Tyranny of the majority: Is secession a justified response?

From Colorado counties proposing secession to Crimea voting to break-away from Ukraine; and from Venice adopting unofficial independence status to Scotland wanting to dissolve the 307 year-old marriage with England – Who’d have thought we are living in an age of social contract renewal?

Over the past four months – majorities in 5 out of 11 counties voted to become the 51st US State; an

unbelievable 96% of Crimeans voted to join Russia; 89% of Venetians voted to create independent city-state within Italy; and in September Scottish voters will take to the polls to decide whether to become a free and independent country.

Opponents of these secessionist movements have quickly taken to the bully pulpit to point out the unconstitutionality of these votes. What if it’s illegal to vote for smaller regions, such as a county, to secede from lager entities, such as states or nations? Does a law make separatists feelings “go-away”?

Secessionist ideas do not begin at the ballot box or in a parliamentary chamber. The ideas of dissolving the bands that tie one region to another begin with disaccord and minority dissatisfaction – tyranny of the majority. Where one political party dominates and punishes the opposition or one geo-cultural group forces its views onto another.

Under the US Constitution, no mention is made of an acceptable dissolution of the union. The Civil War and the Supreme Court’s decision in Texas v. White (1869) arguably established the Constitution ordained a perpetual and indissoluble union.

In 1776, when the founders declared independence from the United Kingdom, that act was in violation of the British Constitution’s supremacy of parliament. If there had been any doubt of Parliament’s authority, The Declaratory Act of 1766, which asserted the right of Parliament to legislate for the colonies "in all cases whatsoever," would have settled the question.

To consider our founders revolutionaries seems abhorrent. The situation was an impasse, Parliament told the colonists to ‘go pound sand’ and the colonists responded by crafting a legal justification based on social contract theory, tyranny of the majority, and natural law.

Colorado counties which proposed secession; orange is where measure passed. 

As for the Colorado counties wanting to follow the West Virginia Model, that dream ended when the 69^th Colorado General Assembly adjourned on May 7^th.

Under Article 4 §3 of the US Constitution, no new state can be created from within an existing state without the consent of both the state’s general assembly and Congress.

Without the Colorado legislature taking action, our state will remain intact. Remaining united is not to say the dissatisfaction with the Democrats who control the governor’s office and legislature has gone away.

Similar to Colorado, the Crimea and Venice referendums were a protest to majority tyrannizing the minority. Unlike Colorado, Crimea’s vote was unconstitutional. Venice’s ballot was unofficial.

The Ukrainian Constitution specifically states in Article 73: “Alterations to the territory of Ukraine shall be resolved exclusively by the All-Ukrainian referendum.”

Many have argued the Crimea referendum was illegal according to Public International Law.

Firstly, under the Montevideo Convention on the Rights and Duties of States (1933), four requires must be satisfied to be considered an independent nation: permanent population, a defined territory, a government, and the capacity to enter into diplomatic relations.

Secondly, a country must be recognised by another country.

Crimea, a peninsula region in the Black Sea. 

The Crimean referendum asked voters whether they wanted to join Russia as a federal subject or restore the 1992 Crimean Constitution which granted greater authority to the regional parliament. With 83% voter turn-out, 96% voted in-favor of joining Russia. This act was certainly illegal under the Ukrainian Constitution, but as for International law, the jury is still out.

The Venice ballot asked voter whether they wanted to secede from Italy and become and independent city-state. With 65% of the region voting, a whopping 89% or 2.1 million people voted in-favor of breaking away from Rome! The Italian Government had no fear of Venice actually breaking away, as the referendum had been unofficial.

Much like rural Colorado having difficult with Denver listening; Crimea has a Kiev problem; Venice a Rome problem; and Scotland, an English problem.

On September 18^th, Scots will take to the polls to decide their fate. Legally, Scotland has the same problem the American Colonists had with the British Constitution, namely the supremacy of parliament.

The UK Parliament in London has the ability to enact or resend any legislation, including the grant of independence. The Edinburgh Agreement, merely a gentleman’s handshake, is where the UK Parliament has pre-agreed to acquiesce to the outcome of the referendum.

While the votes remain to be cast, one thing is certain, laws banning secession don’t make secessionist ideas go away. Revolution and civil war should be avoided. Elections, whether official or unofficial; lawful or unlawful should be a wake-up call to majority-leaders who are unwilling to respect the ideologies, customs, or traditions of minority constituencies.

