by Judge Andrew P. Napolitano
February 16, 2023
Which is more destructive to personal liberty, a government that engages in secret acts of war or a public and news media that are indifferent to it? In the current American toxic stew of anti-Russian hatred and beating the drums of war — in President Joe Biden's America — we have both.
Here is the backstory.
The war in Ukraine is now in its 12th month. It has become a slow, inexorable movement westward for Russian military forces and painful migrations of 5 million Ukrainians out of their country, to say nothing of the losses of between 130,000 and 150,000 Ukraine troops.
Congress has authorized the president to spend up to $100 billion in borrowed dollars in support of the doomed Ukraine forces. He has thus far wasted about half of that in donated military equipment and cash.
Much of the military equipment has come not from American surplus but from America's storehouses of equipment for self-defense. And much of the equipment the U.S. has furnished is so sophisticated that Ukraine troops are in Oklahoma learning to use, maintain and repair it. Some is so sophisticated that American troops are on the ground in Ukraine, out of uniform, instructing upon and maintaining the equipment. And some of the equipment requires American soldiers to target Russian troops and dispatch missiles at them.
American troops out of uniform poses a double-edged sword for Biden. If they are unarmed and out of uniform, he can legally deny that the U.S. has "boots on the ground." Yet, because they are out of uniform and supporting hostilities, they can legally be shot at by Russian troops, captured and executed as spies working for Ukraine. This is the way the U.S. began its disastrous and criminal war in Vietnam.
What is Biden's goal? Is it the expulsion of Russian troops from Ukraine and even from Russian-speaking Crimea, or is it the expulsion of Russian President Vladimir Putin from office? The White House can't or won't be precise on this because neither goal is militarily attainable, moral or constitutional.
Congress cannot fund a war involving Americans that it has not declared, as the constitutional language is clear. Moreover, Russian ground forces are about to expand by somewhere between 300,000 and 500,000. Those troops will simply overwhelm the Ukraine forces and their American instructors, no matter what equipment the U.S. provides and operates.
But the use of troops out of uniform and the expenditure of $50 billion without a clear attainable goal is not the worst decision Biden has made in this conflict. All of that waste is well-known. What was not known until last week was the act of war the Biden administration waged against Germany and Russia. Against Germany? Yes.
German and Russian industry built a natural gas pipeline in the Baltic Sea, called the Nord Stream Pipeline. The pipeline enabled the Russian government to sell and deliver cheap Russian natural gas to German utilities.
According to the famed investigative journalist Seymour Hersh — he of My Lai Massacre, Watergate, CIA spying, American torture and Pulitzer Prize fame — back in June 2022, Biden ordered a joint CIA/Navy operation to prepare the pipeline for detonation. Navy Seals dove down to the seabed and lined the pipeline with explosives.
In September 2022, Biden gave the order to the CIA to deploy the explosives, which it did, causing $10 billion in damage to the pipeline and much more to the German and Russian economies and to the Baltic.
This was an act of war on an ally, Germany, and on a putative adversary, but one with which the U.S. has never been at war, Russia.
Can the president legally deploy violence to another country, whether ally or adversary, without a clear military need? In a word: NO.
Under the Constitution, only Congress can declare war, and under the treaties to which the U.S. is a party, there must be a moral, legal basis — a credible military threat from a foreign military — for such a declaration. The War Powers Resolution of 1973 requires the president to notify Congress of all violent military deployment. Not only was this violence without notice, it was not defensive, nor intended to save lives in immediate harm from a foreign military, and it was against an ally.
Stated differently, attacking Germany and Russia so as to weaken their economies, knowing there was no moral military purpose to it, has made this act of war a criminal act — a war crime — as well.
The use of the CIA was, of course, no accident. The War Powers Resolution only requires reporting and seeking congressional approval for military violence. By putting the CIA in charge, if he ever owns up to this, Biden can argue that this was an intelligence operation.
The CIA's lawless, amoral, Constitution-be-damned, murderous culture, and the willingness of every American president since Harry Truman to cover for it, has given post-World War II presidents a secret personal army, which all have used to destroy and kill.
But Biden is the first known American president to use the CIA and the Navy to attack an ally. Isn't it mysterious that German authorities have been silent about this attack? And where is the mainstream American media? My guess is Hersh embarrassed the Germans and the American media.
The press is the eyes and ears of the public. But if the press is cowed or is in bed with the government, who will expose the government when it fights secret wars? Where are members of Congress? Where is the public outrage?
Joe Biden really wants a war to fortify his weak presidential stewardship. Apparently, the public will stand for it because the elites in government, the media and the military/industrial/banking complex who buy and mold public opinion have no moral compass, no understanding of history, no fidelity to the Constitution and no qualms about the annihilation of innocents.
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Excerpt from "George W. Bush & His Torturers [w/Judge Andrew Napolitano]", by Ralph Nader
February 18, 2023
Ralph Nader: Well, you've just written another column, War and Indifference. Spell out your thesis.
