Wednesday, December 26, 2007

Syria's credible threats [UPDATED 27 DEC 2007]

Spain and the US are being threatened, and the threats are very credible, in my eyes and extend far beyond the immediate of Lebanon and Spain.

Cross-posted from Dumb Looks Still Free.

From Naharnet News Desk, Beirut, 24 DEC 2007 (link liable to change), with h/t to Across the Bay:

Syrian Intelligence Threatens Spanish Peacekeepers in Lebanon

Syria's secret service has threatened Spanish soldiers in Lebanon in a bid to block the extradition of suspected arms dealer Monzer Al-Kassar to the United States, the newspaper El Mundo reported Monday.

The Spanish intelligence service, according to a memo cited by the newspaper, fears that troops on U.N. deployment in south-east Lebanon could be targeted if the Spanish cabinet ratify a judicial verdict and send Kassar to the United States.

General Assef Shawkat, chief of Syrian military intelligence, wrote to his opposite number in Spain: "If you think we are going to ignore the affront inflicted by north-American henchmen on our brother (Kassar), you don't really know us and [you] are no friends of the Syrian people."

Dated end-July, the note also refers to Shawkat delivering a thinly-veiled threat during a discussion with Spain's Foreign Minister Miguel Angel Moratinos.

Around 1,100 Spanish soldiers serve in the U.N. interim force in Lebanon deployed following the summer 2006 war between Israel and Hizbullah. Six Spanish soldiers were killed during a bombing there in June.

Syrian native Kassar, known colloquially as the "Prince of Marbella" where he has been based for the last decade, is wanted in the U.S. on suspicion of arranging arms deals for leftist FARC rebels in Colombia.(AFP)

Beirut, Updated 26 Dec 07, 04:17
This comes as no surprise, really, after recent events in Spain. This from the Times Online UK 01 NOV 2007:
November 1, 2007

191 dead, thousands of victims - but the ‘mastermind’ is cleared

Thomas Catan in Madrid
The accused mastermind of Europe’s worst Islamist terrorist attack was cleared of all charges along with six others yesterday in a shock judgment that angered victims.

Twenty-one others were convicted of playing a role in the 2004 Madrid train bombings, though many of them on much lesser charges than the prosecution had sought.

Family members of the 191 people killed and 1,800 injured expressed astonishment, branding the sentences as lenient and feeble, and vowing to appeal.

Pilar Manjón, who heads the largest association of victims, said: “I don’t like to see murderers walk free.” She lost her 20-year-old son when ten bombs packed into sports bags and detonated by mobile phone ripped through four commuter trains.

The court ordered victims of the bombings to be paid between €30,000 (£20,900) and €1.5 million (£1 million) in compensation.

One of the highest amounts will go to the family of Laura Vega, 29, who remains in a coma in a Madrid hospital. They will receive about €1 million to help to pay for her continuing care.

The atrocity was the world’s largest terrorist attack since September 11, 2001, and was the first European example of al-Qaeda-inspired terrorism on a large scale. But prosecutors failed to convince judges on the three-man panel of a direct al-Qaeda link. And the verdicts also failed to answer the question of who plotted the attack.

The accused mastermind, Rabei Osman Sayed Ahmed, known as Mohammed the Egyptian, burst into tears of relief upon hearing the verdict, shouting “You see that I’m innocent?” according to his lawyer.

He is serving a ten-year sentence on unrelated terrorism charges in Italy, where police taped him bragging in a telephone call about his supposed plotting of the Madrid bombings.

Amid a heavy security operation that included armoured cars and police helicopters buzzing overhead, Judge Javier G�mez Bermúdez read out the verdict to a hushed courtroom. Three men - two Moroccans and a Spaniard - were given the toughest sentences in the complex six-month case.

Jamal Zougam, 34, a Moroccan who lived in Madrid, was convicted of mass murder, having placed one of the bombs packed with dynamite and nails aboard the trains. Police arrested him after finding that one of the mobile phones used in an unexploded bomb had been sold from his shop. Several witnesses also reported seeing him aboard one of the trains that morning.

Othman el-Gnaoui, 32, was also found to have had a direct role in the attack and was convicted of murder.

José Emilio Suárez Trashorras, 31, a Spanish miner with a history of mental illness, was convicted of being a “necessary collaborator” in the bombings after selling the dynamite used in the attack to the Madrid cell.

The three were each sentenced to between 35,000 and 43,000 years in prison - though under Spanish law they will serve a maximum 40 years.

Three other Spaniards were convicted of helping Trashorras to traffic the explosives stolen from his mine.
And who is left out?

In my article Monzer al-Kassar and Transnational Terrorism, I look at some of the evidence that has shown up in Spain. That would take me to Winds of Change's Joe Aguilar look at part of that plot and how it involved Monzer al-Kassar:
Well, we are approaching the culmination of this article, the Schwerpunkt, the point where the main forces of the investigators of 3/11 and the ones that want it covered-up are heading for a perhaps decisive confrontation. At the centre of it, there is a man of Syrian origin, a National Police officer named Ayman Maussili Kalaji.

Kalaji arrived to Spain in 1980 as a political refugee, fleeing from the Civil War in Syria. He had served in the Democratic Front for the Liberation of Palestine (FDLP) in Lebanon, and it appears that he reached the rank of second commander of a missile base there. He also took the anti-government side in Syria, during that country's repression of the Muslim Brotherhood, resulting in Kalaji knocking on Spanish Immigration's door in order to keep his head on his shoulders. What may be more interesting to us is that as a bright teenage, he had been well trained in terrorist techniques, including electronics, and intelligence operations, and might even have been trained in the Soviet Union.

Regarding his experience, he began to collaborate with the Spanish security forces. Among other duties, he controlled the communications of Monzer Al Kassar, an arms trafficker that supplied to Palestine terrorists the weapons used in the assault of the Achille Lauro. Al Kassar bought Spanish protection against any awkward Israeli attention by selling two SA-7 portable antiaircraft missiles equipped with a transmitter to ETA. He was also allegedly a friend of Secretary of the Interior Rafael Vera. Later, in 1989, Kalaji worked in an operation to arrest a Hizbullah cell in Valencia, the year in which he was finally admitted to the National Police corps.

What is his relation with the 3/11 plot? Well, he owns a mobile phone store where the mobile phones allegedly used in those attacks were unlocked, (manipulated their software so they can use SIM cards from any company) as he himself has recognized. However, that is not all; the Civil Guard unit that is investigating the plot sent a communication to Judge Del Olmo in which, due to (a) the short time frame (from March 4th and 8th to 11th) to manipulate the phones, (b) the knowledge of Kalaji about terrorists operations and electronics (those well soldered wires) and his relations with other Syrians involved in the attack, requested an arrest warrant against him. The Civil Guards suspect that he is the person that attached the wires to the vibrating units of the mobile phones used in 3/11.

That is, no Al Qaeda, no ETA, but a Police officer.
Then on to Barcepundit gives a 2005 review of events:
El Mundo explains how the police found out that one of their own was the owner of the store where the cell phones were programmed:
From the data obtained in the van, plus the data from the unexploded knapsack bomb, the cell phones that Jamal Ahmidam’s people bought at Bazar Top (the Indian store), and the following “release” [by which the cell phones were able to be operated from any source including calling cards] of those phones, Kalaji’s coworkers at the General Information office came to his store, Tecnología de Sistemas Telefónicos Ayman.

From that very moment, Maussili Kalaji began to fully cooperate with his ex-coworkers at the Information Office, and thanks to him, and to his having written down the IMEI identification numbers of the Bazar Top cell numbers he had been asked to “release” (i.e., program so they phones would allow calling cards from any company and in any modality, prepayment, or contract), the investigators were able to find the Leganés apartment where the terrorist leader of the 3/11 trains of death had taken shelter.
. . .
He was in charge of the Syrian Monzer Al-Kassar
Maussili Kalaji thoroughly knows the Syrian community in Spain, and additionally, was the Spanish agent in charge of listening to and translating all of the telephone conversations of Monzer Al-Kassar, allegad weapons trafficker that was charged by judge Baltasar Garzón for collaborating in the Achille Lauro hijacking

The ship’s hijacking took place in 1985, and in 1992 judge Garzón charged Al-Kassar -- Syrian resident of Marbella and representative of the Spanish government in some weapons sales to third countries – of allegedly belonging to the Popular Front for the Liberation of Palestine (led by Abu Abbas [see link]), of murder, of belonging to an armed gang and terrorist organization, of attempted murder, illegal detention, and piracy.

Kalaji, as member of the Office of Information and by order of the judge, kept close match on Al-Kassar and his family; but eventually the Syrian friend of former Cesid director Alonso Manglano and ex-Secretary of the Interior Rafael Vera, was absolved of all charges of which judge Garzón had accused him.
Kalaji's Palestinian connections are strong and remain strong. El Mundo describes him as "Kalaji, who considers himself a defender of the Palestinian cause". My question is, is it wise of the Spanish intelligence services to have place in such sensitive jobs both Kalaji and members of his family?
Yes, Monzer al-Kassar, involved with the 3/11 Madrid train bombings. Syria wants him not to be extradited which comes down to a pretty blunt piece of work by Syria.

Here is what they are saying: Your soldiers in Lebanon are hostages of fortune, release Monzer al-Kassar... or else.

And Syria has delivered a message to the US on this, from Naharnet News, Beirut, 26 DEC 2007:
Syria Warns 'Resistance' Against Being Dragged into Civil War

Syria's ambassador to Washington, Imad Mustafa, has cautioned that a political failure could plunge Lebanon into civil war and warned Hizbullah against being dragged into the battle which could be a "great national disaster for Syria and victory for the enemies of the Lebanese resistance."

Mustafa also dubbed a possibility to elect a new Lebanese President by a simple majority vote an "explosive choice."

He hoped that Lebanon would get out of the presidential vacuum, adding, however, that there is a "strong possibility that an agreement could be finally reached" where the Lebanese would have a consensus President "who enjoys respect of all factions and that (person) is Army Commander Gen. Michel Suleiman."

Mustafa said the enemies of Lebanon were "those who wish that civil war break out in it," adding that the same foes "are instigating one Lebanese party against the other in the hopes that this would lead to an internal political strife; they are the ones who are turning Lebanon against its brethren and neighbors."

He believed that the Hizbullah-led opposition's aspirations were "Lebanese ambitions," stressing that there is nothing harmful in them.

Beirut, 26 Dec 07, 09:51
Couple that with the threat to Spain and what do you get?

Something like: Give up extraditing Monzer al-Kassar and looking into the assassinations in Lebanon, or things will go very badly in Lebanon and we will pin it on you.

This is the other shoe dropping on trying to get Monzer al-Kassar.

This is not over by a long shot.

UPDATE 27 DEC 2007
From Reform Party of Syria via wadinet

Assad Behind Bombs to Stop the Extradition of Kassar

RPS Press Release/ -- The Reform Party of Syria condemns the latest bombs, which exploded in Iraq killing at least 34 innocent Iraqis in two separate cities on one of the holiest days of the year and accuses Baschar al-Assad of carrying out a well calculated terror campaign against Iraq.

The cold killing comes on the heels of a court order in Spain to extradite the Syrian arms dealer Monzer al-Kassar, a close Assad operative, to the US who is suspected of selling arms to various anti-US groups and whose history of drug smuggling and other illegal activities mirrors the Assad regime qualitative purpose. The latest spate of killing in Iraq was intended to send a signal to the White House that unless the US vacates its request for the extradition of al-Kassar, the Assad regime will continue terrorizing Iraq and its innocent citizens. Al-Kassar can indict Assad directly in suspected killing of Americans, which explains the threats Assef Shawkat, Assad's brother-in-law and Chief of the Military Intelligence, made against Spanish UNIFIL troops in the south of Lebanon should the Spanish government comply with the US request.

Kassar is an important asset and when he points the finger at Baschar al-Assad and his immediate family, the US will be able to threaten the Assad family directly and much more impetuously than the parallel indictment expected from the UN international tribunal investigating the murder of Rafik al-Hariri. The cat and mouse game between the Assads and the international community is on high octane manifested by appeasing words from diplomats in the US and Israel while behind the scenes, tracts are pursued to clip Assad's wings once and for all.

We salute the Spanish government for its brave stand against terror and urge it to extradite Kassar expeditiously. We also urge the US administration to expedite its pursuit of the Thugs of Damascus as they continue disrupting Lebanon, killing innocent Iraqi civilians, and threatening the region with chemical, biological, and nuclear weapons. The alternative to Assad are Syrian dissidents and patriotic politicians committed to democracy, freedom, and human rights.

© Reform Party of Syria
My thanks to Mark Eichenlaub for pointing to this material.

Thursday, December 06, 2007

The understated implication of the NIE

As few have picked up on this, I sent an email to a few folks and decided to post it here. There are National policy and governmental security issues that the recent NIE on Iran has brought up and I find them troubling based on my works over the past couple of years.

From here on I repeat the letter:

The thing I have been trying to get across on the NIE is the point that zero people want to pay attention to:

We continue to assess with low confidence that Iran probably has imported at least some weapons-usable fissile material, but still judge with moderate-to-high confidence it has not obtained enough for a nuclear weapon.
This is not something I would ever expect to see on an unclassified report on Iran. The ability to import nuclear material through clandestine networks can only be assessed with 'low confidence'. Add that to the generally well known non-placement of CIA agents (or DIA for that fact) into transnational criminal organizations, and you get the following conclusion based on how sophisticated the Red Mafia is (and my recent article on same is lengthy and tough to get through as it is an extremely difficult subject):

1) Unknown amounts of nuclear material have gone unaccounted for since the fall of the USSR. This is not only 'yellowcake' but also refined material that was part of the nuclear disarmament agreement (START). The US, by not helping the cash strapped Russians to continue that program robustly had started to suffer security lapses. Unlike many alarmists I do not believe that any nuclear devices were taken from the inventory, but a high probability of warhead material (not just fissionables, but hardened electronics) has worked its way into criminal underground networks is something that cannot be discounted. Reports by various police and INTEL agencies across the globe point to something like this.

