Washington’s Response to a Congressional Request for Documents

Washington’s Response to a Congressional Request for Documents, 30 March 1796

The 1794 treaty with Great Britain negotiated by John Jay was one of the most controversial events of GW’s presidency. Opponents claimed that the treaty conceded too much to Great Britain with little benefit to the United States. It failed to address the impressment of seamen or compensation for the slaves carried off by Great Britain at the end of the Revolutionary War; it guaranteed to British fur traders access to posts within the United States, but failed to give American traders the same access to Canada; it abandoned the principle that free ships make free goods; and yet it obtained very limited access to British colonial ports for American vessels. Moreover, the treaty, by strengthening Great Britain, showed base ingratitude toward France and risked a possible war with that erstwhile ally. After the Senate approved the treaty in June 1795 (with a condition that article XII concerning trade with the West Indies be renegotiated), citizens meetings from around the country urged GW to withhold ratification.

Ultimately GW decided that while some provisions of the treaty were not favorable, its acceptance was preferable to a continuation of the disputes with Great Britain, and he ratified the treaty in August 1795.

Having failed to persuade GW to reject the treaty, opponents argued that although the Constitution placed responsibility for treaties in the president and the Senate, the House of Representatives had “a discretionary power of carrying the Treaty into effect, or refusing it their sanction” (Annals of Congress, 4th Cong., 1st sess., 427-28). The Constitution vested Congress with the power to regulate commerce, to lay taxes and duties, and to make appropriations. If, however, the Senate and the president could, by making a treaty, obligate the House to accept commercial regulations or make appropriations, then in effect, they could legislate without the sanction of the people’s representatives. Pursuant to that theory, in March 1796 Edward Livingston introduced a resolution calling on GW to provide the House with a copy of the instructions given to Jay and other documents relative to the treaty. The House extensively debated the resolution from 7 March until the resolution was agreed to on 24 March.

GW consulted with his cabinet and with Alexander Hamilton (who submitted a draft that was not used) before replying to the House. This reply categorically denied that the House has any veto over a treaty approved by the Senate and the president, and it characterized the House demand as a “dangerous precedent” that would violate the proper separation of powers within the government. GW would not comply.

The House then debated GW’s message for another 7 days. These important debates, both before the resolution’s passage and after GW’s message, are gathered in Annals of Congress, 4th Cong., 1st sess., 424-783, which can be found online at “A Century of Lawmaking For a New Nation,” hosted by the Library of Congress: http://memory.loc.gov/ammem/amlaw/lwaclink.html

_____________________________________________________________________

To the United States House of Representatives

United States March 30th 1796.

Gentlemen of the House of Representatives.

With the utmost attention, I have considered your resolution of the twenty fourth instant, requesting me to lay before your House, a copy of the instructions to the Minister of the United States, who negociated the treaty with the king of Great Britain,[1] together with the correspondence and other documents relative to that treaty, excepting such of the said papers, as any existing negociation may render improper to be disclosed.

In deliberating upon this subject, it was impossible for me to lose sight of the principle, which some have avowed in its discussion, or to avoid extending my views to the consequences, which must flow from the admission of that principle.

I trust, that no part of my conduct has ever indicated a disposition to withhold any information, which the constitution has enjoined upon the President, as a duty, to give, or which could be required of him by either House of Congress, as a right; and with truth, I affirm, that it has been, as it will continue to be, while I have the honor to preside in the government, my constant endeavor to harmonize with the other branches thereof; so far as the trust, delegated to me by the people of the United States, and my sense of the obligation it imposes “to preserve, protect and defend the Constitution,” will permit.[2]

The nature of foreign negociations requires caution; and their success must often depend on secrecy: and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions, which may have been proposed or contemplated, would be deemed[3] impolitic; for this might have a pernicious influence on future negociations, or produce immediate inconveniences, perhaps danger and mischief, in relation to the other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties, in the President, with the advice and consent of the Senate; the principle, on which that body was formed, confining it to a small number of members. To admit, then, a right in the House of Representatives, to demand, and to have, as a matter of course,[4]all the papers respecting a negociation with a foreign power, would be,[5] to establish a dangerous precedent.