Judge Andrew Napolitano: Well, in my view, Joe Biden was on the faculty as an adjunct. I know and like him. When I taught at Delaware Law School, Joe was an adjunct faculty there. He had me call him Joe until he became president. I haven't spoken to him since he became president. I would sit next to him on the Acela, the high-speed train from New York to D.C. I was getting on in New York going to D.C. to do my work at Fox. A couple times a month they sent me to D.C. And Joe was getting on in Wilmington to go and do his work, and we would sit with each other. He was a different Joe then. But the present Joe, in my opinion, has utterly wasted 50 billion American dollars by supporting the Ukrainians in the war that they're destined to lose against the Russians. I'm not talking about justice here; I'm talking about military reality. But one of the worst things he did, exposed by your friend and mine, and I say that with seriousness, Sy Hersh, was the destruction of the Nord Stream pipeline, which is an attack on an ally, Germany, and an attack on a putative, but not real enemy, Russia. This was revealed when America was looking upward trying to find a balloon. Gee, what a coincidence. This was revealed on the same day that the government is trying to scare the daylights out of everybody about a balloon floating from Alaska to South Carolina. None of the mainstream media picked it up; you didn't hear a peep out of German government nor a peep out of German industry.
They did 10 billion dollars’ worth of damage to say nothing about the ecological damage to the Baltic Sea and you don't hear anything about it because of the indifference of the American media to this kind of subterfuge by the government. I think Sy Hersh humiliated the American media by being a one-man investigative team who scooped them on this story.
Ralph Nader: He certainly humiliated the Congress. We're going to have Sy Hersh on in a soon program on his story.
Judge Andrew Napolitano: Please tell him I love him. Like you, Ralph, he's an American hero.
Ralph Nader: Well, listen, Andrew, let's talk about the inkblot called Congress which has surrendered decade after decade more and more powers to the executive branch about which you've written a book and about which we put out reports. The United States has never been more militarily dominant in the world. The jingoism, the militarism, giving tens of billions of dollars more to the military budget year after year than the generals asked for and that Biden asked for. Give me your characterization of Congress. Because the reason why Guantanamo is open, which Barack Obama wanted closed, is because of the Republican party in Congress. Give me your take on all this.
Judge Andrew Napolitano: Well, I have two takes on it. One is the intelligence community, which captures every keystroke – I'm holding up my iPhone – captures every keystroke on every mobile device and every desktop in the United States, obviously illegally and unconstitutionally, has enough dirt on enough members of Congress to assure that budgets are always increased. The military industrial banking media – President Eisenhower in heaven forgive me, I'm adding two words to military industrial complex – so enriches itself and employs so many people in so many different congressional districts that the Defense Department is guaranteed the sinecure of more and more money all the time.
The American defense budget is greater than the defense budget of the next 12 countries in the world combined, which of course includes Russia and China. The American military owns and operates 903 foreign military installations. There is not a human being on the planet that can explain, justify, or even name all 903 of these. So it's totally out of control no matter who the president is, no matter what the president's attitude is, the Congress is terrified of the intelligence community and of the military industrial banking media complex, which runs this country.
Ralph Nader: Let's go back to Eisenhower's first draft. He actually had military congressional industrial complex. His advisors said, Mr. President, you should drop the Congress because you have to deal with them. And he did, but he originally had the military congressional industrial complex. And that's the way we should refer to it, you can add banking and the media.
This is super Sparta on steroids – the aggressiveness, the lack of diplomacy, the lack of waging peace by the U.S. government – it’s like they’ve mothballed the charter of the State Department, which was diplomacy. They’ve turned it into a bellicose agency, sometimes much worse than the spokespeople for the Defense Department, which should be called the offense department. What do you think the American people have got to do here? How do you turn it around?
Judge Andrew Napolitano: I don't know how you turn it around. It's so embedded in our system. Thomas Jefferson said the Constitution should expire once in every generation and we should have to re-ratify it. He also intimated, didn't say precisely, that should federal laws expire, we should have to re-enact those as well. But, Ralph, you and I are of the view and I think many of your listeners will agree, we don't have two parties in this country. We have one party. They both love war, they both love welfare – one prefers individual welfare, the other prefers corporate welfare. They both love spending more money than they collect. Collectively they’ve spent 31 and a half trillion dollars more than they've received in the past hundred years. The mindset is nearly identical.
Yeah, there are individuals – Rand Paul, Thomas Massie and on the other side, Alexandria Ocasio-Cortez (AOC) and Jamie Raskin. There are people who are personally courageous and intellectually understanding, but the vast majority of both parties are of the same mindset – government has to regulate more, government has to grow, government has to give more money to defense, American empire has to grow. American empire searching the world for monsters to destroy, there will be no end to our search.
Ralph Nader: At the expense of desperate needs and infrastructure. Look at the disinvestment in our railroad infrastructure and that disastrous derailment of 50 cars with lethal chemicals in Ohio that's still spreading in the atmosphere. One last point of optimism here, there is one section of our due process of law that has held here and it's quite fascinating. It's the Federal Rule of Civil Procedure and due process.
Judge Andrew Napolitano: Yes, that opinion was by Justice O'Connor, which told the DOD and the DOJ they had to follow the Constitution, meaning follow due process. Trials have to be fair. The full panoply of constitutional and statutory protections all have to be followed. And this has basically worked. What has not worked is the wrong people are in the defendants’ chairs. The torturers and the murderers in the government should be in the defendants’ chairs.