Under Construction – Please Keep Checking Back
Terry Bain (TB): Hi, and welcome to Voices.
This is Episode 23. The show title this week is Occupy: Rule of Law.
And, we’re reporting once again on American intervention in Syria. We’ve been reporting on American intervention in Syria since 2012. David, can you briefly introduce yourself and our guest, please?
David Callihan (DC): Yes, hi Terry. I’m glad to be on another show with you and I’m pretty excited about this one. This is really the news that is going on at the moment. Sometimes what we do is, you know, after the fact, but we might have some breaking things while we’re talking.
And our guest in the show is our good friend, Dr. Edwin Vieira, a preeminent constitutional scholar and attorney. He’s argued several cases before the United States Supreme Court, (I believe four,) and has been successful in three-out-of-four, that’s a very successful batting average, I think. (Terry and David chuckle.) We’re glad to have you with us.
And you’ve got a whole list of accolades we could go through, most particularly the writings you have done on two very important areas:
One, the money power, and the disabilities and powers of the banking system, called “Pieces of Eight”. And you’ve got, I’ve counted four books [Correction: Actually five on Militia, and one on Judiciary.] you’ve written on “the power of the sword”—“well regulated Militia” and our powers as individual Americans to try to correct some of the things going on, are going to certainly benefit by your writings.
So we’re grateful to have you with us and we’re looking forward to a pretty interesting conversation over the next hour.
Dr. Edwin Vieira, Jr (EV): Well, I’ll help you as much as I can.
TB: (Terry chuckles) This is about your third, fourth, or fifth time on the show. And again, thank you. I’m sure the show will be very interesting.
We’re just past two minutes into our hour. And we’ll go ahead an kick this off with a quote. Again, this is Rule Of Law, Occupy: Rule of Law. And it’s coming from a quote from Thomas Paine’s “Common Sense” in 1776.
“…in absolute governments the King is law…the law ought to be king….”
Go ahead gentlemen, what do we have to say on this issue about Syria?
EV: Well, I supposed it depends upon what perspective you want to take on it. Let me say that I’ve written some rather long and detailed articles about this, beginning with what happened in April of last year (Editor’s note: 2017), the first Trump missile strike on Syria.
And they’re to be found on my website, edwinvieira.com, which is essentially a storage site where I put up most of the short pieces that I write (although these three are not really short.)
One is called “Aggressive War” and it’s a constitutional analysis of that particular attack on Syria, which would be applicable to the one that happened the other day, because they both fall into essentially the same parameters of analysis.
And then the second article that people might want to look at is called, “Trump and Treason”, which deals with the problems that Mr. Trump may be facing over these attacks. And then I have a third one which is called, “Militia and Gun-free Schools”, and although it focuses on gun-free schools, there’s a lot of it at the end which is applicable to what we’re talking about now, because it covers some of the areas at which President Trump has potential freedom-of-action to deal with some of the idiosyncrasies of what’s happened here.
Now one of the first problems with these missile strikes against Syria, is because they run into, internationally at least, the concept of wars of aggression.
And the most famous example of international law in recent times of this problem came up at Nuremberg – Nuremberg Tribunal, 1946, where the various German military (and several civilian leaders) were tried on that basis, that was probably the main charge against some. That they had conspired to, and had acted out war of aggression in a number of different fields – on Poland, eventually on the Soviet Union, so forth and so on.
And the principle that came out of the Nuremberg Tribunal was that a war of aggression was the supreme international crime because all other sorts of international crimes would derive from, would devolve from a war of aggression. So that is the basic principle.
And some people have at times said, “Well, that is novel.” And it was something that was being applied ex post facto. And actually, they deal with that if you read the materials from the Nuremburg Tribunal.
And there is an interesting book that’s online, series of books called, “Nazi Conspiracy and Aggression”, so people can find all of this documentation on the Internet.
TB: We’ll have a link to that.
EV: Yeah. So, they specifically dealt with that question that they were dealing with some ex post facto law, some novel application of law.
So, in American law that concept goes back to the 1850s, in this case, Fleming versus Page. Which specifically says that the power of Congress to declare war does not include the power to declare a war of aggression or a war of conquest.
So, it’s not something from the point of the United States was certainly novel, because the Supreme Court held it a hundred years earlier. We can go into a lot of detail about that. There is a lot of detail that focuses on that particular point.
But the Nuremberg Principle, that aggressive war was a supreme war crime, was adopted by the United Nations. So its now part of United Nations Charter Principles and many of the other documents that have legal effect as interpretations or applications of the various treaties countries have around the world as part of their participation in the United Nations, including of course the United States.
So if you look at this in principle, you say, “What is a war of aggression?” You say, well if you look at the other side of that, it’s a war that does not derive from, or involve, self-defense.
Obviously, if a country is faced with the danger of an imminent attack by another country, and there is a response to that, that response is not considered obviously to be aggression, it’s justifiable, or potentially excusable, it depends on the exact circumstances.
But in any event it’s legal to respond in that manner.
So if you look at the Syrian situation in 2017, and at the more recent one in 2018, you ask, “Well, what was Syria doing that posed an imminent threat to the United States, or to United States personnel, individuals who were over there in the Middle East legitimately, because one could say that Syria could attack American troops who were illegitimately within Syria’s territory aiding ISIS or whatever they might be doing.
But there was never any argument made from the Trump administration that those purported chemical attacks—I say purported because they have never been proven. The first one was never proven. And the second one, there is a huge amount of controversy over that, going on right now.
There was never any evidence that those chemical attacks were directed, or affected in any way the United States, or citizens of the United States, or personnel of the United States.
