Sunday, January 30, 2005


Stop Practicing Law Without A License: "WMDs, Period" Revisited Yet Again

It was bad enough when right-wingers polluted the blogosphere by citing the "whereas clauses" of Joint Resolution 114 as proof that Senator Boxer was lying when she said it was "WMDs, period."

But now this insidious misunderstanding and distortion of the role of "whereas clauses" has infected the left blogosphere, and it needs to stop.

Too many people (some well meaning, some not so well meaning) are attempting legislative analysis without any legal background whatsoever.

While I no longer practice law, I did work as a lawyer for more than a dozen years -- long enough to know that the true power of legislation lies, not in the "whereas clause" section, but in the language that follows.

The purpose of "whereas clauses," be they in contracts between private individuals or in war resolutions, is to cite history and background. They do not empower action. They do not give people (or U.S. Presidents) any authority whatsoever.

And that's exactly where Loyal Opposition, in his good faith effort to reconcile the "WMDs, period" statement with the Resolution, has gone astray.

In this post Loyal Opposition says:
In the end, you vote on the bill as written, and it wasn't "WMDs, period." It was the "total picture", like Rice said. In addition to WMDs the resolution contains in black and white other reasons for going to war, including

1. brutal repression of the Iraqi civilian population
2. refusing to release, repatriate, or account for non-Iraqi citizens wrongfully detained by Iraq, including an American serviceman
3. failing to return property wrongfully seized by Iraq from Kuwait
4. attempting in 1993 to assassinate former President Bush...

But those and the rest of the "whereas clause" items he cites were not intended to set forth reasons to go to war. Their purpose was to state background and history. They did not just justify war or give the President any power to wage it. That isn't what "whereas clauses" do.

The meat of this Resolution is in Sections 1 through 4. And that's where you'll find President Bush's powers (and responsibilities) with respect to a (then potential) war against Iraq.

One can argue that our legislators were duped into signing that Resolution by false Bush Administration claims about imminent threats and insincere promises to exhaust diplomatic efforts before going to war.

One can argue that President Bush's war powers set forth in those sections were conditional and that those conditions were not fulfilled.

But please stop saying that the historical laundry list of wrongful Iraq actions were reasons to go to war. They were no such thing. And they certainly do not undermine Senator Boxer's credibility.

No, of course they don't provide authority. Anyone can see that, with or without a legal degree. They do explain "the reason and the causation behind that particular vote", which is exactly what Sen. Boxer said was "WMD, period."

One can for example, look at the terse operative language of the resolution, like "defend the national security of the United States against the continuing threat posed by Iraq" and say, gee what do they mean by that, and turn to the whereas clauses for context.
what? No link to DU?
"Democratic Underground."

It's the wingnut equiv. of you or I posting "What, no link to" or "No link to" on one of their sites. hehe.

Boxer's "WMD, period" statement may have started this discussion, but it certainly isn't any sort of attempt to discredit Boxer. Let's not lose site of the fact that she (unlike my own Senator Kerry) voted NAY on this. It should also be abundantly clear to everyone where the rhetoric was at the time of the vote. Regardless of the letter of the law, the intent had everything to do with "WMD, period." That was what was sold to the American people and that was what was forced down the throat of the Senate Dems. At the same time, those Dem Senators that voted YEA have no excuses beyond political expediency and sloppiness for their votes.

I'd be interested in seeing what sort of nonsense the right-wing blogosphere is spinning this into with regards to Boxer. SHE VOTED NAY. At the absolute worst she was guilty of a minor rhetorical stretch when she said "WMD, period." The last I checked, the Republicans weren't holding themselves to any sort of standard for telling the truth. Bald-faced lies, criminal deception and dishonesty under oath are de rigeur under their tent.
I think it should also be noted that while WMD was what was being sold rhetorically and the bill may or may not support a suite of justifications for the war/invasion, in hindsight it all appears to have been a disingenuous smokescreen on the part of the administration. They wanted to go in regardless - WMDs be damned. The failure to secure the high explosives and munitions at al-Qaqaa is but one example of this. Would that failure have taken place if the Commander-in-Chief was truly concerned about the danger of WMDs?
This comment has been removed by a blog administrator.
We shouldn't shy away from this type of scrutiny (although, MK, as this is your blog, you certainly have the perogative of cutting it off...).

Why was it that Boxer and Kennedy (and others) knew enough to vote against the resolution while Kerry, for example, in spite of his rhetoric, did not?

It is because Kerry (and Cleland and Lieberman and Feinstein and Clinton) were acting as political cowards while the jingo tom-toms were beating. They literally abandoned for political expediency when the world needed them most. Kerry and Clinton with their eyes on the White House and Cleland with a tough Senate race on the horizon sold us out to appease the Freedom Fry Eaters.
The point that I was trying to make in my post on this issue was the reasons Sen. Boxer made such a statement wasn't because of the legal rationale in the bill but because of the rhetorical rationale that was sold to the American people. By making this statement, she opened the doors to a full-fledged debate on the Iraq war.
I think it was Justice Brandeis who said "let the sun shine in on dissent", which is just what you are not doing, Ms. Kane. Your call to "stop polluting the blogosphere" is flawed for several reasons.

1. You call for a blind bow to authority. I guess LoyyOpp, Liberal Avenger and those who asked a seemingly simple question, "What did Senator Boxer mean?" should defer to you because you say you have some knowledge of what the "whereas clause" means because you are a lawyer. But you do fail on two key points; to explain the "true meaning" of the "whereas clause" (which nobody cares about) and to explain what Senator Boxer meant (which many people seem to care about).

