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***(51)国际人权法律与实务
(A)***国际人权公约(中英文本)
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·禁止酷刑和其他残忍不人道或有辱人格的待遇或处罚公约
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·国际人权法律资料 囚犯待遇最低限度标准规则
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·联合国囚犯最低标准待遇规则
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·联合国司法独立的基本原则(1985年)
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·世界人权公约英文版Universal Declaration of Human Rights
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·国际刑事法院规约(1998)
·国际刑事法庭(芦旺达)程序与证据规则(1995)
·国际刑事法庭(芦旺达)规约
·起诉严重侵犯国际人道法责任人的国际(前南斯拉夫)法庭规约(1991)
·消除一切形式歧视妇女的国际公约1981
·国际人权法律资料 取缔教育歧视公约
·关于就业及职业歧视的公约
·消除一切形式歧视妇女的国际公约选择性议定书2000
·联合国防止和惩罚种族灭绝罪的公约(1951)
·联合国有关难民身份的国际公约1954
·儿童权利国际公约1990
·起诉和惩罚欧洲轴心国主要战争罪犯的国际军事法庭协议(纽伦堡宪章)
***区域性国际人权法律文件
·1996年欧洲反破坏性异端决议及其邪教定义
·非洲人权和人民权利公约(1981)
·美洲人的权利与义务宣言(1948)
·美洲人权公约(1969)
·美洲防止和禁罚酷刑的公约
·防止酷刑和其他残忍不人道或有辱人格待遇或处罚的欧洲公约1989
·欧洲保护人权和基本自由公约(1950)
·欧洲社会宪章1961
·建设新欧洲的巴黎宪章1990
(B)***美国人权法律文件
·美国1620年“五月花号”公约(The Mayflower Compact)
·美国1786年弗吉尼亚宗教自由法令
·美国1776年弗吉尼亚权利法案
·美国1862年解放黑奴宣言
·美国1777年邦联条款
·美国1776年维吉尼亚权利法案
(C)***英国人权法律文件
·英国1998年人权法案
·英国1676年人身保护令
·英国1689年权利法案
·英国1628年权利请愿书
·英国1215年自由大宪章
***(52)郭国汀论法官与律师
·悼念前最高法院大法官冯立奇教授逝世四周年
·法官律师与政党 郭国汀
·尊敬的法官大人你值得尊敬吗?!
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An Imperial Presidency Based on Constitutional Quicksand

   An Imperial Presidency Based on Constitutional Quicksand
   
   by Ivan Eland Jan 10, 2006 note by thomasgguo
   
   

   After revelations about President Bush ordering surveillance of Americans without obtaining warrants, the boundaries of executive power will undoubtedly be one of the principal issues raised at the confirmation hearing of Supreme Court nominee Samuel Alito. The conservative Alito has publicly endorsed the theory of the unitary executive, which takes a broad view of presidential authority. Alito’s liberal critics say his record has been too obsequious(to eager to obey or serve; having too little self-respect) to expanded executive power.
   
   
   
   The position of these two camps seems peculiar. Many of today’s conservatives, such as Alito, Vice President Dick Cheney, and Cheney’s chief of staff David Addington, believe that the presidency is not muscular enough. In fact, the vice president, contrary to most scholarship on the issue, feels that, in recent decades, the executive branch has been emasculated(to take away all strength ;to take away the power of becoming a father from). Yet conservatives also tout their custodianship of the original intent of the framers of the Constitution. The nation’s founders would turn over in their graves if they were to learn of the modern imperial presidency.
   
   
   
   The U.S. Constitution was written after a war of independence from what the colonists believed was a despotic(a person who has all the power of government and uses it unjustly and cruelly; tyrant) king. The document was designed to strictly limit federal power, vis-à-vis the powers of the states and the people. Within the constricted federal realm, the framers intended to make the decentralized Congress the dominant branch and gave that body many more enumerated powers than the president or the judiciary. It is no coincidence that the article of the Constitution setting forth the powers of the legislative branch is listed first and is by far longer than Article II, which lists the responsibilities of the executive branch, and Article III, which covers the judiciary.
   
