Centerfield

My honest answer to each of his questions would be "No." When presented under the guise of a "dangerous terrorist", it seems to come across as reasonable to the average citizen, but I can't help but fear giving that much discretionary power to the government. Where do we draw the line? What if twenty years down the road we have someone in power who uses the process to stifle dissent? Once power is granted, it is rarely--if ever--taken back.

Sorry...meant to say power is rarely "given" back. Certainly we can take it back.

Quibbles: I found myself unable to answer several of the questions as they were tremendously unclear and vague in presentation, poorly worded, and called for precise clarifications to make any answers at all meaningful. And there's actually 12 questions, not 10, as two are doubles (one of them conditional).

Yes/No hypotheticals need to be much better worded, or they're just posturing and "push polling" rather than actual questions.

Related question: Have you quit beating your wife? Just answer yes or no!

Case in point: What does "monitor" specifically mean?

6) Serious people express their educated belief that the activity engaged in by the government is perfectly legal and within established constitutional boundaries, then are attacked by self-described "moderates" (who really, truly, used to adore President Bush before he tore up the Constitution and became a puppet of the Religious Right) as being willing to tear up the constitution and live in a police state.

Bk: Interesting post.

I've been thinking about similar questions.
The balance of security verses liberty is at the very core of a successful democracy.
To much liberty = chaos
To much security = tyranny

And questions like those posed by Mr. Welch need to be asked and answered.

But I'm not sure anyone here is named Solomon.

Tully beat me to the punch. The subject itself is a valid one, but the questions are too much in the have you quit beating your wife vein. Starting the way the questioner has doesn't lead to rational discussion.

The line is never static. But a lot of people will scream if moves an iota to either side.

Re: National identity. The rational thing (IMO) to do would be to tatoo numbers on the left forearm at birth (or implant a chip). But then the Big Brother bogeyman would be just around the corner wouldn't he?

Re: the "Pattern"...

3) Surely I can't be the only who who constantly heard the rhetorical question of "do two wrongs make a right?" asked by a parent when I was growing up. Whatever crimes might be committed by the evil terrorists have no bearing on the legality/ethics/morality of what is being done in our name by our government. Two wrongs don't make a right.

5) When did Congress declare war against Iraq?

Kevin, the Constitution gives Congress the power to declare war but does not prescribe any form in which they must do so. A congressional authorization to use military force IS a Constitutional "declaration of war."

I know a lot of folks over the years have made the "no declaration of war" argument, but it's a completely hollow one if Congress has authorized the use of military force. And they have.

#3 and #5 are both excellent examples of emotive posturing. "Full of sound and fury..."

Kevin, the Constitution gives Congress the power to declare war but does not prescribe any form in which they must do so. A congressional authorization to use military force IS a Constitutional "declaration of war."

I know a lot of folks over the years have made the "no declaration of war" argument, but it's a completely hollow one if Congress has authorized the use of military force. And they have.

I have to argue with you on that one, Tully.

Congress hasn't declared war on any nation since WWII. Korea, Cuba, Vietnam, Grenada, Panama, Iraq, Serbia, Iraq (again) . . . Congress never declared war on ANY of those countries.

The Iraq War Resolution passed in October of 2002 was NOT a declaration of war. A declaration of war, by its very definition, declares that a state of war exists between two countries the very instant that the declaration is made. The Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq, on the other hand, did NOT declare that a state of war existed between the United State and Iraq back in October of 2002--it merely gave President Bush a blank check to initiate a war with Iraq at his own discretion, so long as he offered within 48 hours to the House and the Senate his determination that:

(1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq, and

(2) acting pursuant to this resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations or persons who planned, authorized, committed or aided the terrorists attacks that occurred on September 11, 2001.

Republican Congressman Ron Paul of Texas made this exact point before the Iraq War Resolution was passed. Although he himself did not support the war, he introduced a formal congressional declaration of war so that responsibility for the war could be placed squarely on the shoulders of those members of Congress who authorized it. Congressman Paul's declaration was worded so that there could be NO amibiguity as to what it meant: "A state of war is declared to exist between the United States and the government of Iraq."