So the question would arise, what sort of justification could there be in international law for the United States to launch missile strikes against Syria. And the short answer is that there is none.
The United States is not a policeman. The United States did not have some sort of purported authorization from the U.N. to do it. The chemical attacks occurred within Syria, so it’s not something that somehow affected a NATO country, where there was some sort of treaty obligation or treaty authority.
In fact, the chemical attacks were even, according to the Trump Administration’s theory of them, directed at centers of these rebels—the Al-Qaeda, the Al-Nusra, the ISIS, whatever they are calling themselves at various times. It wasn’t directed even at any foreign country.
So, one would look at that and say, from an international point-of-view, that’s certainly something that would have to be investigated from the perspective of illegal activity by the U.N. They really didn’t do that, because you couldn’t do that – because you have opposite sides of the Security Council, which were capable of vetoing any U.N. Resolution or calling for U.N. action on that.
So, it’s still been left in – you’re still left in a nebulous state there. The U.N. was not capable of doing anything about it because of the nature of the Security Council with vetoes for Russia, vetoes for the United States on the other side.
If you look at it from the point-of-view of the law of the United States, there’s a statute called the Authorization for the Use of Force, that was enacted by Congress pursuant to, or after (following the 9-11 event) and was really directed at those individuals, or groups, that might have had some complicity in that activity.
And that’s what led, pretty soon, to the adventures in Afghanistan which went on for seventeen years. Saddam Hussein, the Iraqi government – certainly no one ever claimed that those people were involved in the 9-11 events.
In fact the FBI themselves said at the time, to the extent we can trust the FBI (Terry chuckles), they couldn’t attribute it to what’s his name—the fellow in the caves in Tora Bora there—
TB: Osama bin Laden
EV: Bin Laden – They couldn’t attribute it to him. So it was some shadowy figure, hiding out in the wilds of Afghanistan. There have been seventeen years of war going on there with no result.
But no one ever said that Syria was somehow involved in the “bad actors” [PDF source] to which the Authorization of the Use of Force was initially directed. And no one has said that Syria has most recently been discovered to be part of that dark conspiracy, whoever was involved in it.
So this thing doesn’t fit the Authorization for Force Resolution in principle, and if you go through it, the paper called, “Aggressive War”, on my website, I go through essentially every provision of that resolution, and show how not one of them even arguably justifies what was done in 2017.
And it won’t justify what was done this year either, by the Trump Administration. So you have a problem there with statutory authority, and he has a problem with constitutional authority.
And here we have to go back a step because a lot of people, in trying to rationalize what the Trump Administration has done, have said, “Well under Article II, Section 2, Clause 1 of the Constitution, the President is Commander-in-Chief of the Army and Navy, and of course, that is true. And they try to derive from that status, some extremely broad power to use, direct, send, deploy, whatever word you want, the Army or the Navy of the United States, or the Air Force, because that’s a part of the Army, the Marines, that’s connected with the Navy, all sorts of these various military assets.
So essentially any kind of international adventure that the President may believe or imagine has some relation to something he calls a “national interest”.
Now that’s very interesting because there is no sort of national interest provision in the Constitution. Alright? That’s something that is made up. And if you look at the Commander-in-Chief authority you’ll see that it is very much circumscribed by the authority of Congress.
And for this I have to go back historically to the pre-constitutional law. Now remember, the Colonies before they became independent, declared their independence in 1776, were parts of the British Empire. And so the English law, because there was also Scotch law, but the English law specifically applied to them.
And if you look at the Commentaries written by Sir William Blackstone, Commentaries on the Laws of England, 1765, and then they was an American Edition that came out in 1771, that was probably, in fact I would say surely, the most influential legal treatise among Americans. In fact, they say that book sold probably more copies than any other.
TB: Hmm.
EV: Legal book in the Colonies. And Blackstone goes into great detail about the various powers of Parliament, and the King, and the judicial judges under English Law, there’s four volumes, very detailed book. But talking about the King, he points out the King had two powers that are relevant here.
One, he had essentially complete power as the Generalissimo. He was in control of the Army. He was in control of the Navy. He was in control, you could call it, the Militia, the English Militia. He was in control of the forts, so forth.
And, more importantly perhaps, he had the exclusive personal power of war and peace. He could declare war and he could declare peace – End a war, Alright?
And that was a problem for the English and they tried to get around that, practically speaking when William III came on the throne, the so-called “Glorious Revolution”. They tried to tie – they didn’t change that authority. But, they tried to tie the King down by controlling the purse strings.
So he would really have to go to Parliament and convince members of Parliament that any military adventure overseas was justified, and he would get the money necessary to fund it.
But in any event, in 1776, probably in 1776, the King had these two powers and they were separate powers. He didn’t have the power to declare war because he was the Commander-in-Chief. He had the power to declare war because he had that as a separate power.
Well, if you look at the Constitution of the United States, where is the power of war located? It’s located in Congress. Congress has the power to declare war, not the President.
So they clearly took that power away from the President and gave it to Congress for the simple reason they didn’t want that power to be any more in the hands of a single individual. They wanted Congress to control it.
And actually if you read the Constitution carefully, you’ll see that we have a constitutional structure based on legislative supremacy. In the final analysis, Congress really has the power to do anything it wants within the boundaries of what the Constitution delegates to it.
And the President has essentially limited powers. But if you look at something like making treaties, he can negotiate treaties with foreign countries. But what happens is, they have to be ratified by the Senate – Right? He can’t do that, even the King could do that pretty much on his own as well.
