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December 18, 2005

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The closest historical precedent I can find would be something like the Enabling Act which, while completely wrong in many ways (f'rex Bush is no Hitler, the Republicans aren't Nazis, PATRIOT doesn't create a Fuhrer, and so forth), is similar enough to warrant some further thought: it's the legal pretense covering a concentration of powers (and subsequently their abuse) otherwise prohibited by the existing legal and political frameworks.

They need some sort of mask to avoid the correct perception of a monarchy.

Even if Bush considers himself above the law his underlings probably still want cover.

Would one of Obsidian Wings' crack lawyers explain to me how the President's assertion that the executive is above legal challenge during wartime squares with the lack of a declaration of war by congress, as required by the Constitution?

I know that an "authorization of force" enables the executive to use, well, force and particularly overseas, but for the executive to use the War on Terror to bypass domestic law would require some more specific declaration by Congress in order to attain the extra-Constitutional emergency level necessitated by the Constitution, it seems to me. Have I got this wrong?

There is also the strategy of loyalty forced through complicity.

I truly believe, as horrible as it may sound, that an entire generation of young Republicans have been intentionally implicated in war crimes in the Green Zone in Iraq. Sending AEI interns to run the Iraqi reconstruction makes no sense except as a means of controlling them for the rest of their professional lives. Those kids will not soon be supporting America joining the ICC.

And so "moderate" congresspersons will vote for immoral, quasi-legal, or unconstitutional acts, and have their careers and reputations dependent on the approval and survival and dominanace of The Party.

Those kids will not soon be supporting America joining the ICC.

Those 'kids' were raised in households where the UN and international human rights organizations are viewed with contempt. It didn't take working in the Green Zone to harden those views.

But you have a better point about the Congressional Republicans.

Jack, there's a view that declarations of war are quaint, that because we've had wars without them, that they're not really required any longer. I always wonder where the Originalists are hiding when I hear that kind of talk. Anyway, here's how Judge Randolph dealt with the issue in Hamdan:

In the joint resolution, passed in response to the attacks of September 11, 2001, Congress authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided" the attacks and recognized the President's "authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, 224 (2001). In re Yamashita, 327 U.S. 1, 90 L. Ed. 499, 66 S. Ct. 340 (1946), which dealt with the validity of a military commission, held that an "important incident to the conduct of war is the adoption of measures by the military commander, not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who, in their attempt to thwart or impede our military effort, have violated the law of war." Id. at 11. "The trial and punishment of enemy combatants," the Court further held, is thus part of the "conduct of war." Id. We think it no answer to say, as Hamdan does, that this case is different because Congress did not formally declare war. It has been suggested that only wars between sovereign nations would qualify for such a declaration. See John M. Bickers, Military Commissions are Constitutionally Sound: A Response to Professors Katyal and Tribe, 34 TEX. TECH. L. REV. 899, 918 (2003). Even so, the joint resolution "went as far toward a declaration of war as it might, and as far or further than Congress went in the Civil War, the Philippine Insurrection, the Boxer Rebellion, the Punitive Expedition against Pancho Villa, the Korean War, the Vietnam War, the invasion of Panama, the Gulf War, and numerous other conflicts." The plurality in Hamdi v. Rumsfeld, in suggesting that a military commission could determine whether an American citizen was an enemy combatant in the current conflict, drew no distinction of the sort Hamdan urges upon us.

Hamdan has not been content to leave it there, and included the following in his successful cert petition:

The court of appeals vastly expanded Presidential power. Far from the battlefield–however broadly defined–and remote from any military occupation, the President convened commissions without explicit statutory authority, justified not as ancillary to the invasion of Iraq but rather by the far more morphous rubric of the “war” on terrorism. That “war” manifestly is not a war in any sense of that term against any nation or well defined enemy, nor is it a war with any definable geographic arena of conflict, nor a war in which one can pinpoint a date when hostilities end, and it most assuredly is not a war ever declared by Congress. In an undeclared war, unbounded by time, place or the identity of the enemy, the court of appeals radically extended legal precedents set during conventional wars.

The application of conventional war concepts to a war on terrorism (where terrorism is an identifiable method, rather than an identifiable enemy) raises profound legal issues with which this Court in due course will grapple. Many of these questions, including those surrounding the President’s use of troops and armaments, are not presented here. This case challenges (1) a commission without explicit Congressional authorization, (2) in a place far removed from hostilities, (3) to try an offense unknown to the laws of war, (4) under procedures that flout basic tenets of military justice, (5) against a civilian who contests his unlawful combatancy.

. . .

The Court of Appeals for the Armed Forces has precluded military jurisdiction over civilians because, under the UCMJ, the “words ‘in time of war’ mean …a war formally declared by Congress” and “a strict and literal construction of the phrase ‘in time of war’ should” confine jurisdiction. United States v. Averette, 19 C.M.A. 363, 365 (1970); see Zamora v. Woodson, 19 C.M.A. 403 (1970) (holding that “in time of war” means “a war formally declared by Congress,” and that Vietnam did not qualify); Robb v. U.S., 456 F.2d 768 (Ct. Cl. 1972) (similar).

We may well find out whether there's a war, and if so, what it is. Then again we may not, if the Court decides that Sen. Graham's suspension of habeas corpus precludes consideration of Hamdan.

How soon we forget the Alien and Sedition Act. Peter King was on Larry King last night stating emphatically that if Bush doesn't have the authority to wiretap at will, then Congress needs to pass the appropriate legislation to give him the authority for carte blanche domestic spying.

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