2) The Chorny brothers and other Red Mafia groups in the 'Heavy Metals' gang have been running factories under the Russian regime with little to no oversight of their activities. Heavy metals like lead and cadmium are essential components of nuclear reactors and warheads, along with other materials and, yes, electronics. Without proper safeguards we have seen in other areas of the Russian economy that goods (not just consumer goods, but weapons, vehicles and such) have been in the organized crime pipeline since the mid-1990's. Of note is that some of the old Nomenklatura apparatchiks moved into co-support of enterprises with organized crime, thus bringing contact lists with them for expertise.

3) The most sophisticated Red Mafia operator is part of the larger syndicate operating with the Chorny brothers, he is the 'Red Don' Semion Mogilevitch. He has an advanced degree in economics and I have not fully scoped out his criminal enterprises, but they stretched into Canada, US, parts of S. America, throughout Europe and all the way to China and the Golden Triangle. He also has an operation in Marbella Spain and that is the home of the Syrian narcotics/arms/money laundering 'Prince of Marbella' Monzer al-Kassar. Of him I have done scads of research (a few articles here, here, here) and his contacts reach deep into Syria, Iran, Argentina, the narcotics syndicates in S. America, Hezbollah and in the weeks leading up to 9/11 he and Mogilevich were scheduled to meet up with Osama bin Laden's bagman who died in a plane crash heading to Marbella. Additionally al-Kassar is on the 'Most Wanted' list of Iraq... not by the US, but by the Iraqi government.

4) Iran has been using Syria for major weapons purchases, not only for itself but for its Foreign Legion called Hezbollah. Additionally Iran has a base of support in the Balkans which is a major hub for E. European organized crime and trans-ship point with Africa and South America. That also fits in with the Hezbollah organization set up in S. America by al-Kassar and Imad Mugniyah, thus allowing Iran to have the ability to stage indirect purchases in the West through trusted intermediaries. Syria, itself, has NoKo contacts as seen not only via its purchases of NoDong missile technology used to help advance their own SCUD program, but through the supernote trade showing up in the drug trade areas of the Bekaa and outwards from there. The al-Kassar family is in charge of that trade and has been for three generations.

5) The narcotics trade, itself, brings in money laundering and, beyond the penetration of the Bank of NY system in the 1990's, there are simpler systems for doing such work, which tend to be ethnic community oriented. The most sophisticated are those that operate so much in the 'white world' that they cannot be easily tracked or traced, like the Black Market Peso Exchange system, but other Middle Eastern systems (such as the hawala system). Do note that the Red Mafia by working on 'both sides of the street' via partial industrial ownership in Russia is a perfect set-up for money laundering in and of itself... before skilled individuals start running so many companies that no one can find them all even knowing they are there. That individual is back out on the streets: Simon Reuben who was part of the Chorny business... he famously ran 300 companies spanning from Cypress, Bahamas, Grand Caymans, Abu Dhabi and Switzerland with 200 people and even set up three companies to take care of his rent, all in his head not written down or in a computer.

6) In the USSR/Russia one remaining problem that remains unsolved is that of the compromising of the KGB (now FSB) by a death cult. That was something I was a bit startled to run across looking at how al Qaeda borrowed operational ideas from another terror organization. That cult was Aum Shinrikyo, famous for the sarin gas attack in Tokyo and also having devised the proper method for dispersing anthrax, save they got an animal specific strain not a human specific one. As part of their expansion in the late 1980's, they went into the USSR and started buying plans and equipments from the Soviets. The KGB sent agents to watch them, but some of those agents apparently shifted allegiance and when the cult went down after the sarin attacks, these agents slipped out of view by the KGB. During the turmoil of the USSR ending no one bothered to keep track of them so there is no way to know exactly who, how many or what they are doing. It is not a heartwarming thought to have individuals looking to 'purify humanity' by ending it roaming around in Russia with large numbers of contacts in Russian industry which is, now, compromised by organized crime. While actually a low probability that such individuals are still around in Russia and doing something, it cannot be discounted, and these individuals would also have sufficient contacts in Japan to work out deals... like getting Mitutoyo nuclear separators into the black market. Someone had to do that and it isn't normal Yakuza work (from what I've read about them) that would leave Chinese Triads or the Red Mafia, or anyone with sufficiently good connections and motivations to set things up. Someone had to set up the connections to the AQ Khan network with Mitutoyo and we still, to this day, have no handle on that. Just like someone had to make the commercial/Triad connections to buy the CV Varyag for China.

It is for those things that admitting we have 'low confidence' in understanding of how Iran can import goods via such networks that is troubling. Frankly, you could drive nuclear devices through that with the right connections and the right connections *are* available and *in* the network.

That is our blind-spot because we want so much 'free trade' and commerce that we want no oversight on it. And so we devote little in the way of resources to penetrate those networks... that will come back to bite us.

Tuesday, December 04, 2007

The NIE on Iran's Nuclear Intentions and Capabilities

The Office of the Director of National Intelligence has released its 2007 summary of Iran's Nuclear Intentions and Capabilities with regard to weapons. I have previously reviewed NIEs on terrorism here and here.

I will draw on the intro of that second to help orient the reader on what an NIE is and what it does:

First and foremost it is a bland cross-agency summary of where the INTEL Community thinks things were as of MAR 2006. And as it is a set of Judgments on that intelligence information, it is summary in nature and an overview of the material.

Secondly, this is a high-level summary for an Executive and so must be short and easy to read. The President has daily IC briefings with his Cabinet officers and can get the daily work and updates as necessary. Every so often, probably quarterly, the IC does a summation of their work and then tells what is going on. Thus there will be little to NO backing evidence in the actual summation, but an overview of what the actual information hold.

Third, while it tries to be predictive, it is done so cautiously and must gain adherence from the Agencies involved. Further, Federal Agencies have a large amount of CYA involved, and so try not to 'make waves' or put forth partisan views, but offer the best analysis on the facts.

Fourth and finally, INTEL in all of its forms (HUMINT, ELINT, SIGINT, IMINT, MASINT, etc.) is never, ever certain and has a probability of being correct attached to it or likelihood of certainty. Thus any analysis, even one that is apparently 'slam dunk' is only in the 85-90% certainty range and is seen as conclusive as nothing else fits the overviews when pieced together. The whole of the information shows up much more than the pieces by themselves do. This is 'connecting the dots' to form the larger picture, so that a bunch of unconnected dots have inter-relationships and form a coherent whole.

This does mean that things can get cast into a view that is NOT as it appears due to unexpected connectedness, lack of connectivity or causality that is not there, but apparently *is* there. The art of INTEL analysis is to cast worst and best case scenarios and see what the outgrowths of those are and how well each fits with new and incoming data. These models of how relationships form, work and reach outwards are then reviewed and adjusted to take new facts into account. Often entire structures need to be removed and rethought because facts fully contradictory to the existing models and with a very high degree of reliability come to light which invalidates previous worst and best case scenarios.
Before going on to the actual analysis, there also needs to be something stated about the DNI and the Intelligence Community (IC), which I have looked at here in regards to the problems of the IC, and here with regard to the turf wars, which I will draw on for this understanding of bureaucracy in government:
We do not see this in politics today as it is harsh, results-oriented, extremely basic and makes good sense. Plus it endangers pet projects by Congress, who are loathe to give up same. Until such time as that can be done, trying to reform the system from the *inside* is a non-starter and any added 'oversight' organization immediately looks to create its own, sinecured fiefdom, put in further blocks to actually producing work products, and increase the overall overhead of the entire affair in time, money and wasted man hours. Process reform from bureaucracies and those empowering them do not work, as the Federal Government has demonstrated for decades. If it did then the Dept. of Education could tout 100% reading for all Citizens and that overall reading comprehension rate is above that of the 5th grade. Unfortunately those exact same problems remain just where they were in 1958 when Johnny couldn't read. Putting in a Director of National Intelligence hasn't seemed to have made the flow of INTEL any faster and, in point of fact, is allowing Agencies to further propagate their *own* outlook on things contrary to that of the President. More oversight is leading to less accountability. The Dept. of Agriculture, originally set up to research better ways to actually manage crops and to have a goodly sized fund to support farmers in case of emergency, now has that portion of its budget as the smallest part of it and over 20 times that amount going to crop subsidies and paying farmers not to farm. Somehow I can imagine better uses for those funds and skills in Afghanistan than in paying for crop subsidies here.
Thus the DNI will increase regularity, increase oversight and decrease accountability across the IC. This NIE is a product of that regularization process and is most soothing to the reader, as it is regularized, bland, and with large amounts of CYA by the IC and its component organizations. In no way is it a 'fraud', but folks do need to understand what is going on to render such documents and to not dress up a pig to be Cinderella.

The opening paragraph is a statement of the DNI and what it does and that it is, indeed, following the mandates of Congress. The ODNI does no INTEL work on its own, and is a coordinating office amongst the IC components and our International partners in the INTEL field. That is the 'depth' it brings: coordination, not original product.

From there the ODNI clearly states that it is added above the National Intelligence Council, which had been the previous body to help coordinate cross-IC NIEs. The ODNI is, thus, a coordinater and manager of the NIC and getting the rest of the IC to play together to form cross-IC documents and products. ODNI is an added procedural office, then, with its own goals and outlooks separate from the IC components, although given authority over their budgets and line items. Notice that in no way does ODNI have any responsibility for removing governmental pork: it is only an oversight and management organization and extra procedural step for vetting cross-IC needs, not put in charge of removing time wasting Congressional projects or re-purposing them to better fit National Intelligence needs.

To regularize the NIE process and familiarize the reader, the second page goes over that. It is of note that the procedure is one that adds bias into the NIE at the start of the process, this taken from the second paragraph:
The NIEs are typically requested by senior civilian and military policymakers, Congressional leaders and at times are initiated by the National Intelligence Council (NIC). Before a NIE is drafted, the relevant NIO is responsible for producing a concept paper or terms of reference (TOR) and circulates it throughout the Intelligence Community for comment. The TOR defines the key estimative questions, determines drafting responsibilities, and sets the drafting and publication schedule. One or more IC analysts are usually assigned to produce the initial text.
Stepping an outsider through this on a high level, we see the following on page 3:

1) Request from proper source for INTEL product, in this case the NIE, which goes through the NIC for approval - There is minimal bias in this step, as it is an attempt to look at things cross-IC. The only bias is in the *originating* request, which can be damned biased for the originator, but the NIC examines the request and then tries to remove the initial bias as best it can.

2) The request is handed to a component of the IC (National Intelligence Organization) - Notice that all other acronyms in this paper are spelled out, but NIO is not. An NIO is something we call an 'Agency' or 'Department' with CIA, NSA, DIA, NGA and others being NIOs. At this point, although there is specialization to INTEL collection type generally assigned to these NIOs, each has its own bureaucracy and outlook. An NIE gains bias at two points here: first, in selecting which NIO(s) get to draft the structure of the NIE and the internal NIO bias of each component organization. The ODNI is set up to try and minimize this, but its function has inherent bias in its set-up: if the ODNI wants a confrontational document, one NIO may be preferred over another, if a more soothing document is wished, a less confrontative and more bureaucratic organization is chosen.

3) The NIO creates the Terms of Reference (TOR) - The TOR is an outline of what the stated area of INTEL is and how it will be looked at based on the TOR language. TOR language typically has a 'shelf life' depending on the 'product' and its 'importance', so that stolid forms of INTEL will rarely change basic TOR terminology and meaning, while those that are fluid will often have single-document specific TOR language. Which NIO and individuals within NIOs that choose this scope of mission language is a source of bias, also, this reaching down to the mid-executive or high civil service staff level.

4) Cross-IC gathering of information is then performed by the guiding group for the document involved - This becomes a major area of deconfliction for assessment and is part of the 'blandifying process'. Different organizations with different specialties have their own way of viewing such things as 'risk' and level of confidence on sources. The most troubling from this is the final vetting of source and *who* gets to do that, as seen here at the end of paragraph 2 on page 3:
Working with their Agencies, reps also assign the level of confidence they have in each key judgment. IC reps discuss the quality of sources with collectors, and the National Clandestine Service vets the sources used to ensure the draft does not include any that have been recalled or otherwise seriously questioned.
This is, because it is handed to the clandestine side of the house, directed at CIA and parts of DIA (especially the field Military Intelligence staff). These are the 'keys to the Kingdom' as an NIO that has multi-source reliable information may have it invalidated due to a single source seen as unreliable, or have the reliability so pushed down as to not be considered as part of the NIE. In theory this is made to remove questionable materials and increase reliability, but in practice this can be utilized as a major way to remove information that the clandestine services, particularly CIA, find to be counter to anything it is looking at.

If one remembers back to the 1980's, it was the clandestine services that confidently predicted the continuation of the USSR up to 2030. INTEL on terrorist groups and Saddam's operations have both demonstrated that the clandestine services have decade long problems, actually going well past two decades if the USSR outlooks are included, plus not realizing how close India and Pakistan were to gaining nuclear power status. These organizations are now the 'gatekeepers' to getting views into the NIE. Instead of an all-source reliability assessment, including open source, this reliability and authenticity gatekeeping position has been, basically, handed to the CIA.

5) The draft NIE is sent to the National Intelligence Board for review, rework, re-draft, until the document can be finalized. That is a long process.

6) The summation is to demonstrate, again, what the ODNI has done so that it can justify its next budget.

