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Boris Godunov
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Portland, OR
Aug 2001
time: 00:20
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quote:
Originally posted by David Floyd
Nope, and as such I think there is a possible argument that the military actions were unconstitutional - the use of military force against a nation could be construed as a de facto declaration of war, a power held only by Congress. |
Nope, doesn't work that way. The Constitution gives the President the power to send U.S. armed forces wherever he wants, with or without a declaration of war, and with or without the consent of Congress. Congress can, of course, nip that in the bud by not funding such excursions, but it can't stop them from being made.
Ergo, since only Congress can declare war, logically a President sending in the troops cannot be a war declaration.
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David Floyd
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The bottom of a large bottle of beer
Jan 1970
time: 05:20
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quote:
Nope, doesn't work that way. The Constitution gives the President the power to send U.S. armed forces wherever he wants, with or without a declaration of war, and with or without the consent of Congress. Congress can, of course, nip that in the bud by not funding such excursions, but it can't stop them from being made.
Ergo, since only Congress can declare war, logically a President sending in the troops cannot be a war declaration. |
Very true.
But do you think that the President's power as Commander in Chief extends to usurping Congressional power to create (declare) war?
I think it is much more reasonable to say the intent was that the President could order the armed forces to various stations within US territory or around the oceans, but his power stopped at the point where exercising it would be de facto declaring war.
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Boris Godunov
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Portland, OR
Aug 2001
time: 00:20
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DF - Constitutionally, there is no such thing as "de facto war," so I think the President's discretion in this regard is rather bulletproof, at least from a Constitutional standpoint. There is nothing in the Constitution that stipulates sending troops to another country is the same as declaring war.
It's rather loophole-ish, but from what I understand, past rulings of the SCOTUS have backed the ability of the C-in-C to have such authority.
But, again, if Congress wanted to stop it, they could just cut the funding, and you'd see the operation grind to a halt real fast.
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David Floyd
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The bottom of a large bottle of beer
Jan 1970
time: 05:20
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quote:
DF - Constitutionally, there is no such thing as "de facto war,"...There is nothing in the Constitution that stipulates sending troops to another country is the same as declaring war. |
Ah, but there is also nothing in the Constitution specifically allowing things such as welfare programs, for example, or many other government programs, such as gun control.
These programs are justified through various means such as "interstate commerce", "necessary and proper", and the statement that the Constitution is a living document.
Well, if indeed the Constitution is "living", and changes with the times, then there is no reason to assume that it wouldn't change with the times in terms of the definition of "declaration of war".
Thus, assuming a living Constitution, the idea of a de facto declaration of war could easily be justified.
Now, I disagree with this particular justification, because I don't believe the Constitution is living in any way - but most people do. It is inconsistent for them to maintain that it is living in one manner but not in another.
However, I believe my idea has merit on other grounds. I think that the fact that only Congress is empowered to declare war also means that only Congress is authorized to create or wage war against a foreign nation. What use would it be to say that only Congress could declare war if the President had the power to create a war anytime he wanted? It doesn't take a great leap of logic to see that is fairly inconsistent, so one must assume that because only Congress is granted the power to declare war, Congress also must be the sole body able to create or cause war.
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David Floyd
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The bottom of a large bottle of beer
Jan 1970
time: 05:20
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quote:
DF: Both S.J.RES.23 & H.J.RES.64 appear to meet the criterion set forth by the Constitution and the The War Powers Act of 1973. |
Do those particular Resolutions declare war on Afghanistan?
If not, I fail to see how war is being declared.
Now, I'm quite sure they authorize military action. If that is the case, then Congress is exceeding its bounds, in my opinion - Congress can either declare war, or not declare war, but it has no power to authorize the use of military force in any other way, except for granting letters of marquee and reprisal. Thus, I would not agree that the War Powers Act is Constitutional, in that the act basically grants Congress a power it does not have.
Further, the President only has the power to make war following a Congressional declaration of war, in my opinion.
Therefore, Congress can't authorize the President to make war, without first making war themselves through a declaration. Of course, declaring war on Afghanistan over the attacks of 9/11 probably was not politically possible, but that's not really my problem. If politicians refuse to do what they view as the right thing over political considerations, should they be in office? I certainly don't think so, whether or not I agree with them on what the right thing to do is.
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David Floyd
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The bottom of a large bottle of beer
Jan 1970
time: 05:20
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quote:
They basically declare war on "those responsible for the recent attacks launched against the United States." Afghanistan was never specifically mentioned IIRC. |
Then it wasn't a DoW against Afghanistan.
