Bill of Rights trashed in "war" on terrorism

[Boris Godunov]

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.

[DinoDoc]

Originally posted by Dr Strangelove
The US arguably waged war (was war formally declared?)

Yes, it was.

[Boris Godunov]

Originally posted by Giancarlo
Wake up people: This guy has been stripped of his citizenship.

Which is irrelevant. The Constitution does not distinguish between citizens and non-citizens in due process. Non-citizens have the same legal rights as citizens within the criminal justice syste.

And Lincoln ignores this part of the article:

You ignored the part where it says "alleged." It's innocent until proven guilty, and he is entitled to due process of the law. No matter how heinous the crime, there can be no exception for this. Because if they except it for one, that sets the precedent they can make exceptions for many more.

A dirty radioactive bomb... and you were going to let this guy get a chance in a civilian court? Absolutely not.

Absolutely, yes. Secretive military tribunals make you feel ok? That's nutty. The entire U.S. legal code is founded on the concept of trial by jury. Everyone must get the same treatment, fair is fair.

I am glad Bush did this.

So you're both tyrannical fascists? I can agree with that.

[David Floyd]

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.

[Boris Godunov]

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.

[David Floyd]

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.

[DinoDoc]

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.

[David Floyd]

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.

[DinoDoc]

Originally posted by David Floyd
Do those particular Resolutions declare war on Afghanistan?

They basically declare war on "those responsible for the recent attacks launched against the United States." Afghanistan was never specifically mentioned IIRC.

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.

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.

I believe that the Act has already been tested several times before the Court.

Further, the President only has the power to make war following a Congressional declaration of war, in my opinion.

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.

[DinoDoc]

Also, can we not switch arguements in midstream? It confuses me.

[David Floyd]

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.

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.

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.

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.

[DinoDoc]

Originally posted by David Floyd
Then it wasn't a DoW against Afghanistan.

It was against a non-State entity along the lines of the actions taken against the Barbary Pirates.

your argument also helps validate my argument that the President can't "de facto" declare war.

I'm argueing that the President didn't de facto declare war. I'm argueing that Congress did.

[David Floyd]

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.

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.

[Rogan Josh]

I wouldn't be surprised if this limiting of US-citizen's rights wasn't the whole aim of Al Quaida's exercise. After all, it was an Al Quaida boss who ratted him out, and it would seem to be sensible policy of them to try and sow discord and tension in the US.

If the citizens of the US lose their liberty then Al Quaida have already won...

[red_jon]

Originally posted by Rogan Josh
I wouldn't be surprised if this limiting of US-citizen's rights wasn't the whole aim of Al Quaida's exercise. After all, it was an Al Quaida boss who ratted him out, and it would seem to be sensible policy of them to try and sow discord and tension in the US.

If the citizens of the US lose their liberty then Al Quaida have already won...

You don't live in America! What the hell would you know about American rights? Who are you to judge Americans?!

(Sorry Rogan, not my opinion, just a response I got from posting on the matter. Since I'm not American I obviously am not allowed an opinion on this).