So the power to declare war is removed from the King, and it was given to Congress. And that was a clear break with English law. Alright?
Then the King had the power to regulate the Armies, the Navy, to which he was Commander-in-Chief. And that power was taken away from him and given to Congress. Congress has the power to provide for regulation of land and naval forces of the United States.
And even the power with respect to the Militia was taken away from the King, and that was given to Congress. So Congress has the power to provide for calling forth the Militia, organizing, arming, and disciplining the Militia, and governing the Militia under such rules as Congress may provide.
So when we look at the powers so far as the Commander-in-Chief of the Army and Navy of the United States, and sometimes of the Militia of the several States when called into the service of the United States, that power as Commander-in-Chief is really circumscribed by what Congress declares to be the regulations that apply to the Army and Navy, the governance that applies to the Militia, and this authority to declare war.
Now, of course, this whole thing is controlled by Congress’s ability to control appropriations because obviously you can’t fund Armies, Navies, or the Militia when called into the service of the United States or conduct a war without without money and Congress is in complete control of that. No money can be drawn from the Treasury without appropriations sanctioned by law, that’s another constitutional provision.
And if you look at the Preamble to the Constitution, no one really pays attention to the Preamble. The Preamble sets out principles of interpretation, very broad principles of interpretation. These goals that the Constitution is supposed to meet, or the elements of the Constitution that the Congress and the President, judiciary, and so forth, are supposed to satisfy because one of those goals in the Preamble is the common defense – Alright? And the important word there is what? Defense. Alright? Okay?
People of the United States, “We The People” as it says, “in order to”, what? “Provide for the common Defense” do the following things, whatever else follows.
And if you go to Article I, Section 8, Clause 1, “Congress has the power to lay and collect taxes, duties, imposts, excises, to pay the debts, and”, same language, “provide for the common Defense of the United States”.
So this extremely important power of taxing and spending is limited two places. It is limited generally by the Preamble. And it is limited specifically by Article I, Section 8, Clause 1 to “the common Defense”.
So one would say, okay, understanding what the word “defense” means, it would seem that it’s impossible to have a war of aggression, at least in a practical sense because Congress couldn’t tax and spend for it, they couldn’t pay for it no matter where the war of aggression might originate, whether it was the Congress who did it, or whether it is the President who attempts to do it.
It wouldn’t work out as a practical matter because there was no way to fund it.
Now if you one step further. And so Congress has the power to declare war. Can Congress declare war of aggression?
Well, we have to go back to the Declaration of Independence. The Declaration of Independence talks about the people delegating to government “just powers”.
Now, that’s a very interesting word – Right? They added this word—not powers in general, but only “just powers”.
And these were “just powers” under “the Laws of Nature and of Nature’s God”, because the “Laws of Nature” get you into “natural law”, and there’s a whole history of Natural Law going all what way back, you know, into the Middle Ages, where the concept of the war of aggression was considered to be “unjust”, alright?
Now they had a lot of hypocrisy, obviously, through that whole period because you had people doing all sorts of things that fell askance of that principle. But the principal is not vitiated by the fact that people are not able to apply it, or fail to conform to it.
And that was simply recognized as the basic principle. You could not engage In an unjust, aggressive war.
So the Declaration of Independence is the basis for the entire legal foundation of the States, and through the States of the General Government in Washington. And so it would follow there, on just that principle alone, Congress could not declare a war of aggression. The Declaration of Independence could not give it that unjust power. The people couldn’t give it that unjust power.
Because the people only have the power that the Declaration of Independence said they had. And besides the Preamble, and Article I, Section 8 says they can’t possibly engage in that because war can be waged only for the purposes of defense.
So it follows from that, well, there’s no general power of the President simply to say, “Well, I don’t like what is going on in Syria, or Serbia—take what happened under Clinton—or maybe, Libya—bring Obama into this.
The President simply has no power. He’s not a world policeman that can arbitrarily inject American military power into some area of the world because he has some, you know, personal fetish or hobby horse, if you will.
So the fact that this President Assad of Syria, he can call him all sorts of names, doesn’t give President Trump constitutional authority. Even if those names were actually applicable to that fellow – Alright?
Even if he were some kind of a dictator who was oppressing his people within Syria, notwithstanding he has been elected—the entire world considers him the legitimate authority in Syria. No one claims that he is a usurper of any kind. He was actually elected.
That wouldn’t give Trump any authority here. So where are we?
Well, the real problem he faces, I think, besides the facts that he is now engaged in this, and he’s created problems with the Russians maybe down the road with the Chinese as well.
And its interesting to note that although the English and the French participated in this latest attack, the Germans backed off, and no other members of NATO came forward (including the Turks) to become involved in it.
So there seems to be a real reluctance on the part of a number of these countries who aren’t, you know, lapdog puppets of Washington, as England is, and France apparently is. They see it as a problem here.
Alright – So where does this leave Mr. Trump? Well, it leaves him in a very difficult position, because he has already committed these two act of plain aggression under international law, under American law.
I don’t think, as I say, this article that I wrote—it’s actually a paper, it’s about fifty pages long—it’s called “Aggressive War”.
TB: We’ll have a link to that too.
EV: You’ve gotta get a link to that.
I don’t think there is any defense on the face of it. I don’t think there is anything he can point to that is justified doing this.
TB: We’re twenty-five minutes into this show, and again, I think that’s the crucial point we need to touch on here, is that there are an increasing amount of voices saying “This is an illegal war.” True or false?
DC: If I may interject?
TB: Yes, please.
