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).
This is actually a huge issue, they constantly say we are ät war, at war, at war, at war. That has a specific meaning under our system of laws. And we are plainly NOT at war. They should not be allowed to keep asserting this without challenge.
ReplyDeleteAnd this guy is a law professor? We are definitely screwed if these are the types of people we have teaching the next generation of politicians, legal analysts, and administrators.
ReplyDeleteThis guy Reynolds is a total clown. His fellow faculty must be aghast at his public displays of ignorance.
ReplyDeleteI think we can judge from this that most present and all future Tennessee lawyers will be ill-equipped to understand even the basics of law. How this guy draws a salary from an accredited university is a koan for the ages.
ReplyDeleteBush is at "war" with a militry tactic long used by the United States to suppress unsavory regimes worldwide: terriorism.
ReplyDeleteThis is not a war, its Bush's jihad.
I call it the IIO, Illegal Invasion and Occupation.
ReplyDeleteRolls right off the tongue :P
...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...
ReplyDeleteCan I pick both?
It's worth noting (wrt Iran) that the last time the US declared war was actually against Romania, Bulgarian, and Hungary in June of 1942. Which is to say: long after the President had received authorization to use force in the most total war humanity has known, the Congress still felt it had to weigh in specifically when new countries became involved...
ReplyDeleteThe Psychotic Patriot just finished a post about the word "war", and offers polite advice to liberals to use what's actually happening - or will soon happen - instead: Invasion, bloody occupation, and unprovoked nuclear attack.
ReplyDeleteThe War Of Abstraction continues unabated
ReplyDeleteI wish someone could pin down exactly what we're in, since it's not really a war.
ReplyDeleteIt's not a war when we're lobbing missiles into Pakistan, and so that doesn't violate the laws of war (even though it does). The other guy is supposed to abide by the laws of war, as demonstrated by our charge that Salim Ahmed Hamdan violated those laws (although we had to invent a new law after the fact in order to justify that claim). On the other hand, "suspected terrorists" don't get any of the benefits from the laws of war--we're allowed to detain "enemy combatants" without trial, obtain evidence from them by torture, and so on. Our military contractors aren't required to abide by any laws at all.
Let's recap: it's not war when we lob missiles into another country (which would violate the laws of war). It is war when someone else hangs out with a terrorist (which actually doesnt' violate the law of war, but we pretend it does). It's not war when we decide what we can do to those people. And military contractors by definition cannot be involved in war.
The mental gymnastics involved here are pretty incredible.
Ridiculous that Reynolds is a law professor.
ReplyDeleteJust to clarify, the guy posting as "dave" (lowercase) is not the same guy that had been posting as "Dave" (capital) in the past. Capital Dave changed names to "Disenchanted Dave" to clear up some confusion with yet a third Dave.
ReplyDeleteSorry for the confusion.
Dave
Haven't read the post yet, but just had to comment -- the title of this post made me LOL here at my desk. Rawk on Glenn! :)
ReplyDeleteRIGHT RIGHT RIGHT! EXACTLY. I'm really happy to see this post. I tried to figure out this whole war thing in a comment thread here on March 7 or 8. At the time I had no idea that the US did not issue an official declaration of war. (See below)
ReplyDeleteWe must make a more concerted effort to make sure the media reports the legal definition war, the legal terms of US military involvement as well as the legal limits of response, especially in terms of the NSA, etc. Why does the media constantly get away with falsely depicting these military operations as "war?" and justifying all domestic and foreign policy with "war"?
Previous Comment from March 7 or 8
I have been unsuccessfully trying find the right thread to post this on. I am trying to find an answer to what should be a reasonably simple question. I have been confused by the blurring of "War," "Wartime," "Times of War," and "War with Iraq" in the media, and I am trying to understand the current wartime status of the United States in Iraq both legally and ideologically. I tried to summarize this briefly myself below.
Summary
The US began the military invasion of Iraq on March 19, 2003 with the authorization of the United States Congress and Senate but without the authority of the United Nations Security Council. The US's decision to go to war was in direct opposition to UN Security Council articles:
Article 2.4 of the UN Charter which states: “All members shall refrain in their international relations from the threat or use of force.” and Article 51d that holds that even in self-defense, a state may not go to war “until the Security Council has taken measures necessary to maintain international peace and security.”
The UN Security Council was established in 1945 with the active involvement of the United States in order to prevent future wars among nations. The UN Security Council from its inception disallowed preemptive action and the use of force without UN Secuity Council approval. Moreover, it required all nations to establish a case for self-defence with the UN Security Council before using military force.
The US was unable to provide the proper justifications for military force against Iraq to garner support from the UN Security Council and as a result the Bush Administration in direct defiance of the UN Security Council articles proceeded to declare war on Iraq and invade the country on March 19, 2003.
On May 1, 2003 President Bush officially announced an end to the Iraq War on the USS Abraham Lincoln with a large "Mission Accomplished Banner" waving behind the President as he gave his speech.
My question is: If the war is officially declared to be over, is there any legal basis at all to the expressions currently used by the Bush Administration, members of the Senate and Congress and the media such as "Wartime," "In Times of War,
"War on Terror" or this purely an ideological strategy like the so-called, "Cold War?" If it is purely an ideological useage, how can the Bush Administration legally use the designation "Wartime" as the official justification for domestic and military policies such as the warrantless NSA wiretapping, etc.?
Your position largely depends on which definition of war you choose:
ReplyDeleteAre we at war? Yes, we are. The weapons are out of the box and we are firing them in anger at enemies. And enemies are firing back. What we and our enemies are doing fits a common definition of warfare.
Is there a declaration of war?
No, there isn't. What was done was not a formal declaration of war. We haven't done that, to my knowledge, since WWII. If Instapundit is saying that we've declared war constitutionally, then he's wrong.
Is there a Congressional authorization to conduct warfare against others, including Al Qaeda, the Taliban and Iraq?
Yes, there is. The war effort is funded and approved. If Instapundit means that this authorization is a de facto declaration of war, then his point is defensible.
Let's not beat our breasts too hard about this. Cheers.
IB Bill
industrialblog.powerblogs.com
Here's a real declaration of war:
ReplyDeleteJOINT RESOLUTION Declaring that a state of war exists between the Imperial Government of Japan and the Government and the people of the United States and making provisions to prosecute the same.
Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America: Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.
Approved, December 8, 1941, 4:10 p.m. E.S.T.
What the hell kind of law does the Perfesser teach? Clearly the same kind that Bush practices...
If Instapundit means that this authorization is a de facto declaration of war, then his point is defensible.
ReplyDeleteMighty big "if". He's clearly trying to blur the lines when says "in declarations of war and everything."
"Er, except that war on Al Qaeda, and the invasion of Iraq, were explicitly authorized by Congress, in declarations of war and everything."
ReplyDelete(Emphasis mine)
While we're at it, can we also teach Reynolds the meaning of the word "explicit"?
It's funny that Reynolds titled his post "When Mindless Snark Substitutes For Thought." That'd make a pretty good name for his entire blog, I think.
ReplyDeleteJAO is correct: No, there is no declaration of war -- but that really doesn't make much difference in any respect that matters. The conflicts against Al Qaeda and the Baathist regime in Iraq *were* authorized by Congress -- no doubt about it. In that respect, their legitimacy from a legal perspective is on much stronger ground than, e.g., our actions in Somalia, Bosnia and Haiti (and Korea, the most dubious of all as a legal matter).
ReplyDeleteWhat turns on the fact that Congress "merely" authorized force rather than declaring war? Not a whole lot. There are few if any constitutional doctrines that turn on the distinction. Modern international law generally turns on whether there is an "armed conflict," not on whether there's a declared war. The only real difference is that there are a handful of *statutory* provisions in the U.S. Code that are triggered by declarations of war but not by force authorizations.
So, although Glenn Reynolds is wrong about the technical question of whether Congress has declared war, he is correct in this instance on his principal point -- which is that, whatever else one might say about these two military conflicts, they are *not* "wars initiated essentially on presidential whim"; instead, they are supported by unambiguous congressional authorization.
How many of these lies before he gets a penalty timeout?
ReplyDeleteThis is actually a huge issue, they constantly say we are ät war, at war, at war, at war. That has a specific meaning under our system of laws. And we are plainly NOT at war. They should not be allowed to keep asserting this without challenge.
ReplyDeleteThey want it both ways: They want to claim they're "at war" to justify shredding the Constitution, spying on us and jailing us at whim, but NOT when somebody points out that during every other time of war in the US, taxes (especially on the rich) went UP, not down, in order to pay for it all.
No, there is no declaration of war -- but that really doesn't make much difference in any respect that matters.
ReplyDeleteIt makes ä difference as to whether it's true or false to say that Congress issued a declaration of war. It makes a difference as to whether the administration recognizes the applicability of certain war-based treaties or prisoner rights. It makes a difference, as you recognize, for some statutes. And it makes a significant rhetorical difference as to whether we consider what we are engaged in to be a long-term, low-level conflict or an all-out war of the type we fought during the 1860s or the 1940s.
I think it makes a difference on many fronts. And whether it makes a difference or not, there is no excuse for a law professor to expressly state that there were declarations of war issued - even after it was pointed out to him that an authorization to use force is not the same thing.
conflicts against Al Qaeda and the Baathist regime in Iraq *were* authorized by Congress -- no doubt about it.
I don't think anyone doubts or questions that. That's a different issue.
So although Glenn Reynolds is wrong about the technical question of whether Congress has declared war, . . . .
That's the point of this post.
. . . . he is correct in this instance on his principal point -- which is that, whatever else one might say about these two military conflicts, they are *not* "wars initiated essentially on presidential whim"; instead, they are supported by unambiguous congressional authorization.
I don't see how you can say that this is his "principal" point. Walker specifically contested the assertion that Iraq and Afghanistan "were preceded by congressional declarations of war." In response, Reynolds said: "Actually, they were."
That's just wrong. You can say it doesn't matter, but it seems to matter to Reynolds - and to Walker. It seems to matter to the administration, which goes out of its way to argue that there have been no declarations of war. And it matters a lot politically, as the country debates whether it's appropriate and true to say that we are a country "at war."
With that much dispute about it, and that much at stake, I just don't think there's any excuse for making factually false claims like this and then sticking to them even once they are pointed out.
whatever else one might say about these two military conflicts, they are *not* "wars initiated essentially on presidential whim"; instead, they are supported by unambiguous congressional authorization.
ReplyDeleteIraq is indeed a war initiated on a presidential whim; the congressional authorization supports the whim.
The main argument for using "AUMF"'s rather than formal declarations is that a formal declaration now (after WW II) signals a "total war" that Congress in fact would not want to authorize. I don't completely agree with this argument, but it's not specious.
ReplyDeleteIn this citizen's mind a clear AUMF is acceptable as the sort of consent the Framers were after; I agree it is hard to say these wars were entered into on presidential whim. That of course is different from an AUMF that clearly implicates Afghanistan being used against phone-wielding Americans, or against Iran.
And, as Glenn has pointed out, it's still not an actual declaration of war and it's a little disingenuous to say it is. I very rarely find myself in agreement with Abu Gonzales, but we do agree on that.
Yes, yes, Glenn was wrong to say that there was a declaration of war. Conceded. And it was stupid of him not to 'fess up to this mistake. True enough.
ReplyDeleteBut no, not much turns on the "merits" of the question -- and it's not what was at the heart of the Reynolds/Walker dispute.
To recap:
1. In 1999, Reynolds wrote (in the context of a discussion about the differences between a militia-based and army-based military) that "As Gary Hart correctly points out in the book I reviewed, our current situation--with so many foreign troop deployments that even military buffs can't keep track of them all and with *wars initiated essentially on presidential whim*--would have horrified the Framers." http://reason.com/9908/letters.shtml.
Glenn here was joining the age-old debate about whether presidentially authorized hostilities *unsupported by congressional approval* -- e.g., (arguably) Korea, Bosnia, Haiti, Somalia -- are constitutional.
2. Yesterday, Jesse Walker cited this 1999 quotation, apparently to demonstrate that Reynolds was being hypocritical, because he supports the conflicts against Al Qaeda and in Iraq. http://www.reason.com/hitandrun/2006/04/the_past_is_ano.shtml#013521.
3. Glenn responds (correctly, in my view) that there's no hypocrisy involved: *These* wars *were* authorized by Congress. I'm very often critical of Glenn, but in this case, I think he's right: There was no hypocrisy at all.
4. In making this argument, Glenn stupidly contends -- even after being corrected -- that these conflicts are supported by declarations of war. He's wrong -- they're not. But that doesn't change the fact that he wasn't being hypocritical: Nothing in his support for the current conflicts is inconsistent with his 1999 views that such large-scale conflicts ought to be authorized by Congress, at least as a constitutional matter.