It does not occur, that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment; which the resolution has not expressed.[6] I repeat, that I have no disposition to withhold any information, which the duty of my station will permit, or the public good will require to be disclosed;[7]and, in fact, all the papers affecting the negociation with Great Britain were laid before the Senate, when the treaty itself was communicated for their consideration and advice.

The course, which the debate has taken, on the resolution of the House, leads to some observations on the mode of making treaties under the constitution of the United States.

Having been a member of the general convention, and knowing the principles, on which, the constitution was formed, I have ever entertained but one opinion on this subject; and from the first establishment of the government, to this moment, my conduct has exemplified that opinion, that the power of making treaties is exclusively vested in the President, by and with the advice and consent of the Senate; provided two thirds of the Senators present concur; and that every treaty so made, and promulgated, thenceforward became the law of the land. It is thus, that the treaty-making power has been understood by foreign nations; and in all the treaties made with them, we have declared, and they have believed, that, when ratified by the President, with the advice and consent of the Senate, they became obligatory. In this construction of the constitution, every House of Representatives has heretofore acquiesced, and, until the present time, not a doubt or suspicion has appeared to my knowledge, that this construction was not the true one. Nay, they have more than acquiesced; for, till now, without controverting the obligation of such treaties, they have made all the requisite provisions for carrying them into effect.

There is also reason to believe, that this construction agrees with the opinion entertained by the State conventions, when they were deliberating on the constitution, especially by those who objected to it;[8]because there was not required, in commercial treaties, the consent of two thirds of the whole number of the members of the Senate, instead of two thirds of the Senators present; and because, in treaties respecting territorial and certain other rights and claims, the concurrence of three fourths of the whole number of the members of both Houses, respectively, was not made necessary.[9]

It is a fact declared by the General Convention, and universally understood, that the constitution of the United States was the result of a spirit of amity and mutual concession. And it is well known, that under this influence, the smaller States were admitted to an equal representation in the Senate, with the larger States; and that this branch of the government was invested with great powers: for, on the equal participation of those powers, the sovereignty and political safety of the smaller States were deemed essentially to depend.[10]

If other proofs than these, and the plain letter of the constitution itself, be necessary to ascertain the point under consideration, they may be found in the journals of the General Convention, which I have deposited in the office of the department of State. In these journals, it will appear, that a proposition was made, “that no treaty should be binding on the United States, which was not ratified by a law”: and that the proposition was explicitly rejected.

As, therefore, it is perfectly clear to my understanding, that the assent of the House of Representatives is not n[e]cessary to the validity of a treaty: as the treaty with Great Britain exhibits, in itself, all the objects requiring legislative provision, and on these, the papers called for can throw no light; and as it is essential to the due administration of the government, that the boundaries, fixed by the constitution between the different departments, should be preserved:[11] a just regard to the constitution, and to the duty of my office, under all the circumstances of this case, forbid a compliance with your request.

Go. Washington.

 

Notes

Copy, DNA: RG 233, entry 28, Journals; copy, DLC:GW; Df, in the writing of Timothy Pickering, DLC:GW. The draft has a few minor alterations in the writing of Charles Lee. With the draft are two pages containing corrections to it by Lee and Pickering. GW docketed the correction document as “First Draft altered.” The message was published by order of the House, and it also appeared in the newspapers and in numerous unofficial broadsides.

