Posted on 05/03/2004 7:21:17 PM PDT by Dr. Marten
Neither Adams nor Jefferson found it necessary to go find a country against which Congress might then declare war. Adams, in fact, did a Bill Clinton (one of his descendants in fact) and went to Congress to get an appropriation to pay off the pirates. Presumably Congress gave him the money because Adams paid the tribute.
Jefferson took a more direct approach. He called it "war". Others called it "war". This website has a good brief on the whole occasion: http://hnn.us/articles/287.html .
And Congress named specific countries that we were at war with. There was no general open-ended declaration.
Here we have two of the Founders ~ the guys who actually wrote the Constitution ~ and they called the action with the Barbary Pirates "war", as in W ~ A ~ R !
The conclusion is that one Philadelphia Lawyer on a FreeRepublic thread is not worth two Founding Fathers, every single time!
I see, so you've decided to change the subject yet again. If you have any kind of point, you've yet to make it.
We have at least two of the Founding Fathers who called it "war" when they had to deal with the Barbary Pirates.
Seems to me that the common, ordinary meaning of "war" was pretty much the same back 200 years ago as it is today!
Your belief that "war" has to be declared in order for it to exist is as unsupported by evidence as your claim that it has to be declared against another country!
So, to reiterate ~ the enemy can declare war against you and it will exist whether or not Congress responds. Further, the enemy need not be a country.
It's plenty supported by the evidence. It's just that when I present the evidence to you, by pointing out what Congress did, you claim that what Congress did isn't the issue.
You're all over the map on this.
And this is the mushiest, most diffuse "declaration of war" that has ever been seen in American history. In most cases, more so than has been seen in world history, sort of dictatorships. When will there cease to be Islamists who want to do vile things to the USA? Only when Arabia itself becomes a crater, which we'll never do. Voila, the US no longer has a President, it has a Commander in what might as well be perpetuity.
I wouldn't put too much stock in the fact that the Democrats haven't been making any stink over this particular point, since they pretty much pioneered the practice of taking our country to war without a declaration from Congress. I know that hypocrisy comes easily to them, but there's just no way they'd be able to spin their way out of this one. They're more apt to object to a lack of UN blessing than to a lack of a congressional declaration. Sad, but true.
So as to the constitutional question, the difference between a declaration of war and an authorization of force is twofold: First, a DOW names a country. This is important, because any "declaration of war" that doesn't actually specify whom we're at war with effectively becomes a constitutional amendment that permanently transfers large amounts of power to the Presidency. When a country is named, it obligates us to defeat the country, because that country will now consider itself at war with us and act accordingly. That prevents the declaration from being a general transfer of power with no real end in sight. Secondly, a DOW establishes, right from the point it's issued, that a state of war actually exists between us and the other country. An AOF, by contrast, simply gives the President the power to decide when (or if) we go to war with them, and again, that's effectively a permanent transfer of power, not contemplated by the Constitution.
2. "he was transferred to an area under U.S. jurisdiction" - officially, any land "occupied" during a war falls under the jurisdiction of the occupier [geneva Conventions]. This was the case in Berlin until the fall of the Berlin Wall!
Areas in the theater of war are under purely military jurisdiction. The argument that's been made in regard to Guantanamo Bay is that it's legally under Cuban jurisdiction, the same way all our overseas bases are under the jurisdiction of the countries that host them. The big problem with that argument is that the Cubans in reality have no power whatsoever to exercise any of this "jurisdiction" (nor should we want them to), so this is purely a case of lawyering a new reality into existence from nothingness. However, precedent with regard to Gitmo seems to be on the administration's side, so they may win on that point.
3. Putting the "unlawfuls" on trial [while hostilities are ongoing] - in order to fairly prosecute an "unlawful combatant", the accused must be allowed to present evidence and call witnesses on his behalf. The prosecution must also gather evidence and NOT injure the accussed's rights of due process, etc.. This is not possible in an area where hostile actions are occuring / the potential witnesses are still fighting against the detaining party. This is true whether the "unlawfuls" are US Citizens or foreigners.