That is *not* a humorous jab at ODNI, but an actual reason and rationale to put such language into such documents: if the ODNI were TRANSPARENT to the process, it might find its budget getting squeezed in the next budget cycle. By putting in such verbiage throughout the document, ODNI justifies its staff, funding and any and all increases it is looking for to Congress and the Executive.

That is a 'Turf War' game.

Page 4 hands us the TOR scope of the document. Funny its not called that.

That scope statement is part CYA, part process justification and some of it is 'real', meaning that at some point in the staff process (not the analyst process, but the high level NIC/NIB/ODNI staff) a decision is made to say: if we remove all our previous NIEs and positions from our vies, what does this stuff say to us now?

Good and critical analysis of product evaluation (product being the reports from analysts as filtered through Agency staff and then filtered through, again, to executive staff) is vital as well as trying to divorce oneself from past documents and give a fresh review on things. This has been a problem for previous NIEs as NIOs are more wedded to previous views than is the executive staff. And the NIOs also have a better handle on their own source material than the executive staff, which can be troublesome if another NIO, CIA say, invalidates some or all of a view from its perspective and does not take into account the originator's suite of sources for a view. At the highest level of the NIE the ability of analysts to actually get critical information through the multiple levels of 'oversight' is diminished to near nothing.

With all of that said, the proviso of not examining Iranian 'intention' but its 'capability' becomes clear: is Iran capable of processing nuclear material through to a finished device? I will address that problem later, after the examination of the conclusions, such as they are.

Page 5 is one of the very, very few times I have ever seen the IC come forward with its direct view on 'level of confidence' (LOC)! Frame it as a first of its kind. It is given as the 'estimates of likelihood' but is a good shading of LOC and follows the same concept for the same reason: they both measure uncertainty. Estimates of likelihood are based on original analysis which has an LOC and then combined with other products, which change the estimate and then the overall thing is given a final, very fuzzy LOC.

One of the huge sticking points inside the IC is varying LOC based on INTEL type. SIGINT, on the one hand, is very direct: the signal from a given point was interecepted, decrypted and reviewed. That has a high LOC to it. Interpreting who sent it and to whom has its own LOC which starts to move it from 'certain' into shades of gray. Add in other possible sources for sending such messages and LOC goes down, yet again. Throw in analyst knowledge of source type, use, and analyst background and the LOC gets moderated, but usually downward. This works by the concept of multiplication of percentages: two items that relate to each other at 90% LOC yield a sub 90% likelihood (although not exactly 81%) and that, combined with other documents with other likelihood estimates will then moderate downwards from the 81% (if it is the highest) until a final and synthetic LOC is formed.

Now put a 'gatekeeper' on vetting other NIO's LOCs and you get an idea of how the CIA can bolster or reduce the overall LOC for any given view, without, itself, being a primary shareholder in an INTEL area.

That brings us to page 6 and the actual assessments!

What are they saying, given ALL of the above?

1) Iran had been persuing nuclear weapons technology up to the fall of 2003.

2) A generalized halt in the nuclear weapons program started in Iran and lasted for many years.

3) Iran had not restarted its nuclear weapons program as of mid-2007 and we cannot tell its intentions past that point.

4) Iran does not now have a nuclear weapon (as opposed to radiological).

5) The assessment is that Iran has stopped its work directly on devices and nuclear weapons since mid-2005 and attributes this to international pressure.

Those are the 'moderate to moderately high' estimates of likelihood, save the last which is bureaucratic interpretation not linked to NIO analysis as it has NO estimate on it. Yes, all of point 5 is internal view *only* backed by high level summation from multiple organizations, but lacking an estimate of likelihood it becomes something else.

A guess.

The few 'low to moderate' points are telling about what we are missing in our IC:
We continue to assess with low confidence that Iran probably has imported at least some weapons-usable fissile material, but still judge with moderate-to-high confidence it has not obtained enough for a nuclear weapon.
We have no idea if Iran has been importing processed fissionable materials from other countries, like North Korea, say, via clandestine means.

That is extremely painful to read and points out the paucity of HUMINT and reliable cross-INT analysis on the third party arrangements that would indicate an AQ Khan similar (only in type, not personnel or outlook) network for fissionable material. In doing research for an article on the Red Mafia, the number of hints given to organized crime having access to such material in Russia is worrying, particularly as many firms are owned by state permission, invested in by organized crime and white industrial organizations and then have a portion of their output filter into underground networks. It is highly damning to the IC to admit this failure: we cannot even figure out if *anyone* has been *capable* of supplying such material in a clandestine way.

This is not good.

The next point on Iran, internally, getting enriched Uranium to the amounts necessary for a device cannot happen before 2009.

After that Iran is seen as working on generalized high level nuclear capacity that can be 'dual-purpose' in scope. Intention unknown. That intention unknown also goes to all internal workings of the IRGC in the nuclear area, although I would say with so many captures of 'Secret Cells' leaders tied to the IRGC, that we are getting a good look at the overall organizational structure of the IRGC.

Point F on the last page examines that Iran doesn't have enough internally produced HEU to produce a Uranium bomb, and that, in point G, a Plutonium device is off in the 2015 timeframe.

Their point about Iran being able to produce a nuclear device with time and commitment is well taken, but, as they haven't bothered to address intentions, that leaves us a bit out of luck on figuring out what, exactly, they are up to and *why*.

What has been left out?

Pretty obvious, really: Syria.

Iran is not alone in this endeavor and, as I have documented before, Syria has expertise on basic enrichment and processing, plus long term skill in working with scientific groups. As reported in the Jerusalem Post, the site bombed by Israel was most likely *not* a nuclear reactor site but a nuclear device construction site or research site into how to make nuclear weapons. The first report of this site was given to us by Ray Robison last year, before the bombing, with a report in a Kuwaiti newspaper that has been generally reliable on reports from Syria:
A Syrian nuclear program managed by Iraqi and Iranian scientists in the Al Haska area.

Brussels- From Hamid Geriafi

European intelligence sources based at the headquarters of the European Union in Brussels released information yesterday about the “presence of an active Syrian nuclear program in a secret location Northeast of the country, being supervised by nuclear scientists from Iraq, Iran and some scientists of the previous Muslim Soviet Republics, and it seems that the program has reached the stage of medium activity”.

The information, which Al seyassah got from British security sources in Brussels, revealed that “the brother of the Syrian president, Major Maher Al Assad -in charge of the Republican Guard brigade- along with his maternal cousin of the Makhlouf clan are supervising this program since the end of 2004 in the Northeastern district of Al Haskah situated next to the Iraqi and Turkish borders and which has a Kurdish majority”.

The information - of which the British security sources hinted that it might be coming from the German intelligence which is active in some Middle Eastern countries- revealed that “the Syrian nuclear program is relying on equipment and materials that the sons of the deposed Iraqi leader, Udai and Qusai supervised their transfer to Syria by using dozens of civilian trucks and trains, before and after the US-British invasion in March 2003”. Therefore according to those sources, the international inspection teams or the British and US intelligence could not find one “nuclear needle” in Iraq even though everybody knew about the existence of a huge program since the end of the seventies, before the Israeli planes struck and destroyed its main reactor in the Tuwaitha area near Baghdad in 1981.

The British security sources in Brussels assure Al Seyassah that “Iranian nuclear scientists are cooperating with their expertise, equipment and materials in addition to approximately 60 Iraqi nuclear scientists” that had found refuge in Syria after the onset of the war in Iraq and around 20 scientists that had moved from the former Soviet republics at the beginning of the nineties after the collapse of the Soviet Union and after the first government of Gorbatchev pulled out its nuclear weapons from those new republics”.

The sources said that “the Iranians are supporting the Syrian nuclear program, which was originally built on the remains of the Iraqi program after it was wholly transferred to Syria, with materials, equipment and expertise which are more advanced than it originally was. The Iranian could have brought up an advanced plant to enrich Uranium, of which the West is totally unaware.”
Add that to the missing Mitutoyo separators from the AQ Khan network, that I found via TMC net (although the link is probably dead by now):
31 AUG 2006 - Mitutoyo exported 10,000 devices since 1995, most of them illegally+

(Japan Economic Newswire Via Thomson Dialog NewsEdge) TOKYO, Aug. 31_(Kyodo) _ Mitutoyo Corp., a precision instrument maker at the center of an export scam linked to weapons of mass destruction, has exported some 10,000 precision measuring devices, most of them illegally, since around 1995, investigative sources said Thursday.

The Metropolitan Police Department's Public Safety Division is investigating the possibility that some of these instruments were exported to North Korea and other nations suspected of developing nuclear weapons via a nuclear black market formerly run by Pakistani nuclear physicist Abdul Qadeer Khan, the sources said.

In addition, the police are investigating suspicions that a Mitutoyo-made precision measuring machine of a different type from the firm's three-dimensional measuring machine that went to Libya via Khan's smuggling network was exported to an Iranian firm suspected of links to Iran's nuclear development program, they said.

On Aug. 25, the police arrested Mitutoyo Vice Chairman Norio Takatsuji, President Kazusaku Tezuka, and three other executives on suspicion of illegally exporting two high-tech measuring devices convertible for use in the manufacture of nuclear weapons to Malaysia in 2001.

One of the two 3-D measuring machines was found in a nuclear research facility in Libya by International Atomic Energy Agency inspectors during their 2003-2004 checks.

The machines can be used to make centrifuge machines to enrich uranium for nuclear weapons by determining their dimensions and minimizing shape distortions with high accuracy. Their export is subject to restrictions under the Foreign Exchange and Foreign Trade Law and the Export Trade Control Ordinance.

The police found that Mitutoyo's two other precision measuring instruments -- a form tracer for measuring the roughness of the surface of products and a roundness tester -- were handed over to Scomi Precision Engineering Sdn. Bhd. of Malaysia, suspected of being at the core of Khan's network, the sources said.

The police are investigating fresh suspicions that the two devices were exported to Libya as a "three-item set" with one of Mitutoyo's two 3-D measuring machines, which had been found to have been shipped via Dubai to Libya on an Iranian-registered vessel, they said.

The sources knowledgeable about investigations at the Public Safety Division said the Mitutoyo management decided to expand exports in the first half of the 1990s when its sales dived.

Then its project team developed computer software to make its precision measuring machines appear less accurate than they are to bypass Japan's export regulations on high-tech products convertible for the manufacture of weapons of mass destruction, the sources said.

Although some Mitutoyo employees alerted the management to the illegality of exporting high-performance machines using the software, referred to with an in-house code name of "COCOM," Takatsuji and others silenced the critics, telling them such exports have been decided as "a company policy," they said.

In addition to disguising the precision machines as devices with lower capabilities than they actually have, Mitutoyo filed export permit applications with customs, in which they falsely said their overseas arms were the final destinations of the machines to bypass the regulations on exports to countries and firms suspected of developing weapons of mass destruction, they said.

Mitutoyo, based in Kawasaki, Kanagawa Prefecture, is a leading maker of high-tech precision measuring machines and runs a network of subsidiaries, research institutes and factories in more than 20 countries, including the United States, Europe and Asia.

Takatsuji and Tezuka acknowledged the allegations related to the exports to Malaysia for which they had been arrested, informed sources said, adding the two executives have denied that the management ordered employees to bypass the export regulations.

But a senior official at the Public Safety Division said they believe the management issued such orders, adding Mitutoyo "has placed priority on just boosting sales and I cannot find any sense of ethics in them as a company."

Copyright 2006 Kyodo News International, Inc.
And that Iran only has 3,000 separators and, by all reports, Libya having less than 1,500, and we have a major problem of missing high tech nuclear separators roaming around the planet.

Yes, indeed, Iran, internally has sufficient capacity to do this work, but, no, we don't think they are.

And we have no good handle on clandestine networks on the criminal side going into and out of Iran.

We have no mention of Syria in the NIE, yet Israel was sufficiently worried to have Syria come out as an up and coming threat that needed to be addressed with a bombing raid.

It is always fascinating what the NIE does say... even more fascinating in how the bias of what is chosen to be looked at, how it is looked at and the blandness of the conclusions seem to arrive at odd times.

Iran, alone, is not acting in a manner to demonstrate its ability to create nuclear devices.

Iran and Syria?

Well this paper doesn't address that, now, does it?

Friday, November 23, 2007

The Responsibilities of those running for President

The following is a personal outlook paper of The Jacksonian Party.

Every four years America gets a look at the political class' aspirants for the office of President of the United States. This office has a heavy load to it for one individual, and has far and wide ranging powers in foreign affairs, military deployments, choosing who will be giving oversight to the federal government and nominating Judges to the federal courts. There is also the power to pardon and the more general 'head of state' concept for all things external to the Nation. These powers are vast, but closely delimited and stringently scoped so as to give the office checks and balances with the other branches of the federal system (Legislative and Judicial), plus requiring some ability to work with the States and address subjects to the People about how government is being run.

Thus, every four years these are not the things that are talked about!

While certain candidates will talk about one thing or another off of the list, very few will tackle the entire concept of the Executive branch in-full. Mostly this is due either to inexperience (even for incumbents there is much that is never learned about the Presidency) or to being familiar with a more limited scope of responsibilities and powers. Those coming from the Legislative branch have some belief they actually know what the Executive power actually *is* but only see it from their legislative perspective, often in the negative and do not realize that there is very little positive on the legislative side for the Executive.

Presidents can, for example, send a budget for the Federal Government to Congress. Congress then, using its authority to start all appropriations in the House, tosses that document to the side and makes up its own budget. That is an over-simplification, of course, and many budgetary items get shifted directly over, but Congress feels impelled to micro-manage by adding staff, items, budget and so on to areas of the government and often removing Executive items. That is part of the job of Congress, but that micro-management outlook means that they are stepping into the Executive area and trying to have a direct hand on the course of government instead of *its* negative duty to stop the Executive from abusing its control. Together these form a shiftless bureaucracy that then plays Executive against Legislative to meet bureaucratic needs set by that bureaucracy, and not by the political will of the Nation via the Executive and Legislative branches.