1.At this point in Pickering’s draft, he wrote in parentheses “communicated by my message of the first instant.”[back]
2.At this point in Pickering’s draft the sentence continued with “for this is superior to all other obligations.”[back]
3.Instead of this word, Pickering’s draft used the word “extremely.”[back]
4.At this point Pickering’s draft continued with the words, “& without a specification of any object.”[back]
5.Pickering’s draft concluded this paragraph with a more detailed explication: “hazardous; & according to my view of the Constitution, repugnant to my duty. A discretion in the Executive department, when & how far to comply with such demands, is essential to the due conduct of foreign negociations. The resolution of the House now before me, contains a demand for all the papers that respect past negotiations relative to the treaty with Great Britain: while it exhibits no reason, no object, by which I may judge of the propriety of a compliance: and therefore I cannot comply, without establishing a dangerous precedent.”
The final version of this paragraph uses the language submitted on the correction document by Charles Lee, except that Lee retained Pickering’s sentence about executive discretion, placing it at the end of the paragraph, while the final version does not.[back]
6.At this point Pickering’s draft contains the following additional text: “But in the case of a treaty, if there be any grounds for an impeachment, they will probably be found in the instrument itself. If at any time a treaty should present such grounds; and it should have been so pronounced by the House of Representatives; and a further enquiry should be necessary to discover the culpable person, or the degree of his offence; there being then a declared and ascertained object; I should deem it to be the duty of the President to furnish all the evidence which could be derived from the papers in his possession. Or if information to any other point should be judged necessary, and that point were specified, the President would know what communications it would be proper to make.”[back]
7.The remainder of this sentence does not appear in Pickering’s initial draft, but the addition was suggested in one of his corrections.[back]
8.Instead of the preceding text, Pickering wrote in his draft, “It is the construction which perfectly agrees with the numerous declarations of the framers of the constitution, in the several State Conventions, when these were deliberating on its adoption; and with the opinions of the Conventions themselves, some of whom objected to the Constitution.”[back]
9.Pickering’s draft adds at this point “for such were the amendments proposed in some Conventions to this part of the Constitution.”[back]
10.The preceding sentence was phrased quite differently in Pickering’s initial draft, but the content was essentially the same. The final language was taken from one of Pickering’s corrections to the draft.[back]
11.The preceding part of this paragraph alters the phrasing but not the meaning of Pickering’s original draft. It follows the language suggested in one of Pickering’s corrections but omits two clauses that were placed after “no light” in that correction: “As the resolution of the House assigns no reason for the call: As the papers respecting the negociation of treaties ordinarily pertain only to the President & Senate, by whom they are made.”[back]
The remaining text of the paragraph replaces Pickering’s initial conclusion, which read: “and as no object for the call is expressed in the Resolution of the House: I feel the obligation I am under, to preserve the Constitution in its purity, too strongly to yield to your request.” Lee wrote on the draft an alternative: “it becomes impossible for me to comply with your request.” Pickering’s correction offered a third unused alternative: “A sense of duty compels me to withhold the papers which are the subject of your request.”

 

Islam—Facts or Dreams?

 Imprimis

Islam—Facts or Dreams?

Imprimis • February 2016 • Volume 45, Number 2 • Andrew C. McCarthy

Andrew C. McCarthy
National Review Institute

Andrew C. McCarthy is a senior fellow at the National Review Institute. A graduate of Columbia College, he received his J.D. at New York Law School. For 18 years, he was an Assistant U.S. Attorney in the Southern District of New York, and from 1993-95 he led the terrorism prosecution against Sheik Omar Abdel Rahman and 11 others in connection with the 1993 World Trade Center bombing and a plot to bomb New York City landmarks. Following the 9/11 attacks, he supervised the Justice Department’s command post near Ground Zero. He has also served as a Special Assistant to the Deputy Secretary of Defense and an adjunct professor at Fordham University’s School of Law and New York Law School. He writes widely for newspapers and journals including National Review, PJ Media, and The New Criterion, and is the author of several books, including Willful Blindness: A Memoir of the Jihad and Grand Jihad: How Islam and the Left Sabotages America.

The following is adapted from a speech delivered on February 24, 2016, at Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C., as part of the AWC Family Foundation Lecture Series.