That's a reasonable objection. But that doesn't mean the regular courts shouldn't have jurisdiction over the case at all. The purpose of a habeas corpus hearing is to enable the judge to evaluate whether the detainer has a valid reason to be holding the detainee. In so doing, the presiding judge has the right and responsibility to demand that the administration do as much as it feasibly can to get to the bottom of whether Hamzi and Padilla are guilty or innocent. The administration's arguing that the courts have essentially no business being involved at all, or if they do get involved, to basically just take everything the administration says at its word. That would be an abrogation of judicial responsibility.
Lastly, the "resources" I'm refering to are military resources. Just look at the situation in the Iraqi prisons right now and you'll understand what I mean! Obviously the civil justice system in the US has the resources, BUT, once the military hands jurisdiction to civilian authorities - all constitutional protections are immediately in force and the accused must be afforded a speedy trial, etc . . .
But resources are tranferable as needs arise. The government as a whole has the resources to comply with whatever demands that the court places on the authorities detaining Padilla and Hamzi (short of, as you said, going to Afghanistan to find witnesses from among the Taliban and al-Q). If they were being held in a makeshift detention center in the theater of war, and the court was placing all kind of demands on the men who are actually trying to fight the war, then I could see your objection very well. But that's not the case at all.
The biggest problem with this is the Consitution itself. According to Article VI:
Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
So, the Consitution claims that treaties have equal force to itself. If you hold the Constitution supreme, you must therefore hold treaties to have equal force. Frankly, without that clause, we'd find it pretty near impossible to be able to negotiate treaties, as no one would be willing to deal with us. It was a smart clause to include, and it does mean what it says.
Drew Garrett
It's impossible for them to have "equal" force, because if a treaty conflicts with the Constitution, one would have to take precedence over the other. What you're really trying to tell me is that treaties are superior to the Constitution, which is just plain nonsensical.
Well, I don't actually think it nonsensical. However, I don't think it would work that way either. Instead, we'd look for an interpretation that says they don't conflict.
Let's take the current situation - holding terror suspects without trial. President Bush claims the Constitution gives him this authority as commander-in-chief of the armed forces. Others claim the Geneva Convention forbids this treatment (an interpretation that is open to question, since these people are not uniformed soldiers. For the purposes of this argument, we will assume their interpretation is correct.) Which prevails?
Well, in this case, I'd argue that the Commander-in-Chief is not a blank check, nor was it ever intended to be. While in charge of the military, the President still must follow whatever rules of war have been laid out. The Geneva Convention does bind us to specific rules, which we must follow. So, to that extent, it limits the powers of the Commander-in-Chief. Not a conflict, though, just a definition.
I'm not sure what we'd do in cases where a treaty and the Constitution directly conflict. Can you give an example?
Drew Garrett
That way members of our government never need come to grips with those vexing legalistic qauestions.
A treaty which purports give the President direct legislative powers over matters that would affect our relations with the other signatory to the treaty, would be an example of a treaty that contrasts quite sharply with the Constitution, which clearly states that legislative powers are to be vested in Congress. While the other country might find it very convenient to have the President make laws on its behalf, instead of having to deal with Congress and all the messy political processes which that involves, it simply isn't constitutional to alter the powers of the various branches of government like that.
I should also add that the White House was adamant that it not be termed a declaration of war.
Last point regarding "war" - the Geneva Conventions make no stipulation between a declared and undeclared war - the rules are the same.
That may be true of the GCs (I haven't studied them), but it's not true of the U.S. Constitution. It's for that reason that how the supreme court rules in this case isn't necessarily going to affect our conduct during a declared war. And if Congress were to actually declare war against some tangible enemy, the President would have a much stronger hand in these cases.
As far as detainees are concerned, the rules are the same - occupied territory is effectively under US jurisdiction for all intents and purposes.
Occupied territory in war isn't under any kind of official civilian jurisdiction. It's just a temporary military jurisdiction that exists only as long as the need exists.
On point three, I think we are misconnecting - the purpose of detention of "combatants" (lawful or otherwise) is NOT prosecution but denial. The enemy is denied the use of those captured for the duration of hostilities.
For the executive, that's the overriding concern. For the judiciary, on the other hand, the concern is making sure that the executive doesn't have the wrong guy in custody. I understand that traditionally, judges don't get involved in POW situations like this, but again, that comes back to this whole declared/undeclared war business.
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