So, whenever you hear a Presidential candidate put forth that they will 'trim or cut back' government, realize that they have no ability to do so beyond very, very limited terms. That size is set by Congress and the Executive has the job of carrying out the functions of what government is to do and does so within the confines set by the Legislative branch. And as Congress has seen fit to manage all the way down to the individual program level, the actual ability of a President to change outlook within government is encroached upon by the Legislative branch. That is a 'soft' usurpation of power by Congress believing that it can manage government at the finest detail level, while it has no actual capability to do so as management is on the Executive side. By trying to add in more and more organizations for 'oversight', Congress is basically saying: ignore the Executive, do as we say, report to us.

It is in that tension between Executive and Legislative branches that increases 'oversight' but decreases accountability of government to the Executive to report to the American People. Congress does, yeah and verily, point to its role in mandating, funding and obligating the government, but to then try and manage such things via additional organizations with less Executive control and accountability, the Federal structure, internally, is weakened.

The result of that weakening is plain: runaway expenses, programs that cannot be killed, heightening of inter-agency and even intra-agency fighting and turf wars. By creating a Director of National Intelligence, the various parts of existing 'turf' that were threatened then responded by increased intransigence, less cooperation and a feeling that their expertise was being questioned. Well, it was, and for good reason, but the standing up of a wholly separate organization for 'oversight' added a new layer in bureaucracy, added overhead, reduced efficiency, decreased timeliness of information and, generally, made the problem worse.

To get more efficient cross-specialty Intelligence work done, a framework that crosses all of the Intel Community needed to be established that was: organic, cooperative, and shared resources and removed 'turf'. That did not happen, and so the already watered down National Intelligence Estimate now gets further dilution by the DNI. Dots not only don't get connected, they are now further away from each other by the separation of the 'oversight' provided by DNI: to this day there is no organic IC solution that crosses civilian and military needs together into a common IC framework. Oversight has increased, accountability has decreased and what little knowledge there is gets further separated by the higher level of bureaucracy involved.

The Executive power over the Civil Service is limited, with the laws and regulations set up to support the employees over doing a good job. Even at places like the CIA, where your pay grade could vary greatly depending on performance, the actual utility of that didn't allow flexibility in outlook to enter into the place. With mid-1980's predictions the USSR and Soviet Bloc would be around at least until past 2010 and probably past 2030, the actual collapse of it was a stunning slap on the face to the entire IC. No better has been the Dept. of Agriculture in supporting the concept of 'family farms' with payments mandated by Congress going to folks who farm so very little or none at all, that the utility of the Department is called into question.

If you can't support citizen farming could you at least stop supporting Big Agribusiness? Well, not if Congress has a say in that, which it does. Problems in the IRS and FBI with automation, and the inability of either to adapt readily to the modern world, has led to antiquated systems or, even worse, multiple non-integrated systems that house different data sets being unavailable to one person at one place at one time. That is the IC problem, written on the domestic side. And as the system is not set up to change, and is defended by partisans for their 'turf' and budget, the ability *to* change decreases. Firing is a help, but not a remedy so long as the office structures exist across government.

The thing the Executive does have is, in its own way, extremely powerful: mandating work rules, grading systems for work and, at the highest end, the ability to fire the civilian hired interface between Agencies and the rest of government. That last part is a key understanding of the power of the President, beyond just appointing cabinet level officers, judges and such. The hired Senior Service comes on with *contracts*, typically for a base year and up to four option years. A federal government power is the ability to do something with a contract called T4C: Terminate for Convenience of the government.

T4C is the instant firing power the President has over the Senior Executive (or Intelligence) Service. Those individuals tend to be long-term ones, eve with the 1 + 4 arrangement, as they come out of the Civil Service or are brought in from other parts of government or the private sector. In many Agencies the SES/SIS goes down to the Directorate level of government, which is usually a major sub-component of the Agency. The head of a Personnel Directorate would be SES/SIS, and would have senior Civil Service employees as Department heads under the Directorate. In some few Agencies that Department level is becoming an SES/SIS one, which means the direct power of the President reaches very, very far into the government. To express displeasure with an Agency that purposefully will not supply information or offer its obedience to the President, the folks heading up Directorates and on upwards can all be *fired*. This has so rarely been exercised it has almost been forgotten, but the laws of the 1970's make that clear. Such individuals serve at the convenience of the President to help run the Civil Service.

Any President who was *serious* about dissolving an Agency, could tell the SES for it to start the plans to scope it out, what can be dropped completely and what few parts need to go to a different part of government. If the Civil Service will not carry out this task, the President can weight it to be a primary one for all ratings - don't do the work, and your rating drops. Do that for a couple of years and the wheels could be started to actually try and get rid of a civil service employee... don't bet on that, though. Any member of the SES who can't carry out such directives can also be fired via a T4C. In short, no matter what Congress *does*, this is an exercise of Executive Power by the Executive saying: this part of government is useless to the Nation and does not need to exist in the federal government. Getting any work done in such an environment would be difficult, at best, and the more intransigent the civil service gets, the worse in looks. Congress can step in to say *why* it thinks an Agency is needed, mandate it and fund it. The Executive can flip that around and tell such Agencies to demonstrate how little they do for the American People as compared to State or Private concerns, and to be put on life support while the President asks for a plan to dissolve the thing.

I don't hear much about that from candidates on the trail, as they are not *used* to having such power. Very few individuals *are* used to that, and most of those were the business tycoons of the 19th century. Such work can and should spark National debate on the utility and function of such things, beyond the payment transfers that go on... or maybe *because* of such transfers. It is a valid stance for a Presidential candidate to say: 'This boat needs rocking and I intend to rock the excess overboard.'

That is just one of the Head of Government powers the President gets, and it is a tool to enact policy by the elected President upon the government of the People. Congress gets its say for funding and support, but basic needs and oversight is the Executive purview, and calling waste and suspect parts of government into question for dissolving them is a major duty of the President... not that you will ever hear that on the campaign trail, either.

As Head of State, beyond appointing Ambassadors and having the foreign policy of the Nation, outside of Treaty approval and regularization, the President gets a sole power which is another of the negative powers of the Office: revoke a Treaty.

The US is part of the UN... by Treaty.
The US is part of NAFTA... by Treaty.
The US has troops deployed in Germany... by Treaty.

Basically, all of how regular functions of the US with foreign Nations is given by Treaty and then supported by enacting legislation. Remove the Treaty, the legislation goes with it. Presidents can and have removed Treaties from their support, most recently the ABM Treaty, which was seen as a detriment to National Defense, but slews of Treaties with Nations that attacked their own people, went totalitarian or started in on open warfare with its neighbors, have also seen this. Any time you hear anything about problems with foreign Nations with regard to trade, illegal immigration, and terrorism spread to the US, the concept of revoking Treaties is one to express the displeasure of the Executive and change the course of the Nation.

Even if immediately impeached (and this is a purely Executive power properly used) the revocation of the Treaty would still *stand*. To get it back would take a willing President with a Senate able to sign-off on the new agreement, which might take *years* to get back as it is starting from *scratch*. A quick-and-easy 'lets just re-instate it' might work... but with so many treaties having problems to them, particularly trade and immigration, the ability to do that may be limited. It is not the easiest of things to revoke a Treaty that has been in place for decades but once done the change in course is nearly impossible to stop. The power of a Treaty is to add a regular function between Nations and to regularize it on a set framework. Remove that and the benefit to both Nations also goes with it. Often that is seen as no loss and of some gain, particularly if things are not working out so well with a Treaty.

Presidents must look at Treaties and their impact on the Nation and decide the utility of such things. Any Treaty that is abrogated by the other side, or that harmfully affects the Nation with little benefit, or NO benefit, needs to be ended. That is a signature to do so and requires no help from the Senate. Both must agree to get a Treaty in place, but that is not required on the ending side of things as that is a regular power of a Head of State. This is a Law of Nations view and President Washington used just that in The Proclamation of Neutrality, to forbid US Citizens from doing *anything* to contravene his foreign policy. Under force of law. And when it pertains to other Nations at war (even with each other without US involvement) the President has the power to tell the Nation to have NOTHING to do with such things.

This Law of Nations view pre-dates the US Constitution and was incorporated into how England worked not only at the National level but the internal legal level, as well. The United States would form a federal republic which is covered under Law of Nations in Book I, paragraph 10:

§ 10. Of states forming a federal republic.

Finally, several sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfil engagements which he has voluntarily contracted.

Such were formerly the cities of Greece; such are at present the Seven United Provinces of the Netherlands, (13) and such the members of the Helvetic body.
Yes, there were other republics and federal republics before the US and beyond confederation is a strong federation of delegating duties to the federal republic by the States. It is interesting that the concepts from the Declaration of Independence are put forth in Law of Nations, especially not changing the constitution of a nation without great cause and with great caution (paras 32-36). In the US we instantiate the sovereign, or individual leading the Nation, to be the President, although the power division between the President and the Legislature is somewhat differently defined than for other forms of Nation (paras 38-55 and electives states 56-71 ).

That is part of the Law of Nations, and the respected differences between Nations is acknowledged while the general outlook of the actual framework of the Laws are respected. Of note for modern times are paragraph 53, on the obedience due a sovereign, and paragraph 54 in what cases they may resist the sovereign. It is a long section (actually in two paragraphs), and puts forth that the actions of a sovereign must be truly odious, of the 'execution unjustly' form of odious not the 'trample on the Constitution but unable to show where and how' form, for such obedience to be resisted. By Book III the right of the sovereign to prevent citizens from taking part in a conflict not of the Nation would be founded. It is of note that it is an explicit view of the sovereign to do that, and President Washington as part of the foreign policy powers exercises that right as Head of State for the Nation. In Book III this is gone over on the question of Neutrality (paras 103-135).

The rights of private persons during time of war are put down in paras 223-232, with 223 reinforcing that citizens may not take up war making on their own, as that is handed only to Nations and the sovereign of a Nation, which President Washington re-iterates on the Neutrality of the US. Foreign recruiters should well be made aware via this that paragraph 15 is also in play, and that those recruiting in the US, when found, are treated thusly: "Foreign recruiters are hanged without mercy, and with great justice." Nor should a citizen join or obey a foreign recruiter in any way, shape or form. This is not only kidnapping, or 'man-stealing', but also a direct contravention of the directive of the sovereign and can, in and of itself, lead directly to war.

That is the power we hand to the federal government and the Executive branch of it: the ability to determine what raises to the level of being something that could involve us in war. When attacked, of course, we are at war with no need to declare it, save as a perfunctory statement (Vattel, Law of Nations, Book III, para 57) to inform the population. In the US system it is only when needing to go on offensive war, or war against enemies that have taken hostile positions and arms or having caused casus belli to us by its actions. In the role of commanding the Armies and the Navies of the Union, the President gains not only the power of field command and disposition of the troops, along with ensuring orderly procedures being followed, but also gains the entire purview over US ships at sea, plus crews.

This is the wartime assurance for US shipping, and neutral shipping to the US, that it shall be unimpeded by war. This is an ancient concept going far beyond the regularized Law of Nations (Vattel, Book I, paras 279-295), and deep into the English common law (as seen in US vs. Wilberger, 1820) all the way to the Black Book of the Admiralty which is a collection of post-Roman trade laws as instantiated in European nations in the 14th century. That power of being the Commander of the Navy allows for such things as piracy to be dealt with along with any external threats to trade for the Nation via the High Seas. Additionally as Commander of the Armies and Head of State, the President gets to set how those overseas activities that are *not* on the high seas, but conducted by means of war are addressed. The Congress may make law on the civil side according to the Law of Nations (US Constitution, Article I, Section 8), but cannot address things outside of the High Seas power (also in Art. I, Section 8) and signed treaties. It may set up justice practices within the Army, but those are only in accordance with regular Nations and treaties, not with those falling outside that framework.

It is this basic dichotomy of power directives that the next President has to deal with and they are ones that have vexed sovereigns back to the 14th century, when parliaments and kings had different areas of concern and the sovereign ruler would see problems outside the realm and other Nations that needed to be dealt with and the parliament would have no ability to enact anything in that realm as it was outside the Nation. Government for a Nation, however, is given the responsibility to protect the Nation and its citizenry first and foremost (Vattel, Law of Nations, Book I, paras 16-21) and to avoid things that would be contrary to that survival (para 22) and then gains the right that derives from the responsibilities to do seek survival and to advance its internal understandings *both* (para 25).

In this era of rights without responsibilities and trying to understand 'why they hate us' we come to a dilemma: a Nation need not care about *why* it is disliked, so long as it is *true to its own nature*. That is the responsibility of government to assure that both can be done simultaneously, and understanding hatred comes a bit after those two things and are not predicated on the understanding first. Even then it is not up to the population to, necessarily, understand 'why someone hates us', but for the government to deal with that. The power of the President in crafting foreign policy is to find a way to enhance the Nation, ensure that it survives and keep us true to our ideals, first and foremost. At no time do we put any other people or Nations ahead of our own needs and outlooks because we would no longer be the United States or *any Nation* if we did that. That is the responsibility given to the President and the rights that grow from that are also in that office.

I am afraid you won't hear much of that on the campaign trail, either.

As of late the right of the other branches of government to impeach a President also comes up, under the high crimes and misdemeanors concept. This, also, is given statement in Law of Nations, with regards to the prince being subject to the law (paras 48-49) and yet the dignity of office making the prince sacred and untouchable (para 50). Yet the population may undo a tyrant (para 51) or seek arbitration with such (para 52). In all cases beyond that, or in which resistance to a barbarous leader (para 54) the public is to show obedience and deference to the orders of that sovereign in his areas of power (para 53). Today we see so many looking at expanding the idea of 'barbarous' and 'tyrant' to include mere political differences, which is not the case with a National sovereign, be he President, King or simple Prime Minister who is also Head of State. A President who shows fidelity to the laws, however, can have indiscretions of them and it is there that we place the Impeachment power, most particularly is paragraph 49 in this instance:
§ 49. In what sense he is subject to the laws.