5. And I still contend that nothing of importance turns on whether there was a declaration of war here. You mention treaties and treatment of prisoners -- but I'm not aware that any treaty provisions, or prisoner rights, depend on whether Congress has declared war or instead "merely" authorized the use of all necessary and appropriate military force. As far as I know, the treaty regime is the same in either case. You also mention a rhetorical difference. But my whole point is that any rhetorical distinctions -- or, more importantly, *substantive* distinctions -- should not turn on whether Congress provided an AUMF or a Declaration of War. Everyone agrees that these conflicts are in many important respects different from the "war of the type we fought during the 1860s or the 1940s," and that we are engaged in "long-term, low-level conflicts." OK, but that would be true even if Congress had issued Declarations of War, so I fail to see why those distinctions are important -- or, more to the point, why the question of a Declaration affects them.
My view:
ReplyDeleteWe have troops in the field and under fire daily. But that doesn't mean we're at war.
There is an engaging public debate over tactics, targets and objectives employed by our government against various enemies (not all well defined). But taht doesn't mean we're at war.
Glenn point can, I think, be summarized as: The President has received authorizations to use military force and ordered troops into the field, but the Congress has not formally declared a state of war exists between the United States and any other government on Earth. The AUMFs in question are inaccurately being presented by Instapundit and other as legal proxies for a Congressional Declaration of War; they are not such and should not be considered such, at least not by anyone who has one dram of genuine respect for either the law or the Constitution (naturally this leaves out the crew at Powerline and who currently work out of 1600 Pennsylvania Avenue).
Simple enough, eh?
I had recorded that hearing, so went back just now and clipped that Brownback/Gonzales bit in both video and audio-on CanOFun, where I also have a whole lot of the hearings segmented
ReplyDeleteguys who use "er, no" and "actually" automatically irk me. Even if the person is right, the usage of phrases like these is unnecessarily arrogant.
ReplyDeleterequires either great confusion or outright ignorance with regard to Article I, Section 8 of the Constitution specifically, and to declarations of war generally.
ReplyDeleteReynold's behavior seems more and more curious as each day goes by. Is there any chance that neither of the above explains it and he does these things deliberately for a purpose even though he knows full well that what he is writing is false?
It's interesting, Glen. I've read the AUMF and it does contain a declaration. What is a declaration of war and what is that thing in the AUMF supposed to be?
ReplyDeleteI wonder what the bar exam pass rate is for students of Instapunk'd?
ReplyDeleteAs to the theories of what can be done in time of war, Senator Robert LaFollette said it all back in 1918:
"Every nation has its war party. It is not the party of democracy.
It is the party of autocracy. It
seeks to dominate absolutely."
"In times of peace, the war party insists on making preparation for war. As soon as prepared for,
it insists on making war."
"If there is no sufficient reason for war, the war party will make war on one pretext, then invent
another……after the war is on."
"Before the war is ended, the war party assumes the divine right to denounce and silence all
opposition to war as unpatriotic and cowardly."
"Let no man think we can deny civil liberty to others and retain it for ourselves. When zealous
agents of the Government arrest suspected "radicals" without warrant, hold them without prompt
trial, deny them access to counsel and admission of bail…….we have shorn the Bill of Rights of
its sanctity……"
Robert M. La Follette, Sr., 1918
From the New World Order Dictionary:
ReplyDeleteWar (noun):In the interest of national security, this definition has been removed from the New World Order Dictionary. Why the hell are you looking it up, anyway? Do you hate America or something?
BuSHAMErica
My response to these comments involves two categories: pratical consequences and moral consequences.
ReplyDeleteFirst of all, I think the misdesignation of the current conflicts underway against terrorism is part of what I'd call an illusion. This term has important consequences, if true, simply by the fact that an illusion is allowed to be purveyed and labored under.
In general, most people dislike illusions--it clouds everything from personal to social decision-making. One might say that there's a prejudice among humans for truth in all things. The consequences of laboring under falsehood and lies seem to be an a priori evil. If we live an illusion, we lie to ourselves and to others, and thereby perpetrate--by extension--all manner of injustice and ill-conceived actions toward ourselves and toward others.
The practical consequences of living under the illusion that we are at war include the following:
1) The President and his administration can perpetrate acts that they otherwise could not by law. The old cliche that "all is fair in love and war," covers this perception. You don't need to agree with the cliche to see that many people are willing to forgive and look the other way in a time of war when they otherwise would not.
2) As an addendum to 1), the President can carry out agendas and other procedural activities that he otherwise could not. We see this happening with the NSA program, the GITMO detainees, and so on. It appears that Bush and Cheney have taken the illusion of a war to roll back many of the post-VietNam laws and oversight put into place to curtail previous abuses by the executive branch.
3) The political capital afforded by the illusion provides the President a chance to exploit the political environment to advance purely political goals related to his party. That is, he and his party benefit from the perception that they are the "war" party.
4) The illusion enables a social and political climate in which dissidence and non-conformity are branded unpatriotic, thereby enforcing a status quo that provokes a form of fear and anxiety that is ultimately destructive of democratic impulses and processes.
5) It encourages a military ethos that is anti-democratic in its effects.
The moral consequences of this illusion correlate in some ways with the previous points. They include, however, further issues that destroy the democratic form of government that we subscribe to.
1) As remarked above, living a lie has both personal and social consequences. In any moral scenario, it is always best to live with the truth because of the obviously immoral consequences of living a lie.
2) Any democracy is as strong as the information that its citizens have to make informed decisions. Under the illusion of a war, all information is tainted at the root. Propaganda passes for fact, spin passes for truth, and disinformation makes its way into the mainstream, thereby making accurate and knowledgeable choices harder, if not impossible.
Example: If we can call the conflicts in Iraq and Afghanistan wars, then what can't we call everything else? Under this illusion, an anti-war protester is as much a terrorist as is Osama bin-Laden.
3) The illusion mischaracterizes the enemy. This illusion of war against terrorism is especially destructive of the need to know who the enemy is. War turns enemies to things, making them irrational, savage, and ultimately unforgiveable. This situation creates a situation wherein the impetus for compromise, dialog, and reconciliation becomes impossible.
These are perhaps only the tip of an iceberg of concerns. But this comment has probably outgrown the allowed standard for comments as it is.
heh. perhaps Insty should spend less time instalinking and flogging his book and wee bit more time in the law library. heh.
ReplyDeleteto confirm, the authorization and declaration is located at HJ 114-4 (section 3(c) of the AUMF)
ReplyDeleteFrom Feb. 2, 2006 Letter to Congress (pdf) in Reply to DOJ Memo of Jan. 19, 2006 from Bradley, et al.: "The DOJ Memo argues that 50 U.S.C. Section 1811 is not dispositive because the AUMF might convey more authority than a declaration of war, nothing that a declaration of war is generally only a single sentence. DOJ Memo at 26-27. But that distiction blinks reality. Declarations of war have always been accompanied, in the same enactment, by an authorization to use military force.4 It would make no sense, after all, to declare war without authorizing the President to use military force in the conflict. In light of that reality, Section 1811 necessarily contemplates a situation in which Congress has both declared war and authorized the use of military force--and even that double authorization permits only fifteen days of warrantless electronic surveillance. Where, as here, Congress has seen fit only to authorize the use of military force--and not declare war--the President cannot assert that he has been granted more authority than when Congress declares war as well.5"
ReplyDeleteThe administration wants us to believe that they have the authority to do whatever they damn well please. And Powerline, et al. are the propaganda catapulters.
Professor Foland:
ReplyDeleteIn this citizen's mind a clear AUMF is acceptable as the sort of consent the Framers were after;...
The Founders didn't say Congress should "consent". They said "declare".
I'd argue (as I often have in the past) that such wussy "AUMF"s as Congress gave in these two instances are un-Constitutional. The power to declare war is a plenary power of Congress, and Coongress may not delegate it to anyone, Preznit or not, even if they want to. They can't just say, "Oh, OK, go start what ever wars you think are necessary or proper." They could tell him, "OK, this is it, now you may fire when ready," but they can't abdicate their responsibility to decide on this awesome tack after deliberation and debate.
Cheers,
As ej presumably knows, I actually signed (and drafted) the excerpt that he quotes. And it's 100% correct. Contrary to the suggestions of the DOJ White Paper, Congress's AUMFs do not give the President any *greater* authority than he would have with declarations of war. But with minor statutory exceptions not especially important here, such AUMFs also don't give him *less* authority than he would have with Declarations of War.
ReplyDeleteThe important point is this: As far as I know, *none* of the controversies about the wisdom, legality or authorization of any particular conduct undertaken by the Executive turns on the question of whether Congress declared war or "merely" authorized the use of all necessary and appropriate force against Al Qaeda and in Iraq.
As far as I know, *nothing important* depends on whether we are technically "at war" or not. And, say what you will about the war in Iraq -- and I agree that it's a tragedy -- the problem with it is not that Congress did not authorize it, or that Congress did not technically "declare war."
Glenn:
ReplyDeleteThis is a signature day - Glenn is quoting Alberto Gonzoles as authority on a con law question!
My friend, exactly what is a congressional Authorization to Use Force against al Qaeda and Iraq if not a declaration of war in fact and under the Constitution?
By definition, the use of military force is war and the AUMF expressly gives the President that authority to go to war. Is this not then the definition of a declaration of war?
Gonzales's testimony and white paper are not neutral. objective documents. They represent the legal arguments of Justice on behalf of the government. The purpose of this exceedingly weak argument that the AUMF is not a legal declaration of war is to avoid the provision in FEMA placing limits on the President's authority to gather intelligence after a specific period following a declaration.
Your fear that the President will be given greater constitutional powers to conduct intelligence gathering in a time of declared war is unfounded. Relax. The President has these powers in peacetime as well.
For the War Powers Act of 1973, see this link. Does anyone know whether the following section has been abided by in the executive branch?
ReplyDeleteSEC. 5. (b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.
Zbigniew Brzezinski on what's wrong with the illusion of a war when war is not declared:
ReplyDeleteThe president in releasing this morning the new National Security Strategy started off by saying, “America is at war. This is a war time national security strategy.” Let me just say this to you: words have consequences. And the deliberate misuse of words can be very dangerous. Fanning a fearful, but fundamentally misleading definition of reality, contributes to the emergence of a fear-driven nation, a self-isolating nation.
The president experienced that in the last two weeks on the Dubai issue, when he himself reacted to excessive national fears. And yet just yesterday the International Relations Committee of the House voted 37-3 to impose punitive embargos on any country that invests in increased Iranian oil production. If that is not a self-defeating policy, then I don’t know what it is.
But it is a part of this atmosphere of Manichean polarization which is being bred by a phony definition of reality. Neither President Truman nor Eisenhower – Democrat and Republican – ever spoke of America being a “nation at war” during the Korean War. Neither President Johnson nor Nixon ever spoke of America being a “nation at war” during the Vietnam War. Yes we have a serious challenge from the potential threat of terrorism and we have to wage an unrelenting struggle against it. But to describe America repeatedly as a nation at war – implicitly of course with a commander and chief in charge – is to contribute to a view of the world by America that stimulates fear and isolates us from others. Other nations have suffered more from terrorism than America. None of them has embraced that definition of reality. [my emphases]
I am surprised at Marty Lederman's comment. In times like these when there are so many attempts by various quarters to obscure issues by engaging in fuzzy language, the only protection is to insist on a strict literal use of correct terminology so that readers can properly sort out the issues being debated.
ReplyDeleteThat precision is one of the things I like best about Glenn Greenwald.
I am from Tennessee. I know Reynolds, and I know several of his fellow faculty members at the UT College of Law. Believe me, they consider him an embarrassment.
ReplyDeleteHey, eyes wide shut: Thanks for writing. But rest assured, I, too, abhore the "many attempts by various quarters to obscure issues by engaging in fuzzy language."
ReplyDeleteThat's exactly why I'm trying to disabuse "our" side of the recent debates of the perceived need to engage in pointless arguments about whether or not the conflict in Iraq or against Al Qaeda is a declared "war" or *merely* a congressionally authorized conflict in which the President is authorized to use all necessary and appropriate force.
Let's not waste our time arguing about whether there's a "war" when *nothing of importance depends on that characterization.*
A thought experiment: Imagine that in the 9/18/01 AUMF, Congress had included a sentence to the effect that "war is hereby declared against Al Qaeda." Would that additional sentence have changed the law, or the policy, or the practice, of the conflict against Al Qaeda in any significant respect? I think not.
Whether Bush is authorized to torture, or to circumvent FISA; whether, when and how we should disengage from Iraq; whether we have violated any treaties or other international-law obligations; whether we can assassinate Al Qaeda leaders: *None* of these questions depends on whether Congress declared war or not. My whole point is that the ability of readers to "properly sort out the issues being debated" does *not* depend on whether there was a declaration of war -- and that continued emphasis on that question merely obscures debate rather than clarifyng any issues.
So please let's not lose sleep, or waste valuable time and energy, arguing about nomenclature.
P.S. What is with everyone's anonymous nametags on this site? Come on people -- nothing to be afraid of. Reveal thyselves. (It adds a great deal in terms of credibility.)
Glenn, I have to agree with the pushback here. Reynolds is essentially correct in one sense, that we are in a legal sense "at war", and you're mistaken in trying to undermine that argument. Congress has chosen the path, since the War Powers Act/Resolution, of using the AUMF instead of a Declaration of War, and the ranking Democrat on the Judiciary Committee -- Biden -- defends that interpetration. There is very little functional difference, in international law or American constitutional law, between the two. I would prefer that Congress openly declare war, and more important, define an exit strategy -- e.g. the equivalent of the capitulation of Japan and Germany -- but we know in a practical sense that is not going to happen. The War Powers regime of law is one that we have to live with for now.
