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This week a federal judge threw out the attempt by a group of United
States congressmen to seek a court judgment against the Clinton
administration’s clear violation of the War Powers Act. Judge Friedman
of the U.S. District Court of Columbia granted President Clinton’s
motion to dismiss the suit, filed by 31 members of Congress, on the
grounds that the congressmen had no standing before the court since
Congress had appropriated funds for the war, did not vote to end U. S.
involvement in Kosovo, and that all 213 members who voted to end our
involvement were not plaintiffs.

The decision will, of course, be appealed, even as the war in Kosovo
appears to come to an end. In legal terms this could very well result in
the dismissal of the appeal of the War Powers case on the grounds that
it is now a moot point.

But it is not at all a moot point for America. The decision is one more
clear demonstration that laws increasingly mean nothing to American
ruling elites. We are quickly ceasing to be a republic, because we have
a government not of laws, but of power. Everything in our national life
is coming to be determined by the arbitrary possession of power. As this
more and more becomes the case, deep abuses of property and person will
soon follow.

I think there is no longer any doubt that we are moving into such a
period of arbitrary and lawless rule. The decision of the judge in
dismissing the War Powers Act case is an excellent example of how much
of the rule of law we have already lost, because it flies in the face of

the explicit, absolutely clear wording of the War Powers Act itself.

Here is the operative clause of the War Powers Act:

Within 60 calendar days after a report is submitted or is required to be
submitted pursuant to section 4(a)(1), whichever is earlier, the
President shall terminate any use of United States Armed Forces with
respect to which such report was submitted or was required to be
submitted, unless 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 60 day period, or (3) is physically unable to
meet as a result of an armed attack upon the United States.

Judge Friedman noted that the Congress had appropriated funds for the
war, did not vote to end involvement, etc. But all of this is entirely
irrelevant under the plain terms of the War Powers Act itself. The law
clearly requires a resolution specifically approving and authorizing the

deployment of forces, which has not been passed. The absence of a
resolution saying that we should end the bombing means nothing.

The authors of the War Powers Act quite competently anticipated
arguments such as the one Judge Friedman tries to make. They therefore
wrote into the language of the bill words that clearly require explicit
congressional authorization for certain uses of the armed forces. It is
this requirement that President Clinton has simply ignored, and which
the judge labors to help him avoid. But the claim that anything but an
explicit congressional authorization can be construed as satisfying the
requirements of the War Powers Act is explicitly rejected in the act
itself.

In section 8(a) the following language is used:

Authority to introduce United States Armed Forces into hostilities or
into situations where an involvement with hostilities is clearly
indicated by the circumstances shall not be inferred from any provision
of law, whether or not in effect before the date of the enactment of
this joint resolution, including any provision contained in any
appropriation act, unless such provision specifically authorizes the
introduction of United States Armed Forces into hostilities or into such
situations, and stating that it is intended to constitute specific
statutory authorization within the meaning of this joint resolution.

Could they have been any clearer? The War Powers Act explicitly says
that no act of the Congress can be construed as the authorization
required under the act unless it is explicitly so stated — which, of
course, has not been done by the Congress in this case.

There is simply no doubt about it — the president is in violation of the
law, and the judge simply ignored the specific wording of the law in
order to come to a ruling that is essentially lawless and arbitrary. Do
we have laws in this country any more? Or do we have tyranny?

What about the Republican leadership in Congress? Speaker Hastert is
doing his best to rally support for a budget that satisfies liberals in
the Democrat and Republican parties. And while pushing for that kind of
triumph of liberalism, he refuses to join with his colleagues in seeking

enforcement of a law passed specifically to protect the crucial role of
the Congress in protecting our liberty. Hastert and the so-called
“leadership” ARE the problem. If they were willing to take up the issue
and put it before the American people, it would have to be addressed.
Instead they are permitting it to be swept aside as if it doesn’t
matter, and are thereby themselves showing utter contempt for the law.

Faced with this kind of action by the president, inaction by the
Congress, and dereliction of duty by the courts, we face the question of
whether we have any longer in this country a government of laws, or have
permitted instead the formation of a government of arbitrary power in
which the people we elect do whatever they can get away with, in
contravention of our basic rights and liberties, and of the requirements
of the integrity of our Constitutional system. It appears that our
elites in the Congress and the White House are now simply lawless, with
no respect for the explicit terms of the law. No one is even trying to
argue that what the president has done in Yugoslavia is within the
limits of the War Powers Act. It is simply being ignored. This is to
manifest a kind of lawlessness that is deeply dangerous to the survival
of a free people.

How will we prevent this attitude of lawlessness from pervading the
entire society? When people see that those who are in positions of power
and responsibility — particularly those who are entrusted with the
enforcement and making of the law — are themselves showing no respect
for the law, a natural question starts to arise in their minds: “Why
should we obey the law? Why shouldn’t we be doing whatever we can get
away with?”

When this becomes the general mentality of a society, there is not
enough law enforcement power in the universe to make laws effective. How
can lawfulness be enforced against a people who have decided that they
are simply going to do whatever they can get away with? Such a
society quickly degenerates into a condition vacillating between anarchy
and oppression, becoming a living nightmare for all who live within it.