And what do you suppose the House Republican Leadership's response was to Ron Paul's request that his colleagues honor the Constitution that they had sworn to uphold? Congressman Henry Hyde, Republican Chairman of the House International Relations Committee replied :

There are things in the Constitution that have been overtaken by events, by time. Declaration of war is one of them. There are things no longer relevant to a modern society. Why declare war if you don't have to? We are saying to the President, use your judgment. So, to demand that we declare war is to strengthen something to death. You have got a hammerlock on this situation, and it is not called for. Inappropriate, anachronistic, it isn't done anymore...

Meanwhile, Democratic Congressman Tom Lantos accused Ron Paul of being "frivolous." To his Republican and Democratic detractors, Ron Paul replied: "I don’t think most Americans believe our Constitution is outdated or frivolous, and they expect Congress to follow it." In his concluding remarks, Ron Paul offered a practical reason for his colleagues to issue a formal declaration of war, as mandated by the Constitution:

When Congress issued clear declarations of war against Japan and Germany during World War II, the nation was committed and victory was achieved. When Congress shirks its duty and avoids declaring war, as with Korea, and Vietnam, the nation is less committed and the goals are less clear. No lives should be lost in Iraq unless Congress expresses the clear will of the American people and votes yes or no on a declaration of war.

Now I'm by no means an expert on the Constitution, but I've read a lot of articles by libertarians and constitutional scholars who are. Ron Paul is perhaps the only politician in Washington D.C. whose voting record is consistent with the Constitution, and when it comes to Constitutional law, I'll take his word any day over George W. Bush, Dick Cheney, Henry Hyde, or any of the idiot Democrats who voted for the Iraq War Resolution and are now straddling the fence as to whether they really supported the war.

And frankly, I respect his opinion far more than those of you who never seem to find fault with the Administration's national security policies no matter how many times they ignore the Constitution. We have an out-of-control executive branch that has run roughshod over our civil liberties, and none of you pro-war types even seem to care.

You can disagree, nic, but you'll be completely wrong. I'd suggest you don't get your legal opinions from physicians, and not take your physical ailments to attorneys. I think a lot of Ron Paul myself, but he's never been a Constitutional scholar, or even a lawyer. He's a doctor. Nor does the Constitution at any point "mandate" a formal declaration of war as you say. It just says Congress has the authority to declare war, but doesn't tell Congress how they must do so. And says that Congress makes their own procedural rules.

From a press conference with Senator Joe Biden (D-DE) in October of 2001:

My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom?"

JB: "The answer is yes, and we did it. I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever.

Got that? No legal difference at all. None whatsoever. The courts agree with Biden. Your argument (and Paul's) is not a legal point but an emotive rhetorical argument, "full of sound and fury, signifying nothing."

I think, like a lot of people, Welch is allowing himself to be guided by outdated precepts that need to be adapted to the modern world and the changes that have beset it.

For example, his fifth hypothetical was perhaps the most intriguing:

5) Should the CIA be able to legally assassinate people in countries with which the U.S. is not at war?

Whether or not Welch believes that an authorization of force equates to a declaration of war, neither status currently exists between, say, the US and Pakistan. This is an important point, because Osama Bin Laden is very likely taking sanctuary in the federally administered tribal areas (FATA) of Pakistan.

Therefore, Welch appears to believe that if a team of CIA operatives happened to cross paths with Bin Laden-- and let's say hypothetically this team was too small to capture him and that if they didn't take immediate decisive action that OBL would once again escape-- that they should be legally prohibited from assassinating him.

Is there anyone on this board that would think that makes sense? Or would we be more willing to scream at the CIA for not taking the shot when they had the chance?

Domestic law and international customs were designed in a state-centric world that knew very little about non-state and transnational actors. If we don't figure that out, and update and adapt our rules, then we're only going to give the jihadists ever more vulnerabilities to exploit.