ReplyDeleteWhat we have to concentrate on is the sleight-of-hand that Bush and Gonzales are pulling anent unlimited executive authority and other powers that are not part of the AUMF such as domestic spying. You've done a stellar job to date of making this the focus, and I fear that a need to jump all over Instapundit, however deserved, is clouding your judgement.
In fact, I think that Reason's Jesse was making a far more salient point which you're missing regarding Reynolds's hypocritical support for broad military intervention, which he correctly noted in 1999 would have horrified the founders. The Constitution we were given long contained an irresolvable tension between the legislative and executive by giving one the authority to declare war and the other the authority of commander-in-chief. That's why we ended up with a War Powers Act in the first place, but note that despite a long history of American military interventions (Korea in the 1840s! Haiti about as many times as I have fingers on a hand!) we never got this constitutional crisis until the "permanent war" of the Cold War, when we had for the first time a standing army deployed around the world constantly engaging with "the enemy" -- but of course never a formal declaration of war against the Soviets.
It was this worry about "presidential whim" that led Congress to tighten the leash, something that no president has either explicitly challenged or wholly complied with. The Act was vetoed by Nixon, but passed again by a veto-proof majority. Presidents have come to Congress asking for Authorizations under the Act, but have rarely complied fully with the reporting provisions. Neither Congress nor the White House has wanted to risk taking these issues to the Supreme Court.
The time has come, however, when the finger-crossing balance invented by the Framers, and the bluffing game heightened by the War Powers Act, have led us to a dangerous intersection. The President has now claimed more authority from an Authorization than Congress surely intended, and breathtakingly so, which is a risk that no predecessor took. This cannot be allowed to stand, but it will have to be litigated within the political and constitutional prism of the War Powers Act. Gonzales understands this which is why his writings make such precise distinction. It is the hope of the White House to create a legal house of cards on top of the War Powers Act such that they gain all its benefits and respect none of its limitations. Reynolds, on the other hand, while coming from the same philosophy, clearly doesn't understand the game that Gonzales is sketching out.
A recent article in The Nation by Stephen Holmes, reviewing John Yoo's book, The Powers of War and Peace, has some commentary on this issue of the roles of the President and Congress in getting us into armed conflict that I found helpful. Here are a few particularly relevant paragraphs:
ReplyDelete"To understand what Yoo is arguing for, we must first understand what he is arguing against. The leading students of presidential war powers, as he freely admits, agree that the Framers wanted to apportion the government's war powers between the legislature and the executive, vesting the power to initiate offensive war, along with other war powers, in Congress, while assigning to the President, as chief commanding officer of military and naval forces, only two powers: the power to conduct an authorized war and the power to repel surprise attacks.
"This original allocation of war powers proved unstable for various reasons. The most decisive factors included the executive's superior capacity for secrecy, dispatch and information gathering, and America's increasing entanglement with the rest of the world. Equally important was the inescapable elasticity of the idea of national self-defense, capable of being stretched from repelling actual attacks on US territory to preventing anticipated attacks on American lives, property and allies around the world. The eventual routine maintenance of large peacetime standing armies was also critical, as were the uselessness of the Atlantic and Pacific oceans as moats against a nuclear first strike and the provincial focus, internal dissension and chronic shirking of Congress. For these and other reasons, the power to commence declared and undeclared wars, over the course of American history, has gradually shifted to the executive branch.
"While Congress has debated, the President has acted. That is the nub of the development that the Framers neither intended nor foresaw. The President's role as supreme foreign policy-maker, including considerable executive discretion in the initiation of war, has become the American default mode at least since Truman. Since the Korean War, admittedly, Congress has formally authorized all major US conflicts, including the Vietnam War (the Gulf of Tonkin Resolution) and the two Iraq wars. But legislative complicity has generally proved more useful to the President than to Congress. By exaggerating and even fabricating lethal threats that Congress has limited capacity to double-check, the executive branch has been able to ensnare the national legislature into approving its military adventures abroad. Senators and Representatives who originally voted to approve a war on false pretenses have subsequently hesitated to criticize it, no matter how calamitous the outcome, because after-the-fact dissent embarrassingly reveals their own prior gullibility and lack of foresight."
From Bart at 2:29PM:
ReplyDelete"My friend, exactly what is a congressional Authorization to Use Force against al Qaeda and Iraq if not a declaration of war in fact and under the Constitution?"
It is an authorization to employ military force against a nebulous, diffuse network of fellow travellers and religious radicals. A Declaration of War, by contrast, is the Congress formally affirming a state of war exists between the United States and another country.
I really expected better of you, Bart.
"By definition, the use of military force is war and the AUMF expressly gives the President that authority to go to war. Is this not then the definition of a declaration of war?"
No. The 'use of military force' simply means the US is employing its military assets in combat operations (either offensive or defensive in nature and objective) somewhere in the world. This is "combat", not "war" per se save in the broadest sense of the term. The definition of a 'declaration of war' was given above.
Exactly how did you pass your bar exams with this kind of blinkered thinking towards the law?
The present discussion brings to mind French philosopher Simone Weil's essay, "The Power of Words." Weil points out the danger of abstractions and empty words, especially capitalized words that set people's teeth on edge for each other's throats.
ReplyDeleteWords with content and meaninga are not murderous. If one of them occasionally becomes associated with bloodshed, it is rather by chance than by inevitability, and the resulting action is generally controlled and efficacious. But when empty words are given capital letters, then, on the slightest pretext, men will begin shedding blood for them and piling up ruin in their name, without effectively grasping anything to which they refer, since what they refer to can never have any reality, for the simple reason that they mean nothing. In these conditions, the only definition of success is to crush a rival group of men who have a hostile word on their banners; for it is a characteristic of these empty words that each of them has its complementary antagonist. It is true, of course, that not all of these words are intrinsically meaningless; some of them do have meaning if one takes the trouble to define them properly. But when a word is properly defined it loses its capital letter and can no longer serve either as a banner or as a hostile slogan; it becomes simply a sign, helping us to grasp some concrete reality or concrete objective, or method of activity. To clarify thought, to discredit the intrinsically meaningless words, and to define the use of others by precise analysis--to do this, strange though it may appear, might be a way of saving lives. [my emphasis] -- S. Weil, in Simone Weil: An Anthology, 1986, pp. 221-222.
Marty Lederman wrote:
ReplyDeleteMy whole point is that the ability of readers to "properly sort out the issues being debated" does *not* depend on whether there was a declaration of war -- and that continued emphasis on that question merely obscures debate rather than clarifyng any issues.
It does matter, though, to people's perceptions, when "Declaration of War" is put out there, into the homeland. It sounds so much more ominous than "AUMF," don't you think?
I think there is a difference between the AUMF and a declaration of war. The AUMF gave Bush the authority to "defend the US" against security threats posed by Iraq.
ReplyDeleteA declaration of war would state that the US is going to war. Bush did not have to go to war. He could have used the AUMF to scare Saddam silly along with Iran, Syria, etc....
Let us not forget that Bush, Cheney, Rove and Rumsfeld were going to go to war no matter what. It shows what a putrid and cowardly political bunch they are by having the vote just weeks before the midterm elections while playing on silly little people's(like instapudding) fear and emotion about 9-11.
I wish someone could pin down exactly what we're in, since it's not really a war.
ReplyDeleteAs against the terrorists groups like Al Qaeda, think police action. Or alternatively, the "Wars" on Crime, Poverty, Drugs, etc.; i.e. for purposes of political hype.
The US began the military invasion of Iraq on March 19, 2003 with the authorization of the United States Congress and Senate but without the authority of the United Nations Security Council.
This is not technically correct in my opinion. And BTW, best remember that the actions in Afganistan and Iraq are wholly separate and different. The actions in Afganistan are under the auspices of NATO.
As for Congressional authorization for the US to use military action against Iraq, such authority was granted by Congress couched in the language of a "condition precedent" as in to contract. Congress authorized the use of force against Iraq IF, I stress again, IF weapons inspections failed. Weapons inspections did not fail, Bush reneged on Congress and he order an attack and invasion anyway.
By definition, the use of military force is war and the AUMF expressly gives the President that authority to go to war.
This is pure hooey. If you can cite to that "definition" in any reputable source, please do so.
Thanks for touching on this. It occured to me last week or the week before, that the actual authority for Declarations of War in the legal sense, come from Congress though the president has to ask. Correct me if I wrong, Insty, but WWII was a war in the legalistic sense, Korea and Viet Nam weren't. After all Roosevelt went to Congress - remember the Live in Infamy.
ReplyDeletehttp://www.infoplease.com/ipa/A0900147.html
The War Powers Resolution (Public Law 93-148) limits the power of the President of the United States to wage war without the approval of the Congress. Congress has the power to declare war and raise and support the armed forces (Article I, Section 8), while the President is Commander in Chief (Article II, Section 2).
Iraq, Afghanistan, Viet Nam, Korea may be and look like war, but from a legal sense according to the Consitution not as much. Laziness with the language like that reduces the effectiveness of the argument.
JaO said...
ReplyDeletebart: By definition, the use of military force is war and the AUMF expressly gives the President that authority to go to war. Is this not then the definition of a declaration of war?
No, a declaration of war is still distinguishable from the AUMF, because such a formal declaration uses the phrase "declaration of war" or similar language. In certain legal contexts, that is significant.
Where does the Constitution require these magic words "declaration of war?" Courts rarely require magic words or phrases to create a legal document unless otherwise required by statute.
If it looks like a duck, quacks like a duck and waddles like a duck, courts will usually find that it is a duck.
As the CRS paper I cited above said: From the Washington Administration to the present, Congress and the President have enacted eleven separate formal declarations of war against foreign nations in five different wars. ... Congress and the President have also on a number of occasions enacted authorizations for the use of force instead of declarations of war.
There is no case law which I have found which states what needs to to be drafted into as congressional resolution to constitute a declaration of war.
However, Article I only provides Congress the power to enact a declaration of war. There is no authority for some lesser or different declaration concerning war.
The attempt by to distinguish a declaration of war from an AUMF is a distinction without any factual or legal difference.
Reynolds is essentially correct in one sense, that we are in a legal sense "at war", and you're mistaken in trying to undermine that argument.
ReplyDeleteNo matter what else is true, there is a difference between a declaration of war and resolution authorizating to use military force. There just is. One can argue about how big the difference is or whether it matters. But there is a difference. They are not the same. For that reason, Reynolds is simply wrong as a factual matter when he says there are declarations of war for Iraq and AQ. That is the ONLY point of my post.
My view is that I do not believe we can be legally or technically "at war" without Congress declaring one. I think that because the Constitution assigns the right to declare war only to Congress, and I don't think that power is an empty gesture or meaningless ceremony, or else the founders wouldn't have assigned it to Congress.
But I agree with most of what Marty said regarding the fact that there is a meaningful distinction between the military deployments under Clinton that had no Congressional authorization and the Bush military deployments which are on much stronger legal ground (although there are some added links to the initial Reason post that cast some doubt on whether Reynolds 1999 statement really is consistent with his current views, but I never commented on that).
But regardless of all of that, I just don't see an excuse for saying there is a declaration of war if there isn't one. You can argue that the distinction doesn't matter (and eventually, Reynolds DOES argue that, alternatively - as in: "But even if one were to accept what I think is his argument -- that they were authorizations to use military force against a named enemy, but not technically declarations of war -- they surely undercut any claim that we went to war on President Bush's 'whim.'"
But for exactly the reason EWO said -- precision matters, and it's for the reader to decide if the distinction matters - I think it is improper and unhelpful to cloud this issue, especially when you hold yourself out as a law professor.
Marty has defended Reynolds' view by arguing (a) there IS a technical difference between a war declaration and force authorization resolution; (b) Congress has done the latter but not the former for Iraq and AQ; but (c) it doesn't matter for any practical purpose, because both provide relatively equal legal authorization to deploy our military force, thus distinguishing them from the military deployments during the Clinton Administration which Reynolds criticized, and the distinction has no significant difference.
I don't necessarily agree with Marty's view that the difference is non-existent (for the reasons I said), but that's the honest and accurate way to make that argument. Had Reynolds made it that way, I would not have written a post about it. But he didn't. He was mistaken about the war declaration and then, when it was pointed out, he insisted it was true rather than simply acknowledging he was wrong. THAT is when I posted, and I posted about that error only.
yankeependragon said...
ReplyDeleteFrom Bart at 2:29PM: "My friend, exactly what is a congressional Authorization to Use Force against al Qaeda and Iraq if not a declaration of war in fact and under the Constitution?"
It is an authorization to employ military force against a nebulous, diffuse network of fellow travellers and religious radicals. A Declaration of War, by contrast, is the Congress formally affirming a state of war exists between the United States and another country.
Two problems with your argument...
1) Where in the Constitution is war limited to military action against nation states?