In 1993 I was a seasoned federal prosecutor, but I only knew as much about Islam as the average American with a reasonably good education—which is to say, not much. Consequently, when I was assigned to lead the prosecution of a terrorist cell that had bombed the World Trade Center and was plotting an even more devastating strike — simultaneous attacks on the Lincoln and Holland Tunnels, the United Nations complex on the East River, and the FBI’s lower Manhattan headquarters—I had no trouble believing what our government was saying: that we should read nothing into the fact that all the men in this terrorist cell were Muslims; that their actions were not representative of any religion or belief system; and that to the extent they were explaining their atrocities by citing Islamic scripture, they were twisting and perverting one of the world’s great religions, a religion that encourages peace.

Unlike commentators and government press secretaries, I had to examine these claims. Prosecutors don’t get to base their cases on assertions. They have to prove things to commonsense Americans who must be satisfied about not only what happened but why it happened before they will convict people of serious crimes. And in examining the claims, I found them false.

One of the first things I learned concerned the leader of the terror cell, Omar Abdel Rahman, infamously known as the Blind Sheikh. Our government was portraying him as a wanton killer who was lying about Islam by preaching that it summoned Muslims to jihad or holy war. Far from a lunatic, however, he turned out to be a globally renowned scholar—a doctor of Islamic jurisprudence who graduated from al-Azhar University in Cairo, the seat of Sunni Islamic learning for over a millennium. His area of academic expertise was sharia—Islamic law.

I immediately began to wonder why American officials from President Bill Clinton and Attorney General Janet Reno on down, officials who had no background in Muslim doctrine and culture, believed they knew more about Islam than the Blind Sheikh. Then something else dawned on me: the Blind Sheikh was not only blind; he was beset by several other medical handicaps. That seemed relevant. After all, terrorism is hard work. Here was a man incapable of doing anything that would be useful to a terrorist organization—he couldn’t build a bomb, hijack a plane, or carry out an assassination. Yet he was the unquestioned leader of the terror cell. Was this because there was more to his interpretation of Islamic doctrine than our government was conceding?

Defendants do not have to testify at criminal trials, but they have a right to testify if they choose to — so I had to prepare for the possibility. Raised an Irish Catholic in the Bronx, I was not foolish enough to believe I could win an argument over Muslim theology with a doctor of Islamic jurisprudence. But I did think that if what we were saying as a government was true—that he was perverting Islam—then there must be two or three places where I could nail him by saying, “You told your followers X, but the doctrine clearly says Y.” So my colleagues and I pored over the Blind Sheikh’s many writings. And what we found was alarming: whenever he quoted the Koran or other sources of Islamic scripture, he quoted them accurately.

Now, you might be able to argue that he took scripture out of context or gave an incomplete account of it. In my subsequent years of studying Islam, I’ve learned that this is not a particularly persuasive argument. But even if one concedes for the purposes of discussion that it’s a colorable claim, the inconvenient fact remains: Abdel Rahman was not lying about Islam.

When he said the scriptures command that Muslims strike terror into the hearts of Islam’s enemies, the scriptures backed him up.

When he said Allah enjoined all Muslims to wage jihad until Islamic law was established throughout the world, the scriptures backed him up.

When he said Islam directed Muslims not to take Jews and Christians as their friends, the scriptures backed him up.

You could counter that there are other ways of construing the scriptures. You could contend that these exhortations to violence and hatred should be “contextualized”—i.e., that they were only meant for their time and place in the seventh century.  Again, I would caution that there are compelling arguments against this manner of interpreting Islamic scripture. The point, however, is that what you’d be arguing is an interpretation.

The fact that there are multiple ways of construing Islam hardly makes the Blind Sheikh’s literal construction wrong. The blunt fact of the matter is that, in this contest of competing interpretations, it is the jihadists who seem to be making sense because they have the words of scripture on their side—it is the others who seem to be dancing on the head of a pin. For our present purposes, however, the fact is that the Blind Sheikh’s summons to jihad was rooted in a coherent interpretation of Islamic doctrine. He was not perverting Islam—he was, if anything, shining a light on the need to reform it.