It's even worse than that, Bobby. Several of those hypotheticals simply don't make sense, or are too vague to answer intelligently. Example: Should the National Security Agency or CIA have the ability to monitor domestic phone calls or e-mails without obtaining judicial approval?

Now, that's VERY poorly worded. They already have the "ability" to do that. We've spent billions giving 'em that ability. The ability exists independently of the judicial approval, and if it didn't exist the judicial approval would be moot. Heck, thanks to rapid technological advancement every hacker with good internet access, a pocket scanner, and a stolen credit card has those abilities--and more. The question is (or should be) under what circumstances and conditions should the NSA and/or CIA have legal authorization to monitor purely domestic communications, OR (and this is a different case) monitor international communications where one end is in the US? And under what circumstances and conditions should the evidence thus derived be "legally" usable, and for what purposes?

Another example: Should anti-terrorism cops be given every single law-enforcement tool available in non-terrorist cases?

Gee, should anti-terrorism law enforcement agents have available to them at least the resources available to every other law enforcement agent? I say that one's a resounding "HELL YES!" Rushing through the list and not reading closely, you might think the question is whether they should have extraordinary powers, over and above ordinary law enforcement. But that's not how the question reads. Instead, if you read closely, answering "no" is saying that anti-terrorism agents shouldn't even have the tools that your local police can legally use.

Another example: Should the U.S. military be tasked with enforcing domestic crime?

Um, you don't "enforce" crime. You enforce law. This one's kinda like asking if the military should be tasked with enabling domestic crime. You! Go rob that liquor store! That's an order!

I'll stop there. My point is that the hypotheticals verge on nonsensical, and as worded are therefore incapable of coherent and meaningful answers.

Michael Dorf is also a constitutional law professor and he offers a somewhat different analysis from what Biden has offered.

With all due respect to everyone involved... one doesn't need to be a constitutional law professor to grasp the stunningly obvious: A resolution which seeks to grant the president the deliberative and decision authority which the constitution reserves solely to Congress, as the Iraq resolution did, simply does not fulfill the constitutional stipulation that Congress alone has the authority to declare war. All that resoltuion accomplished was to pass the buck. It wasn't a declaration of war. It didn't authorize the use of force. It merely passed the buck.

A resolution which seeks to grant the president the deliberative and decision authority which the constitution reserves solely to Congress, as the Iraq resolution did, simply does not fulfill the constitutional stipulation that Congress alone has the authority to declare war...It didn't authorize the use of force.

Bull. An authorization to use military force that doesn't authorize the use of military force! Nice try. MAJOR stretch there, Kevin, and completely irrelevant, a lovely example of pinhead-dancing. I'll stick with primary authorites--the Constitution itself, the professor of Con-Law (an actual Senator) who wrote the AUMF, and the relevant court decisions that agree with him. Some of which Dorf cites.

Dorf does not argue what you say he does, and your interpretation is flat wrong--he argues that Congress has been reluctant to apply the label to the reality, that they have voluntarily delegated some of their powers. And he notes that the courts agree with Biden's view--if Congress authorized it (or delegated it) the point is moot. Had Bush used force without Congressional authorization, in defiance of clearly established Congressional authority, there might be an argument. But he didn't.

Thus, in practice, despite the Framers' best efforts, the dice are loaded against a substantial Congressional role in supervising the conduct of war. [from Dorf]

Yep. Congress authorizes the use of force, but the executive is (constitutionally!) tasked with the command and exercise of that authorized force. Congress retains the power to de-authorize force as well, at will, and can "fire" (impeach) the executive, but lacks the authority to micro-manage executive command authority once activated. No conflict there, and designed in on purpose. I dispute Dorf's back-handed contention that this occured "despite the Framer's best efforts." It appears to have been completely deliberative on the part of the Framers, and fits well into the checks and balances framework, and the demands of reality. One does not command armies by Congressional committee action. The phrase "commander in chief" in Article 2 Section 2 means just what it says.