Applying that logic, it might as well be a DoW against Saudi Arabia.
quote:
I also fail to see where you get the idea that a DOW has to meet a specified format. The resolutions I'm reading are for all practical purposes a DOW. |
And, for all practical purposes, if the President uses military force against another nation he is declaring war. While I agree that there is no specified format for a DoW, your argument also helps validate my argument that the President can't "de facto" declare war.
quote:
I believe that the Act has already been tested several times before the Court. |
Yes, I know. That wasn't quite what I was disputing though.
quote:
Legally, he can order armed forces into a hostile area for 3 months before seeking the approval of Congress. You can make a good case that the Clinton administration violated the law with thier Balkan adventures based on this. |
Or at least, according to the War Powers Act, which grants powers to both Congress and the President that are, in my opinion, unconstitutional. Additionally, no President has ever accepted the Constitutionality of the War Powers Act (to my knowledge), so a President cannot use that argument to justify committing troops to combat. He must find some other argument, but his ability to serve as Commander in Chief is not enough, in that his power in that regard cannot logically extend to usurping Congress's power to declare war.
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David Floyd
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The bottom of a large bottle of beer
Jan 1970
time: 05:20
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quote:
It was against a non-State entity along the lines of the actions taken against the Barbary Pirates. |
It wasn't a DoW of any kind - it was an authorization for the President to use military force. I really don't believe that is legitimate, because Congress's power is only to declare war, not authorize military force without a DoW.
quote:
I'm argueing that the President didn't de facto declare war. I'm argueing that Congress did. |
And I'm arguing that just as the President can't go to war without a declaration, Congress can't declare war without an actual declaration. Either do it or don't - I don't see why Congress couldn't have declared war for any reasons other than petty political ones. Might as well keep everything nice and proper, rather than dance around the issue and invite criticism.
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Guynemer
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So what? That makes it right? Bullshit. 10-20 years ago, if they had asked "Should discrimination against homosexuals be allowed?" you would have gotten the same results. Doesn't make it right, Gian.
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Guynemer
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Oh, okay. Giancarlo has spoken--no more talking about this. Our Great Exalted Leader from Argentina has declared that this topic is no longer fit for discussion!
Regardless, apparently John McCain has spoken up about this... bully for him. I hope he stays in the Republican Party, they desperately need people like him.
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chegitz guevara
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Ft. Lauderdale, FL Communist Party of Apolyton
Jun 2000
time: 00:20
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Okay folks, this is the kinda stuff you're missing on Salon.com if you don't subscribe. It's $6(US) a month or $30(US) a year to subscribe. Join and find out what 36,000 other subscribers already know!
quote:
Ashcroft's murky motives
Instead of tailing "dirty bomb" suspect Abdullah al Muhajir and following him to other suspects, the federal government arrested him, but then waited a month to announce the bust. Now critics wonder what the Justice Department is really up to.
- - - - - - - - - - - -
By Dave Lindorff
June 12, 2002 | In the weeks following the Sept. 11 attack, when U.S. Attorney General John Ashcroft sent agents off on a high-profile effort to interrogate thousands of Muslim green card holders and began having the Immigration Service lock up hundreds of Muslim men on visa and other minor violations, he came under heavy criticism from a surprising direction: former FBI officials.
They claimed his dragnet was ruining the government's best chance to find out what terrorists were up to in the U.S. by arresting everyone who seemed remotely suspicious and by scaring any real terrorists deeper underground. As one former G-man said at the time, the way to catch a conspiracy is to patiently watch it develop, and then swoop in and nab everyone.
Now the arrest of alleged "dirty bomb" conspirator Abdullah al Muhajir -- often referred to by his birth name, Jose Padilla -- on apparently thin evidence, has renewed criticism that the government is mishandling the campaign against terrorism.
First, the government arrests al Muhajir, an American citizen, on a material witness warrant as he steps off a plane in Chicago's O'Hare airport. The FBI already had two undercover agents fly in to O'Hare on the same plane with him, without his knowledge. Then, after questioning him in federal detention in New York City, they bustle him off to secret detention in a military brig on a secure Navy base in South Carolina, where they bar him from contact with other inmates, his family and an attorney.
Finally, in a dramatic live television hookup from Moscow, Ashcroft on Monday announced the al Muhajir bust.
"It does seem very stupid that they arrested him, if he wasn't ready to do anything," Michael Ratner, a lawyer with the Center for Constitutional Rights, said in an interview Monday.
