invoking the size of the president’s hands, his allies argue that he is simply attempting to paint vivid scenes and does the same with the other presidents he served.

    Cultivated Image

  29. Tarantula Burger

    1. Give me a T-Burger, and a bottle of Tequila....

  30. Everyone You Know Is Going to Die, and Then You Are!

    Kasher in the Rye:

    The True Tale of a White Boy from Oakland Who Became a Drug Addict, Criminal, Mental Patient, and Then Turned 16