DC: The thing I think is a salient point is that just before this event happened, on Thursday or Friday of last week General Mattis, came out and made the statement that the President had the authority to do what he was doing, or going to do, based on the fact that he is the Commander-in-Chief of the armed forces under the Article II, Section 2, Clause 1, was in, . . . And as you have already pointed out, Dr. Vieira, that was not an accurate perspective.
But he does have Presidential authority that has been given to him by Congress in certain respects. And there is a guy by the name of Marty Lederman who has written an article that is pretty interesting, “Why the strikes against Syria probably violate the U.N. Charter, and why (therefore) the U.S. Constitution”.
And in there he goes into some detail about the three schools of thought about Presidential authority to use military force without congressional authorization.
One is, under the traditional view, where except for a few small sets of cases where the President doesn’t have to go to Congress for approval before acting, he must ALWAYS obtain ex ante congressional approval before authorization of ANY use of military force abroad.
Then there is a second school, which comes out of a guy, it’s called the Bydee/Yoo position, which Mr. Truman used in Korea when he saw that there was a “national security interest of the United States” which justified him just going ahead.
Even George W. Bush didn’t use that. He went to Congress, when he was seeking approval to go into Iraq. And so that position’s rarely used where you can do just whatever you want.
And then there’s a third one they call the “third way”, he calls the “third way”, which he says has been practiced for the last few decades, where in kind of a middle “grand view whenever it serves significant national interests” or cannot, or it’s not extensive ‘in nature, scope, or duration”, an act of war, but just a singular event, kind of a thing. (Dr. Vieira chuckles.)
He then concludes this by saying that “…there is no present justification for President Trump not to ask Congress for authorization (to act against Syria in the Shayrad Airfield) when they attacked, and to have held off such strikes until receiving such authorization. Therefore, this might turn out to be the rare case in which the President simultaneously violated both the Constitution, and the U.N. Charter,” as a treaty of the United States.
So I guess I am putting that all together, Dr. Vieira to say, you know, what are you thinking? Is this guy on the right track? Does Trump have a real problem?
EV: That’s what I have already said.
DC: Yeah. Okay.
EV: It’s no question it’s a violation of the U.N. Charter, because the U.N. Charter, we look at that as, you know, if we’re bound to that by a treaty. Then that treaty is part of the so-called, “supreme Law of the Land”, Article VI, Clause 2, right, assuming that that treaty is itself constitutional.
Which it would be if it outlaws aggressive war. Obviously, it’s constitutional because our constitution outlaws aggressive war. So there’s no conflict on that level between the U.N. and our Constitution.
I could imagine there are some things the U.N. would do that would be unconstitutional. So we wouldn’t be bound to that treaty with respect to those things, but this isn’t one of them. Alright?
So, because the U.N., . . . and that is the obvious one, because the entire world is looking at this from the point-of-view of the U.N., as opposed to the United States Constitution.
But I’m not so concerned about the U.N.
I’m concerned about the United States Constitution. The U.N. is just this creature which has been created out here. The United States Constitution has significance of consequence.
And under the United States Constitution it is clearly invalid. It’s clear unlawful.
And these two other theories you talk about, they come back to this “national interest”.
DC: Right.
EV: It is this “national interest”. Well, where is this “national interest” exception in the Constitution, to the limitations of the power of the President on the one hand, and to the power of Congress to declare nothing but a just war.
Where is that?
I mean, the Fleming versus Page case in (19)50 is interesting because it doesn’t say, “Oh well, this is the way our Constitution works unless there is a national interest exception”. Alright?
Whenever we see people wanting to evade the Constitution, they create one of these exceptions in terms of rubrics, words, slogans, where the words don’t appear in the Constitution.
DC: One of those we hear a lot is “national security”.
EV: Right. That’s Right.
DC: Or “national emergency”.
EV: “National emergency”, right.
“Emergency” is another word. Right. And “national interest” is just another rubric that they’ve invented.
Well there is no “national interest” in violating the Constitution. It’s a contradiction in terms! Alright?
The first question is this: Is this constitutional? If it’s not constitutional, there can be no national interest in pursuing that activity. It’s as simple as that.
We don’t say, “We consider this in some national interest on the basis of some theory that we’ve invented, and therefore, it becomes constitutional.
That’s completely 180 degrees removed from the correct logic here. The first thing we ask, “Is it constitutional”. If it’s not constitutional, it’s not in the national interest. If it’s constitutional, it still may not be in the national interest as a matter of policy.
This is something we may not want to do in Syria, because it’s going to stir up the Russians and the Chinese, and that’s not in our national interest to create more animosity there. Do you see the difference?
DC: Uhuh.
EV: So you can debate the national interest, if you first say that the action is constitutional. But if you say that the action is unconstitutional, then it doesn’t make any difference what your theory of national interest is. If it’s not constitutional, it’s not in the national interest. End of discussion.
Now, poor Mattis. I assume he’s not legally trained. He’s a Marine general, four-star Marine general, right? Before he took this position as Defense Secretary.
So I wouldn’t necessarily assume that he has thought this through, or perhaps he even has the training, the competence, if you will, to think it through.
What’s interesting to me, I’ve seen on a few websites, reference to a Department of Justice, Office of Legal Council memorandum of some kind, in which they make the argument that the President’s status as Commander-in-Chief justifies this type of action.
But, interestingly enough, they say that this memo is classified. (Terry and David chuckle.)
(Laughing too.) Alright, now, I always thought that in a legal case it’s supposed to put the brief before the other party, before the judge. You’re not supposed to bring the brief before the judge and say, “I’ve got this legal brief and it says that I win, but it’s classified. You can’t see it.”
