Mn-prog-events Mailing List: Progressive Calendar 11.13.05

[David Shove (shove001]

             P R O G R E S S I V E   C A L E N D A R     11.13.05

1. Falun Gong art    11.14 8am
2. AFSCME rally      11.14 12noon
3. Anti-torture      11.14-16 12:30pm
4. African burial    11.14 1:30pm/4:30pm
5. ComoParkN4P       11.14 6pm
6. Depleted uranium  11.14 6:30pm
7. Holocaust/film    11.14 7pm
8. Clean energy      11.14 7pm Preston MN
9. Peace delegate    11.14 7pm
10. LWV SD 43 debate 11.14 7pm
11. 3 anti-war TV    11.14 7pm
12. Galway Kinnell   11.14 7pm
13. Holocaust/kids   11.14 7:30pm

14. David Cole     - John Yoo
15. Galway Kinnell - Blackberry Eating (poem)
16. ed             - Duck-billed platitudes

--------1 of 16--------

From: humanrts [at] umn.edu
Subject: Falun Gong art 11.14 8am

November 14 - Falun Gong Art Exhibit: Truth, Compassion, Forbearance.
8am-6pm.  Cost: Free.

The artists displayed are practitioners of Falun Gong.  Some of the
artists are quite well known around the world, and some are still
illegally imprisoned in China.  The art works are divided into four
sections: Harmony, Adversity, Courage, and justice.  They show the beauty
and experiences of the artists' cultivation of the principles of
"Truthfulness, Compassion, and Forbearance".  They show the brutal,
unfounded persecution of peaceful, good people by China's Communist
Regime.  The works, the stories behind the works of art and the symbolism
used in the paintings have helped many understand these historical events.
We hope this will be a rewarding experience for all of you who are able to
attend this wonderful event.

FFI: Nick Malec, U of M Twin Cities Falun Dafa Club: malec038 [at] umn.edu.

Akiko Tsutsui: 612-623-9224
Mingwei Shu: 763-550-0719
Chemin Chu: 651-643-0853
Location: Great Hall, Coffman Student Union, University of Minnesota, Twin
Cities campus, East Bank, Minneapolis, MN


--------2 of 16---------

From: Minneapolis Central Labor Union Council <kyle [at] mplscluc.com>
Subject: AFSCME rally 11.14 12noon

AFSCME Rally for a Fair Contract

The hard-working employees of Hennepin County have gone three years
without a raise. But these 4000 AFSCME members are gearing for a final
push in their current negotiations. Please join members from all 6 AFSCME
locals at Hennepin County for a rally for a fair contract and show support
for their negotiating team.

Monday, November 14
12noon
Hennepin County Government Center Plaza
300 South 6th St, Downtown Minneapolis

"We got zero in '03 and zero in '04 - we'll take zeros no more!"
For more information, contact AFSCME Council 5 at (651) 450-4990.


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From: wamm <wamm [at] mtn.org>
Subject: Anti-torture 11.14-16 12:30pm

"Exploring the Laws and Policies of Torture and Interrogation Techniques
of Detainees" (Human Rights Speaker Series-2 Days):

Monday, November 14: University of St. Thomas School of Law, Law Atrium,
1000 LaSalle, Minneapolis. (Parking in lot adjacent) Lunch provided.

12:30pm - Doug Johnson, M.P.P.M.
Executive Director, Center for Victims of Torture

12:50pm - Robin Phillips, J.D
Executive Director, Minnesota Advocates for Human Rights

4:30 - Steven Miles, M.D.
Professor of Medicine, University of Minnesota and
Faculty of the Center for Bioethics

Tuesday, November 15: University of St. Thomas School of Law, Law Atrium,
1000 LaSalle, Minneapolis. (Parking in lot adjacent.) Lunch provided. UST
Law Atrium

12:30pm - Barbara Frey, J.D.=20
Director, Human Rights Program, University of Minnesota

12:50pm - Kathryn Sikkink, Ph.D.
Arleen C. Carlson Professor of Political Science and McKnight
Distinguished University Professor, University of Minnesota

The Human Rights Speaker Series is great as a lead-up to Yoo's arrival
(See next events below). Please RSVP to Kaarin Nelson at
ksnelson1 [at] stthomas.edu or Rob Lafrentz at rjlafrentz [at] stthomas.edu
Sponsored By: Amnesty International, National Lawyers Guild, Faith
&Reason, UST Democrats, Minnesota Justice Foundation, Black Law Students,
Association, Native American Law Students Association. Endorsed by WAMM
Tackling Torture at the Top (3T) Committee.

--
Anti-Torture Demonstrations (Two)

Wednesday, November 16, 12noon, St. Thomas Law School, 1000 LaSalle St.,
downtown Minneapolis (Parking in St. Thomas Law School ramp adjacent).

Demo Against John Yoo, and his counterpart Robert Delahunty who teaches at
the University of St. Thomas Law School. Both men were in the U.S. Justice
Dept. and wrote the memos to Attorney General Alberto Gonzales who
authored the memorandum offering legal rationale for the use of torture.
John Yoo will also be speaking at the University of Minnesota Law School
the same day at 7pm the same day. Help needed with handing out
literature educating on and opposing torture.