That Congress may be a bunch of weasally pols concealing and obfuscating the full legal import of their actions does not change the reality or legality of those powers under the Constitution. If they delegate, they have the right and power to do so, but it is still Congress who has exercised those powers. It's part of the system design. Dorf does not address that at all. He simply says that Congress is a bunch of chickenshits when it comes to applying the label to the reality--and I agree. But that doesn't bear on the Constitutional legality or reality at all. It's a rhetorical political argument, not a legal one.

Tully,

You're free to disagree with me if you want, but you'd also be disagree with James Madison, the very man who wrote the Constitution:

The Constitution expressly and exclusively vests in the Legislature the power of declaring a state of war [and] the power of raising armies. A delegation of such powers [to the president] would have struck, not only at the fabric of our Constitution, but at the foundation of all well organized and well checked governments. The separation of the power of declaring war from that of conducting it, is wisely contrived to exclude the danger of its being declared for the sake of its being conducted.

The power to declare war resides exclusively within the legislative branch of government. A declaration of war, by its very definition, declares that a state of war exists between two separate entities. Article I Section 8 of the Constitution does not give the Legislature the power to pass "war resolutions" in which the president is given the power to initiate war whenever he deems that diplomatic means have failed, which is EXACTLY what the Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq did. Furthermore, Article II Section 2 of the Consitution says absolutely nothing about giving the president the power to initiate war at his own discretion. With regards to war, it merely states:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States

In other words, the president's powers as Commander in Chief consist of executing the war once the decision to go to war has already been made. The Constitution does not give him the power to determine when the conditions for war have been met. This power is solely vested in the legislature.

The Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq, obviously did not declare a state of war between the United States and Iraq, because no state of war was understood to have existed once this resolution had passed. In fact, Section 2 of this resolution explicitly called for the United States to pursue diplomatic efforts with relationship to Iraq. And sure enough, the United States pursued diplomatic efforts throughout the when Colin Powell made his infamous presentation to the U.N. We were not in a state of war with Iraq at that time.

If the United States is going to go from a non-state of war to a de factor state of war, it has have to have a congressional declaration of war. It's that simple. The logic that the war resolution passed by congress in October of 2002 was a formal declaration of war is patently absurd in that it left completely up to the president the decision to initiate war at a time of his own choosing. Such blanket authority would leave open to president the authority to initiate a war with another country years after the initial resolution was passed.

I'd suggest you don't get your legal opinions from physicians, and not take your physical ailments to attorneys . . .

And you're suggesting that I get my legal opinions from people like Senator Joseph Biden, who couldn't get through Law School without plagiarizing. No thanks, I'll take Congressman Ron Paul over Senator Joseph Biden any day.

By the way, Tully. I've been reading your posts over the last couple of weeks. From the initiating of war to NSA eavesdropping without warrants, you seem to give a lot of latitude to the president and his administration, to the point of implying that the president's Constitutionally-granted powers as Commander in Chief seem to supercede the rest of the Constitution. I have to ask, during a "time of war", are there any limitations of executive power that you do acknowledge?

Nice rhetorical conflation, nic, with the usual insinuative double ad hominem follow-up.

And still completely irrelevant under the Constitution. You once again ignore every salient point to soar off into the fog. I'll list 'em for you, so you can quit beating on straw men. (As any farm boy knows, all that gets you is chigger bites and grass cuts.)

My Point: The arguments proceeding from the "no formal declaration of war" line are, in the current case, completely irrelevant and hollow. They contain nothing of any applicable legal significance relating to the current case, and are thus hollow rhetoric of no legal import whatsoever. They are noise, rhetoric, bluster. The reason this is so is that the executive branch has NOT taken unilateral initiation of conflict without Congressional authorization.

