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Merged Trump Fires Comey....

Skeptic Ginger said:
No one on the left is doubting Trump found the perfect excuse to fire Comey.

Anyone with half a functional brain can see it wasn't the real reason Trump fired Comey.
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My point was it is ridiculous for Rosenstein to feel like he was forced or scapegoated. He may have been ordered to write the first few paragraphs, but he chose to sign his name to the last paragraph.
 
BobTheCoward said:
I think the question is if it is a lawful order with the implications is US domestic court. Obviously there are international implications. But there are international implications in any US military action that doesn't mean US soldiers can necessarily be charged in US court.
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What are you on about? The question is whether it's illegal.
 
BobTheCoward said:
Treaties that have no weight in US domestic law are irrelevant in the borders of America.
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The US is bound by GC 1-IV (as of 1955) and Protocol III (2007), and has signed Protocols I and II (but not implemented).

https://en.wikipedia.org/wiki/List_of_parties_to_the_Geneva_Conventions

Implemented treaties are binding under domestic law.

https://www.asil.org/insights/volume/2/issue/5/international-agreements-and-us-law

Provisions in treaties and other international agreements are given effect as law in domestic courts of the United States only if they are "self-executing" or if they have been implemented by an act (such as an act of Congress) having the effect of federal law. Courts in this country have been reluctant to find such provisions self-executing, but on several occasions they have found them so--sometimes simply by giving direct effect to the provisions without expressly saying that they are self-executing. There are varying formulations as to what tends to make a treaty provision self-executing or non-self-executing, but within constitutional constraints (such as the requirement that appropriations of money originate in the House of Representatives) the primary consideration is the intent--or lack thereof--that the provision become effective as judicially-enforceable domestic law without implementing legislation. For the most part, the more specific the provision is and the more it reads like an act of Congress, the more likely it is to be treated as self-executing. A provision in an international agreement may be self-executing in U. S. law even though it would not be so in the law of the other party or parties to the agreement. Moreover, some provisions in an agreement might be self-executing while others in the same agreement are not.

All treaties are the law of the land, but only a self-executing treaty would prevail in a domestic court over a prior, inconsistent act of Congress. A non-self-executing treaty could not supersede a prior inconsistent act of Congress in a U. S. court. A non-self-executing treaty nevertheless would be the supreme law of the land in the sense that--as long as the treaty is consistent with the Bill of Rights--the President could not constitutionally ignore or contravene it.

Even if a treaty or other international agreement is non-self-executing, it may have an indirect effect in U. S. courts. The courts' practice, mentioned above, of interpreting acts of Congress as consistent with earlier international agreements applies to earlier non-self-executing agreements as well as to self-executing ones, since in either case the agreement is binding internationally and courts are slow to place the United States in breach of its international obligations.
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ChristianProgressive said:
The US is bound by GC 1-IV (as of 1955) and Protocol III (2007), and has signed Protocols I and II (but not implemented).

https://en.wikipedia.org/wiki/List_of_parties_to_the_Geneva_Conventions

Implemented treaties are binding under domestic law.

https://www.asil.org/insights/volume/2/issue/5/international-agreements-and-us-law
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That is assuming the treaty is consistent with the US Constitution.

Additionally, an international accord that is inconsistent with the U.S. Constitution is void under domestic U.S. law, the same as any other federal law in conflict with the Constitution. This principle was most clearly established in the case of Reid v. Covert.[9] The Supreme Court could rule an Article II treaty provision to be unconstitutional and void under domestic law, although it has not yet done so.
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My whole point is that even though those cited provisions were ratified, they are not consistent with the US Constitution and are void.
 
ChristianProgressive said:
The President cannot legally order a soldier to do an illegal thing. What a soldier is allowed to do is covered by the Geneva Convention, to which the US is signatory
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Didn't seem to actually stop them in Iraq and Afghanistan.

And where is it illegal to have a preemptive nuclear strike on north korea or Iran?
 
BobTheCoward said:
That is why I don't want to get back to the scenario until we see if we still disagree that the joint chiefs can or cannot count a legal domestic/illegal international order as unlawful.
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Well, the easy answer is honestly whether or not the president can launch a nuclear strike. It's pretty clearly, yes, for whatever reason they think.

The Atomic Energy Act of 1946 gave Truman and the civilian executive branch that power. The idea was that the president would be a bulwark against the military people pushing for nukes to be used. The irony...

Eisenhower then delegated authority to the military, Kennedy took it back.

Interestingly, Maj. Harold Hering was fired in 1973 merely for asking how he would know an order to launch a nuke from the president was legal or not. The military has long been trained to unquestioningly follow the order of the president when it comes to the potential use of nukes.

Really, the only restraint is procedural. President has to have the Sec. of Defense carry out the launch - they have to go through the military. Hopefully someone along the way will stop it.

I think this is one of the main reasons why it is terrifying to have Trump in charge. There really are no rules stopping him, save for international conventions that are largely unenforceable. What would happen if he launched a nuke? No one knows.

As for the broader question of whether the military can consider an act legal in America but illegal internationally "illegal" for the purposes of refusing to execute, that's difficult to say in theory. The most recent ruling, Hamdan, found that the AUMF didn't allow for evasion of the GC, but that was largely because they didn't contradict.

There would need to be some sort of positive law in place that contradicted the GC, then the military would be beholden to that. Fortunately, the UCMJ has incorporated most of the GC and Treaty of Rome into Domestic law.
 
ponderingturtle said:
What law is it violating?
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Article I, Section 8, Clause 11 of the US Constitution.

Let's say the President wakes up tomorrow morning and says the French really piss me off. I'm going to nuke Paris. Do you think the President would be committing a legal act? Carrying out an order to perform an illegal act would be itself following an illegal oder.
 
Babbylonian said:
Once treaties are ratified by the United States Senate, they are US law.
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I'm specifically talking about treaties that conflict with the constitution, and therefore would be be applicable in the US. (quoted something about it all the way back on post 867).
 
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