Second Anti-Torture Demo: 7pm. University of Minnesota Mondale Law School,
Minneapolis. Sponsored by WAMM Tackling Torture at the Top (3T) and other
organizations. More info:612-722-7356

[See #14 below, article on John Yoo. -ed]


--------4 of 16--------

From: Lydia Howell <lhowell [at] visi.com>
Subject: African burial 11.14 1:30pm/4:30pm

The Anthropology Department, in partnership with African American and
African Studies, History, American Studies, the Institute for Advanced
Study, the Institute for Global Studies, and the Minnesota Science Museum,
is proud to welcome Professor Michael Blakey to the University of
Minnesota! On November 14th, Professor Blakey will give a Public Lecture,

Bioarchaeology of New York City's African Burial Ground and an advanced
seminar on Epistemology and Ethics of the New York African Burial Ground
Project

The Public Lecture will be Monday, November 14, 4:30-6:00PM, Blegan
Hall, Room 5

The Advanced Seminar will beMonday, November 14, 1:30-2:30PM, 15 HHH
Center

Description of Event:

>From 1992-2004, Michael Blakely led a team of archeologists to closely
excavate, understand, and ultimately re-inter the remains of 419 African
slaves found in Lower Manhattan. The find, the largest bioarchaeological
site of its kind, significantly raised public awareness of colonial
African heritage, especially that New York had more enslaved Africans than
any other port north of the Caribbean except South Carolina. This project
has profoundly contributed to our collective understanding of the African
diaspora, history, politics, power, slavery, bioarcheology. Blakely has
pieced together a glimpse into the lives of slaves, reporting that the
findings of torn muscle fragments from hard physical labor, fractured
bones, and peculiarly high death rates for the 15-25 year old people
demonstrated the extremely harsh conditions of slavery.

Blakely is coming to the University of Minnesota to report the findings of
the African Burial Ground Project and to analyze its intellectual, social,
and political significance. In his public lecture, "Bioarcheology of the
New York City's African Burial Ground," Blakey will examine the biological
history and social conditions of the human skeletons of Africans who had
been enslaved in colonial New York City. In the advanced seminar,
"Epistemology and Ethics of the New York African Burial Ground Project,"
he will talk about the relationship between the developing interpretation
of anthropological ethics and the democratization of knowledge.

Michael Blakey is currently National Endowment for the Humanities
Professor of Anthropology and Professor of American Studies at the College
of William and Mary. He is founding Director of the Institute for
Historical Biology at that university. From 1992-2004 Dr. Blakey was
Scientific Director of the New York African Burial Ground Project
involving interdisciplinary study of 419 skeletons of Africans enslaved in
18th century New York City. Blakey coordinated research of the site and
its remains among teams of physical archaeologists, historians,
anthropologists and others. Professor Blakey held an Adjunct Professorship
in Anatomy in the College of Medicine at Howard University where he had
for many years been Professor of Anthropology and Curator of the W.
Montague Cobb Human Skeletal Collection.

Shannon Gibney Executive Director, Ananya Dance Theatre
www.ananyadancetheatre.org <http://www.ananyadancetheatre.org>
President, Twin Cities Black Journalists (TCBJ) www.nabj.org
<http://www.nabj.org>


--------5 of 16--------

From: Sheila Sullivan <aiisullivan [at] yahoo.com>
Subject: ComoParkN4P 11.14 6pm

Hello members of Como Park Neighbors for Peace! Please come to our next
meeting on Monday, November 14 at 6pm at the Coffee Grounds.  We will be
discussing ideas for our next event and further discussing Jonathon
Schell's book "The Unconquerable World."


--------6 of 16--------

From: humanrts [at] umn.edu
Subject: Depleted uranium 11.14 6:30pm

November 14 - Every Church a Peace Church Potluck Gathering:
Discussion on Depleted Uranium. 6:30pm.

Every Church a Peace Church potluck gathering.  The topic for this peace
gathering will be depleted uranium, commonly referred to as DU.  We will
will a video documentary entitled Poison Dust which features a
cross-section of people who have suffered severe medical problems
following exposure to depleted uranium munitions.

FFI nilsdybvig [at] yahoo.com
Location: Joan of Arc, 4537 3rd Ave S., Minneapolis


--------7 of 16--------

From: Stephen Feinstein <feins001 [at] umn.edu>
Subject: Holocaust/film 11.14 7pm

For anyone interested in the History of Nazi Germany and the Holocaust:
Sophie Scholl Movie Screening Presented by
U of M Center for German and European Studies

Film tells story of heroic German woman in WWII, Sophie Scholl (born 1921)
who became, with her brother Hans, leaders of the White Rose resistance
movement to Nazism in 1943.

In Passive Resistance to National Socialism, published in 1943 the group
explained the reasons why they had formed the White Rose group: "We want
to try and show that everyone is in a position to contribute to the
overthrow of the system. It can be done only by the cooperation of many
convinced, energetic people - people who are agreed as to the means they
must use. We have no great number of choices as to the means. The meaning
and goal of passive resistance is to topple National Socialism, and in
this struggle we must not recoil from our course, any action, whatever its
nature. A victory of fascist Germany in this war would have immeasurable,
frightful consequences."