   
   
   In particular, the founders feared the power of a potent executive to impose wars upon the American people in which they would bear the brunt (the main or most damaging part of an attack)of the costs in blood and treasure—much as the autocratic European monarchs of the day inflicted such costs on their subjects. Thus, the framers, contrary to conventional wisdom, gave most of the war powers to Congress. The legislature has the power to declare war, raise and support armies, provide and maintain a navy, regulate the land and naval forces, make the rules for captures on land and water, and provide for organizing, arming, disciplining, and calling forth the militia in times of insurrection and invasion. In contrast, the president has only the power of commander-in-chief of the army, navy, and militia when called into service by the federal government.
   
   
   
   It is this last power that modern presidents, especially the current incumbent, have attempted to stretch from its narrow origins into the very nightmare the framers wanted to avoid—a single official with unchecked war powers. President Bush has justified unconstitutional acts in the “war on terror” by expanding the power of the commander-in-chief beyond the founders’ intention. He has used that power to justify torture, the surveillance of Americans without a warrant, and the effective suspension of habeas corpus by indefinite detention of “enemy combatants”—including some Americans—without a trial or access to lawyers. Yet the founders intended only that the president command forces on the battlefield because it was difficult for the many members of the legislative branch to do so. Yes, gathering intelligence is part of that effort, but another part of the Constitution—that is, the Fourth Amendment in the Bill of Rights—implicitly guarantees that people will be protected against searches without a warrant. For conservatives that love original intent, the Constitution says nothing about being suspended during wartime. Also, torturing prisoners in violation of the congressionally approved Geneva Conventions and indefinitely detaining them without a trial seem to run afoul of the constitutional provisions providing that Congress has the power to make rules concerning captures on land and water and implying that only Congress, rather than the executive, has the power to suspend habeas corpus in times of rebellion or invasion (this provision is in Article I and not Article II).
   
   
   
   Of course, there is currently no rebellion or invasion, so any suspension of habeas corpus—whether by the president or Congress—is likely to be unconstitutional. In fact, there is no war; the “war on terror” is not really a war at all. The post-9/11 congressional resolution authorizing the use of force against the attacks’ perpetrators and those that harbored them, which the president uses as an additional justification for his domestic snooping(to search, look into,or concern oneself with other peoples property or affairs without permission) did not even imply the approval of such surveillance, expanded executive power (in fact, members of Congress from both parties went on record specifically rejecting that interpretation), or a declaration of war.
   
   
   
   So even though the president and his administration constantly say, “we are at war,” technically we are not. The last official war the United States fought was World War II. After that, the Congress abdicated(to give up a right, claim, or responsibility; renounce) its responsibility to declare war. Since then, presidents have declared a unilateral right to send U.S. forces into harms way—the founders’ worst fear. For example, even though President Bill Clinton couldn’t get congressional approval to attack Serbia and Kosovo, he ordered the bombing anyway. Before Gulf War I, President George H. W. Bush claimed that he was asking for a congressional resolution of support, as opposed to a declaration of war, only as a courtesy—not because he was required to by the Constitution.
   
   
   
   Yet despite the recent bending of the rules, the Constitution and the debates at the constitutional convention were clear that a declaration of war is needed to go to war, unless an invasion prevents the Congress from meeting. Even then, Congress was expected to ratify an existing state of war as soon as it could. In the current “war on terror,” because Congress has not declared war, the existing congressional resolution should not be used to justify domestic surveillance or anything else. Also, with no official war, the president’s authority as commander-in-chief—interpreted narrowly by the founders—would be even more limited.
   
   
   
   Most of the extraordinary actions that President Bush has taken after 9/11 are unconstitutional. The imperial presidency—especially its expanded war powers—rests on constitutional quicksand(wet sand which sucks in anyone or anything that tries to cross it).
   
   
   
   Thomasgguo: openly criticize the policy of government or the president in USA is the right of citizen, while in China, anyone criticize the policy of the CCP or Hu jingtao, may be sent into jail or prison. This is the vital different between the democracy and dictatorship. Any truth should arguable openly and there is no evil under sunshine. One day, when Chinese people also enjoy the right of criticize, there is hope of China.

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