I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Wednesday, April 19, 2006

Someone please teach Instapundit what a "war declaration" is

(updated below)

Law Professor Glenn "Instapundit" Reynolds responded yesterday to a post by Reason's Jesse Walker which pointed out the "evolution" of some of Reynolds' views, and in doing so, Instapundit stated, falsely (and twice), that Congress issued "declarations of war" on Al Qaeda and Iraq:

Er, except that war on Al Qaeda, and the invasion of Iraq, were explicitly authorized by Congress, in declarations of war and everything. After, you know, an actual attack on the United States. . . .

Walker responds that I have so changed my views. Er, no. He also says that the Congressional declarations were not declarations of war. Actually, they were.

Who might be able to explain to Law Professor Reynolds why it is plainly false to assert, as he did, that Congress has declared war -- either against Al Qaeda or Iraq? Let's see . . . who would volunteer for this job . . . how about Attorney General Alberto Gonzales, testifying before the Senate Judiciary Committee:

GONZALES: There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force.

I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you're possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice. And we're not talking about a war declaration. This is an authorization only to use military force.

Or how about the Justice Department's 42-page memorandum from January 19, 2006, defending the President's right to eavesdrop on Americans in violation of the law:

The contrary interpretation of section 111 also ignores the important differences between a formal declaration of war and a resolution such as the AUMF. . . .The last declared war was World War II.

There are all kinds of issues surrounding the Bush administration's terrorism arguments which are subject to debate. Whether we are a country "at war" is not one of them, as Bush's own Attorney General, and as his administration's Justice Department, have made quite clear.

Even they have expressly acknowledged that there is no declaration of war from Congress with regard to either Iraq or al Qaeda, and to state otherwise -- as Instapundit did twice, including once after it was pointed out to him that there has been no declaration of war -- requires either great confusion or outright ignorance with regard to Article I, Section 8 of the Constitution specifically, and to declarations of war generally.

The notion that we are in "a time of war" is used to "justify" a whole array of extremist and even illegal policies, and much attention is often paid to the fact that such conduct, as the Founders stressed, does not become any more acceptable because we are at war. But it's not just the causal relationship that is false, but the premise as well. In no legal or constitutional sense are we at "war." One could reasonably argue, I suppose, that we are at war in some metaphorical or poetic sense, but to state, as Instapundit did and many others routinely do, that we are legally or constitutionally "at war" is just false.

UPDATE: I highly recommend this thorough and well-deserved decimation by Gregory Djerejian of Instapundit's snide and dismissive attitude towards the war critic Generals -- including Instadpunit's favorable citation of a post which actually calls the Generals "gutless," even though one of them, as Djerejian points out, led many of the most dangerous and strategically important missions in Iraq (in reply to which Reynolds says, in the most self-praising way possible: "as JFK noted in Profiles in Courage, physical courage is far more common than political courage").

Djerejian is a former war supporter who has changed his mind as he has seen the disaster this war has become under the Administration's complete mismanagement of it, and in the process, has become one of the most intellectually honest and insightful commentators on the war. The one thing for which he has particularly little tolerance is the deceitful fantasyland insistence that everything is going very nicely in Iraq and it's just the Bush-hating media which is covering this up -- one of Instapundit's specialities (h/t Hypatia).


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