The White Rose group believed that the young people of Germany had the
potential to overthrow Adolf Hitler and the Nazi government. In one
leaflet, Fellow Fighters in the Resistance, they wrote: "The name of
Germany is dishonoured for all time if German youth does not finally rise,
take revenge, smash its tormentors. Students! The German people look to
us."

The White Rose group also began painting anti-Nazi slogans on the sides of
houses. This included "Down With Hitler", "Hitler Mass Murderer" and
"Freedom". They also painted crossed-out swastikas. Members also began
leaving piles of leaflets in public places. On 18th February, Sophie
Scholl and Hans Scholl began distributing the sixth leaflet produced by
the White Rose group. Jakob Schmidt, a member of the Nazi Party, saw them
at the University of Munich, throwing leaflets from a window of the third
floor into the courtyard below. He immediately told the Gestapo and they
were both arrested. They were searched and the police found a handwritten
draft of another leaflet. This they matched to a letter in Scholl's flat
that had been signed by Christoph Probst. The three members of the White
Rose group appeared before the People's Court judge, Roland Friesler, on
20th February. Found guilty of sedition they were executed by guillotine a
few hours later. Just before he was executed Hans Scholl shouted out:
"Long live freedom!"

"Sophie Scholl: The Final Days" advance screening
Monday November 14, 7pm
Lagoon Cinema, 1320 Lagoon Ave., Minneapolis
Director Marc Rothemund in person

How: $8. Tickets available at Lagoon box office.

Director Marc Rothemund will be present and an audience
question-and-answer session will follow the screening. Marc Rothemund will
also do a talk and show clips from the film at noon on November 14 in the
theater of Coffman Memorial Union, 300 Washington Ave SE on the University
of Minnesota east bank campus. This event is free and open to the public.

Marc Rothemund's Minneapolis appearance and film screening is co-sponsored
by the Embassy of the Federal Republic of Germany.


--------8 of 16--------

From: Elizabeth Dickinson <eadickinson [at] mindspring.com>
From: "Michael Noble" <noble [at] me3.org>
Subject: Clean energy 11.14 7pm Preston MN

Message from Mike Bull, Asst. Commissioner Renewable Energy and Advanced
Technologies MN Dept of Commerce

I'm emailing to let you know that the next clean energy forum is scheduled
for Preston, Minnesota on 11/14.

The Preston forum will be held at the F&M Community Bank basement
conference room 100 Saint Anthony St N, Preston, MN.  7-8:30pm.
I'll be giving presenting for about 35 to 40 minutes, then will devote
the balance of the time to Q&A from the audience.  Call or email with any
questions!  Mike

Mike Bull, Assistant Commissioner Renewable Energy and Advanced
Technologies Minnesota Department of Commerce 85 7th Place East, Suite 500
St. Paul, MN 55101-2198 Ph 651-282-5011/Fax 651-297-7891


--------9 of 16--------

From: Gena Berglund <genab61 [at] mindspring.com>
Subject: Peace delegate 11.14 7pm

The Progressive Caucus of the DFL is holding a meeting to discuss the
issues we want to organize around for the precinct caucuses. The
question we want to address is, "What issues would a peace delegate to
the conventions support?" This is the FIRST dialogue for coming up with
a wholistic progressive platform for the caucuses. It would be helpful
if you or someone from your group could attend.

The meeting is on Monday, November 14th at 7 pm at the CWA Hall, Lake
Street and 35th Avenue in Minneapolis. _See you there!_

[I remain sceptical that peace will make it very far up inside the DP,
seeing how the DP silenced peace delegates at the Kerry coronation
convention in 2004. Peace people were held inside the DP with Kucinich and
promises, then forced to pro-war Kerry. What is to prevent the same
cynical tactics in the 2008 pro-war Hillary coronation convention? All
those months and years wasted on a sheep in wolf's clothing. The DP still
remains too committed to what the corporate money-givers want, in this
case war for oil; and into smashing anti-war third parties on their left,
eg the Green Party. -ed]


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From: David Strand <mncivil [at] yahoo.com>
Subject: LWV SD 43 debate 11.14 7pm

League of Women Voters Debate in Senate District 43
It would be great to have folks in Minnetonka and Plymouth attend the
debate between DFL'er Terri Bonoff and Republican Judy Johnson to ask
questions of these two Senate candidates who are facing off in the Nov
22nd special election.

November 14, 2005
League of Women Voters - Senate District 43 Debate
Wayzata Central Middle School
305 Vicksburg Lane
Plymouth
7:00 PM

This is a great opportunity to get to know these candidates better and ask
any questions you might have. More important, from the glbtiq community
issues perspective, is too encourage your friends and neighbors who live
in this District to vote in this oddly timed special election for Terri
Bonoff who opposes the constitutional amendment to ban same sex marriage!


--------11 of 16--------

From: Richard L. Dechert <ldechert [at] webtv.net>
Subject: 3 anti-war TV 11.14 7pm

Monday 11.14 on tpt-17 three more programs will honor those who
experienced WWII and the catastrophe in Iraq:

7pm "The Good War and Those Who Refused to Fight It," a powerful,
previously aired film on WWII conscientious objectors,
http://www.pbs.org/itvs/thegoodwar/.