2) The other AUMF which Glenn does not constitute a declaration of war is against the nation state of Iraq.
Bart: "By definition, the use of military force is war and the AUMF expressly gives the President that authority to go to war. Is this not then the definition of a declaration of war?"
No. The 'use of military force' simply means the US is employing its military assets in combat operations (either offensive or defensive in nature and objective) somewhere in the world. This is "combat", not "war" per se save in the broadest sense of the term. The definition of a 'declaration of war' was given above.
Exactly when is combat not an act of war and when does war not include combat? They are synonymous.
Exactly how did you pass your bar exams with this kind of blinkered thinking towards the law?
Often by disposing of obviously fallacious answers like yours.
Glenn Greenwald said...
ReplyDeleteReynolds is essentially correct in one sense, that we are in a legal sense "at war", and you're mistaken in trying to undermine that argument.
No matter what else is true, there is a difference between a declaration of war and resolution authorizating to use military force. There just is. One can argue about how big the difference is or whether it matters. But there is a difference. They are not the same. For that reason, Reynolds is simply wrong as a factual matter when he says there are declarations of war for Iraq and AQ. That is the ONLY point of my post.
Huh? "There just is" is your idea of a legal argument? If you made that argument in front of a judge, you would be laughed out of court.
Apart from the words "declaration of war," which are not required by the Constitution, exactly what is the difference factually or legally between a "declaration of war" and an AUMF???
If you can't come up with a substantive difference, then you owe Professor Reynolds an apology and concede the argument.
bart,
ReplyDeleteare you so intellectually dishonest as to posit there cannot be combat without war?
Ok, Glenn should have stopped before he added the last two sentences. However, it is bizarre for a professor of law to say what Reynolds did -- it is sloppy legal language, to put it mildly.
ReplyDeleteReynolds is taking strong and deserved criticism from many who formerly respected him. Jesse Walker has many updates to his post Glenn links to, dissing Reynolds for reacting like a petulant fool. Greg Djerejian, at The Belgravia Dispatch, has also about had it with Reynolds.
If you can't come up with a substantive difference, then you owe Professor Reynolds an apology and concede the argument.
ReplyDeleteIn my comment, I didn't explain why a war declaration is different from a force resolution becasue I wasn't addressing the reasons they are different. It's self-evident, and nobody but you is contesting the difference. I was addressing the issue of why Reynolds' error shouldn't be overlooked when claimed that there is a declaration of war when there isn't one.
As I have said, one can make the argument that there is no meaningful difference in their effect or function, but as far as I know, you are the only one disagreeing with the Attorney General's view that the AUMF is not a war declaration.
War declarations are very rare and historically significant. War is not hard to declare. The idea that Congress would declare war without bothering to say so (just like they would give the President an exemption from FISA without bothering to say so) is really just inane.
As for whether there are differences, to quote Marty Lederman: "there are a handful of *statutory* provisions in the U.S. Code that are triggered by declarations of war but not by force authorizations." There are also historical, cultural and political differences between a war declaration and a force resolution. But it doesn't matter if there are differences in effect. Saying that there is a war declaration when there isn't one is simply spewing falsehoods.
bart: ... [E]xactly what is the difference factually or legally between a "declaration of war" and an AUMF???
ReplyDeleteI guess for lawyers a war is not a war until a judge says it isn't. For the rest of us mere humans, a war is not a war when Congress has not declared a war.
How much clearer do lawyers need it to be said? There's more reality outside the law. There's the reality of real people living real lives and dying real deaths--all in the name here of an abstraction called Terrorism which is not something you go to war against.
To quote Brzezinski again, in the context of the dangers of declaring a state of war when it's not: the Presdient cannot and should not assume on himself or his office powers and privileges which a declaration of war necessarily entails.
Brzezinski:
Neither President Truman nor Eisenhower – Democrat and Republican – ever spoke of America being a “nation at war” during the Korean War. Neither President Johnson nor Nixon ever spoke of America being a “nation at war” during the Vietnam War. Yes we have a serious challenge from the potential threat of terrorism and we have to wage an unrelenting struggle against it. But to describe America repeatedly as a nation at war – implicitly of course with a commander and chief in charge – is to contribute to a view of the world by America that stimulates fear and isolates us from others.
Glenn writes: Saying that there is a war declaration when there isn't one is simply spewing falsehoods.
ReplyDeleteAnd I think it is extremely salient, as you wrote, that Glenn Reynolds is a law professor. For a person in that profession to invoke constitutional language wrongly (or falsely), is noteworthy.
For some reason, Gonzalez and the DoJ feel it is vitally important to underscore that there has been no congressional declaration of war. There must be legal differences that matter, or they wouldn’t be doing that.
From Bart at 4:03PM:
ReplyDelete"Two problems with your argument...
"1) Where in the Constitution is war limited to military action against nation states?"
I made no such argument. Merely pointed out that the particular AUMF you reference is against a nonstate, ambiguous actor. Read the question with both eyes and engaging both hemispheres of your brain before responding, please.
"2) The other AUMF which Glenn does not constitute a declaration of war is against the nation state of Iraq."
I'm presuming here you mean the second AUMF, referencing Iraq specificially, does indeed constitute a 'declaration of war' against that country. This could be argued, but on a strict reading of both the authorization and Article I of the Constitution, it doesn't pass muster.
Odd that you'd adopt so loose an interpretation of the Constitution, particularly how you were decrying the lack of appreciation of 'original intent' in the other comment thread.
"Exactly when is combat not an act of war and when does war not include combat? They are synonymous."
'Combat' does is not automatically (either legally or substanially) 'an act of war' in circumstances like Grenada 1983, the Banana Wars earlier in this century, and the Barbary Wars of the late 1700s(to name but a few). Otherwise you would be claiming the US was in a formally-declared state of war with Cuba in 1983, various Latin American and Carribbean governments in the 1910s and 1920s, and the North African caliphates in the 1780s and 1790s. History shows differently.
Similarly, the term 'war' has been nearly bled of its legal parameters, not the least thanks to the Cold War, that we are presently 'fighting' 'wars' against such things as poverty, drugs, 'violent extremism', Christmas, Easter, and whoknowswhatelse.
Sticking to more practical approaches and following your logic, the United States and the now-gone USSR were engaged in a protracted 'war' that NEVER ONCE SAW US AND RED ARMY UNITS SO MUCH AS FIRE ONE SHOT AT EACH OTHER. There were proxy wars aplenty, but direct confrontation between the main actors never happened.
In short, 'combat' and 'war' are neither synonymous nor automatically linked.
Clear enough for you?
My dear Mr. Lederman,
ReplyDeleteThe reason I said I was surprised by your comment is because I have been an admirer of yours since I first started reading your posts on Balkinization.
Because of your past accomplishments and your brilliant mind, I have held that admiration although I have had personal qualms about what I have recently sensed to be a certain lack of passion on your part about various matters, matters which I personally find outrage the depths of my soul.
When it has appeared to me that your frequent acceptance of "the way things are" has led you to adopt a rather "pragmatic" and, to me, even cynical approach concerning what can feasibly be done concerning various current outrages, it has dismayed me.
Your somehwat "snarky" response to me ("hey, eyes wide shut") further surprises me as I would never have predicted that would be your style.
That said, could you address for the benefit of this ignorant lay person the point that cynic librarian brings up about the War Powers Act of 1973 that requires the President to follow certain procedures within sixty days to remain in compliance with that Act?
Also when you write "What turns on the fact that Congress "merely" authorized force rather than declaring war? Not a whole lot", did it ever occur to you that maybe for the legal community not a whole lot "turns" on that distinction, but for the unwashed masses out here we respond very differently to a formal Declaration of War by Congress, such that hasn't been utilized for over half a century, than to an "authorization" to use military force after planes manned by persons from foreign nations have just taken down the World Trade Center?
And does it make any difference to you that maybe Congress is not so quick to actually "delare war" because they have constituencies to which they must answer and arbitrary declarations of war might not be so popular with those consitutents if there was no good reason to "declare war" in the first place?
Finally, I am delighted that you admonish anonymous posters that there is "nothing to be afraid of" and am happy that you live each day of your life with that assurance.
There are those of us, however, who think there is " much to be afraid of", which is why we spend so much of our free time educating ourselves by reading blogs like this one and doing what we can to maximize the chances that things will go back to a time when we too can live our lives with the feeling that there is "nothing to be afraid of."
Glenn Greenwald said...
ReplyDeleteBart: If you can't come up with a substantive difference, then you owe Professor Reynolds an apology and concede the argument.
In my comment, I didn't explain why a war declaration is different from a force resolution becasue I wasn't addressing the reasons they are different. It's self-evident, and nobody but you is contesting the difference. I was addressing the issue of why Reynolds' error shouldn't be overlooked when claimed that there is a declaration of war when there isn't one.
As you just admitted, Professor Reynolds argues (as I do) that the AUMFs constitute declarations of war. You have all but called Reynolds a moron and a liar for making this argument. In order to sustain your position, you must offer some sort of functional or legal difference between what the CRS calls a "formal declaration of war" and an AUMF.
War declarations are very rare and historically significant. War is not hard to declare. The idea that Congress would declare war without bothering to say so (just like they would give the President an exemption from FISA without bothering to say so) is really just inane.
Ah, we are back to the "magic words" argument...
The Constitution nowhere requires a declaration of war to have any particular words.
The Constitution does not give Congress the power to enact any different or lesser authorizations for the president to use military force to wage war except for a declaration of war.
It is irrelevant if Congress wants to call the enactment something else than a declaration of war. If the enactment authorizes the President to use military force to wage war it is by definition a declaration of war.
As for whether there are differences, to quote Marty Lederman: "there are a handful of *statutory* provisions in the U.S. Code that are triggered by declarations of war but not by force authorizations."
Irrelevant. Congress may condition the enforcement of their statutes on any event they wish including the use of the magic words "declaration of war" on an enactment. However, statutory language does not affect the interpretation of the Constitution in the least.
There are also historical, cultural and political differences between a war declaration and a force resolution.
Such as?
But it doesn't matter if there are differences in effect.
Really?
Section 4, Article I of the Constitution states that Senators and Representatives shall be chosen in "Elections." Let us say that a state legislature decides that they are going use the term "Pick Your Senator and Representative Day" instead of using the Article I term "election." Nothing else has changed about the function of the voting apart from the terms used for the vote. You would have a very hard time arguing that the resulting vote did not Constitute an "election" under the meaning of Section 4, Article I of the Constitution simply because the state legislature uses different words.
Dear EWO:
ReplyDeleteThank you very much for the kind remarks, and even for the criticisms. I'm sorry if I've sounded a bit passionless lately in my posts. Others have accused me (at times deservedly) of being too hot-headed, and urge me to return to more analytical posts. Can't please everyone; I'm trying as always to write in a way that will engage folks on all sides of the issues.
I also apologize for mislabeling you: I honestly and haphazardly read your moniker as Eyes Wide Shut -- must be the Kubrick fan in me. I meant no insult, nor snarkiness.
P.S. Please, call me Marty
P.P.S. Don't fret -- I haven't accepted the "way things are" (although I am very doubtful about change anytime soon)
P.P.P.S. Of course there are many things to be afraid of in these times -- but none, I hope, that would justify anonymity on this web site.
Bart - you can call anything you want anything you want. You can call an Authorization to use military force "an exemption from FISA." You can pretend that it's a declaration of war. You can insist that it constitutes evidence that things are going really well in Iraq, that Bush is a popular president, that most Americans agree with him about the occupation of Iraq, or any other fantasy you want to impose on it.
ReplyDeleteBut that doesn't make it a serious argument. Each time Congress has declared war, it said that it was doing so. With regard to Iraq and Al Qaeda, it never did.
Why do you think Alberto Gonzales and the entire Justice Department would stress that the AUMF is NOT a war declaration if it was one? Don't you think this administration would LIKE as much support as possible for its constant political claim that we are "at war"?
yankeependragon:
ReplyDeleteOdd that you'd adopt so loose an interpretation of the Constitution, particularly how you were decrying the lack of appreciation of 'original intent' in the other comment thread.
1) As I posted before, I am a textualist and not a proponent of "originalism."
2) I am strictly construing the text of the Constitution. Indeed, neither Glenn nor you are even referring to the Constitution.
Bart: "Exactly when is combat not an act of war and when does war not include combat? They are synonymous."
'Combat' does is not automatically (either legally or substanially) 'an act of war' in circumstances like Grenada 1983, the Banana Wars earlier in this century, and the Barbary Wars of the late 1700s(to name but a few).
If a nation uses military force against another nation or group it is an act of war under any definition of that term.
Otherwise you would be claiming the US was in a formally-declared state of war with Cuba in 1983, various Latin American and Carribbean governments in the 1910s and 1920s, and the North African caliphates in the 1780s and 1790s. History shows differently.
You are making a false analogy between the fact that the United States committed acts of war against the governments and groups you listed and whether Congress got around to enacting a "declaration of war."
Similarly, the term 'war' has been nearly bled of its legal parameters, not the least thanks to the Cold War, that we are presently 'fighting' 'wars' against such things as poverty, drugs, 'violent extremism', Christmas, Easter, and whoknowswhatelse.
