Judge Napolitano does an excellent job in this op-ed explaining the numerous ways in which using military tribunals on foreign soil to try alleged terrorists violates the Constitution.
The casual use of the word “war” has lead to a mentality among the public and even in the government that the rules of war could apply to those held at Guantanamo. But the rules of war apply only to those involved in a lawfully declared war, and not to something that the government merely calls a war. Only Congress can declare war — and thus trigger the panoply of the government’s military powers that come with that declaration. Among those powers is the ability to use military tribunals to try those who have caused us harm by violating the rules of war.
Congress is not authorized to delegate or transfer authority over war or any of their other powers – to the president. that's the problem.
That's a common misnomer. Congress would love for you to believe that the AUMF was a proper authorization of force – or a "declaration of war." But, by Constitutional standards, it fails. In fact, it was little more than a transfer of the power to declare war to the executive branch.
There hasn't been a proper use of the war-declaring powers since WWII. We've got a weak, ineffective congress that has continually abdicated its duty.
In fact – when presented with an amendment to declare war against Iraq, the head of the committee responsible for the legislation said such action was an "anachronism" – and that the president should simply decide.
bad news.
No – wrong again Jeff.
The AUMF said he "can" use force, not "must" Sorry, you're not even close this time.
Isn't that what I said? How can I be wrong?
My point was that you could read the literal words, as you do, and come up with the construction that you do – which was that Congress delegated authority to the President as to whether we would go to war. However, I think that if you step back and read the language in the context of the day, it was quite clear that the President was seeking Congressional authority to go to war. Do you not remember all the TV time spent, with Colin Powell showing photos and charts and such, and pitching the case?
Congress then authorized it, and in we went. There was not even the remotest contemplation that Congress would give authority and THEN, the President would decide whether to go in. The President was quite clear that his mind was already made up. In fact, that is one of the big criticisms of the ant-war group is that Bush had his mind made up and would not listen to controverting evidence.
At first reading of the AUMF, I did not take from it there was even a consideration of "if" we use force. It seemed to me that it was a "given" that force would be used. I do see that a person could construe that it did not expressly command the President to use force. However, I do see another construction which assumes the use of force was a given.
As far as the reporting, I assume (as it seems clear) that Congress only was extending authority for a limited amount of time and wanted certain information to consider in determining whether it would allow the authority to be further extended.
I don't find any of the procedure particularly disturbing, given that I was alive and conscious as it all went down. The President was all over the globe begging for support so he could go in and begin hostilities. In that context, the wording of the AUMF hardly leaves me blowing in the wind as to what was exactly going to happen. I think the intent was very clear that this was not an "if" situation.
Remember all the pitches before the UN and the various senators grand-standing, including Hillary? There was not even the possibility that once granted authority, Bush was going to have a sudden change of heart and decide to abandon his plans.
But, LITERALLY, you could read an "if" in there if that is your predisposition.
Your reading is wrong. While it was “likely” or even “most likely” that the president would use this authority to go to war, the final decision was his and his alone.
And that’s just what happened – months later, HE, and he alone, made that decision. Not congress.
That’s not even remotely constitutional.
In fact, if the president doesn’t want to go to war, and congress declares it, he either needs to wage it or get the hell out of office. So it works both ways. The final decision, though, is congress’, not the executive.
I know exactly what you are saying. On a much lesser scale, this same issue regarding improper delegation of condemnation was decided along your reasoning in a Texas court of appeals case, styled Burch vs. City of San Antonio.
I don't read the AUMF (for Iraq, specifically) as simply lacking the word "war." Not even suggesting such an idiotic concept. The word itself has nothing to do with my position.
The process – in line with the constitution – is what's important. The AUMF for Iraq did not declare war to the Constitution's standards. Instead, in practice, Congress said to the executive – "you decide on if and when we'll go to war – and let us know a short time afterwards."
That's unconstitutional.
I have personally written on this issue a number of times, and can recommend countless books and papers for you. The best, again, is Kevin Gutzman's.
I agree, Mike, that Congress is full of weak noodles who have no spine. Recall in last night's posts that I criticized these "half-baked wars." I don't know that Congress' weakness is grounds to say the President exceeded his authority when Congress pretty much delegates it, though.
That's my point. You have an interesting theory, though. I simply read the AUMF as a de facto declaration, whereas you read it as failing in whole due to lack of the express use of the term, "war." Your point is well-taken. There is no easy way to resolve which is correct.
I like Napolitano. But this quote is a little amorphous. Is he saying that the use of the military has not been properly authorized?
I thought it had been, and so I looked to be sure. I found the following.
Section 1 – Short Title
This joint resolution may be cited as the 'Authorization for Use of Military Force'.
Section 2 – Authorization For Use of United States Armed Forces
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes (sic) any requirement of the War Powers Resolution. http://en.wikipedia.org/wiki/Authorization_for_Us…
Here is the relevant excerpt from the War Powers Resolution:
Section 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. http://avalon.law.yale.edu/20th_century/warpower….
It seems to me that that the authority was expressly and undeniably granted. The idea of giving Congress the power to declare "war" was for the precise purpose of making sure the President was limited in his ability to use military force. Well, Congress might not have used the exact term, "war," but I think we can all agree that it has definitely cloaked the President with the requisite authority.
Now, what was done was to try to take the position that the Geneva Convention did not apply because the term "war" was not used in the authorization to use force (You might correct me on this, but this is what I think). I think, in Hamdan, the US Sct saw "through" that artifice and said that the Geneva Convention and laws of war DID apply but were not being followed, and that is why they said military tribunals which had some "kangaroo-court" problems as designed, were in violation and ordered the detainees to trial.
I don't think this had much to do with the Constitutional rights of the detainees as it had to do with the fact that their rights under their Geneva Convention and the laws of war were not being honored. So, I don't think the Constitution is in play on this issue – or at least should have been.
If Hamdan holds that it is, I'd be curious to see the language in the Court's opinion to that effect. Like I said, maybe I'm mistaken in some part of that, but that is what I gleaned from looking it up.
I still know of no source that grants Constitutional rights to non-citizens present in other countries…. Maybe rights under treaties and the laws of war, but no source of Constitutional rights.