DC: It’s all black lined, yeah.
EV: Yeah. You can’t see this, but you have to accept it as true. Alright?
DC: Wow.
EV: All I can say is, if you look at the history of this, there is no possible way, given the complete change between the English law prior to 1776, and the Constitution, 1788, when it was ratified, with respect to the powers of the King relative to the powers of Parliament, or the powers of the President now relative to the powers of Congress, it is absolutely impossible to say that what Trump thinks he is getting away with, or what he thinks he got away with in 2017, could be justified simply because he’s the Commander-in-Chief.
My God!
Congress could not have an Army. Congress could not have a Navy. Congress could pass regulations for the Army and Navy that could so limit the use of the Army and Navy, maybe the Army and Navy could only be used within the District of Columbia.
And that just because he’s the Commander-in-Chief, he can go around that, he’s got some separate and independent authority?
Over these bodies, once they create an Army, he can do any bloody thing he wants with it?
Sheer absurdity on the face of it.
Now, another thing too, granted you have, (and you don’t) —Truman—Truman did end up, although he did act precipitously, he did end up with the United Nations approving the sending, not only American troops, but troops from the British Commonwealth, Turks were there, Greeks were there.
Let’s see, Phillippines had a contingent, people from all over the world to deal with the North Koreans, and then for them to deal with the Chinese Communists in the Korean Conflict, let’s not call it a war because it was never declared.
So, there you might say, well there was a U.N. authorization, the U.N. did consider the North Korean invasion to be an act of aggression, at least outside of the U.N. Charter. And the U.N. gave color of authority to the United States and other countries sending forces into South Korea.
Alright. Now you might argue, a constitutional purist might say, “Well, the U.N. isn’t in a position to cause Congress to declare war.” Maybe that’s why Congress didn’t declare war.
Maybe that’s why they just left it. As Truman had characterized it, quote-unquote, as a “police action” under the authority of the U.N. And that’s why you see in many of these pictures, even when General MacArthur was in charge, U.N. flags being flown along side of the United States flag or the flags of these other allies that were involved there.
It was, even MacArthur was recognizing this, it was not simply a United States operation, it was a U.N. operation. So I look at that, and I say, well, to read that as not being in some sense a bending or a perversion of the United States Constitution, because it was an actual treaty. And it looks as if the U.N. took action consistent with, and the United States took action that was consistent with the treaty, given what the U.N. did.
And of course, why did it happen? It was because the Soviet Representative walked out.
TB: (Chuckling.) Good point.
EV: The Soviet Union didn’t veto it. Because if you look back at it, it’s because Stalin wanted the war. Stalin and Mao wanted the war and the idea was to bleed the West as much as possible for as long as it could be done. Alright. That one is fine.
If you look at more recent events, you have to say, well, uh, where is the authorization? Something like Grenada – the attack on Grenada. The invasion of Grenada.
Now I guess they were saying there were Americans at the medical school there, so they came in to protect the Americans, but that’s another one of these stories. The Americans were not any threatened until the bombs started falling and the shots were being taken.
You have a problem. You have a number of what I would call pseudo-precedents following the Korean event, that they now look back on and say, “This was done by the President. This was done by that President.” Serbia, with, and the Balkans there with Kosovo, and Serbia, with Clinton.
And more recently, Obama with Libya. And right now, what’s going on in Yemen. I mean, we may have troops there, I don’t know whether they have Special Forces, advisors, whatever, but they certainly are funding and egging on the Saudi Arabians to decimate Yemen.
I look at all these and say, “Well these are all precedents. This President did it, and this President did it. This President did.” Our Constitution does not work by precedent. The English constitution worked by precedent. That is, you could have what was considered usurpation, and if it succeeded, it became part of the English constitution.
One might very well look at, for instance, the deposition of James II, and the insertion of William III, the so-called “Glorious Revolution”, as an act of usurpation. Certainly the Jacobites were, the people that supported James looked at it as an act of usurpation, but it succeeded!
And then, Parliament enacted a couple of statutes to give it color of law, and then it became “the Glorious Revolution, as opposed to a series of acts of Treason. Alright?
That’s the difference of the English Constitution. And so the English Constitution has become extremely malleable, very amoeba-like, it changes its shape over time, depending essentially on which political group—special interest group if you will—succeeds in getting its way.
And eventually getting control of Parliament.
So, you have Theresa May can say whatever the heck she wants to say as Prime Minister of England because, well, it’s such a flexible system that they make it up as they go along. Alright?
Now, our Constitution doesn’t work that way.
The mere fact that one President, or six Presidents have gotten away with something unconstitutional, does not change the Constitution. Now we have to put an asterisk after their names in the history books saying, “Well they were criminals.”
Because they did this or they did this or they did this, we’re not here; this was a criminal act, alright?
Because we always come back to the Constitution as a standard of behavior, not behavior as a standard of the Constitution.
So, we look at Mr. Trump now, and he’s in big trouble because I think that only a real apology . . . It’s only the folks that are called the Neo-Cons, the John Boltons of the world can possibly even stand up, and not even with a straight face, and say “This is perfectly legal. Article II, the power of the Commander-in-Chief, blah, blah, blah.” “Alright” And that’s just talk from them, that’s just hot air.
But he’s got those people over there, a lot of them—it’s interesting—left-wingers, if I may use the term, left, now especially in the media are in favor of what was done in Syria on these two occasions. People who would have been assumed to be quote-unquote “anti-war” on principle, have now become the most vehement, violent-almost proponents of war.