This is true. However, true wars involve the use of military force and always will.
Sticking to more practical approaches and following your logic, the United States and the now-gone USSR were engaged in a protracted 'war' that NEVER ONCE SAW US AND RED ARMY UNITS SO MUCH AS FIRE ONE SHOT AT EACH OTHER. There were proxy wars aplenty, but direct confrontation between the main actors never happened.
Agreed. While the "Cold War" may have been a euphemism, the AUMFs to which Glenn refers are quite specific in authorizing the President to use military force or to wage war against specific nations or groups.
mo writes Or alternatively, the "Wars" on Crime, Poverty, Drugs, etc.; i.e. for purposes of political hype.
ReplyDeleteDon't forget the War on Pornography.
I am reminded of the bumper sticker which reads "I want either less corruption or more chance to particpate in it."
For a diabolically clever depiction of how many of the "enforcers" in these wars are actually guilty of being the biggest practitioners of the activities being "warred against", I direct readers to the scene in V is for Vendetta concerning the actions of the "finger men" who are the enforcers of the fascist regime which is "warring" on these activities and also remind readers of the recent indictment of the official in the Department of Homeland Security who is being charged with using the Internet to solicit children for sexual encounters.
Not to mention the pictures from Abu Graib. If those are not about sexual perversion, I can't imagine what is.
I wonder if there are any videotapes of similar sessions of "information gathering from terrorist suspects" during which Rumsfeld is alleged to have personally participated.
Please, call me Marty
ReplyDeleteMARTY - Do you have views on why it is so seemingly important for the DoJ to insist that the AUMF is not a declaration of war? Is it because FISA says that you only get 15 warrantless days of eavesdropping with a declaration of war and that it would become much harder to argue that the AUMF gave an exemption to FISA in the face of such a specific provision about what happens in the event of a war?
BART - If the AUMF is a declaration of war, doesn't that mean that under FISA, there is a specific provision governing what happens - that the Administration can eavesdrop for up to 15 days without one?
How am I supposed to think without a list of talking points with which to connect the dots?
ReplyDeleteHow am I supposed to present evidence without pulling made up statistics out of my butt crack?
How am I supposed to argue without making emotional appeals based almost entirely on urban legend, mistaken "common knowledge," and old wives' tales?
Glenn Greenwald said...
ReplyDeleteWhy do you think Alberto Gonzales and the entire Justice Department would stress that the AUMF is NOT a war declaration if it was one? Don't you think this administration would LIKE as much support as possible for its constant political claim that we are "at war"?
I addressed this in my initial post. Justice is not a neutral legal authority in this case. They are making legal arguments to justify the acts of their client, the US government. My guess is that Justice is attempting to avoid the time limitations on the warrantless gathering of intelligence by the President after a "declaration of war" contained within FISA. They may also be attempting to avoid similar triggers in other legislation or treaties.
This is also irrelevant under the Constitution.
The Constitution only empowers the President to wage war after a declaration of war by Congress.
The Constitution only gives Congress one route to authorizes the use of military force to wage war - the declaration of war.
The fact that the President or Congress may have acted extra-constutionally in the past by waging war without a declaration or whatever wording is also irrelevant to the meaning of the Constitution.
Everything else is semantics.
Good luck teaching Glenn Reynolds anything; he's a right-winger and, as such, exists in an Eriksonian state of psychic disclosure.
ReplyDeleteGlenn Greenwald said...
ReplyDeleteBART - If the AUMF is a declaration of war, doesn't that mean that under FISA, there is a specific provision governing what happens - that the Administration can eavesdrop for up to 15 days without one?
We have a BINGO! Thus, the Justice argument claiming that the AUMF is not a declaration of war.
Too bad FISA cannot constitutionally limit or eliminate the President's Article II power to conduct warrantless intelligence gathering.
Woops. Substitute "foreclosure" for "disclosure."
ReplyDeleteThis comment has been removed by a blog administrator.
ReplyDeleteDoes Gonzales stress no declaration of war to allow for torture, rendition, etc. without violating the Geneva Convention?
ReplyDeleteDo they alternately use the term war and have their surrogates claim that we are at war to allow for expanded presidential powers?
Let's make it one or the other, or officially change the definition of war, because congress was pretty specific in defining war as it did to PREVENT exactly what is going on now.
As far as the courts are concerned, we're at war.
ReplyDeleteNO - Even the Hamdan decision which you cited RECOGNIZED that there had been NO DECLARATION OF WAR. But they said it didn't matter, because for the questions the court had to decide, the force resolution had the same legal effect (i.e, they adopted Marty Lederman's argument that it makes no difference that there's no war declaration, but DID NOT accept Glenn Reynolds' false claim that there has been a WAR DECLARATION from Congress).
In fact, the very paragraph you cited argues that a war declaration may not even be possible because one can't declare war on a non-nation-state (that would not, of course, apply to Iraq). The whole basis for the opinion is that there is NO war declaration, but it doesn't matter, because the force resolution - which is a DIFFERENT instrument - achieves the same thing for the purposes before the court.
We have a BINGO! Thus, the Justice argument claiming that the AUMF is not a declaration of war.
Too bad FISA cannot constitutionally limit or eliminate the President's Article II power to conduct warrantless intelligence gathering.
Oh, OK - so you don't agree with the administration's argument that the AUMF constituted an exemption to FISA? Your whole defense rests on the fact that FISA is unconstitutional to the extent that it purports to limit the president's eavesdropping powers for foreign intelligence purposes?
Greenwald said: But I agree with most of what Marty said regarding the fact that there is a meaningful distinction between the military deployments under Clinton that had no Congressional authorization and the Bush military deployments...
ReplyDeleteThe hugh distinction is this: There were no "Clinton deployments". Bosnia, etc. were actions undertaken under authority of NATO. For purposes of international law, this is not only different from the situation in Iraq, it has ramifications. Under international law, a country or alliance of countries may invade another if: 1) the country to be invaded has itself attacked the invading nation; 2) if a humanitarian crisis exist in the country to be invaded or 3) if some alliance of nations such as the UN, NATO, etc. authorize the invasion. Afganistan is a NATO operation. Iraq was/is not.
Where in the Constitution is war limited to military action against nation states?"
Bart, maybe this will help you: "War: a state of usually open and declared armed hostile conflict between states or nations." Webster's Dictionary
The recent Hamdan case argued before the SCOTUS brought up this question of whether the US is at war or not. The reason that I think the DOJ is wary of calling it a war is because the issue of war crimes, Geneva conventions, and so on are implicated in war, and the US does not want to have to deal with them.
ReplyDeleteIt appears that the US wants to wage a war without having to abide by international rules and laws that were developed during past wars. Therefore, if the US does not officially declare war, it does not need to abide by all the international laws governing war.
It can straddle the fence, so to speak, of waging war-like activities but not having to act responsibly and treating prisoners of war and so on according to those rules and laws.
According to Justice Breyer, in his comments to the government:
JUSTICE BREYER: ... And, in my mind, I take their [Hamdan's] argument as saying, "Look, you want to try a war crime. You want to say this is a war crimes tribunal. One, this is not a war, at least not an ordinary war. Two, it's not a war crime, because that doesn't fall under international law. And, three, it's not a war crime tribunal or commission, because no emergency, not on the battlefield, civil courts are open, there is no military commander asking for it, it's not in
any of those in other respects, like past history. And if the President can do this, well, then he can set up commissions to go to Toledo, and, in Toledo, pick up an alien, and not have any trial at all, except before that special commission."
The recent Hamdi case argued before the SCOTUS brought up this question of whether the US is at war or not. The reason that I think the DOJ is wary of calling it a war is because the issue of war crimes, Geneva conventions, and so on are implicated in war, and the US does not want to have to deal with them.
ReplyDeleteCynic, I think you are correct and the ones in volation of the Geneva Conventions and the officials who have committed war crimes in the context of Iraq are....BushCo.
It appears that the US wants to wage a war without having to abide by international rules and laws that were developed during past wars. Therefore, if the US does not officially declare war, it does not need to abide by all the international laws governing war.
Well, morally and legally, it/we should abide by all international laws governing war. But on the whole, again, I think you are right. The whole designation "enemy combatant" versus prisoner of war proves BushCo wants the mantle of war while distaining the "rule of law".
I'm the decider, and I'll decide whether we're at war or not. If it's in my interest that we're at war - then we're at war. And "legally" if it's not in my interest that we're at war - then we're not at war.
ReplyDeleteThat's my decision - and it's final.
I'm the decider. I've decided.
No questions, no queries. It is as I have said.
And so it shall be done.
The illusion mischaracterizes the enemy. This illusion of war against terrorism is especially destructive of the need to know who the enemy is. War turns enemies to things, making them irrational, savage, and ultimately unforgiveable. This situation creates a situation wherein the impetus for compromise, dialog, and reconciliation becomes impossible
ReplyDeleteThe Cynic Librarian seems to have the important handle on the importance of the administration's repeated insistence that we are "a nation at war!!!" It is being used much more for propaganda purposes than legal ones. All the lawerly debates ignore the real importance of Bush's use of the term. It's all about keeping us unsure of what's really going on and willing to accept whatever they tell us. Whatever they need to keep us safe from the scary brown men who worship the wrong god is easier to foist on a people constantly reminded they are a "nation at war". We don't need to negotiate or even acknowledge the humanity
of people who are coming like Mongolian Hordes to kill us all.
"Theres a war on." Bush loves to play the roll of the Great Commander in Chief, out on the ramparts fighting tooth and nail with the evil-doers coming to attack the Christians.
Whats really ridiculous is that we aren't even really living at all like a 'nation at war!" No tax increases, no draft, no rationing, no scrambling into shelters, just a single attack 5 years back that means we're 'at war' from now on, and whatever Bush says he wants we just have to give him. Meanwhile, party on and spend spend spend.
Anon 6:03 said:
ReplyDeleteThe Cynic Librarian seems to have the important handle on the importance of the administration's repeated insistence that we are "a nation at war!!!" It is being used much more for propaganda purposes than legal ones.
Exactly. And we won't hear Bush utter the words "Declaration of War." Because he can't and he doesn't need to - others will do that for him.
Glenn Greenwald said...
ReplyDeleteAs far as the courts are concerned, we're at war.
NO - Even the Hamdan decision which you cited RECOGNIZED that there had been NO DECLARATION OF WAR. But they said it didn't matter, because for the questions the court had to decide, the force resolution had the same legal effect (i.e, they adopted Marty Lederman's argument that it makes no difference that there's no war declaration, but DID NOT accept Glenn Reynolds' false claim that there has been a WAR DECLARATION from Congress).
I presume you are referring to the Hamdi decision. In their opinions, every member of the Court assumes that the AUMF is synonymous with a declaration of war for every legal question before them. However, the specific question of whether an AUMF is the equivalent of a declaration of war was not directly before the Court and not ruled upon.
Bart: We have a BINGO! Thus, the Justice argument claiming that the AUMF is not a declaration of war. Too bad FISA cannot constitutionally limit or eliminate the President's Article II power to conduct warrantless intelligence gathering.
Oh, OK - so you don't agree with the administration's argument that the AUMF constituted an exemption to FISA? Your whole defense rests on the fact that FISA is unconstitutional to the extent that it purports to limit the president's eavesdropping powers for foreign intelligence purposes?
Huh? Exactly where in my post did you read anything concerning whether the AUMF waived FISA?
I am not an attorney so I can't contribute to the legal debate as to whether we are at war or not. But I would like to offer a practical distinction.
ReplyDeleteThat is, if the AUMF is equivalent to a declaration of war, then how will we know when we are no longer at war?
Previous declarations of war have typically ended in a peace treaty of some sort. I don't see that happening in this case. I imagine at some point in the future the US will pull its combat troops out of Iraq. However, I don't expect a formal peace treaty to be signed at that time.
So, if we are at war now, we are likely to always be at war. This, to me, is a very practical distinction between an AUMF and a declaration of war.
I would assert that we have engaged in, and are engaged in war in Iraq. An illegal war of our own volition, a foolish war, but still a war.
ReplyDeleteThe fact that we did not obey our own laws in this matter does not change the fact that we have waged war on Iraq.
That being said, the appeal to the requirements of war are invalid until we actually admit we entered the war illegally and dishonorably and a declaration of war is voted on and passed by the Congress.
Oh, and one more thing, the AUMF can not be equivalent to a declaration of war because that would in effect mean that the president, so equipped, could declare war, a power reserved for Congress in the Constitution.
ReplyDeleteOf course, we do want it both ways, which is why no Supreme Court wil lever agree to hear a challenge to such authorizations.
Bart has stated, on many occasions, that FISA is an unconstitutional encroachment on the President's war powers. He refuses to acknowledge the "necessary and proper clause" in Article one Section eight of the Constitution even though it was part of the basis for the Youngstown decision.
ReplyDeletemy post above
ReplyDeleteAs stated, I am a secular individual who is somewhat more of an agostic than an atheist because I can't actually see into the heavens and therefore have to idea what is up there. I rely on reason rather than faith along with my own sense of "spirituality" which requires that people always act justly, compassionately and morally whether or not there is any "pay-off" on this earth for being a decent human being.