8pm "Independent Lens: A Family at War," a new series film on how a family
of conflicting viewpoints has tried to cope with the loss of a son in
Iraq, http://www.pbs.org/independentlens/familyatwar/.

9pm "P.O.V. - War Feels Like War," a new series film on reporters and
photographers who circumvented military control to cover the real Iraq
war, http://www.pbs.org/pov/pov2004/warfeelslikewar/.


--------12 of 16--------

From: lynette <lynette [at] prettyhorses.net>
Subject: Galway Kinnell 11.14 7pm

Monday, November 14
Pultzer Prize winning poet Galway Kinnell reads at 7 pm, Plymouth
Congregational Church, 1900 Nicollet Ave S, Minneapolis.
[See #15 below]

--------13 of 16--------

From: lynette <lynette [at] prettyhorses.net>
Subject: Holocaust/kids 11.14 7:30pm

Peter Schroeder and Dagmar Schroeder-Hildebrand talk about their book Six
Million Paperclips: The Making of a Children's Holocaust Memorial, 7:30 pm
at the Highland Park Branch Library as a part of the Twin Cities Jewish
Book Fair, 1974 Ford Parkway. This is a ticketed event. Contact the JCC at
698-0751 with questions.


--------14 of 16--------

[Neo-con torture-monger John Yoo comes to the Twin Cities this Wednesday
11.16. Protests are scheduled. See #3. This article below is a bit long
and dry, but finishes well, and will tell you enough about Yoo that you
won't like him. -ed]

What Bush Wants to Hear
A Consideration of John Yoo's The Powers of War and Peace: The
Constitution and Foreign Affairs After 9/11
by David Cole
Published on Tuesday, November 1, 2005 by TomDispatch.com

Few lawyers have had more influence on President Bush's legal policies in
the "war on terror" than John Yoo. This is a remarkable feat, because Yoo
was not a cabinet official, not a White House lawyer, and not even a
senior officer within the Justice Department. He was merely a mid-level
attorney in the Justice Department's Office of Legal Counsel with little
supervisory authority and no power to enforce laws. Yet by all accounts,
Yoo had a hand in virtually every major legal decision involving the U.S.
response to the attacks of September 11, and at every point, so far as we
know, his advice was virtually always the same - the president can do
whatever the president wants.

Yoo's most famous piece of advice was in an August 2002 memorandum stating
that the president cannot constitutionally be barred from ordering torture
in wartime - even though the United States has signed and ratified a
treaty absolutely forbidding torture under all circumstances, and even
though Congress has passed a law pursuant to that treaty, which without
any exceptions prohibits torture. Yoo reasoned that because the
Constitution makes the president the "Commander-in-Chief," no law can
restrict the actions he may take in pursuit of war. On this reasoning, the
president would be entitled by the Constitution to resort to genocide if
he wished.

Yoo is now back in private life, having returned to the law faculty at the
University of California at Berkeley. Unlike some other former members of
the administration, he seems to have few if any second thoughts about what
he did, and has continued to aggressively defend his views. His book The
Powers of War and Peace: The Constitution and Foreign Affairs After 9/11
shows why Yoo was so influential in the Bush administration. It presents
exactly the arguments that the president would have wanted to hear. Yoo
contends that the president has unilateral authority to initiate wars
without congressional approval, and to interpret, terminate, and violate
international treaties at will. Indeed, ratified treaties, Yoo believes,
cannot be enforced by courts unless Congress enacts additional legislation
to implement them. According to this view, Congress's foreign affairs
authority is largely limited to enacting domestic legislation and
appropriating money. In other words, when it comes to foreign affairs, the
president exercises unilateral authority largely unchecked by law -
constitutional or international.

Yoo is by no means the first to advance such positions. Many conservatives
favor a strong executive, especially when it comes to foreign affairs, and
they are generally skeptical about international law. What Yoo offers that
is new is an attempt to reconcile these modern-day conservative
preferences with an influential conservative theory of constitutional
interpretation: the "originalist" approach, which claims that the
Constitution must be interpreted according to the specific understandings
held by the framers, the ratifiers, and the public when the Constitution
and its amendments were drafted.

The problem for originalists who believe in a strong executive and are
cynical about international law is that the framers held precisely the
opposite views - they were intensely wary of executive power, and as
leaders of a new and vulnerable nation, they were eager to ensure that the
mutual obligations they had negotiated with other countries would be
honored and enforced. During the last two centuries, of course, executive
power has greatly expanded in practice; and the attitude of many U.S.
leaders toward international law has grown increasingly disrespectful as
the relative strength of the U.S. compared to other nations has increased.
But these developments are difficult to square with the doctrine of
"original intent," which, at least as expressed by Justice Antonin Scalia
and other extreme conservatives, largely disregards the development of the
law for the past two centuries. Yoo's task is to reconcile the
contemporary uses of American power with his belief in original intent.
His views prevailed under the Bush administration, and therefore should be
examined not only for their cogency and historical accuracy, but for their
consequences for U.S. policy in the "war on terror."