Legal & political aspects of military intervention in Syria

Should the US attack Syria? Has Assad used chemical weapons against his own people? Would US intervention violate public International law?

Regardless of the answers to these questions, an upcoming vote on Capitol Hill illustrates how foreign affairs are as much about domestic politics, as it is about International relations.

Syrian President Bashar  al-Assad and his wife, Amsa.

President Obama has played a brilliant game of chess against the Republicans. How you might ask?

Prudently, the President is wise in asking for a Congressional vote. It is a tough decision and vesting everyone in the decision process is smart.

Politically, a Congressional vote on Syria puts the Republicans on record prior to the 2014 mid-term

elections, which makes such a vote all the more sensitive and strategic.

The Constitution does not require the President to ask Congress’ permission to engage the armed forces in hostilities. War making powers are shared jointly between the Executive and Congress.

Is military action against Syria legal under public International law?

Under the UN Charter, states may only use force in two instances: self-defence or when the Security Council has authorized force to maintain or restore international peace and security.

Here, Syria has not attacked American citizens, assets, or allies; nor has the Security Council authorized the use of force. The Syrian government is merely engaging in an internal conflict to suppress rebels.

Additionally, Customary International law would allow Syrian government officials, such as Bashar al-Assad to be prosecuted for crimes against humanity and the use of chemical weapons, even though Syria has not become a party to the Genocide, Torture, or Ban on Chemical Weapons conventions.

Regardless of International conventions and customs, US law recognizes the ratified treaties at taking the same status as federal law. This means, the UN Charter, as a treaty, is tantamount to federal law. Congress is free to override federal law by adopting resolutions. So under an American law analysis, Congress can do whatever the hell it wants, so long as that action doesn’t violate the Constitution.

The notion that Congress must pre-approve military action is erroneous. Article I, Section 8 of the Constitution grants Congress a non-specific power to ‘declare war.’ However, of the 130 plus times military action has been taken abroad, Congress has only declared war 5 times.

US President Barak Obama with Speaker John Boehner (left).

Under the Presidential War Powers Act, President Obama, as commander-in-chief, may introduce the military to hostilities without Congressional notice for a period of 60 days. The Act goes on to mention that hostilities must comply with: (i) declaration of war, (ii) statutory authority, or (iii) national emergency. Additional time for hostilities is granted upon Congressional approval.

Here, President Obama would be allowed to introduce the military into foreign involvement without Congressional approval.

Why ask Congress for permission if President Obama doesn't legally need it?

Remember the mid-term elections are fast approaching. A Congressional vote on Syria puts the Republicans on record prior to the 2014 elections, which makes this vote highly political. This is why Speaker John Boehner, a supporter of Syrian intervention, isn't making this a partisan vote – he needs to ensure Republicans are re-elected.

Politically, the issue of Syria is dividing the Republican Party into the Paul Republicans (non-interventionists) and the McCain Republicans (the war-hawks).

Here in Western Colorado, Congressman Scott Tipton announced he would be voting ‘no’ during a town hall meeting recently in Durango.

Both of Colorado’s US Senators, Mark Udall and Michael Bennet, are vacillating over how to vote regarding Syrian intervention to punish the use of chemical weapons.

Meanwhile, on the International stage (remember, I said foreign affairs was only partly about domestic politics), Russian President Vladimir Putin has asked the US to present evidence before the UN Security Council that the Assad government was responsible for the chemical weapons attack.

If the US proceeds without a UN Security Council resolution, then legally this action would be pre-emptive self-defence or a unilateral enforcement an International custom (the ban on chemical weapons). Both concepts would dramatically expand the Bush precedent.

Targeted Syrian assets.

Recently, in Stockholm, President Obama said, “My credibility isn't on the line, the whole international

community's credibility is on the line, Congress' credibility is on the line.”

Actually, Mr President, your credibility is on the line, as you’re the one proclaimed Syria used chemical weapons and that the US should take punitive action.

While the White House has gotten the entire International community in a frenzy, one thing is for certain, if the US strikes Syria, no longer will President Obama be able to blame the results on the George Bush Administration. 

Snowden – traitor, patriot or whistle-blower?

Traitor, patriot, or whistle-blower? Americans took to the streets in protests over Zimmerman’s acquittal, yet reactions to the National Security Agency (NSA) covertly collecting phone and email records has been greeted with a mediocre response. How should those who leak confidential information to the media be regarded?

“[T]he Obama administration has gone after more watchdogs, leakers than any previous administration by far. And that raises serious questions,” Dan Rather, retired CBS news anchor said during a CNN interview on August 1, 2013.