Another point, obvious but inconvenient, is that Islam is not a religion of peace. There are ways of interpreting Islam that could make it something other than a call to war. But even these benign constructions do not make it a call to peace. Verses such as “Fight those who believe not in Allah,” and “Fight and slay the pagans wherever ye find them, and seize them, beleaguer them, and lie in wait for them in every stratagem of war,” are not peaceful injunctions, no matter how one contextualizes.

Another disturbing aspect of the trial against the Blind Sheikh and his fellow jihadists was the character witnesses who testified for the defense. Most of these people were moderate, peaceful Muslim Americans who would no more commit terrorist acts than the rest of us. But when questions about Islamic doctrine would come up—“What does jihad mean?” “What is sharia?” “How might sharia apply to a certain situation?”—these moderate, peaceful Muslims explained that they were not competent to say. In other words, for the answers, you’d have to turn to Islamic scholars like the Blind Sheikh.

Now, understand: there was no doubt what the Blind Sheikh was on trial for. And there was no doubt that he was a terrorist—after all, he bragged about it. But that did not disqualify him, in the minds of these moderate, peaceful Muslims, from rendering authoritative opinions on the meaning of the core tenets of their religion. No one was saying that they would follow the Blind Sheikh into terrorism—but no one was discrediting his status either.

Although this came as a revelation to me, it should not have. After all, it is not as if Western civilization had no experience dealing with Islamic supremacism—what today we call “Islamist” ideology, the belief that sharia must govern society. Winston Churchill, for one, had encountered it as a young man serving in the British army, both in the border region between modern-day Afghanistan and Pakistan and in the Sudan—places that are still cauldrons of Islamist terror. Ever the perceptive observer, Churchill wrote:

    “How dreadful are the curses which Mohammedanism lays on its votaries! Besides the fanatical frenzy, which is as dangerous in a man as hydrophobia in a dog, there is this fearful fatalistic apathy. . . . Improvident habits, slovenly systems of agriculture, sluggish methods of commerce, and insecurity of property exist wherever the followers of the Prophet rule or live. A degraded sensualism deprives this life of its grace and refinement; the next of its dignity and sanctity. The fact that in Mohammedan law every woman must belong to some man as his absolute property—either as a child, a wife, or a concubine — must delay the final extinction of slavery until the faith of Islam has ceased to be a great power among men.”

    Habitually, I distinguish between Islam and Muslims. It is objectively important to do so, but I also have a personal reason: when I began working on national security cases, the Muslims I first encountered were not terrorists. To the contrary, they were pro-American patriots who helped us infiltrate terror cells, disrupt mass-murder plots, and gather the evidence needed to convict jihadists. We have an obligation to our national security to understand our enemies; but we also have an obligation to our principles not to convict by association—not to confound our Islamist enemies with our Muslim allies and fellow citizens. Churchill appreciated this distinction. “Individual Moslems,” he stressed, “may show splendid qualities. Thousands become the brave and loyal soldiers of the Queen.” The problem was not the people, he concluded. It was the doctrine.

What about Islamic law? On this topic, it is useful to turn to Robert Jackson, a giant figure in American law and politics—FDR’s attorney general, justice of the Supreme Court, and chief prosecutor of the war crimes trials at Nuremberg. In 1955, Justice Jackson penned the foreword to a book called Law in the Middle East. Unlike today’s government officials, Justice Jackson thought sharia was a subject worthy of close study.  And here is what he concluded:

In any broad sense, Islamic law offers the American lawyer a study in dramatic contrasts. Even casual acquaintance and superficial knowledge—all that most of us at bench or bar will be able to acquire—reveal that its striking features relative to our law are not likenesses but inconsistencies, not similarities but contrarieties. In its source, its scope and its sanctions, the law of the Middle East is the antithesis of Western law.