DC: Howard Dean was one of those (chuckles) who stood up and said it was the right thing to do, and it was kind of a shock.
EV: Oh yeah, it’s amazing. Not war against some third-rate country, such as Syria. But war that might lead to, well who knows? Russians
DC: Yeah.
EV: …and the Chinese.
So, a very dangerous situation. But look at Trump personally now, in terms of the danger. He’s really put his foot into this.
Because you cannot undo an international crime. You cannot undo aggression. It has already happened.
And everybody knows about it. Alright? There’s really no way to cover this up. And as more and more people are investigating this latest episode—You know the earlier episode, it was never really determined chemical weapons were used there or if chemical weapons were used or chemicals released, that Assad’s regime had anything to do with it.
That just disappeared. The thing happened. The charges were made. The missile strikes were had, and then after that we really didn’t pay any more attention to it.
Now this one is getting a great deal more attention. Attention in the media. All sorts of people coming out of the woodwork saying there’s a serious problem with it. And I think there isn’t a way to solve it.
DC: Right.
EV: If I were President Trump’s lawyers, I could not defend him on the basis that he did not commit aggression. Excuse me, that aggression was not committed.
Alright. My defense of him would have to be that he was misled…
TB: Hmm.
EV: …by his advisors and not simply because his advisors made honest mistakes, but because some of his advisors had a criminal motivation to deceive him because of some scheme that they had, some ulterior motive they had—destroy the Syrian regime, cause problems with Russia, whatever it would be.
And that he was in a sense an innocent victim of this. Now that may be a little bit difficult because as Truman said, “The buck stops in the oval office.”
If he’s Commander-in-Chief, well he’s the officer of the deck, in a sense. So he’s responsible. If the ship runs aground, even if the reason for that is the man at the helm was turning in the wrong direction, contrary to orders, he’s responsible.
So, we’re looking at a situation where if I’m on the side of the people who want to remove him or make his Presidency really impotent, I’d say, “Well we’ve got you exactly where we want you. You’ve committed these two acts of aggression. The whole world knows it. There’s no justification for it.”
Even Mattis himself said the other day he had no evidence
TB: (Unclear)
EV: …that there had been a chemical attack. But he believed it anyway.
TB: Yes.
EV: Well, come on! What kind of testimony is that? That would be laughed out of any court, certainly any court of the United States. Huh? The man gets on the stand, says, “Well, I have no evidence for this, but I believe it.” The judge would say, “Jury should disregard that testimony, that’s incompetent testimony.” Right?
Amazing. Amazing statement, alright?
So, they don’t even have people within the Administration that can come out and say, “Well, here’s point 1, here’s point 2, point 3, it’s all been verified in one way or another.”
So here’s poor Mr. Trump. He’s committed this act. And his only defense I think, is that he was affirmatively misled. It’s very difficult for a person in his position. Even for someone who is as politically inexperienced and naïve as he obviously is, he’s surrounded by advisors who have been put to him.
Someone told him, “Get Bolton.” Someone told him, “Get Mattis.” He doesn’t know these people, he hasn’t worked with them in, you know, real estate deals in New York. He doesn’t know if they’re competent.
And then stuff coming out of intelligence agencies. Stuff coming out of the State Department. The nameless, faceless bureaucrats coming out of the woodwork. Who can trust any of that?
TB: We’ve got about 16 minutes left in the show, and I’d like to review real quickly. We’ve established, it isn’t hyperbole that this is illegal by international law; by constitutional law. And we have established that—”Okay, so what?”—we’ve established that there are excellent reasons for using the mechanisms that are legal.
So now we are down to: What are we going to do about this? And you touched on
EV: Hmm.
TB: …Impeachment
EV. Uhuh
TB: Um, there is significant opposition on the record by the Labor (opposition) Party in Great Britain, and we’ll have a six-page paper—legal paper which gives their reasons behind that.
Um,….what are we going to do about this?
DC: If I might drill down into that question a little deeper. You know, uh, there are a lot of us concerned Americans—regular law-abiding citizens of the country who are looking at this, asking the question, “What can we do?”, “What is there that we can do?”
We need a lot of education to know what’s in our power to do.
And I see this as a question of, where as Americans today we are really stuck. We don’t have the mechanisms that we used to have to “execute the laws” of the country any more.
We’re pretty much our here just kind of floundering trying to figure out, you know, even if you care that this is a bad thing that’s happened, what can the normal, regular, law-abiding American do? Can you address that a little bit?
EV: Let’s . . . Yeah, well let’s look at Mr. Trump’s position. That’s what I would be concerned about initially. Not some long-range change, but the initial problem that he has. As I said, you can’t undo what’s been done.
And his defense would have to be that he was misled by people who were intentionally trying to create a problem for him.
And so now he’s, now he’s caught, because the other side—the anti-Trump forces, could always turn on him and say, “Well, we now agree with what’s coming out in the international communities pretty much as a consensus that this was an aggressive war, and we think this was an impeachable offense, and we’re going to start getting impeachment proceedings against you.
And that can always be a threat in the background, as opposed to the foreground.
And he can be getting phone calls. Private phone calls saying, “You’d better do this. Or you’d better to that. Or the next thing you know you’re going to be tied up in impeachment proceedings which will make Watergate look like a picnic.”
You know what I mean.
TB: Yeah.
EV: They will destroy him, especially if the Democrats gain control of the House, or they gain control of the House Judiciary Committee where impeachment proceedings would be commenced. They will cause the next two—even if they don’t succeed—he can’t get conviction in the Senate or even get it up to the Senate.