                                  War

On its face, the Constitution divides power over foreign affairs. It gives
Congress substantial responsibility, especially with respect to war.
Congress has the power to raise and regulate the military; to declare war
and issue "Letters of Marque and Reprisal," which authorize lesser forms
of conflict; to define offenses against the law of nations; and to
regulate international commerce. The Senate must confirm all treaties and
all appointments of ambassadors. The president is named as the
"Commander-in-Chief," and appoints ambassadors and makes treaties subject
to the Senate's consent. In addition, the words "executive power" have,
since the beginning of the republic, been regarded as giving the president
an implicit authority to represent the nation in foreign affairs.

These divisions of responsibility were conceived for widely recognized
historical and philosophical reasons. The Constitution was drafted
following the Revolutionary War, in which the colonies rebelled against
the abuses of the British monarchy, the prototypical example of an
unaccountable executive. The new nation so distrusted executive power that
the first attempt to form a federal government, the Articles of
Confederation, created only a multi-member Continental Congress, which was
in turn dependent on the states for virtually all significant functions,
including imposing taxes, regulating citizens' behavior, raising an army,
and going to war. That experiment failed, so the Constitution's drafters
gave Congress more power, and revived the concept of a branch of
government headed by a single executive. But they insisted on substantial
limits on the power of the new executive branch, and accordingly assigned
to Congress strong powers that had traditionally been viewed as belonging
to the executive - including the power to declare war.

Many of the framers passionately defended the decision to deny the
president the power to involve the nation in war. When Pierce Butler, a
member of the Constitutional Convention, proposed giving the president the
power to make war, his proposal was roundly rejected. George Mason said
the president was "not to be trusted" with the power of war, and that it
should be left with Congress as a way of "clogging rather than
facilitating war." James Wilson, another member, argued that giving
Congress the authority to declare war "will not hurry us into war; it is
calculated to guard against it. It will not be in the power of a single
man, or a single body of men, to involve us in such distress; for the
important power of declaring war is vested in the legislature at large."
Even Alexander Hamilton, one of the founders most in favor of strong
executive power, said that "the Legislature alone can interrupt [the
blessings of peace] by placing the nation in a state of war." As John Hart
Ely, former dean of Stanford Law School, has commented, while the original
intention of the Founders on many matters is often "obscure to the point
of inscrutability," when it comes to war powers "it isn't."

In the face of this evidence, Yoo boldly asserts that a deeper historical
inquiry reveals a very different original intention - namely, to endow the
president with power over foreign affairs virtually identical to that of
the king of England, including the power to initiate wars without
congressional authorization. He argues that the power to "declare War"
given to Congress was not meant to include the power to begin or authorize
a war, but simply the power to state officially that a war was on - a
statement that would be "a courtesy to the enemy" and would authorize the
executive to exercise various domestic wartime powers. At most, Yoo
contends, the clause giving Congress power to "declare War" was meant to
require congressional approval for "total war," a term Yoo never defines,
but it left to the president the unilateral decision to engage in all
lesser hostilities. He quotes dictionaries from the founding period that
defined "declare" as "to pronounce" or "to proclaim," not "to commence."
He points out that the Constitution did not give Congress the power to
"engage in" or to "levy" war, terms used in other constitutional
provisions referring to war. And he notes that unlike some state
constitutions of the time, the federal constitution did not require the
president to consult Congress before going to war.

All the evidence Yoo cites, however, can be read more convincingly to
corroborate the view he seeks to challenge - namely, that the
Constitution gave the president only the power, as commander in chief, to
carry out defensive wars when the country came under attack, and to direct
operations in wars that Congress authorized. British precedent is of
limited utility here, since the framers consciously departed from so much
of it. Dictionary definitions of "declare" also offer little guidance,
since Yoo ignores that there is a world of difference between someone's
"declaring" his or her love for wine or Mozart and a sovereign's declaring
war. "Declare War" was in fact a legal term of art, and there is evidence
that it was used at the time to mean both the commencement of hostilities
and a statement officially recognizing that war was ongoing. The use of
the word "declare" rather than "levy" or "engage in" simply reflects the
division of authority under which the president actually levies - or
carries on - the war once it is begun. Indeed, the framers famously
substituted "declare" for "make" in enumerating Congress's war powers for
just this reason. And the framers had no reason to require the president
to consult with Congress before going to war since it was Congress's
decision, not the president's.

Most troubling for Yoo's thesis, his account renders the power to "declare
War" a meaningless formality. At the time of the Constitution's drafting,
a formal "declaration of war" was not necessary for the exercise of war
powers under either domestic or international law, so Yoo's hypothesis
that the declaration served that purpose fails. Yoo's further suggestion
that the clause recognizes a distinction between "total wars," which must
be declared, and lesser wars, which need not be, has no historical basis.
Despite his ostensible commitment to originalism, Yoo cites no evidence
whatever to suggest that any such distinction existed for the founding
generation. Nor does he ever explain what the distinction might mean
today. And the fact that the text grants Congress both the power to
"declare War" and to issue "Letters of Marque and Reprisal" strongly
suggests an intent that Congress decide on all forms of military conflict
other than repelling attacks. Once these explanations evaporate, all that
is left for Yoo's theory of the war clause is that it gives Congress the
power to provide a "courtesy to the enemy" - hardly a persuasive
refutation of the clear language of the framers quoted above.