Contrast this with the constitution that the U.S. government helped write for post-Taliban Afghanistan, which showed no awareness of the opposition of Islamic and Western law. That constitution contains soaring tropes about human rights, yet it makes Islam the state religion and sharia a principal source of law—and under it, Muslim converts to Christianity have been subjected to capital trials for apostasy.

Sharia rejects freedom of speech as much as freedom of religion. It rejects the idea of equal rights between men and women as much as between Muslim and non-Muslim. It brooks no separation between spiritual life and civil society. It is a comprehensive framework for human life, dictating matters of government, economy, and combat, along with personal behavior such as contact between the sexes and personal hygiene. Sharia aims to rule both believers and non-believers, and it affirmatively sanctions jihad in order to do so.

Even if this is not the only construction of Islam, it is absurd to claim—as President Obama did during his recent visit to a mosque in Baltimore—that it is not a mainstream interpretation. In fact, it is the mainstream interpretation in many parts of the world. Last year, Americans were horrified by the beheadings of three Western journalists by ISIS. American and European politicians could not get to microphones fast enough to insist that these decapitations had nothing to do with Islam. Yet within the same time frame, the government of Saudi Arabia beheaded eight people for various violations of sharia—the law that governs Saudi Arabia.

Three weeks before Christmas, a jihadist couple—an American citizen, the son of Pakistani immigrants, and his Pakistani wife who had been welcomed into our country on a fiancée visa—carried out a jihadist attack in San Bernardino, California, killing 14 people. Our government, as with the case in Fort Hood—where a jihadist who had infiltrated the Army killed 13 innocents, mostly fellow soldiers—resisted calling the atrocity a “terrorist attack.” Why? Our investigators are good at what they do, and our top officials may be ideological, but they are not stupid. Why is it that they can’t say two plus two equals four when Islam is involved?

The reason is simple: stubbornly unwilling to deal with the reality of Islam, our leaders have constructed an Islam of their very own. This triumph of willful blindness and political correctness over common sense was best illustrated by former British Home Secretary Jacqui Smith when she described terrorism as “anti-Islamic activity.” In other words, the savagery is not merely unrelated to Islam; it becomes, by dint of its being inconsistent with a “religion of peace,” contrary to Islam. This explains our government’s handwringing over “radicalization”: we are supposed to wonder why young Muslims spontaneously become violent radicals—as if there is no belief system involved.

This is political correctness on steroids, and it has dangerous policy implications. Consider the inability of government officials to call a mass-murder attack by Muslims a terrorist attack unless and until the police uncover evidence proving that the mass murderers have some tie to a designated terrorist group, such as ISIS or al Qaeda. It is rare for such evidence to be uncovered early in an investigation—and as a matter of fact, such evidence often does not exist. Terrorist recruits already share the same ideology as these groups: the goal of imposing sharia. All they need in order to execute terrorist attacks is paramilitary training, which is readily available in more places than just Syria.

The dangerous flipside to our government’s insistence on making up its own version of Islam is that anyone who is publicly associated with Islam must be deemed peaceful. This is how we fall into the trap of allowing the Muslim Brotherhood, the world’s most influential Islamic supremacist organization, to infiltrate policy-making organs of the U.S. government, not to mention our schools, our prisons, and other institutions. The federal government, particularly under the Obama administration, acknowledges the Brotherhood as an Islamic organization—notwithstanding the ham-handed attempt by the intelligence community a few years back to rebrand it as “largely secular”—thereby giving it a clean bill of health. This despite the fact that Hamas is the Brotherhood’s Palestinian branch, that the Brotherhood has a long history of terrorist violence, and that major Brotherhood figures have gone on to play leading roles in terrorist organizations such as al Qaeda.

To quote Churchill again:  “Facts are better than dreams.” In the real world, we must deal with the facts of Islamic supremacism, because its jihadist legions have every intention of dealing with us. But we can only defeat them if we resolve to see them for what they are.