|
||
Intermarkets' Privacy Policy Support
Recent Entries
Re-Education Camp Cafe: Ice Dunking Edition
Conserving Conservatism: Democrat-Funded Bulwark All-In on Propagandizing for Unconstitutional Democrat Take-Over of Voting Laws and Making the Lawless 2020 "Election" the Rule for All Time Two More Women Accuse Governor Andrew Cuomo of Inappropriate Behavior Pampered, Entitled (Literally!) Former Royal Couple Whines About How Tough They Have It, Accuses Family of Being Racist Quick Hits In Wake of Yet Another Leftwing Censorship Campaign, "Blue Anon" Meme Goes Viral Introducing "Nosy," the HEPA Filter You Wear On Your Nose Harvard-Harris Survey: 71% Believe Antifa is a Domestic Terrorist Group; The Morning Rant Mid-Morning Art Thread Cutting The Cord And Email Security
|
« Seattle P-I Responds To Criticism Over Refusal To Publicize Pictures of Possible Terror Suspects By Running... A Haiku Contest |
Main
| Jihadis Set Five-Year-Old Boy Afire For No Particular Reason »
August 22, 2007
Law Lesson: Declarations of War ADDENDUMI intended to mention it in my earlier post but set it aside when I ran out of time for blogging this morning. Commenter Christopher Taylor reminded me of what I’d forgotten when we had this exchange in the comments: [I ask:] Did Congress "declare War" for constitutional purposes when it passed the AUMF 2002 (Iraq War Resolution)? His answer is similar to that of Attorney General Gonzales. The AG told the Senate Judiciary Committee in February 2006 (transcript here): 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. The AG claimed that there is a difference between formal declarations of war and authorizations to use military force “in law and in practice.” We will see that there is not. First, looking to case law, we will find that no U.S. court has ever found a difference between the two. Unfortunately, this discovery isn’t determinative because courts are reluctant to confront issues like these, citing the political question doctrine in order to deprive themselves of temptation to interfere in the other branches of government. Courts have, however, issued dicta on the topic, especially when discussing the Vietnam War. An important case discussing the war powers of the executive and legislative branches is Orlando v. Laird. Orlando was an enlistee ordered to serve in Vietnam during the war. He sued, claiming that the Congressional authorization for war in Vietnam (the Tonkin Gulf resolution, which was not a formal declaration of war) was insufficient to actually declare war in accordance with the constitutional requirement. The Second Circuit ultimately ruled that this was a political question: The form which congressional authorization should take is one of policy, committed to the discretion of the Congress and outside the power and competency of the judiciary, because there are no intelligible and objectively manageable standards by which to judge such actions. But on the way to that conclusion, the court wrote that war authorization can occur informally through “a resolution and war-implementing legislation” rather than a formal declaration of war and still satisfy the Declare War Clause. A more recent case which touched on this issue was Hamdan v. Rumsfeld, decided in 2006. There, the plurality opinion noted that their conclusions as to the rights and duties of the parties (i.e. terrorists and the U.S. government) did not rely on whether a formal declaration of war was issued. It was enough that a state of war existed and Congress had acted through legislation to trigger the safeguards of law. M: (Inaudible) Talbot(?). Senator, thank you for this broad gauged approach to the problems we face. My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom? (Scattered Laughter) Finally, there has been no difference in treatment between the two “in practice.” Formally declared wars have been both short and long, both limited and broad in scope, and both relatively bloodless and bona fide bloodbaths. Just like informally declared wars. As I said earlier, in practice, when Congress points the United States military at a country and tells them to “fight, overthrow, and occupy” no one should be mistaken about whether or not Congress has declared war on that poor country. | Recent Comments
Ben Had:
""you're pushin to hard, you're pushin to hard on ..."
Cat Ass Trophy: "They can tie things up in court for awhile. Poste ..." Captain Hate Won't Forget Ashli Babbitt : "Paul Mazursk[s]i[/s]y ..." Lysenko - Be happy that you're being killed by a good man instead of being left alone by a bad man. : "We talking 1970 or 1979? Big, BIG difference ther ..." John "Stonewall" Roberts: " If it does get past the Supreme Court we are done ..." Cat Ass Trophy: "Patriots! I am going to cut to the chase. Donald T ..." Lysenko - Be happy that you're being killed by a good man instead of being left alone by a bad man. : "Fake News cnn goes on to say Gina Carano wasn't "c ..." Sharon(willow's apprentice): "12 states are suing Biden over Climate executive o ..." clutch cargo - processed in a facility that may contain lead: "[i]Question for the Horde Which decade had the ..." BurtTC: "5. Stop talking about cancel culture, conspiracy t ..." Blather: "Nope having been in an F-15 E, it's so noisy, no c ..." Captain Hate Won't Forget Ashli Babbitt : "[i]Question for the Horde Which decade had the ..." Recent Entries
Re-Education Camp Cafe: Ice Dunking Edition
Conserving Conservatism: Democrat-Funded Bulwark All-In on Propagandizing for Unconstitutional Democrat Take-Over of Voting Laws and Making the Lawless 2020 "Election" the Rule for All Time Two More Women Accuse Governor Andrew Cuomo of Inappropriate Behavior Pampered, Entitled (Literally!) Former Royal Couple Whines About How Tough They Have It, Accuses Family of Being Racist Quick Hits In Wake of Yet Another Leftwing Censorship Campaign, "Blue Anon" Meme Goes Viral Introducing "Nosy," the HEPA Filter You Wear On Your Nose Harvard-Harris Survey: 71% Believe Antifa is a Domestic Terrorist Group; The Morning Rant Mid-Morning Art Thread Search
Polls! Polls! Polls!