Yoo's evidence does not undermine the conclusion that the framers intended
Congress to take responsibility for the decision to send the nation into
war. But in some sense, arguments against his theory are academic. Modern
practice is closer to Yoo's view than to the framers' vision. Beginning
with the Korean War, presidents have routinely involved the nation in
military conflicts without waiting for Congress to authorize their
initiatives. Yoo notes that while the nation has been involved in
approximately 125 military conflicts, Congress has declared war only five
times. Were the framers lacking in practical judgment when they gave
Congress this power?

Yoo claims that since September 11, it is all the more essential that the
nation be able to act swiftly and without hesitation, even preemptively,
to protect itself. We can't afford to wait around for Congress to figure
out what it wants to do. The "war on terror" does not permit democratic
deliberation, at least not in advance. And, as Yoo repeatedly insists,
Congress remains free to cut off funds for any military action that it
does not like.

But there is as good reason today as there was when the Constitution was
drafted to give Congress the power to authorize military activities. As
the framers accurately predicted, presidents have proven much more eager
than Congress to involve the nation in wars. It is easier for one person
to make up his mind than for a majority of two houses of Congress to agree
on a war policy.

Presidents also tend to benefit from war more than members of Congress, by
increasing their short-term popularity, by acquiring broader powers over
both the civilian economy and the armed forces, and, sometimes, by the
historical recognition later accorded them. Moreover, as the Vietnam War
illustrated, even when a war becomes extremely unpopular, it is not easy
to cut off funds for the troops.

It is true, as Yoo observes, that, since Harry Truman, presidents of both
parties have generally resisted the view that they need congressional
authorization to commit forces to military conflict. But this attitude is
in fact a relatively recent development. While formal declarations of war
have been rare, Yoo fails to note that presidents have generally sought
congressional authorization for military actions. Until the Korean War,
presidents either openly acknowledged that congressional authorization was
necessary or offered rationales for why a particular military initiative
was an exception to that rule. Thus, the view that Yoo promotes as
"original" has in fact been advanced only during the last fifty years, and
only by self-interested executives.

This view is particularly disputed by Congress, as can be seen in the 1973
War Powers Resolution, which sought to reaffirm and restore Congress's
constitutional role in deciding on whether to go to war, and also in the
legislative debates that inevitably take place when presidents talk of
going to war. As the war in Iraq has painfully underscored, the decision
to go to war, especially a war initiated by the president without broad
international support, can have disastrous consequences; and extricating
the country from such a war can be extremely difficult. Were Congress to
be eliminated from the initial decision-making process, as Yoo would
prefer, the result would almost certainly be even more wars, and more
quagmires such as the one in Iraq. On this issue, the framers were
persuasive, and it is Yoo who has failed to understand both the checks on
executive power they imposed and the reasons they did so.

                            Treaties

Yoo's interpretation of the treaty power, like his view of the war power,
departs dramatically from the text of the Constitution and its traditional
understanding. The Constitution's Supremacy Clause explicitly provides
that


"all Treaties made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and the Judges in
every State shall be bound thereby.

On the strength of that clause, and statements made about treaties at the
time of the framing, it has long been accepted that treaties have the
force of law in the United States, create binding obligations, and may be
enforced by courts. Indeed, the Supreme Court long ago stated that
treaties are "to be regarded...as equivalent to an act of the
legislature."

In the modern era, Congress often specifies when ratifying a treaty that
it should not be enforceable in court until further legislation is
enacted. And even without such directives, courts sometimes find treaties
not to be judicially enforceable; the U.S. Court of Appeals for the D.C.
Circuit did so recently in rejecting a Guantnamo detainee's claim that his
pending trial in a military tribunal violated the Geneva Conventions.

Yoo would go further, insisting on a presumption against judicial
enforcement unless Congress clearly specifies otherwise. On this view,
treaties lack the force of law, and become mere political promises, having
about as much force as campaign rhetoric. And he further claims that the
president has unilateral authority to interpret, reinterpret, and
terminate treaties, effectively rendering presidents above the law when it
comes to treaties.

To support these revisionist views, Yoo relies heavily and repeatedly on a
rigid dichotomy between foreign affairs - which he sees, in the British
tradition, as the executive's domain - and domestic matters - which he
sees as the province of the legislature. But as we have seen, the
Constitution's framers explicitly rejected such a rigid division, giving
Congress and the Senate substantial power over functions that the British
saw as executive in nature, including the power to make war and treaties,
and expressly assigning the judiciary the responsibility to enforce
treaties as the "Law of the Land."