Congress possesses the authority to "declare war." There is NO requirement as to the form such declaration must take, and a Congressional authorization for the executive to use military force is the functional legal equivalent under the Constitution of a formal declaration of hostilities. As Biden notes, there is no distinction between the two under the Constitution. Congress has issued two AUMF's since September 11, 2001--both are legal authorizations for the executive exercise of his discretionary military and national security authorities as commander in chief in the name of the United States. Congress retains the right to revoke those authorizations, to control the funding for the military, etc., but lacks the authority to micro-manage or modify the exercise of any command authorities clearly delegated the executive under Article II. Where that line may be is subject to much dispute (and has been for over two centuries) but that it and those related Congressional and executive authorities exist is not in the least disputable.

That simple. Just as a recognized common-law marriage is as "legal" as a statutory marriage unless actively barred by statute, a Congressional AUMF is as "legal" a declaration of war as a formal one. Congress can change that, if it wishes. Congress has had over two centuries to do so. Congress can revoke those authorizations, or simply not issue them, and then the situation is entirely different. But Congress has not. A valid (Congressionally-authorized) common-law "war" is just as "legal" as a formal one. What Congress can NOT do is encroach any Article II powers that derive from direct Constitutional authorities. Just as the executive can NOT encroach on Congressional powers that derive from direct Constitutional authorities.

The fight between Congress and the executive over where that line is does not relate to the legality of the conflict itself. Congress has already made their authorization(s), and has not revoked them. What they're arguing over is the balance of authorities and responsibilities within the "marriage." But the "marriage" itself is both legal and real.

A declaration of war, by its very definition, declares that a state of war exists between two separate entities.

Precisely! That's why the resolution to let Bush decide what to do with Iraq was not tantamount to a constitutional declaration of war. I don't care how many self-important, self-proclaimed "experts" say otherwise.

Tully, there is a fundamental difference between the authorization for Afghanistan and the authorization for Iraq. In the latter case all Congress authorized was to let Bush decide. In the former case they authorized him to act. Those are fundamentally different things and for Biden or anyone else to say they're not is dishonest and arrogantly presumptious that nobody else can grasp the obvious.

It's not obvious because it's simply not so, Kevin. I don't thinks those resolutions say what you think they say. You're completely entitled to your opinion, but as the late (and great) Daniel Patrick Moynihan once said, you're not entitled to your own facts.

The fact is still that a Congressional AUMF is the functional legal and Constitutional equivalent of a declaration of war. The fact is still that Congress OVERTLY and EXPLICITLY authorized the use of military force in both cases, citing the War Powers Act. The fact is that an AUMF is legally no different at all than a formal declaration of war for ANY applicable relevant purpose. Once Congress authorizes that use of force, and as long as they have not revoked it, the issue is moot.

And all the irrelevant posturing emotional outrage in the world will not make the "no declaration of war" argument relevant to freakin' anything right now. You can keep trying to make your point, whatever the hell it is, but it's a point of complete irrelevance, a shout in a vacuum, a tree failing to fall in an empty forest.

What the hell difference do you believe that this absolutely meaningless distinction makes anyway? Because legally and constitutionally it makes no difference at all--the two are the same damn thing expressed in different form. You believe it's an argument for or against what, specifically? Your dislike of the current president? Your dislike of the war? What?

Tully,

I know I'm not going to be able to convince you on this topic, but I'll sum up my argument quite plainly for the rest of the viewers at this site:

1) Article I Section 8 of the Constitution states that Congress shall have the power . . . To declare war.

2) Article II Section 2 of the Constitution states that the President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states during times of war.

3) The phrase declaration of war has consistently been defined as a formal acknowledgement by the government that a state of war exists between two or more nations.

4) James Madison (the very man who wrote the Constitution), in his 1793 essay The Most Dreaded Enemy of Liberty, endorsed the above definition of declaration of war when he wrote: The Constitution expressly and exclusively vests in the Legislature the power of declaring a state of war.

5) The Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq, issued on October 10 2002, did not issue a declaration of war between the United States and Iraq. It merely authorized the use of force, leaving the president to determine when conditions for war had been met.

6) Therefore, I argue that the Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq was not a Constitutional declaration of war.