But it is necessary to explain this submission of the prince to the laws. First, he ought, as we have just seen, to follow their regulations in all the acts of his administration. In the second place, he is himself subject, in his private affairs, to all the laws that relate to property. I say, "in his private affairs;" for when he acts as a sovereign prince, and in the name of the state, he is subject only to the fundamental laws, and the law of nations. In the third place, the prince is subject to certain regulations of general polity, considered by the state as inviolable, unless he be excepted in express terms by the law, or tacitly by a necessary consequence of his dignity. I here speak of the laws that relate to the situation of individuals, and particularly of those that regulate the validity of marriages. These laws are established to ascertain the state of families: now the royal family is that of all others the most important to be certainly known. But, fourthly, we shall observe in general, with respect to this question, that, if the prince is invested with a full, absolute, and unlimited sovereignty, he is above the laws, which derive from him all their force; and he may dispense with his own observance of them, whenever natural justice and equity will permit him. Fifthly, as to the laws relative to morals and good order, the prince ought doubtless to respect them, and to support them by his example. But, sixthly, he is certainly above all civil penal laws, The majesty of a sovereign will not admit of his being punished like a private person; and his functions are too exalted to allow of his being molested under pretence of a fault that does not directly concern the government of the state.
In a federal republic with representative democracy in which a citizen is given the powers of sovereign, we do not see the person of the sovereign as above the civil law, nor is any prince seen likewise - even royalty is accountable to their own law. Civil penal laws, however, of actions by individuals against the individual who is President do have a problem and only for high crimes and misdemeanors should a President be subject to such. The US permits otherwise at its peril, and thus puts pure personal accountability ahead of National needs, when an individual who is President does have a date certain they will no longer be President and such suits may then happen.

This problem of the Presidency shown up in President Clinton was his perjury in a civil matter which many saw as a prosecution that should not have been happening until after he left office. There were many other, and larger problems that got put aside for this, and while none condone his action, the ability of the court to put the Nation into such peril in the FIRST PLACE was and is questionable. Congress adding on to that did not help things, and even guilty of having done such activity, it should never have arisen in the first place. Unconscionable to commit perjury in a private matter? Yes, and definitely. But that is seen in a different light under the Law of Nations and is to be handled *after* the President leaves office as it is associated with a purely personal matter.

That is part of the distrust of the American Public with its government: the Courts have ruled foolishly, individuals out to seek satisfaction put the Nation at risk and then Congress adds to that by increasing risk either via countenancing such activity or actively aiding it. This is a problem in America and the Nation needs to see that a Chief Law Enforcement Officer will also stick to the laws and enforce them, even upon himself. These, too, trace back to Law of Nations (paras 160-163, 166-170, 173-4, 176) which also includes the sovereign pardon power (173). Causing legal mischief in private concerns with a President should be beyond the pale and a firm stance taken against that by all political factions in the Nation: this puts us all at risk.

And I am pretty certain *this* does not get talked about on the campaign trail, either, especially the use of the pardon power. That has been highly individual to each President, with some dispensing very few and others, apparently, going on sprees to pardon or commute sentences, or even to pre-pardon individuals who may have gotten into trouble.

This upholding of the law is not only the civil law of the US, but our ability to be a sovereign nation and govern ourselves. Citizens have not only the right, but the obligation to uphold their own laws and obey them (Law of Nations Book I, para 30), respect and obey the sovereign who administers the law (para 53), obey the treaties between nations (para 96), work to ensure the prosperity of the nation (para 76, 81, 118) and to love his country (paras 119-120). The sovereign must ensure that the useful arts are protected for the Nation and that there is accord between government and the citizenry on these things. That is the job of any Nation state leader, and falls to the President, also. The power to list those skills necessary for the Nation that we will encourage immigration to the Nation and restrict emigration *from* the Nation also holds true. While Congress holds the immigration to the Nation power, the President oversees the emigration part via passports and such things. In this day and age very few are ever refused passports, but that is the mechanism for the Executive to not only ensure those that may harm other Nations are kept in check, but that those who are of great use to the Nation are retained.

The President gets this from the Head of State and Head of Government power, along with the foreign policy area, but has so become a non-issue in modern America that we may not recognize the right to refuse emigration as one held by the President, and yet that is the case with these cumulative powers.

This is not even a complete listing of the powers the President gets via how nation states work. The Law of Nations set out to regularize that understanding as the ancient civilizations had never done so. By examining all the cases of how a nation works, and properly defining what is held by a nation state and what is *not* and *why*, the founders of the Republic of the United States utilized this framework, along with others so as to create an understanding of what powers rest in government so that the common will of the People could be accurately expressed. These are not the written parts of the Constitution, but the basis for which a Constitution makes sense: without such things as the Law of Nations, understanding of the English common law and how trade developed from the Black Book of the Admiralty and through the Law of Nations, the actual Nation of the United States would not exist.

We live out these ideals and outlooks and yet they are rarely given to us in school or even in advanced studies any more. The modern era takes so much for granted that the concept of a 'post-Westphalian State' is talked about, but it cannot be given meaning as the framework of Nation states by the Law of Nations IS post-Westphalian and developed FROM the Peace of Westphalia. What those talking about a 'post-Westphalian State' are doing are talking about removing the concept of Nation State amongst mankind and imposing something *else* which they dare not define as it would not allow people to secure rights separate from the Nation State. The Law of Nations allows for either view of the source of rights to exist: rights handed down from the State and rights granted to the State by the People. In that flexibility comes wide variation of views and outlooks, so that cultures may find what is best for themselves in governing. It does not ensure liberty or freedom, although that becomes a major point between Nations in their activities, but for the individual it is up to the actual form of government to represent what is needed.

Strange that we will not hear of these basic concepts in times grown rough with outlaws spanning the globe to attack civilization. We need this understanding now more than ever in our history, because such lawless concepts have arisen before and were understood by our very own fore bearers in America. In our ignorance of the past we are dooming ourselves to a less well understood future, and a less safe one. Winning military victories only has meaning if the order and accountability amongst Nations is also restored, and that now slips through our grasp as we cannot figure out how to apply it to ourselves. Because those seeking high office take things for granted and leave unsaid. That, too, is a responsibility of the sovereign of a Nation, as seen in Book I:
§ 111. Instruction.

To succeed in this, it is necessary to instruct the people to seek felicity where it is to be found; that is, in their own perfection, — and to teach them the means of obtaining it. The sovereign cannot, then, take too much pains in instructing and enlightening his people, and in forming them to useful knowledge and wise discipline. Let us leave a hatred of the sciences to the despotic tyrants of the east: they are afraid of having their people instructed, because they choose to rule over slaves. But though they are obeyed with the most abject submission, they frequently experience the effects of disobedience and revolt. A just and wise prince feels no apprehensions from the light of knowledge: he knows that it is ever advantageous to a good government. If men of learning know that liberty is the natural inheritance of mankind; on the other hand they are more fully sensible than their neighbours, how necessary it is, for their own advantage, that this liberty should be subject to a lawful authority: — incapable of being slaves, they are faithful subjects.
We could use some of this in our views on the sciences to this day, lest we become ignorant of them and enslaved to that ignorance. That does require an understanding of what science *is* and how it functions as a body of knowledge. Unfortunately that is beyond what is spoken of by those seeking higher office and so we now seek ignorance. Because if they don't understand it we will become slaves once more in our ignorance of those things that are worthy of free men to think and speak about. Instead we have a quest for power and that, in the end, will leave us poorer and enslaved to ignorance if not countered.

I wonder why that is not talked about on the campaign trail by those seeking such power?

Friday, November 09, 2007

The Modern Jacksonian - Chapter 8 - Of Ships and Nations

There is a long history between ships and nations. Ships to travel over water have been and still are the main and cheapest form of cargo hauling on the planet. With just a bit of wind a sailing vessel can slip over the waves and expend only time and guidance. Before the era of the sail, it was manpower that moved ranks upon ranks of oars, everyone pulling in time to move the ship in the desired direction. Ships are self-contained and the rule on board is their law: none may escape it, all must adhere to it for the good of the ship. These concepts were applied to the idea of Nations early on, as borders define a Nation and its government works to set its course. Various forms of ruling and political discourse would return again and again to 'The Ship of State', which is a Nation. Many would use the 'working together to move the Nation forward' concept of the vast banks of oars, so that individuals knew that no toil, no matter how tedious, was without value. Other Nations would look for forms of 'clear sailing' diplomatically, to avoid contests between Nations or to 'chart a course' around disasters and disagreements.

This sort of imagery lasts with us today, and may last to the end of days, when ships slipping through the vacuum of space will face the same needs and challenges of being in a hostile medium and needing clear guidance and direction. Those born on such vessels, if they are on long voyages, would come to know them as their world, their Nation. So, too, do we born into our Nations come to see a Nation as it is when we are there. A natural consequence is to regard the Nation, like the ship as a solitary well known unit with internal workings that have always been there. It is only when looking at the history of ship building do we come to understand why those views are often misplaced, and how the view of Nation 'as-is' does not reconcile to a time when it was not. Nations do perish, their government and outlook put into history under water and sand and earth. Some die quiet deaths, of people leaving them due to ever changing climate as seen at Babylon and Assyria. Others fall into disarray and prey to any marauders, as was Rome and the Hittites swallowed up by barbarians. Others serenly carry on until something happens that is beyond their power to deal with. Japan was one of those, where the sudden appearance of western ships with cannon announced the end of the Samurai. Likewise Empires in Egypt and China would die and be reborn only to die again due to a host of causes. As with ships the reasons Nations founder are many, and often their ships tell their tale.

When we seek to build a ship, in these modern times, we lay down keel and ribs and then put the skin on her, to make the ship. This, however, was not the only way to make a ship, and ancient Rome had another way that made the skin *first* and fitted the keel and ribs to sustain the outward structure. Both systems work and create ships that can look alike, but their creation comes from different ends of things. When we look at a Nation today we often lose that construction and how the Nation was made. Many Nations are built upon agglomerated Kingdoms and Principalities more or less crafted together by war and diplomacy. When one holds together and gains internal continuity there is a need for more regularized government across diverse areas. That then requires building the structure inside the Nation to support its outward limits. Few Nations are granted the ability to actually lay a keel and ribs *first* and then fit the parts to that so as to have a Nation that is whole.

The United States had the great fortune of being able to do this so as to replace the failing Articles of Confederation which had guided the Nation through the Revolutionary War and into its aftermath of debt. By being Confederated, a larger integration was only loosely performed and the overhead of each State was high: it was that high cost of government and shared Revolutionary War debt that was causing the imprisonment of poor farmers as they ran out of means to pay taxes. Courthouses were lit aflame in many areas by rebellious groups that had believed that the object of liberty was to allow individuals to keep their earnings to use as they saw fit, not to have government remove them entirely via taxation. The United States had caused to form what previous centuries would call a 'peasant revolt' save that this was a Citizen's revolt against their States. It never coalesced into a single entity, but many came very, very close to achieving the arms and numbers to threaten civil government. Extremely close in the case of the Shaysites. That was the atmosphere of 1786 Annapolis Convention that recommended the 1787 Philadephia Convention start finding a way to draft a new form of government. As Jerry Pournelle would point out, this was the era of where the Nation was refered to in the plural amongst the common man: 'The United States of America are...'

The Philadelphia Convention would make that into 'The United States of America is...' one Nation, singular, with multiple States inside. I went over that process in Chapter 4, but it does bear repeating that to give this Nation form via government, we would not be putting a structure inside the existing form, but creating a new form via keel and ribs called the Constitution, and then fitting the States within that structure. Today when born into this ship of the Nation, we take it to be one thing, and while we learn its history we do not get the meaning of why the ship was constructed as it was. We learn the 'how' of battles and outlooks and such, if even in a cursory fashion, but the 'why' part which holds the actual driving forces to construct a Nation we are given short-shrift. Even in the generation or two before mine, stretching back to the intra-WWI to WWII period, that education was not well performed. Names and dates, events of all sorts, and some basics of the driving forces were given, yes. But the detailed look at the nuts and bolts of 'why' a Nation is made like it is, gets little view.

Today the ship sails (or is driven by engines or motors) across the sea and is much more massive, having been expanded again and again on the same basic design with a few changes here and there. That superstructure has remained well built, but the ship, itself was not meant to sail into certain waters: it is no icebreaker and is ill made to face pack ice, nor is it a submarine, made to slip beneath the waves and be unseen and self-contained from all outside influences save pressure and energy supply. The Ship of State has limits by its design, to thwart those that would undermine democracy and republican form of government within a larger federalized system. That said, the ship, itself, is no guarantee and it is only by the activity of those within her that let it run and function safely for all aboard. Nations, too, rely upon those inside them for support and to run the State by adhering to it. Well is that image and link made between ships at sea and Nations.

It is that internal bracing that we call the Constitution that which holds this Ship of State together. That Constitution has its own internal order and structure as well, and draws directly from multiple older pieces of law and outlook: the Admiralty codes dating back to the Black Book of the Admiralty, the Treaty of Westphalia, the culmination work of de Vattel's Law of Nations and Blackstone's Commentaries on the English Law. These works not only pre-date the American Revolution (and the Black Book by some centuries), but were actively talked about and utilized as the founding principles for civilization to be held amongst multiple Nations. de Vattel's views are often brought forth in the Federalist and Anti-Federalist arguments circa 1787-89, to try and understand what this new Nation would be in respect to other Nations. Further the English Common Law was also put into persepective as the things granted by King in England could not be considered as mere 'grants' at the leisure of the King in America. To institute those things, such as trial by jury and habeas corpus, they needed to be made a basic part of the founding understanding of the Nation. With that said the peculiarities of trade and trade law, plus the sovereignty of the Nation over its ships at sea would also require the special Admiralty court concept, in which it is often not possible to get a defendant to show up in court due to their being overseas or having otherwise utilized freedom of movement to escape justice. America would use these outlooks, and institute them to craft a new Nation and institute them in the founding document known as the Constitution.