If anything, Yoo's historical evidence is even thinner with respect to the
treaty power and the Supremacy Clause than it is with respect to the
clause on declaring war. As Jack Rakove, one of the foremost historians of
the federal period, has concluded, the framers "were virtually of one mind
when it came to giving treaties the status of law." As other historians
have pointed out, one of the principal incentives for convening the
Constitutional Convention was the embarrassing refusal of state
governments to enforce treaties. The Supremacy Clause solved that problem
in as direct a way as possible - by making treaties the "Law of the
Land," enforceable in courts and binding on government and citizenry
alike. That treaties were not thought to need further implementing is
underscored by the framers' unanimous decision to omit treaty enforcement
from Congress's enumerated powers, "as being superfluous since treaties
were to be .laws.'" Yoo's account turns that conclusion on its head; his
reading would render superfluous the Supremacy Clause's assertion that
treaties are laws. If treaties had domestic force only when implemented by
a subsequent statute, as Yoo maintains, then the statute itself would have
the status of the "Law of the Land," not the treaty.

Yoo is no more convincing with respect to presidential interpretation of
treaties. He maintains that because foreign policy is an executive
prerogative, the executive must be able to reinterpret and terminate
treaties unilaterally. But while the Constitution plainly envisioned the
president as the principal negotiator of treaties, it also gave clear
responsibilities for treaties to the other branches; all treaties must be
approved by two-thirds of the Senate, and once ratified, treaties become
"law" enforceable by the courts. The president must certainly be able to
interpret treaties in order to "execute" the laws, just as he must be able
to interpret statutes for that purpose. But there is no reason why his
interpretations of treaties should be any more binding on courts or the
legislature than his interpretations of statutes.

The Rule of Law

Yoo's views on the war and treaty powers share two features. First, they
both depart radically from the text of the Constitution. He would reduce
the power to "declare War" to a mere formality, a courtesy to the enemy;
and he would render entirely superfluous the Supremacy Clause's provision
that treaties are the "Law of the Land." It is ironic that a president who
proclaims his faith in "strict construction" of the Constitution would
have found Yoo's interpretations so persuasive, for Yoo is anything but a
strict constructionist. One of the arguments most often made in defense of
"originalism" is that interpretations emphasizing a "living" or evolving
Constitution are too open-ended, and accordingly they permit judges to
stray too far from the text. Yoo unwittingly demonstrates that his brand
of originalism is just as vulnerable to that criticism as other
approaches, if not more so. He not only departs from the text, but
contradicts the principles that underlie it.

Second, and more significantly, all of Yoo's departures from the text of
the Constitution point in one direction - toward eliminating legal checks
on presidential power over foreign affairs. He is candid about this, and
defends his theory on the ground that it preserves "flexibility" for the
executive in foreign affairs. But the specific "flexibility" he seeks to
preserve is the flexibility to involve the nation in war without
congressional approval, and to ignore and violate international
commitments with impunity. As Carlos Vazquez, a professor of law at
Georgetown, has argued in response to Yoo, "flexibility has its benefits,
but so does precommitment." The Constitution committed the nation to a
legal regime that would make it difficult to go to war and that would
provide reliable enforcement of international obligations. Yoo would
dispense with both in the name of letting the president have his way.

Even if Yoo is wrong about the original understanding in 1787, is he wrong
about 2005? As the subtitle of his book indicates, his argument rests not
just on revisionist history, but also on arguments about what is
practically necessary in a twenty-first-century world threatened by
terrorism and weapons of mass destruction. He contends that these
developments demand that the president have the leeway to insulate his
foreign policy decisions both from the will of Congress and from the
demands of international law.

Here it is worth reviewing the positions Yoo advocated while in the
executive branch and since, and their consequences in the "war on terror."
At every turn, Yoo has sought to exploit the "flexibility" he finds in the
Constitution to advocate an approach to the "war on terror" in which legal
limits are either interpreted away or rejected outright. Just two weeks
after the September 11 attacks, Yoo sent an extensive memo to Tim
Flanigan, deputy White House counsel, arguing that the President had
unilateral authority to use military force not only against the terrorists
responsible for the September 11 attacks but against terrorists anywhere
on the globe, with or without congressional authorization.

Yoo followed that opinion with a series of memos in January 2002
maintaining, against the strong objections of the State Department, that
the Geneva Conventions should not be applied to any detainees captured in
the conflict in Afghanistan. Yoo argued that the president could
unilaterally suspend the conventions; that al-Qaeda was not party to the
treaty; that Afghanistan was a "failed state" and therefore the president
could ignore the fact that it had signed the conventions; and that the
Taliban had failed to adhere to the requirements of the Geneva Conventions
regarding the conduct of war and therefore deserved no protection. Nor, he
argued, was the president bound by customary international law, which
insists on humane treatment for all wartime detainees. Relying on Yoo's
reasoning, the Bush administration claimed that it could capture and
detain any person who the president said was a member or supporter of
al-Qaeda or the Taliban, and could categorically deny all detainees the
protections of the Geneva Conventions, including a hearing to permit them
to challenge their status and restrictions on inhumane interrogation
practices.

Echoing Yoo, Alberto Gonzales, then White House counsel, argued at the
time that one of the principal reasons for denying detainees protection
under the Geneva Conventions was to "preserve flexibility" and make it
easier to "quickly obtain information from captured terrorists and their
sponsors." When CIA officials reportedly raised concerns that the methods
they were using to interrogate high-level al-Qaeda detainees - such as
waterboarding - might subject them to criminal liability, Yoo was again
consulted. In response, he drafted the August 1, 2002, torture memo,
signed by his superior, Jay Bybee, and delivered to Gonzales. In that
memo, Yoo "interpreted" the criminal and international law bans on torture
in as narrow and legalistic a way as possible; his evident purpose was to
allow government officials to use as much coercion as possible in
interrogations.