ReplyDeleteEveryone once in a while, however, I do see signs that there may be a higher being, and one with a fine sense of irony. Here's an example:
Bush patted McClellan on the back and they walked together across the South Lawn to the president's helicopter to begin a trip to Alabama. But the aircraft couldn't get off the ground because its radio failed, and they had to take a motorcade.
Exactly where in my post did you read anything concerning whether the AUMF waived FISA?
ReplyDeleteThe connection is obvious but need not be seen in order to answer the question.
I'm just asking you - even though you think there is a declaration of war, and even though FISA specifically provides for what happens when there is a declaration of war (warrantless eavesdropping for up to 15 days), do you or do you not agree with the Administration's claim that the AUMF constitutes implicit statutory permission to eavesdropping without complying with the requirements of FISA?
bart:
ReplyDeleteToo bad FISA cannot constitutionally limit or eliminate the President's Article II power to conduct warrantless intelligence gathering.
Supreme Court Youngstown Opinion:
t is said that other Presidents without congressional authority have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution "in the Government of the United States, or any Department or Officer thereof."
The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.
I have to agree with Bart. I have no legal background or experience, so consider this strictly a layman's perspective. But I have never heard our most recent conflict described as anything other than the "Iraq War." Google returns 54 million hits for "Iraq War."
ReplyDeleteWhen is a war not a war?
When it is something other than war such as: a police action, a humanitarian intervention, naked military agression, etc. All have meaning under internationally recognized rules of engagement and the use of military force. The fact that BushCo has successfully framed its preemptive attack and occupation of Iraq as "war" and that Google dutifully returns hits on the phrase, does not make the "war" a "war". The better questions perhaps is:
Is the US at "war" with Iraq?
So I just ousted yet another motorcyclist off my property who spewed that he'd used my dirt road access for years and that gave him the right to continue to use it ... so to trade issues, the longer this demented struggle goes on and it is called a WAR, does it sooner or later, simply turn into a common law marriage wherein even though Congress didn't declare it, they didn't disdeclare it?
ReplyDeleteAs I've said a few times before here, for several years I have read the Baghdad blog, Iraq the Model. The pro-Bush blogosphere used to link to the brothers who write it with great frequency, especially during the excitement about the elections, and all the times the brothers told tales of success. Certainly I was happy for these secular, classically liberal bloggers who believed and hoped they were poised on peaceful democracy, run per the rule of civilized law.
ReplyDeleteThe pro-Bush bloggers don't link to Iraq the Model so much anymore, like when the brothers reported that their elderly father had concluded peace and democracy were impossible due to the clerics. Reading Greg Djerejian's reference to Reynolds having recently pointed to a beauty contest in Baghdad as supposed evidence of success and all going well, is especially hard to take in light of what Mohammed is reporting now at ItM, in the context of explaining why they haven't blogged for a while:
...we were overwhelmed by an exceptional situation and a huge shock. We also were afraid from writing more about this subject for security concerns but now I think I must share this with you as it's part of the pain and suffering my nation is going through.
Last week our little and peaceful family was struck by the tragic loss of one of its members in a savage criminal act of assassination... Grief and pain is killing me everyday as I hold my dear nephews, my sister is shocked beyond words while my parents are dead worried about the rest of us.... My God keep safe the Iraqis and their friends who stand with them in their noble cause, peace and prosperity may seem far away but we will get there...
The people in the U.S. who let this happen, who failed to prepare for the aftermath of removing Saddam, must be held accountable and removed.
To clarify my own question; i.e. are we at "war" with Iraq. I offer this multiple choice:
ReplyDeletea. Is the US at "war" with Iraq?
b. Did the US "conquer" Iraq?
c. Did the US go into Iraq in support of some political faction in Iraq?
If "a" above, in our history, this usually occurs in the response to an attack on our country -- Remember the Maine.
If "b" above, we're engaged in imperialism and military aggression. One sign, we might be building permanent bases and a huge compound denoting an intention to remain into the foreseeable future.
If "c" above, who were the equivalent of the South Vietnamese and South Koreans? Do exiles such as Chalabi count?
From Bart at 5:10PM:
ReplyDelete"If a nation uses military force against another nation or group it is an act of war under any definition of that term."
Granted. Grant me equally an 'act' of war alone does not equate into a full-blown war.
"You are making a false analogy between the fact that the United States committed acts of war against the governments and groups you listed and whether Congress got around to enacting a "declaration of war.""
It would be you making the false analogies here, as I simply followed the logic of your argument. Please don't attempt to pass off it off.
In fact, could you please choose your argument and stick with it. You wish on the one hand to maintain the United States is "at war" with presumably Al Qaeda (ignoring how such a position reveals a fundamental misundertanding this of the nominal enemy), notably *without* Congress first making a formal Declaration of War, then go on to talk about 'true wars' in the same breath as you admit the term itself has become so nebulous as to be empty.
While no-one disputes the President recieved Congressional authorization to use military force against either Al Qaeda or Iraq (albeit both in the service of questionable motives and to ambiguous ends), the dispute here lies rather in whether such authorizations automatically translate into an actual Declaration of War, which has numerous legal implications.
Your contention it does rests on rather unsteady ground, namely your personal reading of Article I of the Constitution and some phantom consensus on what constitutes an "act" of war. Taken together these present a reasonable argument, albeit one that hasn't been tested in the legal arena as yet. Glenn, myself and others prefer a more exact definition of what constitutes a 'war' per se, rather than calling anything that involves a lot of noise and explosions 'a war'.
I grant this debate is rather academic in light of the decisions of the Bush Administration, and like it or not we have troops in the field and in harms way (often badly underequipt for the dangers they face). One can only hope future generations will have better perspective.
[Bart]: We have a BINGO! Thus, the Justice argument claiming that the AUMF is not a declaration of war. Too bad FISA cannot constitutionally limit or eliminate the President's Article II power to conduct warrantless intelligence gathering.
ReplyDelete[Glenn]: Oh, OK - so you don't agree with the administration's argument that the AUMF constituted an exemption to FISA? Your whole defense rests on the fact that FISA is unconstitutional to the extent that it purports to limit the president's eavesdropping powers for foreign intelligence purposes?
I think what Glenn's driving at is that if the preznit's warrantless wiretapping is based on an inherent constitutional power that FISA un-constitutionally intrudes on, it simply doesn't matter whether the AUMF is a DOW or not. The only time this makes a difference as to whether warrantless wiretapping is in effect is if the AUMF is argued to justify it ... but then you run into the hurdle that the AUMF says that in wartime, you only get 15 days free bite of the apple. Thus the maladministration is of the opinion that the AUMF does "implicitly" authorise warrantless wiretaps (by some strange process of 'amendation by silence') but is not so sure they can pull the wool over people's eyes and convince them that FISA has been 'amended' as to areas where FISA is indeed quite specific (the 15 day provision). Of course, the 'logic' here is impenetrable; the maladministration would have you believe that Congress wanted to eliminate the warrant requirement completely in times of "peace" (even more so, by saying nothing at all about such), but wanted to keep the "wartime" restrictions as they were. Such is what passes for legal reasoning from the maladministration shysters. But that seems to be the "reason" (suggested by both HWSNBN here, and by Glenn) for why the maladministration took such pains to suggest that we are currenlty not legally "at war".
Now, HWSNBN ought to clarify whether he agrees with this rather absurd line of reasoning from the maladministration.
Cheers,
Dear Mr. Lederman,
ReplyDeleteI responded on the wrong thread to your very sweet and gracious reply to me.
It's posted at 6.34 PM on the Academic Freedom thread below.
This guy Reynolds is a total clown. His fellow faculty must be aghast at his public displays of ignorance.
ReplyDeleteHis fellow faculty voted on his receiving tenure. T'would be interesting to see if applications to UT's law school have been impacted by the spewings of this intellectual.
Glenn, myself and others prefer a more exact definition of what constitutes a 'war' per se, rather than calling anything that involves a lot of noise and explosions 'a war'.
ReplyDeleteFouth of July, Arab weddings, New Years Eve in Texas, all wartime.
Are we at war? Yes, we are. The weapons are out of the box and we are firing them in anger at enemies. And enemies are firing back. What we and our enemies are doing fits a common definition of warfare.
ReplyDeleteI don't think we are at war. Iraq is a low intensity conflict and it's still damn costly and bloody.
MSNBC latest poll results:
ReplyDeleteLive Vote
Do you believe President Bush's actions justify impeachment? * 257570 responses
Yes, between the secret spying, the deceptions leading to war and more, there is plenty to justify putting him on trial.
86%
No, like any president, he has made a few missteps, but nothing approaching "high crimes and misdemeanors."
4.4%
No, the man has done absolutely nothing wrong. Impeachment would just be a political lynching.
7.4%
I don't know.
1.8%
do you really think that a congressional declaration of war is a requirement?
ReplyDeletei think upon all those invasions that the usmc conducted in the first 30 years of the last century.
wars they were. did the congress declare war on nicaragua, cuba, haiti, mexico?
no. those were the ouvertures to imperialism. the president as emperor.
this emperor motif reoccurred with harry[a demtillian] and his invasion of korea. a war foisted upon us by demtillians.
and then there were his successors: jfk, lbj.
oh, i understand, the ignoramuses think that jfk wasn't a warmongering, murdering son of a bitch. sorry, folks. he was.
his dad was a major supporter of joe mccarthy.
jfk was responsible for the invasion of vietnam. it was not an inadvertant invasion.
he employed his own donald rumsfeld. a gangster by the name of bob mcnamara.
i ask you, why does this homicidal lunacy continue? why do the amerikans continue to f*ck themselves? why does the left continue to lionize the kennedy gangsters as if they are somehow different from the bushit gangsters?
This guy Reynolds is a total clown. His fellow faculty must be aghast at his public displays of ignorance.
ReplyDeleteActually, I sat on the plane today next to a guy who teaches at Tenessee. He's a conservative, and we talked a little about Reynold's blog...
...he thinks the guy's a dope, through and through. He suggested that a lot of faculty at Tenessee are feeling the same way about their flat-faced (and flat-footed?) co-worker. It sort of sounded to me like Reynolds is nearing the point of ostracization but can't see far enough as he basks in the glow of the 'net dittoheads.
Mind you, my row-mate was pretty supportive of Bush, though on the fence about Iraq and the borrow-and-spend "Chinese credit card" economy. But he was plain; Reynolds is a farce.
Your summary of Djerejian translates exactly for me.
ReplyDeleteHypatia said
ReplyDeleteThe people in the U.S. who let this happen, who failed to prepare for the aftermath of removing Saddam, must be held accountable and removed
This is tragic. When you read stories like this you realize just how horribly Rumsfeld has screwed this up. The level of incompetence that allows this to happen is the kind that should be treated criminally. Those who allowed this to happen are directly responsible for the suffering of this family, and the many others now enduring the cost of our failure in Iraq.
Defenders of this administration who attack the Generals calling for Rumsfeld's resignation have closed their eyes to the suffering caused by the failure of our leaders to prosecute this insane adventure in Iraq. They ignore any connection between the actions of this administration and the results we now see. The most basic connection between actions and results, where accountabilty comes from, are completely disregarded by the defenders of Rumsfeld and Bush. To pretend to not see it, or worse, to see it and ignore it, are the actions of moral cowards who feel free to put their poltical goals ahead of everything else, from the lives of those dying for our failure to the responsibility of those who have created this mess to pay for what they've done. They've caused irreparable damage to the lives of innocent Iraqis who put their faith in us, and trashed our standing in the world's eyes, both as a military power and a moral leader. This is criminally negligent behavior and those responsible deserve to be held accordingly.
Armagednoutahere said...
ReplyDelete"This is tragic. When you read stories like this you realize just how horribly Rumsfeld has screwed this up. The level of incompetence that allows this to happen is the kind that should be treated criminally."
I wouldn't hold my breath till it happens. A group of Viet Nam vets tried to sue McNamara after the war because of his criminal mismanagement and were told they couldn't because quote "He was a government official acting in an official capacity"
Glenn Greenwald said...
ReplyDeleteReynolds is essentially correct in one sense, that we are in a legal sense "at war", and you're mistaken in trying to undermine that argument.
Incorrect. We're not at war, the term war would carry with it entirely different pay and benefit schedules. There's a tax cut to uphold above the safety of soldiers, matching their proficiencies to tasks ordered to undertake(Casey Sheehan was artillery- employed as ground troop and killed in an extraction call bordering the green zone/Sadr city).
"No matter what else is true, there is a difference between a declaration of war and resolution authorizating to use military force. There just is. One can argue about how big the difference is or whether it matters. But there is a difference. They are not the same. For that reason, Reynolds is simply wrong as a factual matter when he says there are declarations of war for Iraq and AQ. That is the ONLY point of my post."
The difference is important because of the technical language and Geneva conventions. We're not at war unelss geneva applies towards detainees. Bush doesn't want that. Also the concerns over illegal use of FISA applied to Bush's White House run amok.
We're at war to authorize broader FISA response and arguably the continued patent noncompliance. Bush wants that.