With all due respect, I don't see what's so difficult to understand about this. Republican Congressman Ron Paul and former Republican Congressman Bob Barr have argued the exact same thing: that we're in an undeclared state of war with Iraq. This isn't just a cheap attempt to bash President Bush. If it's bashing anyone at all, it's criticizing Truman, Kennedy, Johnson, Nixon, Reagan, Bush Sr., Clinton, Bush Jr., and every senator and congressman who refused to offer formal declarations of war as mandated by the Constitution.

Kevin,

You do really need to control your emotional outrages. If you truly want your ideas to gain traction at this site, you really should temper your responses so that they are more calm and measured . . . just like . . . well, like Tully's.

Therefore, I argue that the Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq was not a Constitutional declaration of war.

And you're still completely wrong, nic, under all relevant authorities. I know quite well why it's so important to the anti-war faction to "make it so," why the concept of a formal declaration of war is so crucial to their arguments, but it simply ain't so. Like it or not, formal or not, Congress exercised its legitimate war powers under their powers and purview under the Constitution. The formal phrasing of their action simply doesn't matter. All that matters is that they did so.

Like I said, Tully, I don't think either of us is going to convince the other. You've been extremely pro-war from the start, and I've been extremely anti-war from the start.

It pretty much boils down to how you interpret the "Congress shall have the power . . . To declare war" statement of the Constitution. You cite Senator Biden for your justification. I cite the man who wrote the Constitution for mine. I leave fellow posters to decide for themselves.

To pause for a moment, as an amateur historian I find it important to correct some technical details here: James Madison is absolutely not the man who "wrote the Constitution." That distinction largely belongs to Gouverneur Morris of Pennsylvania, although well after the Convention ended Charles Pinckney of South Carolina would later claim that he had written the draft that was accepted by the delegates (most historians reject his claim as revisionist, although they agree he played a major role).

James Madison is regarded as the "Father of the Constitution," because of the key role he played in advocating its acceptance-- he negotiated many of the main points of the Constitution, was involved in most of the important compromises, and played the most influential role in getting it accepted by the various state conventions (chiefly in outdebating and defeating Patrick Henry's contrary position in Virginia).

His opinion of what various definitions meant or how various clauses should be interpreted should be considered in any attempt to determine what the originalist meaning was. Having said that, however, his opinions of any definitions were merely that: his opinions. Despite being proclaimed "Father of the Constitution," that did not grant him license to be sole interpreter of what the Constitution meant, no more than, say, George Washington (who after all presided over the convention) or Benjamin Franklin (who was the most senior statesman present) or Alexander Hamilton (who wrote the majority of the Federalist Papers) or any of the other luminaries who were present in Philadelphia. In fact, with the possible exception of Hamilton, I believe that all of those men would be horrified to hear that someone was suggesting their personal writings should be accepted as canon. Moreover, all of the Founders accepted common law and understood what that meant for future generations of judicial interpretation establishing precedent.

In any case, if we're going to grant such importance to Founder's Intent, the least we can do is be factually accurate when we mention those Founders.

Nic has yet to explain what possible relevance his rhetorical point would have in any real-world sense, Bobby. This is 100% germane, a required base element to any attempted rebuttal, as my argument is that a formalized declaration of war in the 19th century fashion is a dead letter, irrelevant to legality under both domestic law and the Constitution, as the formal authorizations of executive war powers have already been issued by the proper Constitutional authority (Congress) under the appropriate legal forms, which forms Congress alone determines per the Constitution.

I refuse to ascribe any unstated motivations to him--though he certainly has to me. Besides, I'm interested in seeing how many more common logical fallacies he'll deploy before he runs down.

I'll stop there. My point is that the hypotheticals verge on nonsensical, and as worded are therefore incapable of coherent and meaningful answers.

Tully, you're an awful hard grader. You've got some valid points, but I think you're making a bit much of Welch's choice to phrase the questions as yes or no ones. After all, it's an opinion piece, not an actual dialogue itself. Surely you'd at least admit that his questions identify subject areas where substantive discussion is worthwhile, even if you aren't thrilled with the way he worded them?