This was evident in the account given by Republican impeachment counsel
David Schippers, who told “Human Events” that a Republican Senate leader
had turned to Henry Hyde during a discussion about the impeachment trial
— right after the senators had taken their individual oaths of integrity
in the trial — and said that even if they had proof that Bill Clinton
had “raped a woman, stood up and shot her dead,” he would still not be
removed from office. The principle underlying this comment is that where
there is power, there is impunity. If this becomes the operative
principle in the halls of American power, then there will remain no law,
but only lawless power. But if one lives in a society with only lawless
power — a jungle — one quickly develops the mentality that justifies
doing whatever must be done in order to survive. Insofar as there is any
order, any rule, it is the rule of necessity, and that necessity is
inevitably extended to justify whatever can be gotten away with in order
to serve arbitrary ends and purposes.

Such a mentality, of course, is the criminal mentality, par excellence —
it is the mentality that characterizes people who live on the wrong side
of the law. It is, of course, the very soul of the Clinton era of
government. But if those who are charged with making and carrying out
the law adopt a posture that shows no respect at all for the content and
substance of the law, they thereby recommend this lawless and criminal
mentality to everyone else, and it becomes the ethos of the whole
society.

Reading the judge’s decision, I was disturbed most of all by the fact
that he had made a ruling as if the War Powers Act simply didn’t exist —
as though the wording of the act meant nothing. He bases his decision on
an approach that is explicitly dealt with in the law — anticipated and
rejected. One could not arrive at this decision without simply
disregarding the clear and explicit terms of the law. Of course, to
disregard the terms of the law is to be lawless — to substitute your
private whim for the law. But when whim replaces law, results depend
merely on the force used to pursue the various whims. That, in turn,
means a society that is essentially in a state of war between competing
forces. Those who have less force will lose; those with more force will
win. Under such circumstances, it seems to most people only prudent to
move quickly to gather as much force as possible for the struggles of
life. Society quickly becomes a war of all against all, as Thomas Hobbes
described it. We return to a situation without government or civil
society.

Our smug elites appear to assume that the habit of being law-abiding is
so deeply engrained in our people that their own awful example will have
no corrupting effect, but this is not true. In every generation the
habit of being law-abiding has to be reestablished. It must be
reestablished by the subtle effect of what people see and hear all
around them. We will successfully produce a new generation of
law-abiding people only if the general tone and culture of our society
continues to support a law-abiding attitude. But it is now clear that
there is not any longer a law-abiding attitude of any kind at the
highest levels of the land. This new situation is a prominent and
standing invitation to all citizens to conclude that it is a “sucker’s
bet” to obey any law that they can get away with breaking. Under the
circumstances, people will not only begin to calculate what they can and
cannot get away with; they will also begin to cultivate the associations
and other means they will need to break the law with greater impunity.
And on it goes until society is simply the war of lawless against
lawless, an unfit place for decent human life.

The political elites who are leading us down this road also seem to
forget that their own authority comes from the law. Perhaps they should
think about this, however. As we lose our respect for the law, why would
we retain respect for those the law puts into authority over us?

Perhaps they are anticipating a loss of respect for lawful authority,
however, and this explains the increasing urgency with which the gun
control agenda is being pursued. The effort to disarm American citizens
must be seen in the context of the increasingly clear and evident
lawlessness amongst our political elites. A political elite that is
determined to act without respect for any law in its abuse of power will
quickly realize that it must attain a monopoly on force. Only with such
a monopoly will a lawless elite be able effectively to do whatever it
pleases. So the prelude to successful maintenance of a lawless
government is to disarm the citizenry. Is it an accident that the effort
to induce us to surrender our means of self-defense is increasing along
with the signs that our elites have adopted a lawless attitude?

But the question at stake in the War Powers case is critical not just as
a sign of the overall trend toward lawlessness, but also in its own
right. If our elites ignore the requirement that the people be consulted
through their representatives about going to war, then we no longer have
any protection against the abuse of the war-making power — a power
uniquely suited to justify the institutions of the mechanisms of
tyranny. The dispute about President Clinton’s lawless refusal to seek
authorization for his war in Yugoslavia is thus vital to us. Inadequate
as it may be, the War Powers Act was an attempt by Congress to preserve
a prerogative vital to OUR liberty — the constraint that is placed on
the executive power in matters of peace and war, so that the executive
cannot drag us into wars on whim, personal ambition, and so he cannot
manipulate circumstances to keep us in a situation of perpetual war that
would be utterly destructive of our personal rights and liberties.

Our Founders carefully engineered our Constitutional system of
government in order to achieve the inestimable blessings of
self-government, and now — bit by bit and piece by piece — we are
throwing away the safeguards built into that system to protect our
liberty. We are approaching the point where the most fundamental things
are being given away. We must speak out against this utter disregard of
the very laws that are aimed at safeguarding fundamental institutional
aspects of our liberty and our ability to secure ourselves from the
abuses of government power.

We approach a future in which a lawless governmental elite will have
succeeded in arrogating to itself a monopoly on the instruments of force
in the society, and disarmed us so that we can no longer defend
ourselves against their depredations. Our political elite is showing
itself every day to be increasingly lawless, and at the same time that
they cease to be bound in conscience by respect for the law, they are
increasingly asking us to give up the means of defending ourselves
against forceful abuses of power.

We will not be immune from the hard choices that such a situation
presents to us. If we mean to remain free, we must decide to tame the
beasts of tyranny that are growing stronger before our eyes. We must
move vigorously to tame the government that should be our servant, and
we must do so in the name of law, self-government, and the truths of the
human moral nature that make liberty worth dying for.

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