In a CBS interview Tuesday morning, Deputy Defense Secretary Paul Wolfowitz appeared to say that the government knew remarkably little about this alleged plot when it nabbed al Muhajir. "He clearly had associates," Wolfowitz said, "and one of the things we want to ask him about is who those associates were and how we can track them down."
And suppose he doesn't want to oblige? So far, it's been five weeks that al Muhajir has been in federal custody, and government sources are saying that he hasn't said anything.
A big question is whether the government has anything substantial at all on the 31-year-old al Muhajir.
It may be that he has almost nothing to tell them.
"In the cases I've handled where the government squeezes people in an organization for information, those people very quickly talk about someone they can afford to give up," says veteran defense attorney Leonard Weinglass. "And who's Padilla to the al-Qaida organization? He's nobody.
"There was no bomb," Weinglass continues. "There are no co-conspirators, at least that the government is telling us about. In his baggage there was no map, no plans, no battery, nothing. At his press conference Tuesday, [FBI Director Robert] Mueller said the allegations against Padilla are based not on a planned attack, not on the preparation for an attack, but on 'discussions' about an attack. That's pretty thin. You can't go to court with a case like this."
If Weinglass and Ratner are right, it may explain why the Justice Department is taking the remarkable, and highly controversial, step of treating this American citizen as a foreign enemy, and holding him, in contravention of his constitutional rights, in a Navy brig. If he were accorded those rights, they would have already had to indict or release him, 30 days having already passed since his arrest. And they would have to be preparing to try him within 90 days of his indictment. The fact that they aren't willing to do that suggests the possibility that the government doesn't think it has enough evidence to convict him, or perhaps even to indict or to hold him in prison. Hence the military approach.
Perhaps they don't want to try him because they don't want to have a lot of top secret information spilling out in court that could be useful to other terrorists. But on the face of it, it doesn't look like there's much information to spill. In which case, why didn't Ashcroft hold off and have federal agents follow al Muhajir? On the evidence of his earlier arrests, he doesn't seem to be a particularly elusive adversary. He's just a Chicago street gang veteran, and not a particularly successful one at that. He was jailed at 14 for assault. And while incarcerated later in Florida, he was dumb enough to tell a prison officer: "If you touch me, I don't know what I'll do."
And that raises the question of why we're learning about al Muhajir now, more than a month after the arrest.
Weinglass suggests it all may be part of an ongoing plan by the White House to divert attention from the Bush administration's critics in Congress, the media and the public.
"Look," he says, "the victims of 9/11 were coming to D.C. today for a rally to call for an independent commission to investigate the government's handling of intelligence. The White House knew those victims would be talking very movingly about the loss of their loved ones. They had to do something.
"The whole policy out of the White House, from the creation of the new Department of Homeland Dysfunction to this announcement is being engineered by [White House advisor Karl] Rove, and Rove's policy is to reduce criticism of the administration.
"Does anyone remember the FBI woman from Minnesota any more after this?"
So now that we've got the alleged dirty bomber, what is the government going to do with him? Maybe nothing. Citing the rules of war and precedents dating to the Civil War, they have classified him as an enemy combatant. That would allow the government to hold him until the hostilities are resolved. But unlike prior wars, there may be no defined end to the war on terror. That means al Muhajir, along with U.S.- born Saudi Yasser Esam Hamdi and other suspected Taliban and al-Qaida fighters in U.S. custody, could be in the brig for a long time to come.
Ironically, constitutional scholar Laurence Tribe of Harvard Law School sees another, much different, danger.
"The people who are calling for Padilla to get a civil trial are pushing in a direction that could be harmful to civil liberties in the long run," says Tribe.
His fear: that the government doesn't have much evidence against Padilla, and that if his case goes to trial, jurors with visions of 9/11 fresh in their minds will convict him anyway. That, Tribe says, would create "what is in effect a thought-crime."
"If we bend the rules as to what is a conspiracy, to say that the mere intention to do something is enough to make you guilty, that's a very scary thing," he says. The alternative -- letting him go -- "is also very scary, because if he is part of al-Qaida, he's part of a group that's capable of committing crimes like 9/11."
That leaves Tribe hoping that the government will just keep al Muhajir in military detention, though with access to a lawyer and with the right to go to the federal courts to force the government to prove that it has sufficient evidence to hold him.
Weinglass bluntly disagrees.
"Padilla is an American citizen," Weinglass says. "He should be indicted and tried in a civilian court as a citizen, with all his rights."
- - - - - - - - - - - -
About the writer
Philadelphia-based journalist Dave Lindorff writes regularly for Salon. |
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12-06-2002 08:30
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