2.I don't believe that anybody means to call Senator Boxer a liar. Indeed, I view her as a hero. It is clear to me, however, that the Democrats have too sound a case to make against this war without making mistakes like the one it seems Senator Boxer made. In other words, we need not get sloppy.

3. Perhaps "too many people are attempting legislative analysis without any legal bakground," as you say.
Perhaps that is why the fair question was asked by non-lawyers (?), What does "WMD's, period" mean?

You are trying to shut down this discussion, while you claim you have the skills to answer it. That is a disservice to the blogosphere and the Democratic party. I'd ask you, unlike Republicans, to encourage dissent, discussion and clarification.
Uh, CGD, I don't think one can accuse Mad Kane, founder of this group blog, of attempting to stifle debate. She has asked that we quit eating our own. She has asked that we quit eating our own using right-wing spin points that have no basis in reality. I don't think this is an unreasonable request.
MK can direct this blog in any way she pleases.

I think that you are failing to give Loyopp credit where credit is due. The question being asked is a legitimate one. While right-wingers in the blogosphere may or may not be asking a similar question for very different reasons, Loyopp's independent conception of the question and my echoing it here do not reveal that we have been eating Republican table scraps.
Again George, you ask for another blind bow to authorty to Mad Kane as participant/creator of this blog without substance or reason. A resounding no.

I will not forget and, no one should forget, that this country had a historic vote on the Rice nomination last week with 13 Democratic Senators voting nay, in large part, because of Boxer. But that does not mean we don't deserve clarification when things are not clear. It doesn't mean we can't do better. Democratic Senators seem to be fighting back. Let's hold them accountable and ask hard questions. This is not called "eating each other". It is called participating and responding to the debate. I will never forget that Boxer got nearly all of it right, especially that first critical vote on the resolution authorizing force, but I do wonder what she meant by "WDM's, period?". This site seemed like the best place to get that answer. . . .
I share LoyOpp's disappointment in Democratic Senators who fell for Bush's and Rice's lies. I don't care whether they voted for the Iraq war out of re-election fears or credulity. They aren't going to see campaign donations or volunteer work from me.

I think we are starting to see a change in many Democrats' behavior. I believe this is a direct result of Sen. Boxer's willingness to stand alone on Ohio election fraud and other Democrats noticing the sky didn't fall down on her. In fact, she got an outpouring of support that they could only dream of.

She didn't have to stand alone in her vote against Mushroom Cloud Rice. After that, all Democrats in committee voted against Abu Gonzales despite race baiting by some Republicans that it was an anti-Hispanic vote.

I fear some Democrats' new found courage will fail them in the coming months and years. I am not afraid that Sen. Boxer will lose hers.
This is in response to your various comments:

1. First let me state that, as George says, my purpose isn't to stifle debate, but to persuade Democrats to "quit eating our own using right-wing spin points that have no basis in reality."

I think that it's great that we're talking about what Senator Boxer meant by "WMD's, period." I believe she meant that the Bush administration persuaded her colleagues that the imminent threat of "WMD's" rendered the Resolution necessary. But of course I'm no mind reader and welcome this discussion. And I would love for Senator Boxer to clarify exactly what she meant.

Again, I'm not trying to shut down this discussion, and I encourage dissent, discussion, and clarification. What I do discourage is spreading misinformation (however inadvertently). And I believe that misinterpreting the role of "whereas clauses" has that net effect.

2. My post was not meant to justify the War Resolution or to excuse the huge number of Democrats who voted for it. The Democrats who voted for it were Bush administration dupes and pawns. In many cases, they feared being perceived as weak on terrorism, a fear that the Bush administration skillfully manipulated.

The Democrats who voted for the Resolution fell for Bush administration scare tactics. They fell for Bush administration claims that Iraq posed an imminent threat from WMD's. They fell for Bush administration claims that Bush needed the Resolution in order to avoid war. They fell for Bush's promise to use war as a last resort. And they apparently deluded themselves into believing that Bush would comply with the Resolution and would not go to war unless the conditions of doing so set forth in Sections 1 through 4 were fulfilled.

Those conditions were not fulfilled and, in my opinion, Bush never intended to comply with the Resolution. And, based on Bush's deceitful track record, Democrats should have anticipated Bush's noncompliance with the Resolution and refused to vote for it.

Democrats who supported that Resolution should have known better and have much to apologize and atone for.

3. I did not mean to imply that any Democrats posting here are deliberately trying to discredit Senator Boxer. What I meant was that some of you are inadvertently discrediting her by misinterpreting the Resolution.

4. Again, the "whereas clauses" don't explain "the reason and the causation behind that particular vote." For the most part, Democrats supported the Resolution for the reasons I cite right above in item "2." The "whereas clauses" provide history and background, including a recitation of many long past events, and not, as Loyal Opposition asserts "reasons for going to war."

You don't go to war because of long past events. You got to war because of an imminent threat. And the so-called imminent threat was, of course, false Bush administration claims of WMDs.

5. Liberal Avenger asks me to provide some examples of the "sort of nonsense the right-wing blogosphere is spinning this into with regards to Boxer. I hadn't bookmarked them, but did a quick search and found these three:
LGF Reason and Revelation 4 Mile Creek6. If my post wasn't sufficiently clear, I apologize. I hope this clarifies my position.

7. In addition to posting this as a comment here, I plan to post it as a new post which I will call "Mad Kane Clarifies Her Previous "WMD's Period" Post."
I just noticed that I accidentally deleted one of my earlier comments here. Oh well.
Post a Comment

<< Home

This page is powered by Blogger. Isn't yours?