Pfc. Bradley Manning, John Kiriakou, Thomas Drake, Edward Snowden, and others have been pursued by the Obama Administration. The Justice Department has unapologetically used warrants to obtain phone and email records of Associated Press (AP) journalists in an effort to quash governmental sources leaking confidential information to reporters.

The political parties are divided on whether whistle-blowers should be regarded as traitors or patriots.

Rep. Michelle Bachmann (R-Minn.), concurring with the Obama Administration, criticized Snowden for revealing sensitive information to the news media, saying, “This was not an act of a patriot; this was an act of a traitor.”

Rep. Justin Amash (R-Mich.), during a FOX News Sunday interview, said, “As far as Congress is concerned, sure, [Snowden’s] a whistle-blower.” Rep. Amash sponsored the Limiting Internet and Blanket Electronic Review of Telecommunications and Email Act (LIBERT-E Act), which narrowly failed, 217-205, during a July 24, 2013 bi-partisan House vote. The legislation would have restricted the NSA’s carte blanche data collection under the Patriot Act and required Congress to be briefed on NSA and FISA Court activities.

Edward Snowden

By definition, a government employee (whistle-blower) is protected from retaliation when that employee discloses employer wrongdoing, illegalities, or abusive conduct. As a comparative example, the Colorado Employee Protection Act (1979) requires a whistle-blower to make a good faith effort to disclose information to a supervising authority or member of the General Assembly.

Pfc. Manning stole more than 700,000 secret foreign affairs and war documents in 2010 and gave them to Julian Assange, who published the information on the Wikileaks website. The documents revealed U.S. troop movements and soldiers’ identifications, along with exculpatory diplomatic cables filled with colorful adjectives describing foreign government officials.

Pfc. Manning was found guilty of 19 criminal charges on July 31, 2013.

John Kiriakou, a former CIA officer, was sentenced to 30 months in federal prison in January 2013 for leaking classified information to a member of the AP in 2008. The leak included the operative’s name who participated in creative forms of interrogation during the initial stages of the War on Terror.

Thomas Drake, formerly an NSA executive, was prosecuted in July 2011, under the Espionage Act for ‘willful retention of national defense’ secrets.’ Drake and three cohorts, exposed the NSA Trailblazer program, which was a billion-dollar computer-based program to analyze Internet content, particularly email and cellular phone communications.

Drake leaked classified info to members of Congress and the New Yorker. The action complied with the federal whistle-blower legislation. The night before his sentencing hearing, 60-Minutes broadcast a feature report on Drake which resulted in the Justice Department dropping nearly all the charges. Today Drake works in a Washington, DC Apple Store. Incidentally, Drake recently ran into Attorney General Eric Holder, who was shopping for iPhones.

The Justice Department has yet to apprehend Edward Snowden, the former NSA contractor, who leaked information about the NSA Prism program and the FISA secret warrants for Verizon customers’ data to London’s Guardian newspaper and theWashington Post. The Obama Administration cancelled Snowden’s passport, which resulted in Snowden spending a month in the transit zone of Moscow’s Sheremetyevo Airport. Despite requests from the White House to extradite Snowden to the US, Russia recently granted Snowden a one-year asylum passport.

Manning, Kiriakou, Drake, Snowden attempted to be whistle-blowers, yet only Drake arguably was legally a whistle-blower, as he made a good faith effort to inform superiors and members of Congress prior to going to the press.

Should the analysis pivot on whether revealing domestic email and phone data gathering programs ought to be considered government-wrongdoing, illegal activity, or abusive conduct?

If one believes people are better off knowing the truth, then there is value to society in leakers revealing such information as the military operations in Vietnam outlined in the Pentagon Papers, the Watergate scandal, abuses at Abu Ghraib, or the Obama Administration’s efforts to block all leaks of information to reporters, including those revealing NSA collection of phone and email data.

A gentleman’s agreement exists between the free press and interests of national security. This agreement is a delicate and fragile one and precedential pursuits of the Obama Administration should make even the ardent liberal nervous. The media balance a fine line of aiding these so called ‘whistle-blowers’ and providing the scrutiny that Congress willfully turns a blind eye to providing.

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M. Soper. 'Snowden – traitor, patriot or whistle-blower?' Op Ed. Western Slope Watch Dog. <http://westernslopewatchdog.com/2013/08/guest-editorial-snowden-traitor-patriot-or-whistle-blower/> 10 August 2013