Election Projection Federal Review Real Clear Politics Rasmussen Reports Gallup Zogby Sabato/Crystal Ball Frequently Asked Questions
The (Almost) Complete Paul Anka Integrity Kick
Primary Document: The Audio
Paul Anka Haiku Contest Announcement Integrity SAT's: Entrance Exam for Paul Anka's Band AllahPundit's Paul Anka 45's Collection AnkaPundit: Paul Anka Takes Over the Site for a Weekend (Continues through to Monday's postings) George Bush Slices Don Rumsfeld Like an F*ckin' Hammer Top Top Tens
Democratic Forays into Erotica New Shows On Gore's DNC/MTV Network Nicknames for Potatoes, By People Who Really Hate Potatoes Star Wars Euphemisms for Self-Abuse Signs You're at an Iraqi "Wedding Party" Signs Your Clown Has Gone Bad Signs That You, Geroge Michael, Should Probably Just Give It Up Signs of Hip-Hop Influence on John Kerry NYT Headlines Spinning Bush's Jobs Boom Things People Are More Likely to Say Than "Did You Hear What Al Franken Said Yesterday?" Signs that Paul Krugman Has Lost His Frickin' Mind All-Time Best NBA Players, According to Senator Robert Byrd Other Bad Things About the Jews, According to the Koran Signs That David Letterman Just Doesn't Care Anymore Examples of Bob Kerrey's Insufferable Racial Jackassery Signs Andy Rooney Is Going Senile Other Judgments Dick Clarke Made About Condi Rice Based on Her Appearance Collective Names for Groups of People John Kerry's Other Vietnam Super-Pets Cool Things About the XM8 Assault Rifle Media-Approved Facts About the Democrat Spy Changes to Make Christianity More "Inclusive" Secret John Kerry Senatorial Accomplishments John Edwards Campaign Excuses John Kerry Pick-Up Lines Changes Liberal Senator George Michell Will Make at Disney Torments in Dog-Hell Greatest Hitjobs
The Ace of Spades HQ Sex-for-Money Skankathon A D&D Guide to the Democratic Candidates Margaret Cho: Just Not Funny More Margaret Cho Abuse Margaret Cho: Still Not Funny Iraqi Prisoner Claims He Was Raped... By Woman Wonkette Announces "Morning Zoo" Format John Kerry's "Plan" Causes Surrender of Moqtada al-Sadr's Militia World Muslim Leaders Apologize for Nick Berg's Beheading Michael Moore Goes on Lunchtime Manhattan Death-Spree Milestone: Oliver Willis Posts 400th "Fake News Article" Referencing Britney Spears Liberal Economists Rue a "New Decade of Greed" Artificial Insouciance: Maureen Dowd's Word Processor Revolts Against Her Numbing Imbecility Intelligence Officials Eye Blogs for Tips They Done Found Us Out, Cletus: Intrepid Internet Detective Figures Out Our Master Plan Shock: Josh Marshall Almost Mentions Sarin Discovery in Iraq Leather-Clad Biker Freaks Terrorize Australian Town When Clinton Was President, Torture Was Cool What Wonkette Means When She Explains What Tina Brown Means Wonkette's Stand-Up Act Wankette HQ Gay-Rumors Du Jour Here's What's Bugging Me: Goose and Slider My Own Micah Wright Style Confession of Dishonesty Outraged "Conservatives" React to the FMA An On-Line Impression of Dennis Miller Having Sex with a Kodiak Bear The Story the Rightwing Media Refuses to Report! Our Lunch with David "Glengarry Glen Ross" Mamet The House of Love: Paul Krugman A Michael Moore Mystery (TM) The Dowd-O-Matic! Liberal Consistency and Other Myths Kepler's Laws of Liberal Media Bias John Kerry-- The Splunge! Candidate "Divisive" Politics & "Attacks on Patriotism" (very long) The Donkey ("The Raven" parody) |