We're not at war because there was no Constitutional sanction by the body of Congress. The AUMF was supposedly a political lever(Vichy Democrat interpretation) but everyone knew Bush had never shown any merit regarding decisionmaking at any time in his life up to that point. He cannot even keep a sport simple as basebvall from descending into an unethical morass of politicized Hall of Fame inductions for Tim Robbins' movie character or the steroid cloud that was a direct part of a team he was in control of for a brief time.
So putting a loaded gun into the boy king's hands is consistent with instadumbwhit's NRA stance. The war is the solution, a means to a means.
Unconsitutional authorization is the hallmark of Bush's argument.
Run that by me again there instadumbwhit, the UN security council follow-up that was listed as a qualifier for AUMF. Bush ignored that, which was his end run around the Consitution's war approval.
He gamed Congress using the UN. The Congress thought this would remove their political collateral consequence. However there's good possiblity Mr. Fitzgerald could share email excrepts that show the assumption was to ignore this and use it as an escalation device to start up the call to war.
"My view is that I do not believe we can be legally or technically "at war" without Congress declaring one. I think that because the Constitution assigns the right to declare war only to Congress, and I don't think that power is an empty gesture or meaningless ceremony, or else the founders wouldn't have assigned it to Congress."
No consistency by InstaVictorDavisHanson is the one consistent trait of his nature. Like diarrhea, he's regulalry irregular and his substance stinks.
The best argument we have is as follows, regarding precedent.
Monroe Doctrine-within hemispheres pursuant to American interests.
Marshall plan- NATO and the engagement of interests within the sphere of a political alliance.
The first item led to the second policy and governing body over time. An example of maturity within foreign policy over the dictates of time and practice.
Afghanistan-as noted, goes within the auspice of NATO at this time, and within the auspice of the emerging SEATO-like confluence of Pakistan, somewhat allied oil-stans of the former Soviet, and India, and ongoing Russian republic interests in the same instant.
Iraq had none of that to it in its justification.
"But I agree with most of what Marty said regarding the fact that there is a meaningful distinction between the military deployments under Clinton that had no Congressional authorization and the Bush military deployments which are on much stronger legal ground (although there are some added links to the initial Reason post that cast some doubt on whether Reynolds 1999 statement really is consistent with his current views, but I never commented on that)."
Above justifications explained, continuations of engagement in NATO for Afghanistan.
"But regardless of all of that, I just don't see an excuse for saying there is a declaration of war if there isn't one. You can argue that the distinction doesn't matter ...
But for exactly the reason EWO said -- precision matters, and it's for the reader to decide if the distinction matters - I think it is improper and unhelpful to cloud this issue, especially when you hold yourself out as a law professor.
Marty has defended Reynolds' view by arguing (a) there IS a technical difference between a war declaration and force authorization resolution; (b) Congress has done the latter but not the former for Iraq and AQ; but (c) it doesn't matter for any practical purpose, because both provide relatively equal legal authorization to deploy our military force, thus distinguishing them from the military deployments during the Clinton Administration which Reynolds criticized, and the distinction has no significant difference.
I don't necessarily agree with Marty's view that the difference is non-existent (for the reasons I said), but that's the honest and accurate way to make that argument. Had Reynolds made it that way, I would not have written a post about it. But he didn't. He was mistaken about the war declaration and then, when it was pointed out, he insisted it was true rather than simply acknowledging he was wrong. THAT is when I posted, and I posted about that error only."
Under the Consitution, the binding power of treatise allowed for the Clinton-Kosovar/Bosnia deployments.
With the help of the newly aligned EU requests toward NATO it fit classic benchmarks for intervention.
The war declaration by America matters because within it Congress controls spending, Bush's budget does not contain military spending pursuant to these actions, it is special request and goes through a charged political motivation to pass with no oversight.
"(and eventually, Reynolds DOES argue that, alternatively - as in: "But even if one were to accept what I think is his argument -- that they were authorizations to use military force against a named enemy, but not technically declarations of war -- they surely undercut any claim that we went to war on President Bush's 'whim.')"
This is absurd on its face. We started the war two calendar days ahead of the 'coalition' calendar date when Saddam set fire to oil wells that Halliburton or Bechtel would possibly be liable for. Funny that. The premise of his conclusion is absurd on face value for that fact.
That is grounds for going to war on a whim instead of a concerted,legitimized legal effort as a member in good standing of the world community. The underlying rationales were patently false.
To say nothing of spreading freedom by means of insitutional racism, torture, naked brazen humiliation, and hooded heads.
All of these actions forbade under the laws we agreed to under Geneva. There's no Consitutional mandate above that. Rights in the Consitution are granted "persons" in amendment four. Not just landowners as registered voters. Anyone on US soil or a US facility of any kind can have these items waived.
The framers saw no time such was not the case. One could try and argue the early revolutionary days, but we were under Articles and not the Consitution istelf so even those vagueties gave way to explicit grant and limited parameters of due process.
Let's argue sematics more since the war reasonings were patently false. Back to the heart of all this word spared rhetoric.
http://noquarter.typepad.com/my_weblog/2005/07/mr_bush_have_yo.html#more
From what the meaning of 'is' is, to what the what the of war is. To what the meaning of 'is not', 'in no way', and 'should not contain' or 'should not say' is.
http://noquarter.typepad.com/my_weblog/2005/10/update_on_the_l.html#more
Johnson continues, "And what did President Bush do? He ignored the intelligence community and told the American people in the State of the Union:"
http://noquarter.typepad.com/my_weblog/2006/04/an_updated_plam.html#more
If anything one can marvel at the consistency of the Bush administration. They're consistent liars and Instacracker is a consistent apologist for those lies.
There's such a thing as the Nuremberg Precedent. Enablers will eventually face criminal law. Pity him, or spare no quarter.
His pity sentiments are pitiful, if one were to judge the manor of it by his eloquated waxings on domestic policy. He should face action under the later category of accountability.
There is an interwoven aspect of all policies. The libertarian faux conservatives have been wrong on almost of every thread . They've woven together seemlessly a crazy quilt, it is a tattered rag and only those of narrow intellect and greedy ambition see it for anyhthing more.
The emporer wears no brains.
Instapundit is his adorned crown. Call him for what he is- the cheeky headgear Bush sports.
You're an asshat, Reynolds.
-Mr.Murder, as anon above
ReplyDeletetypo- Constitutional mandate- 9 para. from the end...
ReplyDelete"Anyone on US soil or a US facility of any kind can have these items waived."
omission
apostrophe 't
can't
Anyone on US soil or a US facility of any kind can't have these items waived.
Glenn,
ReplyDeleteAlways happy to see you smack down that dingbat Reynolds. But sometimes I wonder if it's better to ignore him altogether so as to deny him any sense of legitimacy, or to continue whacking him every time he utters another falsehood?
Reynolds astutely dons both suspenders
ReplyDeleteand waistbelts in what he opines,
or insinuates, in order to maintain
his demented version of the concept "high ground".
He is a stealth neocon who straddles
the middle of rhetorical denialism.
Hear, hear
OMG, Glenn would you please comment on Instapundits Terms of use? They are hi-larious!!
ReplyDeletehttp://instapundit.com/tos.php
Oh man that was a good laugh.
Thanks for the link to Djerejian's piece. Here's a quote:
ReplyDelete"Like a lot of senior Army guys, I'm quite angry" with Rumsfeld and the rest of the Bush administration, the young general said. He listed two reasons. "One is, I think they are going to break the Army." But what really incites him, he said, is, "I don't think they care."
This is what the (formerly?) soft-on-defense Dems need to focus on.
vermontraccoon said...
ReplyDeleteGris Lobo:
Damn, you wake up early.
It's not that I wake up early, it's that I don't sleep at night and very little during the day. Leftover habits from combat. :)
"Your comment points out why the Bush Admin. doesn't want to see this war ID'd as such by the courts; Geneva Convention. They do, however, want to keep saying they (we) are "at war" because as an unofficially declared war it is open ended and never will end; the use of political terms "at war, war president" lets them have it both ways. Unending war without the bother of civilized rules or consequences. Catch-22"
Absolutely, this admin is very adept at trying to have things both ways as was the Johnson Admin.
"Quotations: Vietnam: 1945-1970 , compiled byWm. G. Effros. Will be happy to send you my dog-eared copy if you can't find it. Eerily prescient."
Thanks, I think I have a copy. May seem odd that I would need to read the comments having been there but you would be surprised how limited our info on the states and what was happening there was with the "Stars and Stripes" and AFN as our only news sources. Seldom had time to read the S and S but I could get AFN over my helmet headset. Used to love listening to the 60's rock going into hot LZ's :)
"And this guy is a law professor? We are definitely screwed if these are the types of people we have teaching the next generation of politicians, legal analysts, and administrators."
ReplyDeleteIt is what happens when conservatives take over academia.
Hypatia, I will try to keep this very restrained even though I have rather strong feelings about this matter and that is a huge understatement.
ReplyDeleteI, too, discovered Iraq the Model some time ago because I started out on conservative blogs. I was very interested in getting a perspective from someone inside Iraq. I enjoyed his site the first one or two times I went there, until I noticed a sickening stench coming from that site: the stench of corruption, duplicity, propaganda, betrayal and that unpleasant body odor that surrounds those who make their endless deals with the Devil. The Faustian stench, I call it.
I noticed last week when the host stopped blogging and said it was because of a death of a friend.
Now, it appears it was a death in the family. And so it finally comes home to this indredibly heartless person who has been posing as a serious, sensitive Iraqi citizen, that the cost of this glorious "regime change" he has been praising to the skies as he shilled for Bushco and enjoyed all the special advantages and perks that being an "insider" always provides one with is measurerd in human lives, brutal horror, family devastation, and abject, endless misery.
Most of the stuff on that site this last year could have been cut and pasted from Instapundit, LGF, frontpage mag or redstate with a little local color and Iraqi background thrown in to make it sound authentic and local.
Every time I checked out that site after surfing around the Internet and reading about the death squads, atroticies and incredible human suffering that was going on in Iraq both for our own troops and for the Iraqi people, then saw this endless chirping about how wonderful it all was and how soon this same "model" could be used in the rest of the Middle East, I wanted to literally vomit. The bodies and body parts were piling up all around him, the citizens who, unlike him, were afraid to go out of their homes for fear of being massacred, every horror known to man was happening at his own doorstep, and he was channeling Condi Rice?
NOW he turns to us for sympathy?
This is the kind of thing that upsets me more than any other.
Iraq the Model is the classic example of this. Until the Messenger of Misery paid his own house a visit, he was willing to blind himself to reality and the devastation of others in exchange for the equivalent of a few packs of cigarettes, figuratively.
All the damage in this world is done by those individuals who can only "feel" things when those things happen to them. They are born without the gene that allows a person to empathize with the plight of another human being, any human being, no matter how small, dismissible, discardible, or invisible.
What is great about the United States Consitution is that its basis is the recognition that every single human being has certain inalienable rights and all citizens in this country, the high and the mighty and the lowly and insignificant, are protected under a codified system of laws which protects them equally and insure no government will ever take those rights away from them.
It is a monumental human achievement to have drafted a document (with some glaring defects which were then corrected) which distinguishes between those inalienable rights and the vagaries of fate and circumstance, and reflects the philosophical soul of those men who are able to empathize with others, as opposed to the soul of most of mankind who are not.
I don't think you can really see this hypatia. No offense intended, but it explains to me why you do not see what people like me fear in putting an Alito on the Supreme Court. You do not see why Glenn's book is going to have heavy emphasis on a person like Padilla.
I am afraid, and I say this with no malice, that you simply do not "get it."
You have potential though, kiddo, and I hope you will see the light very soon.
Someone said all this better than I have now just done:
"What is a man profited, if he shall gain the whole world, and lose his own soul?" —Matthew 16:26"
Gris Lobo,
ReplyDeleteYou may find this of interest...
Gustav Hasford
There is even an on-line petition to keep his works in print. I spam it wherever I can yet so few people have signed it.
Gus Hasford, USMC, was the real Prvt. Joker in Full Metal Jacket, which was based on two of his short stories. He once wrote...
“The South is a big Indian reservation populated by ex-Confederates who are bred like cattle to die in Yankee wars... In Alabama there is no circus to run off to, so we join the Marines.”
Druidbros said:
ReplyDeleteOMG, Glenn would you please comment on Instapundits Terms of use? They are hi-larious!!
http://instapundit.com/tos.php
Oh man that was a good laugh.
From the (appropriately named) TOS:
2. Permission is granted to read, quote, cite, link to, print out or otherwise use InstaPundit content, so long as you comply with the terms below.
He thinks that if you actually read his tripe (where, as a hypothetical example, he libels you, and you just want to check it out), he can hold you to some legal "contract" to pay him a cool million in "liquidated damages" if you then try to sue him! ROFLMAO!!!!
"InstaPundit, InstaPundit.com, and 'If you've got a modem, I've got an opinion!' are all trademarks belonging to Glenn H. Reynolds."