Yoo wrote that threats of death are permissible if they do not threaten
"imminent death," and that drugs designed to disrupt the personality may
be administered so long as they do not "penetrate to the core of an
individual's ability to perceive the world around him." He said that the
law prohibiting torture did not prevent interrogators from inflicting
mental harm so long as it was not "prolonged." Physical pain could be
inflicted so long as it was less severe than the pain associated with
"serious physical injury, such as organ failure, impairment of bodily
function, or even death."

Even this interpretation did not preserve enough executive "flexibility"
for Yoo. In a separate section of the memo, he argued that if these
loopholes were not sufficient, the president was free to order outright
torture. Any law limiting the president's authority to order torture
during wartime, the memo claimed, would "violate the Constitution's sole
vesting of the Commander-in-Chief authority in the President."

Since leaving the Justice Department, Yoo has also defended the practice
of "extraordinary renditions," in which the United States has kidnapped
numerous "suspects" in the war on terror and "rendered" them to third
countries with records of torturing detainees. He has argued that the
federal courts have no right to review actions by the president that are
said to violate the War Powers Clause. And he has defended the practice of
targeted assassinations, otherwise known as "summary executions."

In short, the flexibility Yoo advocates allows the administration to lock
up human beings indefinitely without charges or hearings, to subject them
to brutally coercive interrogation tactics, to send them to other
countries with a record of doing worse, to assassinate persons it
describes as the enemy without trial, and to keep the courts from
interfering with all such actions.

Has such flexibility actually aided the U.S. in dealing with terrorism? In
all likelihood, the policies and attitudes Yoo has advanced have made the
country less secure. The abuses at Guantnamo and Abu Ghraib have become
international embarrassments for the United States, and by many accounts
have helped to recruit young people to join al-Qaeda. The U.S. has
squandered the sympathy it had on September 12, 2001, and we now find
ourselves in a world perhaps more hostile than ever before.

With respect to detainees, thanks to Yoo, the U.S. is now in an untenable
bind: on the one hand, it has become increasingly unacceptable for the
U.S. to hold hundreds of prisoners indefinitely without trying them; on
the other hand our coercive and inhumane interrogation tactics have
effectively granted many of the prisoners immunity from trial. Because the
evidence we might use against them is tainted by their mistreatment,
trials would likely turn into occasions for exposing the United States'
brutal interrogation tactics. This predicament was entirely avoidable. Had
we given alleged al-Qaeda detainees the fair hearings required by the
Geneva Conventions at the outset, and had we conducted humane
interrogations at Guantnamo, Abu Ghraib, Camp Mercury, and elsewhere, few
would have objected to the U.S. holding some detainees for the duration of
the military conflict, and we could have tried those responsible for war
crimes. What has been so objectionable to many in the U.S. and abroad is
the government's refusal to accept even the limited constraints of the
laws of war.

The consequences of Yoo's vaunted "flexibility" have been self-destructive
for the U.S. - we have turned a world in which international law was on
our side into one in which we see it as our enemy. The Pentagon's National
Defense Strategy, issued in March 2005, states,

"Our strength as a nation state will continue to be challenged by those
who employ a strategy of the weak, using international fora, judicial
processes, and terrorism."

The proposition that judicial processes - the very essence of the rule of
law - are to be dismissed as a strategy of the weak, akin to terrorism,
suggests the continuing strength of Yoo's influence. When the rule of law
is seen simply as a device used by terrorists, something has gone
perilously wrong. Michael Ignatieff has written that "it is the very
nature of a democracy that it not only does, but should, fight with one
hand tied behind its back. It is also in the nature of democracy that it
prevails against its enemies precisely because it does." Yoo persuaded the
Bush administration to untie its hand and abandon the constraints of the
rule of law. Perhaps that is why we are not prevailing.

David Cole is a law professor at Georgetown and a contributor to the New
York Review of Books where this piece has just appeared. He is the author
of Enemy Aliens: Double Standards and Constitutional Freedoms in the War
on Terrorism, recently published in a revised paperback edition.

This article appears in the November 17 issue of the New York Review of
Books.
 2005 Tom Engelhardt


--------15 of 16--------

 Galway Kinnell
 Blackberry Eating

 I love to go out in late September
 among the fat, overripe, icy, black blackberries
 to eat blackberries for breakfast,
 the stalks very prickly, a penalty
 they earn for knowing the black art
 of blackberry-making; and as I stand among them
 lifting the stalks to my mouth, the ripest berries
 fall almost unbidden to my tongue,
 as words sometimes do, certain peculiar words
 like strengths or squinched,
 many-lettered, one-syllabled lumps,
 which I squeeze, squinch open, and splurge well
 in the silent, startled, icy, black language
 of blackberry-eating in late September.

 -Galway Kinnell


--------16 of 16--------

 Duck-billed platitudes
 crawl out White House doors into
 resounding quack grass


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