That singular document is a clean and clear break with many norms of top-down control of a Nation in which rights are granted to subjects. In America the religious persepective of mankind having rights that were granted by the Creator are paramount, and government is instituted amongst men, not ordained from God. Religious tolerance was a hard fought for ideal starting in the 17th century and the Peace of Westphalia, which would allow freedom of worship of the three major Christian sects (Catholicism, Lutheranism, Calvinism) to be unhindered throughout lands that were signatories to that treaty. By strict interpretation of that, however, *other* religious outlooks could and were persecuted even after Westphalia. If the Puritans and Quakers could have found religious acceptance and toleration within their homelands, there would be no need to seek out the New World to find peace. Westphalia started a process of shifting religious rights from the State and making them a God granted right to individuals directly. No intermediary is necessary to grant rights: they reside within the individual and that is self-evident.

That self-evidentiary language, brought forth in the Declaration of Independence, was edited into place by Benjamin Franklin so as to remove a large portion of text that Thomas Jefferson had to cite the Bible. The problem of *which* Bible he would be citing and the interpretation of that was one that Franklin realized could harm the new Nation more than help it. If the Nation starts out with a basis in one, singular sect of a larger religious perspective, then its foundation would be attacked, over time, just as similar had been in Europe. To remedy that the concept of self-evident rights, without regard to any text and only in reference to a Creator, meant that a plurality of views could be taken not only on the religious side, but on the non-religious side. Even in that era there were such individuals who had *also* come to America to escape religious persecution for not having a religious outlook.

Noah Webster would put it in this way with A Citizen of America , from a Federalist perspective:

Of all the memorable eras that have marked the progress of men from the savage state to the refinements of luxury, that which has combined them into society, under a wise system of government, and given form to a nation, has ever been recorded and celebrated as the most important. Legislators have ever been deemed the greatest benefactors of mankind—respected when living, and often deified after their death. Hence the fame of Fohi and Confucius—of Moses, Solon and Lycurgus—of Romulus and Numa—of Alfred, Peter the Great, and Mango Capac; whose names will be celebrated through all ages, for framing and improving constitutions of government, which introduced order into society and secured the benefits of law to millions of the human race.

This western world now beholds an era important beyond conception, and which posterity will number with the age of Czar of Muscovy, and with the promulgation of the Jewish laws at Mount Sinai. The names of those men who have digested a system of constitutions for the American empire, will be enrolled with those of Zamolxis and Odin, and celebrated by posterity with the honors which less enlightened nations have paid to the fabled demi-gods of antiquity.

But the origin of the AMERICAN REPUBLIC is distinguished by peculiar circumstances. Other nations have been driven together by fear and necessity—the governments have generally been the result of a single man’s observations; or the offspring of particular interests. IN the formation of our constitution, the wisdom of all ages is collected—the legislators of antiquity are consulted—as well as the opinions and interests of the millions who are concerned. In short, in it an empire of reason.
The Bible is, indeed, part of the foundation of the Republic, but it is not the sole source of wisdom nor, indeed, final arbiter of wisdom for the Republic. This is quite heady stuff to see from 1787, yet points to that very diversity in thought, outlook and understanding that America needed to reconcile itself with in regards to where that foundation actually comes from. The outlook on the law comes not only from liturgical texts and outlooks of Christianity, but has basis in non-Christian views of antiquity, also. That building up of civilization is a piece on piece affair that is then cemented together, sometimes well and sometimes less well, over time.

This shifting of views from that of Europe, for singular religious basis for the Nation is a complex one, but the statement of Rights in the Declaration of Independence, is one that was hard fought for and would not be lost when the Nation first failed as a Confederacy. On the Anti-Federalist side we can see from Luther Martin's Objections to the Constitution, how this was understood at the time in 1787:
The first principle of government is founded on the natural right of individuals, and in perfect equality. Locke, Vattel, Lord Somers, and Dr. Priestly all confirm this principle. This principle of equality, when applied to individuals, is lost in some degree, when he becomes a member of a society, to which it is transferred; and this society, by the name of state or kingdom, is, with respect to others, again on a perfect footing of equality: a right to govern themselves as they please. Nor can any other state, of right, deprive them of this equality. If such a state confederates, it is intended for the good of the whole; and if it again confederates, those rights must be well guarded. Nor can any state demand a surrender of any of those rights; if it can, equality is already destroyed. We must treat as free states with each other upon the same terms of equality that men originally formed themselves into societies. Vattel, Rutherford, and Locke are united in support of the position, that states, as to each other, are in a state of nature.
By becoming a member of society some rights are lost to the more common need of society, and it is that reconciliation of power which is held by the individual but of higher need to society as a common right of society, that was played out in the decades before the American Revolution. The Rights held by man cannot be given away, nor stolen, nor surrendered by government or society. These two things would need be crafted together: the self-evident rights of the individual, and the needs of society to protect individuals and utilize some rights common to all so that society would not be put at risk from the individual's actions. By the time the American Revolution started, the framework, between Nations had been worked out via the Black Book of the Admiralty and Law of Nations. Together they would define the exterior sovereignty of the Nation over its trade and the internal rights and accountabilities for what is held in common by a Nation and what is *not*. Many societies would put far more into their National government or even see *it* as the granter of rights, but that dividing line is easily redrawn the other way with individuals having rights and then giving those needed in common as part of a social compact.

That is part of the infrastructure of America that we take for granted today. As a society we rarely talk on the terms of the most basic aspects of society and the individual, because we consider it to be *settled*. What the Constitution does, however, is leaves the majority of power not in government but in society, so that government is granted very little by the individuals who make up the Nation and expected to carry those things out. Here the English Common Law was used as a basis for those very essential rights which were then instituted in the first ten Amendments known as The Bill of Rights. The highest statement of this outlook is given in Amendments IX and X:
Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
These two Amendments are the most far reaching statements of the rights of individuals ever put down for governing. The first, Amendement IX, ensures that the Constitution does not become a 'laundry list' of Rights, so that if it isn't mentioned you don't get it. This removes that idea from play and clearly says that this Constitution and the few rights granted to Government many not be implied to mean that Government has say over *all* Rights. Those retained by the People, both explicitly and implicitly, cannot be infringed. Amendment X then butresses that by putting forth that the powers not delegated are retained by the States or the People. National government has *no* say over those rights.

Today there is a concerted effort to erode the meaning of these two Amendments, and to hand more power to Federal government than it can legitimately have. Those that put forth a 'strict constructionalist' view of this for the Judicial Branch must come to deal with the fact that such a Branch may not improperly infringe those Rights held by the People. Of interest is the conservative view that there is no 'right of privacy' which was clearly stated by nominee Bork during his hearings. He did cite the faulty language of previous, activist, courts to justify the right to privacy and well said. But implying that the Constitution is a laundry list of rights, is ill founded, as a 'strict constructionalist' would point to Amendment IX and X as being over-riding upon the Federal government. There are very few rights handed to government that may put an individual's right of privacy at peril, and those few areas are limited to those rights granted for the common good of the Nation. Only in those narrow confines, such as warfare, may the government abrogate those rights for demonstrated military need. Yet those powers of the Federal government are put at risk by legislation that is so poorly worded and conceived so as to leave doubt in cases of military need to save lives, to the point where we now have one life lost in this strange era of the rights of the individual over-riding the common good.

Bureaucracies, by nature, are impersonal: they are the parts of a larger system of moving information around in a manner so as to ensure some semblance of continuity in government. Nothing is ever put forward about bureaucrats needing to be: nice, friendly, effective, advocates or to have limited coffee breaks. That is true of bureaucracies in companies as well as in government, but the governmental kind have layers of additional 'oversight' which increases the amount of time spent in accounting for things done, thus decreasing the time in which to do things. Yet it is the self-same bureaucracies that are formed by those wishing to change society from the Legislative side and enacted by the Executive. While 'oversight' increases, actual accountability is diminished by layers of bureaucracy that insulate those doing things from their power structure. It is this dichotomy that plays havoc on the governmental side in all areas: 'oversight' trumps 'accountability'. And your right of redress by government is diminished by that structure in government as you will get little to NO response from Congress or the President on such matters, unless it is via a 'favor' or 'whim' on their behalf.

This idea of adhering to a 'strict constructionalist' stance would actually have some meaning if those pressing for it actually meant it. 'Strict constructionalism' is not limited to the Judiciary alone and, in fact, by pointing to that first we see the very *last* institution that is the backstop of our liberties and freedom. The first place to apply 'strict constructionalism' is where it matters the most: where laws are made. That is not the Judicial or Executive branches, but the Legislative branch. When individuals are heard to moan about 'activist courts' they are not addressing the problem that the laws are being made by 'activist legislators'. That realm of 'activism' has had profound and deep changes in the perception of the public on the role of the government in its lives. It was once understood that the role of the Federal government to be played in the lives of ordinary Americans was limited so as to not overburden the individual and remove their liberty and rights and put those in the hands of over-worked, under-caring bureaucrats.

So, why do we never hear about 'strict constructionalism' being applied to Congressional or Presidential elections? Isn't adhering to the boundaries set by the Constitution just as, if not more, important than the Judiciary? Yet, we do not hear that nor of individuals touting their 'strict constructionalist' outlooks for what they will do in office. As a litmus test it is only applied at the final place of appeal and *not* at the beginning of the process that causes such appeals to be necessary. When you hear any Presidential candidate touting that 'strict constructionalist' judges are their goal, one should ask: what about yourself? Really, the process of creating laws, moving them into place and enforcing them then causes court cases that wind through the justice system for decades until they get heard by the Supreme Court. Anyone serious on 'strict constructionalism' would put that as the prime view for ALL elected offices and critique individuals on what their views of the powers of government *are*. Yet that is rarely heard in the Land of the Free. Instead it is this or that social program or benefit or bribe to a certain sector of the economy and never, not for decades at least and perhaps longer, about the fact that government has little or no place in such things.

Of course those willing to put forward an agenda for society will never do that, as it points out that the agenda, itself, is 'social engineering'. If society needed 'engineers' to craft a better society, government would be the last place we would look as it is only capable of restricting the worst in society, not encouraging the best of it. That simple proposition was heard from the start of America before the Declaration of Independence was written:
Some writers have so confounded society with government,
as to leave little or no distinction between them
whereas they are not only different, but have different origins.
Society is produced by our wants, and government by our wickedness;
the former promotes our POSITIVELY by uniting our affections,
the latter NEGATIVELY by restraining our vices. The one
encourages intercourse, the other creates distinctions.
The first a patron, the last a punisher.
That writer is Thomas Paine and the quote is from Common Sense (via the Gutenberg Project), bolding is mine, unless otherwise noted.

Society, then, constructs government to serve purpose and need when recognizing the very nasty nature of that endeavor. When society tries to make government *sustain* or *make it better*, the goal of society itself is lost in the nature of government itself. Government serves a purpose to restrict activity, and harshly, not to encourage it and make things good for society. The source of good is society, not government, and when one strays from the design and function of government to do other things with it, then that effort has a course set for long term failure. Removing the good of society and investing it to government is destructive of individual liberties, the rights of society to have freedom from government interference, and creates an unaccountable system which then administers things to individuals. The paradigm was stated about the Russian Revolution that the people had exchanged the Czar for the Commissar: unaccountable Nobility to unaccountable bureaucracy.
It is to be regretted that the rich and powerful too often bend the acts of government to their selfish purposes. Distinctions in society will always exist under every just government. Equality of talents, of education, or of wealth can not be produced by human institutions. In the full enjoyment of the gifts of Heaven and the fruits of superior industry, economy, and virtue, every man is equally entitled to protection by law; but when the laws undertake to add to these natural and just advantages artificial distinctions, to grant titles, gratuities, and exclusive privileges, to make the rich richer and the potent more powerful, the humble members of society the farmers, mechanics, and laborers who have neither the time nor the means of securing like favors to themselves, have a right to complain of the injustice of their Government. There are no necessary evils in government. Its evils exist only in its abuses. If it would confine itself to equal protection, and, as Heaven does its rains, shower its favors alike on the high and the low, the rich and the poor, it would be an unqualified blessing. In the act before me there seems to be a wide and unnecessary departure from these just principles.
Nor is our Government to be maintained or our Union preserved by invasions of the rights and powers of the several States. In thus attempting to make our General Government strong we make it weak. Its true strength consists in leaving individuals and States as much as possible to themselves in making itself felt, not in its power, but in its beneficence; not in its control, but in its protection; not in binding the States more closely to the center, but leaving each to move unobstructed in its proper orbit.

Experience should teach us wisdom. Most of the difficulties our Government now encounters and most of the dangers which impend over our Union have sprung from an abandonment of the legitimate objects of Government by our national legislation, and the adoption of such principles as are embodied in this act. Many of our rich men have not been content with equal protection and equal benefits, but have besought us to make them richer by act of Congress. By attempting to gratify their desires we have in the results of our legislation arrayed section against section, interest against interest, and man against man, in a fearful commotion which threatens to shake the foundations of our Union. It is time to pause in our career to review our principles, and if possible revive that devoted patriotism and spirit of compromise which distinguished the sages of the Revolution and the fathers of our Union. If we can not at once, in justice to interests vested under improvident legislation, make our Government what it ought to be, we can at least take a stand against all new grants of monopolies and exclusive privileges, against any prostitution of our Government to the advancement of the few at the expense of the many, and in favor of compromise and gradual reform in our code of laws and system of political economy....