Wouldn't surprise me in the least if Reynolds is working on a "trademark" for the phrase: "If you've found an a$$hole, I've got the website"
Reynolds seems to be a bit shaky in IP law, FWIW. Simply claiming a trademark is not sufficient to create one (nor does even registering one guarantee it will be upheld as a matter of law [though it provides more legal protection and/or remedy]). But more importantly, Glenn seems to neglect "fair use" and "parody" provisions in copyright law, as well as some of the subtleties of contract law (you know, like "agreement"?).
And Mr. "Instahack": If you're reading this and don't like what I said or did, go on and sooooooooooooo meeeeeeeeeee! While you're at it, go ahead and sue the all the webcrawling computers (not to mention the ones that just prefetch pages referenced in links to speed things up) out there that are ignoring and/or violating your "TOS" willy-nilly....
Cheers,
EWO: I appreciate that you feel you are exercising restraint, and simply alleging that I am naïve or misguided, rather than evil or pernicious, which is some progress. Certainly I see no reason why you and I should be sniping at each other.
ReplyDeleteHowever, I do not share your assessment of Iraq the Model, or of my ability to grasp Glenn’s book and its contents, including any focus he might make on the Padilla case. (I would respectfully suggest that you are in no position to know what my posture toward, or knowledge about, Glenn’s manuscript might be.)
The brothers who write ItM are well-educated, secular Sunnis who despised the tyranny of Saddam Hussein. While that beast was in power, blogging about politics – or much at all -- was pretty much an invitation to torture and death. Suddenly, that ghastly impediment was gone, and I see it as only human and humane to understand why they’d go though some euphoria at the sudden freedom of expression, and be filled with hope that civil democracy was close at hand.
As an individual who cherishes her freedom, I related to them, and understood their exuberance. It is not surprising that they’d ally themselves with U.S. bloggers who supported what they regarded as their liberation. Indeed, it would be bizarre if they did not do that.
But all of that is separate from the issue of whether it was in the interest of the United States to either (1) invade Iraq at all, or (2) to do it in the manner executed by the Bush Administration. Our interests are not necessarily in complete harmony with secular Iraqis yearning to breathe free, but it would be a cold-hearted lover of liberty who could not understand their longing.
They just experienced a traumatic loss in their family, and are living in a state of pervasive terror and violence. A few months ago they reported that their father has determined the situation is essentially hopeless, due to the clerics. They have never been glib or cavalier about the many other deaths in their nation; they simply hoped it was going to subside as an elected govt took control. That hasn’t happened, to understate, and the news they’ve been reporting has been dark for some time now.
My heart goes out to them. If we’ve left them even worse off than they were before, due to Bush and Rumsfeld’s incompetence, that is a crime.
You quote Xian scripture. I’d ask you why you think Iraqi secularists who believes in a piece of American civil scripture -- “give me liberty or give me death” -- are so evil. And the fact that it seems it is going to be death rather than liberty should be a cause of grief for us all.
The whole designation "enemy combatant" versus prisoner of war proves BushCo wants the mantle of war while distaining the "rule of law".
ReplyDeleteUm, no. See, the Third Geneva Convention goes into extensive detail about what combatants are entitled to POW status upon capture; those who do not qualify are not POWs. That is, unlike AUMF-vs-DoW, there is a clearly detailed substantive difference between a captured enemy combatant in general and a POW in particular. People of disputed POW status are entitled to a competent military tribunal under the Third Geneva Convention; the decision of such a tribunal on their status is final.
Customary international law and historical U.S. practice, unburdened by any treaties currently in force, is that enemy combatants who do not qualify as POWs are subject to summary military justice. Summary military justice is administered without benefit of trial, representation, or appeal, and may apply any lawful punishment up to and including execution.
So let's be clear. If George W. Bush calls up Guantanamo and tells the guards to execute every prisoner there who has either waived his tribunal or been found by such a tribunal to have not been a lawful combatant, that order is entirely in conformance with international law.
Michael birk: I understand your point. But I am not saying that everyone who cannot empathize with others does damage. I am saying that I think everyone who chooses to violates the rights of other human beings and takes away their lives and liberty by initiating various types of force against them would not do that if they had the same concern for the rights of others as they do for their own rights.
ReplyDeleteWould they?
My position is that the fact that they don't have that concern is not just a failure of intellectual reasoning. It's a failure of empathy.
Isn't it?
Right now I am not even thinking clearly as I am so horrified that that Chinese leader is being treated so cordially in Washington.
If I were President, that man would not even be allowed on American soil.
I am not impressed that China is a good "trading partner" when there is a brutal, repressive regime in China that is a hideous violator of human rights.
What is going to happen to that poor woman who protested and pointed out the policy of torture and killings that is going on in China? I cannot see that she broke any laws, but instead she acted out of conscience to cry out against injustice as we all often do on this site.
I hope if they try to harm, deport or imprison her in any way, Glenn Greenwald or Marty Lederman will offer to be her defense attorney. I certainly would if I were a lawyer.
Warmongering Lunatic:
ReplyDeleteSo let's be clear. If George W. Bush calls up Guantanamo and tells the guards to execute every prisoner there who has either waived his tribunal or been found by such a tribunal to have not been a lawful combatant, that order is entirely in conformance with international law.
I have rarely seen a statement that I could so clearly qualify as evil in my entire life.
While this behavior may very well be "in conformance with international law," it would be entirely heinous, obdurate, and contrary to the entire spirit of what makes America worth fighting for.
I notice that there is no overt suggestion that this would, in fact, be acceptable to you, just that it would be "...in conformance with international law." Hopefully there is no implicit suggestion.
I am reminded of the following quote:
"I've seen the proud statement of a former Attorney General who protected his boss and now brags on the fact that he tiptoed through a minefield and came out 'clean'. I can't imagine somebody like Thomas Jefferson tiptoeing though a minefield on the technicalities of the law and then bragging about being clean afterwards."
Jimmy Carter 5-4-74
Legally justifiable and morally reprehensible are not, it seems, mutually exclusive qualities.
Hypatia, you make some good points but I don't think this is one of them: If we’ve left them even worse off than they were before, due to Bush and Rumsfeld’s incompetence, that is a crime.
ReplyDeleteIt's not the incompetence at conducting evil which dismays me. I am glad of it. It's the evil policy itself that alarms.
We are occupiers in that country. I agree with what you say about the longing for liberty that burns in the heart of most, but from the moment that Saddam's foot left that country, we have been occupiers.
Freedom lovers want freedom. They want freedom from being under the control of others.
The "brother" who writes that site, who is a different brother than the ones who were invited to the White House as I understand it, is a person who viewed the Iraqi resistance fighters, meaning those who didn't want to be occupied by a foreign country, as
"insurgents" and terrorists. He condemned them, and identified the ones who were fighting them, i.e., the occupiers, i.e., us, as the good guys while the "insurgents", who I prefer to call resistance fighters, they were the bad guys.
Now that an innocent member of his family has been killed, it first hits home to him that maybe not only "insurgents" are being fought against with a little unfortunate but necessary "collateral damage" thrown into the mix.
It's an entire nation of people who were liberated from a dictator that this country installed there when we thought it suited our interests (oil stability in the Middle East, etc.) and it was the United States who failed to remove that dictator for the same reasons.
Please, hypatia, you have to put the right tags on the members of the team in order to be able to separate the players.
Why didn't we "take out Saddam" if he was the problem, and not invade the country?
Well, that would leave the oil interests up for grabs, wouldn't it? So of course we couldn't have any of that.
Meanwhile this brother writes to people around the world about the wonderful liberation and the benevolent Americans who are engaged in "regime change" because they care about "democracy."
You don't see the problem here?
As for "caring" about Padilla, that would be identical to not wanting Alito on the Supreme Court. The evidence is out there but so far you have chosen to see things a different way.
EWO writes: The "brother" who writes that site, who is a different brother than the ones who were invited to the White House as I understand it, is a person who viewed the Iraqi resistance fighters, meaning those who didn't want to be occupied by a foreign country, as
ReplyDelete"insurgents" and terrorists. He condemned them, and identified the ones who were fighting them, i.e., the occupiers, i.e., us, as the good guys while the "insurgents", who I prefer to call resistance fighters, they were the bad guys.
Wrong on virtually all counts. You are referring to Ali, who left to start his own blog when the other two visited the WH. Ali supported the invasion, and welcomed the U.S. just as his two brothers did, and regarded it as a liberation. However, he was unhappy when his brothers were invited to the WH and the affair was publicized. Sensibly, he felt this was dangerous, the equivalent of putting a target on his brothers’ backs.
EWO, we could not topple Saddam and then just leave. War is breaking things and killing people, and having done war to remove Saddam, we had an obligation to clean up what we broke. We have failed at that miserably.
And you are simply and flatly wrong if you think it took the murder of a family member for those men to realize – and grieve, lament and condemn – the deaths of innocents. It just isn’t true.
You continue: As for "caring" about Padilla, that would be identical to not wanting Alito on the Supreme Court. The evidence is out there but so far you have chosen to see things a different way.
Ah, back to that again, are we? Look, I do not believe Sam Alito is going to be so deferential to the Executive as his worst critics claim (with virtually no evidence). Further, there are two other branches of govt, and one that has also been out of control is Congress. Alito is superb on keeping that branch reined in.
In any event , I reject that “caring” about Padilla = wanting Alito off the high court. As the Hamdi case showed, the most antagonistic opinion to the Administration, and most friendly to Mr. Hamdi, was Antonin Sclaia’s. Sam Alito is, as you may have heard, “Scalito.” Thus, nothing could be more helpful to the Padillas of this world then to send a purported Scalia clone to the United States Supreme Court.
" Remarks by the President on Iraq
ReplyDeleteOctober 7, 2002
[...] Facing clear evidence of peril, we cannot wait for the final proof -- the smoking gun -- that could come in the form of a mushroom cloud. [...]
I hope this will not require military action, but it may. [...] If we have to act, we will take every precaution that is possible. We will plan carefully; [...]
If military action is necessary, the United States and our allies will help the Iraqi people rebuild their economy, and create the institutions of liberty in a unified Iraq at peace with its neighbors.
Later this week, the United States Congress will vote on this matter. I have asked Congress to authorize the use of America's military, if it proves necessary, to enforce U.N. Security Council demands. Approving this resolution does not mean that military action is imminent or unavoidable. [..]"
http://www.whitehouse.gov/news/releases/2002/10/20021007-8.html
Basically Bush wanted to make us believe that military force was still avoidable (whereas a formal declaration of war would have - naturally - implied the use of force, the AUMF should have looked like a second-to-last resort).
All the while he had - allegedly - already pondered setting up a false-flag operation and painting a decoy plane:
""The U.S. was thinking of flying U2 reconnaissance aircraft with fighter cover over Iraq, painted in U.N. colours," the memo says, attributing the idea to Mr. Bush. "
Liar.
Glenn Greenwald said...
ReplyDeleteBart: Exactly where in my post did you read anything concerning whether the AUMF waived FISA?
I'm just asking you - even though you think there is a declaration of war, and even though FISA specifically provides for what happens when there is a declaration of war (warrantless eavesdropping for up to 15 days), do you or do you not agree with the Administration's claim that the AUMF constitutes implicit statutory permission to eavesdropping without complying with the requirements of FISA?
As I have posted before, I believe that this issue can be easily disposed of as a constitutional separation of powers issue which would invalidate FISA when applied to this type of intelligence gathering.
The AUMF waiver of FISA argument should only be an alternative argument because it is unnecessary and weaker than the constitutional argument. However, Justice made a strategic decision to give the Supremes an easy out to rule for the executive and punt on the constitutional issue.
I agree with Kris that the AUMF waiver is arguable but there could be a contrary holding based on the exclusivity provision of FISA. However, based on the Hamdi opinion, I disagree with Kris that the balance would go to the exclusivity provision.
The Supremes have been very reluctant to tie a President's hands during wartime, more so than ever with the new conservative justices. Additionally, the Supremes do not like separation of powers issues and prefer to allow the elected branches to has things out politically.
Therefore, if this issue ever got before the Supremes and was not held to be moot after the DeWine Bill passes, I think the Court will take the Justice argument that the AUMF waives FISA in this particular war rather than ruling on the much weightier constitutional separation of powers issue.
Is it war if they start
ReplyDeletedrafting?
Bart's last post lays out the neocon plan for the suspension of democracy and the Bill of Rights in America and the beginning of legitimized Totalitarianism America based on an Orwellian state of a false forever war. Through in the return of the robber barons and I'd say we should be at war, with the neocons.
ReplyDelete"Ali supported the invasion, and welcomed the U.S."
ReplyDeleteSo did Chalabi, at first. I think he was even invited to the WH.
By extension, I can only assume that much of the entire world is making a tragic mistake by acting out on the simplistic desire to eliminate those who they see as "evil."
ReplyDeleteIf those people that you "perceive as evil" are in the process of eliminating you or someone else for whatever reason, it's OK to defend yourself, or others. Or don't you agree?
Anonymous said...
ReplyDeleteGris Lobo,
You may find this of interest...
Thanks :)
Gris Lobo said...
ReplyDeleteThanks :)
My pleasure. I hope it is something positive for you and I hope we can keep his work in the sphere of public discourse. It is important.