They will use the next two years to hammer him with this and make anything else he wants to do practically impossible, because he will have to spend all of his time, and with lawyers and everything else dealing with this impeachment problem.
And I think that the only way that he can get around that, and also, this proposal also strikes at the people who are, you know, trying to destroy him. The so-called “Deep State”, because the machinations I am talking about caused him to do what he did in Syria are pretty much the emanations from the “Deep State”.
These are the ones who caused it to happen.
He has to turn on them right now. He has to come in front of the American people, you know, 9 o’clock at night, Eastern time. And say to the American people,
“Look, here’s what happened in Syria, here’s what happened in 2017; here’s what happened in 2018. I was deceived. I admit it. I made a mistake. I was politically naïve. I didn’t realize how viciously criminal these people were, who were one way or another providing me with this false evidence, egging me on to this.
“And what I’m going to do now is to clean house. These people are going to be prosecuted. They are going to be convicted. They are going to prison. I don’t care who they are, whether Military Industrial Complex, or whether in the State Department, or Intelligence agencies, or the FBI, Department of Justice—I’m going after them.”
Because this thing is beyond any kind of acceptability. Alright?
And that at least would put him in the position where he could say,
“Well, I was deceived by them. And as soon as I realized it, I took the appropriate action. And therefore, House of Representatives, you really don’t have a basis against me for impeachment or any other charge that someone might make. And I’m willing to accept some kind of censure resolution that I should have been more prudent. Or I should have investigated this more carefully, whatever. I’m willing even to write that against myself. Because I now realize that it was my political naiveite and lack of real understanding of what went on in the bowels of the government in Washington that caused me to fall into this trap.”
“But, I’ve corrected the situation.”
TB: 11 minutes left.
EV: And I think, and I think if he did that, “The Deplorables”, the people who voted for him, would back him one-hundred and ten percent.
And I think the others….
DC: Then what?
EV: …I think the others would be disarmed. What could they say?
The man has admitted his mistake and he’s trying to correct it.
DC: So then the next question is, “Then what?” In other words, is there anything we can do further to,,,, to prevent these kinds of nefarious actions to be happening in the future? Where the people themselves are part of the solution, not just the bystanders up in the stands? Can you, you know,
(unclear) . . . go ahead Terry.
TB: 10 minutes left. Let me, let me encapsulate.
How do we prevent World War Three?
We were looking down the throat of World War Three last Friday.
If the Russians had responded as they said they were going to do (and they have not precluded that they will not respond,) they have just, at this point, withheld patiently from responding.
What if? I mean, if none of these things work, surely the Constitution did not leave us without recourse?
We’ve got 10 minutes left and the world is asking, “What has happened to America? Why can’t you stop this?”
EV: Well, it goes back to the, uh, the thing that I’ve been working on for several years, which of course is the revitalization of the Militia of the several States as constitutional establishments.
Which bring the people into direct operation, if you will, of the political system. Much more so than simply being voters, or randomly petitioning the government.
You know – talking on talk shows or writing articles on the Internet.
I think it is one of the main reasons that things have gotten out of hand, especially with the Military Industrial Complex, develop this huge standing army establishment, which the Militia is supposed to be – constitutionally supposed to be – the check-and-balance against.
And once that check-and-balance was removed, it wasn’t unlikely, in fact it was predictable that a huge military establishment would be built up as long as the United States had international interests that somebody wanted to promote.
And of course, that is what Eisenhower said when he left office, right? He made that farewell address, if you will, he said you had to be wary of the Military Industrial Complex. It’s too bad he had not been wary of it for the eight years that he was President. Right?
He told us when he walked out the door. Alright?
Um…and I think that’s the main problem.
Those institutions which the founding fathers put into the Constitution specifically to be the counterweight to the possibility of a standing army. And they left the standing army—Article I, Section 8 provides Congress the power to raise and support armies.
So there can be, and certainly is, a standing army.
But Militia structures were removed gradually from 1903 on. And that’s something that needs to be restored. But that will take a long period of time.
Requires, obviously, public education. Amendment. Legislation. Has to be sequential because you have to bring people up to speed on this.
Not really create a, uh, dislocation—social dislocation by attempting to put the entire structure in place at one time.
But at this particular moment, the thing that needs to be emphasized – the “Deep State” is not going to be allowed to get away with this thing ever again!
You see, Trump is in that position. He can do it.
He has the authority to take care “…that the laws be faithfully executed”. I can give him the list of the laws that need to be executed here. And once he does that, and a number of these people are actually indicted and convicted, the “Deep State” is going to run for cover.
The reason that they’re going—running amuck—is because they have this neophyte in Washington. They have incompetents, like Sessions, as the Attorney General.
I mean, my God, if I had been the Attorney General, this problem would have been solved a year ago. Alright?
And they think they can get away with it. And they have been quite successful in getting away with it because there’s no – what should we say – pushback. There’s no retaliation coming at them. Alright? There’s no….
TB: Six minutes. Six minutes left.
EV: ,,,There’s no resistance coming out of the White House.
TB: And what if they don’t? Can you talk about what the bottom-up solution was that the founding fathers did? The Association?
EV: Well, the bottom-up solution was . . .
TB: It was quicker. It was fairly quick.
EV: The bottom-up solution. There’s got to be a lot of what I would call, peaceful resistance, in one kind or another. That depends on how you want to organize people. What you think is effective.
But I think it is really the demand for the Militia structures to be re-instituted. The word I like to use is the word “revitalized” because they’re actually there in the Constitution.