Andrew Jackson in his Bank Veto Message of 10 JUL 1832.
Even a few decades past the Revolution, the concept of keeping government accountable to the will of the people was still in-force. Government secures the rights of the people by *not* taking them over and then doling them out as government sees fit. This paradigm of government was a guiding one throughout the 19th century, and endured even to the early 20th. Even as late as 1910, it was seen as the guiding concept:
At many stages in the advance of humanity, this conflict between the men who possess more than they have earned and the men who have earned more than they possess is the central condition of progress. In our day it appears as the struggle of freemen to gain and hold the right of self-government as against the special interests, who twist the methods of free government into machinery for defeating the popular will. At every stage, and under all circumstances, the essence of the struggle is to equalize opportunity, destroy privilege, and give to the life and citizenship of every individual the highest possible value both to himself and to the commonwealth. That is nothing new. All I ask in civil life is what you fought for in the Civil War. I ask that civil life be carried on according to the spirit in which the army was carried on. You never get perfect justice, but the effort in handling the army was to bring to the front the men who could do the job. Nobody grudged promotion to Grant, or Sherman, or Thomas, or Sheridan, because they earned it. The only complaint was when a man got promotion which he did not earn.

Practical equality of opportunity for all citizens, when we achieve it, will have two great results. First, every man will have a fair chance to make of himself all that in him lies; to reach the highest point to which his capacities, unassisted by special privilege of his own and unhampered by the special privilege of others, can carry him, and to get for himself and his family substantially what he has earned. Second, equality of opportunity means that the commonwealth will get from every citizen the highest service of which he is capable. No man who carries the burden of the special privileges of another can give to the commonwealth that service to which it is fairly entitled.
Theodore Roosevelt, New Nationalism speech delivered in Osawatomie, Kansas on August 31, 1910. The Commonwealth, that part which is held in common by society, is not government but is the entirety of the Nation including government. That is, indeed, Nationalism not a rallying cry to more government but to people to rally to their fellow man and the Nation as a whole. That is something that is basic to Americans, and the founding of the Nation, and when government attempts to *do good* by supplying things beyond handing out justice equally, it shows, in its corruption by special interests, how government can be abused.

A basic part of the structure that we come upon by custom is that promises made should be kept. Legally the concept of promising something and then withdrawing such when another is fulfilling their part of the bargain to get the reward of the promise is not allowed by the concept of estoppel. From, Webster's Revised Unabridged Dictionary (1913):
Estoppel \Es*top"pel\, n. [From Estop.] (Law)

(a) A stop; an obstruction or bar to one's alleging or
denying a fact contrary to his own previous action,
allegation, or denial; an admission, by words or conduct,
which induces another to purchase rights, against which
the party making such admission can not take a position
inconsistent with the admission.

(b) The agency by which the law excludes evidence to dispute
certain admissions, which the policy of the law treats as
indisputable. --Wharton. --Stephen. --Burrill.

If you induce someone to do something by promise and they do so, then one is estopped from not giving what they said would be given. To do otherwise is to make false guarantees and give promises for reward where no intention of giving such reward is actually present. By law that original promise is binding upon completion of said work or conditions. However there are, as we know, many areas of life not ruled by the law, and the promises of politicians seeking votes is a prime one not covered by this. This part of how politics works is one firmly contrary to how we proceed in our daily lives where promises given are to be kept. In politics, promises given are a path to power, not a cause for enacting such promises once power is gained. These two views are strangely at odds in America and have been since its founding: the right to lie is given different view in the public arena than in the private arena.

That is a direct reflection of President Jackson's views on how the rich and powerful unduly influence government to get specific interests put in place to benefit them. At that point in history, the National Bank had 25% external ownership and, from that, influence on the economy in a direct form would be swayed at the Bank, itself, and not moderated by government. Even with trustworthy individuals, the potential for abuse and undermining the US economy was too large to be conscionable and the Bank was not renewed: it dissolved. There have been very few times that a government agency or functioning institution has been removed and this was one of those times. From that list (via Wikipedia), almost every single one was moved into a larger organization or its functions subsumed by another organizations (the Interstate Commerce Commission moving to the Surface Transportation Board as an example), but the outright ending of the function of the federal government, once put in place, being *ended* is so rare as to be noteworthy. Remove the War related organizations and that list shrinks even further:

  1. Agriculture Adjustment Administration - Ruled unconstitutional in 1935.

  2. Board of Economic Warfare - Abolished by the President, 1943.

  3. Board of Tea Appeals - Abolished in 1996 by Congress.

  4. Committee on Public Information - Abolished by the President, 1919.

  5. Foreign Economic Administration - Abolished by departmental order, 1943.

  6. Federal Theater Project - Canceled by Congress in the budget, 1939.

  7. Office of War Information - Ended 1945 by Congress and the President.

  8. Reconstruction Finance Corporation - Ended by Congress 1948.

  9. United States Information Agency - Ended new production 1999, continues broadcasting.

  10. War Production Board - Abolished by the President, 1945.

  11. Works Progress Administration - Ended by Congress in 1943
Of those the ones having to do with the 'New Deal' (1,6,11), World War II (2, 5, 7, 8, 10), and WWI (4), leave only two (3, 9) that have been abolished with no other cause. The Jackson removal of the National Bank would stand until 1913 and its re-instatement under the auspices of President Wilson. Only small 'programs' can easily be attacked and cancelled within the budget, itself, and those tend to be partisan items or ones that ignite actual debate. No one debates the necessity of such things as *having* a Dept. of Education or a Dept. of Energy. Yet our democracy was created on a federalist concept in which the most basic of each and every item in the government was to receive harsh and thorough scrutiny as to the need of having it, year on year. That is the nature of democracy: to ensure that government institutions have not overstepped their bounds and that they still serve a useful function.

It seems that this underpinning was forgotten by the very people who keep on pointing to the Federalist Papers as cause and justification for a federal form of government. No less a light than Alexander Hamilton would cite that importance in Federalist No. 26 on 22 DEC 1787:
"The legislature of the United States will be obliged by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter by a formal vote in the face of their constituents. They are not at liberty to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence. As the spirit of party in different degrees must be expected to infect all political bodies there will be, no doubt, persons in the national legislature willing enough to arraign the measures and criminate the views of the majority. The provision for the support of a military force will always be a favorable topic for declamation. As often as the question comes forward, the public attention will be roused and attracted to the subject by the party in opposition; and if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it. Independent of parties in the national legislature itself, as often as the period of discussion arrived, the State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.

Schemes to subvert the liberties of a great community require time to mature them for execution. An army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose not merely a temporary combination between the legislature and executive, but a continued conspiracy for a series of time. Is it probable that such a combination would exist at all? Is it probable that it would be persevered in, and transmitted along through all the successive variations in a representative body, which biennial elections would naturally produce in both houses? Is it presumable that every man the instant he took his seat in the national Senate or House of Representatives would commence a traitor to his constituents and to his country? Can it be supposed that there would not be found one man discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise his constituents of their danger? If such presumptions can fairly be made, there ought at once to be an end of all delegated authority. The people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many States as there are counties in order that they may be able to manage their own concerns in person."
While a continuing army was worried about, the entirety of government is also at question with this. At the point where federal form of government serves those in power more than it serves the People, it becomes a danger to freedom and liberty by that continuation of such government. That Hamiltonian view is, actually, highly in accord with the Anti-Federalists and speaks of *their* worries about federal government. In answering them, Alexander Hamilton gives us warning signs of government no longer accountable and beholden to the people. When looking at the army, we also see that it is given *forebearance* to be examined every TWO years while the budget is put forth EVERY year. That budget was to be fought over, tooth and nail, to keep power in the hands of the States and the People by asking *why* government should add things to its structure. That heated battle every other year for the army was to ensure that it could have *some* continuity, year on year.

That course was set at the founding of America by that structure that was put in place. The recognition of such structure and, indeed, that of all Nations, is that they are voluntary social compacts. By that means individuals and peoples agree on common things between them and set about to govern themselves in that way. We put the Constitution as a first touchstone in America because it is the compact that guides our outlook as a Nation. An outlook that foresaw that government, itself, was an institution to curb our desires against each other and that any government made up of humans would suffer from those same problems as has plagued other governments over time. The attempt to forestall the concentration of power was done via Amendments IX and X so as to remove the ability of government to over-reach beyond those things actually handed to it in the Constitution.

This concept of voluntary associations to have a Nation also works between Nations in this concept known as 'treaties'. As Nation States grew from the Treaty of Westphalia so as to give common governance across religious boundaries and put none at risk, a basic cornerstone of the modern Nation State was set in place by all those that voluntarily accept the strictures of the Treaty of Westphalia. That single shift has now played out for over three centuries and, today, we come up against Nations that do not accept that voluntary compact: they do not separate the common laws within Nation from ecclesiastical or clerical law. Many of these Nations do, however, have some form of religious tolerance, as the Nation of Turkey does, while others do not, such as the Kingdom of Saudi Arabia or the Islamic Republic of Iran. In these latter cases religion is regulated to that of the State and, to greater or lesser degree, individuals must either adhere to that religion, not practice their own or give obeisance to the State religion. Often all three.

This concept of the Westphalian Nation State is one that served as a foundation for Western liberal thinking about the rights of man, his accountability to society and the reciprocity of society to allow individuals to have their own view on things. Without the Westphalian notion of freedom of religion inside Nations, and yet still allowing Nations to have religious identity, the things that we call the Rights of Man would not have come about. To commonly hold basic, civil rights that cross all religions, all religions need to have open and honest discussion amongst their sects and with the common folk who may or may not adhere to any of the religions in practice. A recognition of the separateness of the Nation State from religious enforcement started a path away from the tight binding of religion to Nation. While many in the modern US may decry that this is a 'Christian Nation' and that the founders were 'Christians' that is only a broad generalization of the wide diversity of views held not only amongst Christians today but at the Founding Era. Indeed, disparagement between religious sects was a feature of that founding time, and the invective weighed by various founders against other formulations of Christianity was quite strong, including such views applied to other founders. To try and make them all, blandly, to be something that modern Christians see as 'Christian' is an insult to those founders, who strenuously disagreed amongst *themselves* on that topic and an insult to the Nation founded on the strength of diversity with no single group ruling over everyone. Their diversity of views on the impact and meaning of Christ to themselves and the world varied so greatly as to be unrecognizable, as a whole, to those wishing easy categorization. Christians, by and large, but not wholly and completely, and there were others like Benjamin Franklin whose views would remain separate from that of other designations as he thought upon the matter. The diversity of religion and acceptance of commonality as necessary is not a feature of modern church/state divides, but dates back to before the founding of the US.

That founding time featured, in the Constitution, something that allowed for that diversity to take place: No restriction on State Constitutions with regards to religion were put in place at the Federal level. So long as the rights of the people as a whole were not infringed, any State could and did have religious alignment. Every State Constitution features religion in its structure, often quite partisan in nature towards a certain sect, and yet the understanding is that all laws based in that State must be regular to the Nation as a whole. It is this, little understood, concept of the States having individual sovreignty within the compact that those pushing for National naming of the US as a Christian Nation do not understand: the Constitution prevents any say for the Nation on the religion of the Nation as a whole, leaving it up to the States and the People to work that out on their own. By setting the Federal into the common arena, that must be open to everyone without respect to religion, it must be unbiased save to protect *all* religions. While that is often honored in the breach, the diversity of American religious life from the founding to this modern era is beyond that of any other Nation on Earth. No peoples are so diverse in their beliefs, and devoutly so, than Americans. That richness and depth of affiliation is done under the protection of all religions to the disparagement of none. This concept is known as: respect of religious diversity, not disparagement of all religions which many seem to think it comes down to.

Nation States, then, allow treaties to become more than just agreements and will often make them into standing law that becomes foundational not only to their legal systems but to the Nation as a whole. Without the Treaty of Westphalia, we see the era of diverse Christianity played out in the era of modern and diverse Islam without such restraints. Those groups and organizations that perceive the will of Allah to be over-riding to all things mankind makes and that all works and Nations must adhere to that, allows them to create religious strife of the type known in the 30 Years War prior to 1648 and Westphalia. If seen as the nascent start of diverse religious conflict as similar the struggle between Roman Catholics, Lutherans and Calvinists was prior to 1648, then the cause for concern is great as there is no over-riding main power in Islam as there was in Christianity, in the form of the Roman Catholic church. Indeed, Islam is very much a 'make it up as you go along using holy views as a guideline' concept of religion, and the Koran is only considered *a* source document and, to many in the divergent forms of Islam, not even *the* source document. Mohommed taught in many places over his life and his teachings were recorded locally, so his sayings as a young man and those of a middle aged man have wide disparity of life experience behind them. Many of the sects of Islam, like the Alawites in Syria, utilize those 'special teachings' separate from the Koran as more guiding to their views than the main body of Islam or its major branches.

To us this is vexing because the Nations involved are not Westphalian in Nature: the commonality of societal view outside the particulars of religious outlook do not hold sway in many of the Nations with large Muslim populations. This concept is called secularism when it rejects all view of religion from the common life, but secularism, itself, has also been made accomodationist so that basic respect for belief can be had by government and not to disparage all. Secularism is not, of necessity, atheism, but a profound belief that religion or anti-religion is profoundly divisive to the common culture and that individuals are best left up to themselves to find their own, best answers in life without threatening any part of society in that doing. The touchstone to good laws and treaties, is the non-disparagement and infringement of religion as a concept, and while religion serves as a major (and indeed overwhelming guide) to how treatis and laws are made, the instantiation of those beliefs must be to uphold the common beliefs and rights of all in a Nation. These hard questions took decades to work out, and by the time a century had passed a basic framework for how Nations can do this externally, one to the other, had been created and strong views on how this must work internally were also coming about.