Not that we need to recreate these things. They’re there. They have just been allowed to become moribund. [Editor’s note: approaching death; in a state of dying.]
And the thing that ties in with that too is this gun control hysteria that is now going on in this country. What kind of guns are these gun control fanatics trying to take away from the American people?
Well primarily it’s the so-called assault firearms. It’s the AR-15s; it’s the AK-47s. What? A whole laundry list of these Chuck Shumer-type, Diane Feinstein-type statutes will give us.
And the reason—they are smarter than most Americans—the reason that they are going after those guns is not because those guns might be involved in school shootings. It’s because those are the quintessential type firearms that a well-organized, “well regulated Militia” would actually have.
That’s the next step for them. The first step that was done was essentially making the Militia moribund.
And that started in 1903; it was finished by the mid-thirties, and so forth.
And now the second step is they realize, “Now wait a minute. Militias can arise. Even constitutional Militias can arise directly out of the people in the extraordinarily bad situation.
TB: Extraordinarily quickly, according to history.
EV: Extraordinarily quickly, yeah, depending upon the pressure that is put on the people. They will respond. So we have to take away from them the best implements that they would use in resisting tyranny.
And that’s what this gun control hysteria is about….
TB: Four minutes left.
EV: …So that’s one thing that has to be—that has to be, um, resisted, vehemently.
TB: Four minutes left.
DC: Terry alluded – Terry alluded to a time . . .
TB: How fast did the Association actually make the bottom-up changes that led to, uh, action…David have you got an answer on that and how fast did that happen?
DC: Yeah, I was just going to say, you alluded to the Association, and in my studies, taking the springboard from your work, Dr. Vieira, research shows that the ability of the people to come together and associate across twelve of the thirteen Colonies was literally in a ten-month period of time where significantly using tools such as, uh, an oath that the men of the time were um, considering in each of their little towns, they came together and organized, put together uh, Committees—Safety, Correspondence, Observation—were able to create the Continental Congress. In literally, just a matter of less than a year in 1774 and 1775. Is that accurate?
EV: Well, I think that yeah, as an overview of it. But you always have to remember that all of those people, all of those Colonies, had the experience, they were living the experience at the time….
DC: Right.
EV: …of the Militia structures….
DC: Right.
EV: …Alright? They weren’t coming together out of nothing.
DC: Right.
EV: They had this kind of self-governmental understanding that at the base of everything else with these kinds of structures. I mean it wasn’t this bunch of uh, what shall I say, uh, anarchistic individuals that showed up at Lexington and Concord in 1775….
DC: Right. They were structured; they were ordered.
EV: …That they heard bells ringing and so they had nothing better to do today. Let’s pick up our muskets and go down to the Village Green in Lexington. This was pursuant to training, organization, and so forth. Pursuant to statutes of Massachusetts Bay.
DC: Right.
EV: Which gave the Militias specific legal and governmental authority. And they say themselves….
DC: Which is what “well regulated” meant.
EV: …That’s what “well regulated” means, and they saw themselves as resisting usurpation and tyranny coming out of General Gage. General Gage was the illegitimate, usurpatory actor.
These people were not really rebels in their own minds. They were people that were trying to enforce the laws of that Colony against this fellow who was attempting to impose martial law on them.
TB: Defending, in other words.
EV: Defending, yeah, it was defensive action. And defensive action supported by the laws of their own Colony. And the difficulty we have today is, most people have lost this understanding that the people themselves in the right institutions really are the ultimate executors of the law. Alright?
Not that you just go along hat-in-hand to your Congress, or hat-in-hand to your State legislature. That in the ultimate analysis, it is that the people themselves (chuckling) where they live, properly organized who are supposed to have the ultimate governmental authority.
DC: Uhuh.
EV: And that’s what we’ve lost. And that’s why we look to someone like Trump to be the Leader Figure. The Fuhrer Principle, if I can use the right language for it. “Das Führerprinzip”.
That’s why this country looks more and more to these leader figures. And when the leader turns out to have feet of clay, well, we don’t know what to do.
DC: Exactly.
EV: “…Let’s hope we can elect somebody else to fill that role.”
TB: There’s one minute left. We’ve got one minute.
EV: Okay. And in the meantime, the entire constitutional structure collapses on our heads. The constitutional structure does not depend on the leader.
TB: The Association structure . . .
DC: We need an educational solution
.
EV: Absolutely.
DC: That brings us back around, and this, this conversation is leading to that education. At least a splinter of what that education needs to be.
EV: Well, let’s hope so.
TB: And it’s important to remember that Lexington which was just mentioned, was to prevent disarming the Colonists.
EV: Exactly. And, and, and, they’re trying to disarm “the colonists” in a sense today in a different manner.
TB: Exactly. We’ve been colonized in a different manner.
EV: Yeah. Colonized in a different manner, and now we are going through these unconstitutional gun control statutes, which are promoted through media hysteria.
They’ve discovered something which even General Gage hadn’t figured out. That if you control mass media, and you propagandize people often enough with lies, they will somehow accept that, or at least, not resist it.
TB: Resist.
EV: Yeah.
TB: And that’s the—Resistance is possible. Resistance is not futile. It wasn’t then….
DC: One of the “Three Rights”.
TB: …or Now.
EV: Yeah, that’s right. That’s right. You have to have some form of resistance. And of course, at this stage, as I say, there are things that can be done from the top, because….
TB: Exactly.
EV:…because Trump is caught in this trap – in this trap that they set for him – it is actually – this danger actually provides us with rare opportunity.
TB: Yes.
EV: If he will just understand where he is and what he can do about it.