Those that came to America to escape religious oppression and find peace in their beliefs brought those understandings with them, not only from England and the English Common Law system, but from other Nations across Europe and even parts of the Near East and Africa. While not set in stone, the rules for how Nations are to behave had been made and thought about by legal scholars for some two decades before the fateful year of 1776, and those ideas had come to this new land and were adopted as they were a way to codify the existing understanding of what a Nation is and how it works with regards to other Nations. Existing law outlooks that had been combined in the Black Book of the Admiralty, had served as one basis for that international understanding.

That book served as one of the first multi-lingual texts to help regularize trade law over the common seas and the responsibility of each Nation in that regard. Nearly as old as Westphalia, the Black Book is still used, today, as the basis of international shipping. In many novels the ability of a Captain to marry a couple at sea is always pointed to, but it exists because the vessel, itself, is an extension of its flag Nation: a ship remains a part of the Nation and has the freedoms of the high seas so long as it is in contact with the high seas. That comes from the Roman Imperial Trade laws that were used in constructing new laws after the Empire receded. And that remains a part of how ships operate to this day. Save for the disparity of equipment on board a ship today, and the more mild treatment of sailors due to changes in civil law, a captain of a vessel in any era from the 10th century could be placed in charge of a vessel today and understand the basics of what can and cannot be done at sea. Getting across that this has been extended to the edge of the atmosphere and to the core of the planet might be a bit harder to do, but the conceptual framework is exactly the same, save for navigation differences.

America did not have to *invent* that as it existed before the founding and the US traces its lineage far back into English history to gain the widest possible leeway in our utilization of the high seas as is possible. We also see that as the right of *any* Nation to do the same. These views on what to do with things that were truly common to everyone played a large role in how to start shifting the basis of Nation State from religion to common governance. While things like Embassies and Ambassadors go all the way back to the beginning of recorded history, the views on why they are sacrosanct and how they are treated has shifted from the time of Achaean Greece to the era of the founding of the US. When the religous basis for warfare was removed by Westphalia, save in *protecting* the practice of religion from oppression and warfare, the non-religious reasons for conflict needed to be addressed. And as they were Nation-based, it would require an understanding of what Nations *are* outside the religous context. Sovreignty, then, passed from Annointed Royalty to Nation State: one may still have royalty seen as being divinely annointed, but the instance of the Nation State as the mortal realm container of peoples is the form that rulership must take. God may Annoint, but the mortal realm is stuck to its own devices and as civilized peoples have put aside religious animosity in favor of finding common ground outside of religion and respecting religious diversity then those teachings must be purveyed so as to not endanger the common realm. When States were allowed to set religion for their people, the death toll was enormous and never-ending until that could be put aside. Those that favor this conception to put religion back in charge of Nations so as to export that belief by intimidation, force of arms or outright killing are acting in an uncivilized manner and breaking the common peace.

The century or so after Westphalia and the emergence of trade to the New World started in the first era of large scale economic expansion seen since the fall of the Roman Empire, and that expansion continues unabated to this day. Those initial rule sets were slowly brought together so that the Treaty of Westphalia and Black Book of the Admiralty could begin to define just what this thing known as 'Nation' is and what it could and could not do. Assembling this required looking at the known forms of government that included Monarchies, Oligarchies, Republics and even religiously led states. Between all of them there needed to be an understanding of what the responsibilities of Nations are, how they interact with each other and what the 'rules of the road' were. Any Nation standing up could have this voluntary set of guidelines to know exactly how the rest of the Nations viewed them, and what such a Nation could expect for certain events. Ancient ideas of Embassies, Trade, Warfare and the responsibilities of the Nation in each realm were understood and put together in the work of de Vattel called: Law of Nations. This became the outline of how a Nation State, in general, would operate and what was expected of it externally and what citizens needed to do internally to respect other Nations and peoples.

The Law of Nations could not be enforced from the outside: to adhere to it a Nation must adhere to its principles, state them and put forth laws and procedures in accordance with its strictures. It is a voluntary set of guidelines for the civilized behavior of Nations with regards to each other in peace and war, and how proper recognition is to be given Nation to Nation. This work is one of the prime examples of the age of thought on Nation States as it goes through, in exacting detail, the entire set of possibilities that can arise between Nations both in the normal course of affairs and the irregularities in affairs. Just on warfare, alone, it gives the categorization of legitimate warfare (that done by Nations) and illegitimate (that done by non-Nation actors), and then goes into extreme detail of how Nations are to comport themselves, what their obligations and duties are, and what the historical background on certain instances are that have become accepted in the Westphalian tradition. It is nearly impossible to 'pick and choose' in Law of Nations, to only accept *this part* but not *that part* as the influences of each area to others makes them interdependent. After 1758 this would be referred to via the common acceptance as a lower case 'law of nations' put forward as the rights and responsibilities of Nations and how they were viewed in trade, diplomacy, interactions and warfare. The US Constitution, however, gives it explicit and capitalized refernce in Article I, Section 8:
To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
This is the Congressional power to make laws based on the Law of Nations, not only for warfare, piracy and such, but the structure of the concept itself puts forward the entire panoply of those powers intra-nation that Congress has oversight on to make laws. As a Republic, however, the President gets other authority under the Law of Nations, which is explicitly pointed out by the work itself for the variation of Republics within the framework. Its mention fits between the creation of lesser courts and the full war declaring ability, which is appropriate for the types of offences that can happen that are neither wholly National nor International in scope, and yet happen within the Nation. As a Republic the external powers of the Nation are vested in the President, and those cannot be stepped into by Congress as the nature of a President is to have those powers for the Nation. That segue into the War declaration powers and the Rules Concerning Captures on Land and Water are a result of the Republic handing the rule making, sustainment and supply of the armed forces to Congress, but the actual use of those forces to the President. On both land and water, when the armed forces are at war, the laws of warfare, as given by the Law of Nations applies, as defined by Congress. Implementing and utilizing them are up to the President, along with those powers granted to the President as the Executive of the United States.

The actual implementation of the laws provided by Congress and carried out by the Executive is done in the basic accordance the US gained as English colonies, via the English system of Common Law. The US would carry on that system and, to this day, when no law is adequately described in the US and there is pre-Revolutionary Common Law that gives guidance for those actions, it is that Common Law that we utilize. The English Common Law system was also described and reconciled to the Law of Nations by William Blackstone, who conducted multiple legal seminars on the topic of English Common Law and brought those together in a multivolume set of Commenaries. Blackstone's Commentaries on the English Law became a major work and guiding point that helped to codify much of the written law of England and give its outlook and guidance. This outlook was developed from a system that worked in the exact opposite to a Constitutional one: like a ship its outer form was created and the laws internal were then made and changed to adapt to that outer form. Great Britain is a Nation without Constitution, but with long standing tradition on law and the responsibilities of Nation to citizen and citizen to Nation.

England's source of laws are multivariate, deriving from native popular practice before the invasion of Rome, Roman law and its remnants after the Roman Empire receded, Nordic views on common law and the concept that even Royalty are accountable to it (being established before 1066), and the interplay of those with other Nations via trade in the Black Book. The basic rights of individuals to get fair hearing, have their say, and have a jury of their peers in accordance to acknowledged law are those things that are seen as the basis of common law. This distributed, adaptable system of law allowed for National laws to be enforced by local authority and custom, and created such artifacts as the 'common man', who would be utilized in the law system for the average person and how they would be expected to react in a given situation with the knowledge (or lack thereof) of the law. This internal fusion of systems along with the concept of 'recording trials for review' are all things that Americans lobbied for in the Bill of Rights so that the traditional views of the rights of individuals to have freedom from government were put in writing. The creation of a Constitution that instantiated these rights via explicit statement, also carried the law that created those rights with them. Blackstone's Commentaries, then, become the full view of how citizens of England are to act with regards to each other and the Nation and the Common Law system's view comes with it. The one thing the Constitution did that England had not done, was to shift the Admiralty law into the Common Law realm and utilize the means of recording trials which was not being done in England at that time. This shift, however, also moved the naval military views of capture and payment entirely into the civil law system and removed those outlooks from the Navy as there was no Admiralty Lords, just an Admiralty jurisdiction. The President, as highest overseer of the Navy becomes the source for the Admiralty jurisdiction, but the ruling of the actual Navy's court system on such matters has not been implemented by Congress, which prefers the civil system for such things.

These major pieces of how to create a Nation are embedded in the Constitution by direct citation (Law of Nations), naming of jurisdiction and who presides over it (Black Book of the Admiralty) for the Admiralty jurisdiction), structural separation of religion from the Nation as a whole, but not from its constituent States (Treaty of Westphalia), and via explicit enumeration of rights of the individual bringing in the background Common Law of England (described by Blackstone's Commentaries on English Law). Each and every single one of these is currently under attack by those wishing to undermine the Nation State .

Indeed we hear many in Europe talking about a 'post-Westphalian Nation State' concept, but they never do explain what that *is* nor what it *does*. Unlike the 18th century writers and thinkers, these modern ones are just not up to the task of allowing for a system where religion is held separate and yet still given wide purview. As a way to respond to non-Westphalian Nations in the old mold of ones guided by religion, this puts at peril the very concept of allowing individuals to have religion separate from the State at risk. Invalidating *that* moves the world backwards to an era of religious warfare and sizeable portions of the population dead, save that it would be on a global basis in the modern world.

When these moderns try to put forward a Transnational basis of governance above and over Nation States, they put the commonality of transport at risk over the sea and air, by making Transnational bodies that are accountable to NO constituency in power on those matters. They also put forward that Nations do not need rights to protect their peoples, and that a Transnational system of governance will do that... of course these same individuals never tell you *how* that will be done, just that some appointed figures will do it. This is not a step forward for peoples, but one backwards towards Imperial times, where unaccountable rulers would dictate their wishes to the people and have them enforced. Indeed, many such are more than willing to have localized police and armies carry out such things on their own people, or be used as pawns against other peoples in such arrangements.

And as local governments would be deligitimized in favor of Transnational institutions, those larger institutions would dictate to Nations what they are to do in all realms. There is NO accountability of the rulers to the ruled in this system of conception, and removes the entire concept of reciprocity between Nations as a guiding one for Nations and their peoples. By having unelected, unaccountable *chosen* individuals to rule (be they religious, left or right), such institutions will enforce views because the ability of Nation States to manage their own affairs has become too complex and a simpler system is "necessary". An individual would have no inherent rights, save those granted by their birth and poisition at birth with regards to race, gender, religion and ethnicity. This is a system called by many names, but comes down to: Feudalism at best and Slavery at worse.

It is very strange, in this modern world, to have those on either 'side' of the ideological divide put forward things that are at odds with the Contitutional concept of government and the reciporicity of Nations to each other. When one hears of 'Global Human Rights', they ignore that such lofty language is only instanced in treaty, and is absolutely restricted to those Nations that sign such and only applies to those in a Nation via legal means. That is also done in regards to the 'Labor Market', and with similar outlook: ignore Nations and just let industries figure out what they need in the way of labor and *not* be held accountable to any Nation. If one hands NGOs or Industries or *both* these powers by just giving them away, the ability of a Nation to govern itself and have that governance be respected is diminished. That is a direct attack on the concept not just of a single Nation, but the entire system of Nation States that has grown up over centuries.

Theodore Roosevelt in his autobiography would comment on Woodrow Wilson's idea of 'New Freedoms' that would serve as the underpinning for modern Transnationalism:
There is much more that Mr. Wilson says as to which I do not understand him clearly, and where I condemn what I do understand. In economic matters the course he advocates as part of the "New Freedom" simply means the old, old "freedom" of leaving the individual strong man at liberty, unchecked by common action, to prey on the weak and the helpless. The "New Freedom" in the abstract seems to be the freedom of the big to devour the little. In the concrete I may add that Mr. Wilson's misrepresentations of what I have said seem to indicate that he regards the new freedom as freedom from all obligation to obey the Ninth Commandment.

But, after all, my views or the principles of the Progressive party are of much less importance now than the purposes of Mr. Wilson. These are wrapped in impenetrable mystery. His speeches and writings serve but to make them more obscure. If these attempts to refute his misrepresentation of my attitude towards the trusts should result in making his own clear, then this discussion will have borne fruits of substantial value to the country. If Mr. Wilson has any plan of his own for dealing with the trusts, it is to suppress all great industrial organizations—presumably on the principle proclaimed by his Secretary of State four years ago, that every corporation which produced more than a certain percentage of a given commodity—I think the amount specified was twenty-five per cent—no matter how valuable its service, should be suppressed. The simple fact is that such a plan is futile. In operation it would do far more damage than it could remedy. The Progressive plan would give the people full control of, and in masterful fashion prevent all wrongdoing by, the trusts, while utilizing for the public welfare every industrial energy and ability that operates to swell abundance, while obeying strictly the moral law and the law of the land. Mr. Wilson's plan would ultimately benefit the trusts and would permanently damage nobody but the people. For example, one of the steel corporations which has been guilty of the worst practices towards its employees is the Colorado Fuel and Iron Company. Mr. Wilson and Mr. Bryan's plan would, if successful, merely mean permitting four such companies, absolutely uncontrolled, to monopolize every big industry in the country. To talk of such an accomplishment as being "The New Freedom" is enough to make the term one of contemptuous derision.
Of course Theodore Roosevelt believed that the common man did have self-guidance with help from God and have concrete responsibilities to himself, his family and his Nation. Because it is the People of America that are the crew of the mighty vessel it has become. It is most unfortunate that a number of individuals are trying to remove the keel and ribs and purport that the shell, itself will float much better, as soon as a few holes are punched in it.

A pity that most of the crew is on deck sun bathing.