It's possible that if such questions as Welch asked were re-worded as compicated open-ended questions, all those would do is shut down many readers because they'd immediately know they were out of their league. My sense is that they are best taken as points of departure. We can tralk about the questions, icnluidng what's "wrong" with them, and we can most of us learn more that way, no?

Well. now that the government of Iraq has been replaced, how is it possible that we are still "at war"? The war is over, has been since Saddam took a powder. There is no reasonable analysis of the War declaration that could be construed to support the notion that the state of war that authorization to use force covered is still in effect. The “Use of Force” authorization was against the government of Saddam Hussein, no?

I would be interested in hearing how the Use of Force Authorization extends any state of war past it’s objective, which was to remove Saddam Hussein and remove the threat of WMDs, any collaboration (real or imagined) between the government of Saddam Hussein and terrorist organizations, and dismantle any ongoing weapons program and any activities that violated the cease fire.

The Use of Force Authorization is not a blank check, to argue that it is a valid war declaration currently is pretty thin even if it did pass as a war authorization at the time (which I’m not entirely sold on).

Oh, and let me add 2 more things.

1. Tully, your responses show that you're fully capable of reformulating Welch's questionns into queries that you see as legitimate. I wish you'd take a stab at speaking intelligently to some of the reformulations you made above.

2. This argument about the lack of a "formal" declaration strikes me as as about momentous as whether or not you can wear white shoes after labor day. It's a question about fashion. I'm with Tully on this. Congress gave the admin the power to use military force. You guys claiming that there has been a failure to declare war deserve for someone to make the following point:

Since we have not formally declared war, this must mean that there is no war in Iraq. We're not fighting a war, we're just using congressionally-authorized military force. Personally, I think that's the same thing. Such actions have been acknowledges by several generations now as legitmate, and have been established as legal, which Tully has taken pains to point out multiple times. So for those of you still troubled, just talk yourself into beliveing that it's not a war unless we formally declare it, and send out engraved invitations and get RSVPs from all of the principles. I'd like to say more, but I have to iron my ball dress.

Oh wait, bonus Seinfeld analogy: Kramer goes to the bank where you get $20 if the teller doesn't greet you with a "hello." Kramer wants his $20 because the teller says "hey" instead of "hello." Hilarity ensues.

I've been against the Iraq war from the start, before that even. But I think the argument over the resolution is baloney. If the president can conduct the war, he can decide when to kick it off. That the war didn't begin the moment congress passed the resolution is of little import. My pair of pennies.

Oh wait, bonus Seinfeld analogy: Kramer goes to the bank where you get $20 if the teller doesn't greet you with a "hello." Kramer wants his $20 because the teller says "hey" instead of "hello." Hilarity ensues.

Funny note...years ago I was working a teller job as I worked my way thru college. We had to pay $1 to a customer if we didn't say "Thank you for banking with us." I think my line was "We appreciate you banking with us" and I had a customer go to my manager and insist on his $1. We laughed our as*es off.

Surely you'd at least admit that his questions identify subject areas where substantive discussion is worthwhile

Absolutely! My point there was that I don't answer loaded questions when the questions are so ambiguous as to make the answers meaningless. Answering a bad question one way or another (yes or no) produces nothing but bad answers. I think each and every one of the questions could be reformulated in a meaningful way--just no way to know if the result would be what Welch was asking.

There is no reasonable analysis of the War declaration that could be construed to support the notion that the state of war that authorization to use force covered is still in effect...I would be interested in hearing how the Use of Force Authorization extends any state of war past it’s objective...to argue that it is a valid war declaration currently is pretty thin even if it did pass as a war authorization at the time.

Rick, there were two AUMF's, not mutually exclusive, and both are still in full force. Better go read 'em. Congress covered an awful lot of bases in writing them, and no reasonable analysis can claim that al the conditions invoked have been satisfied. To boot, even if a reasonable analysis did, the validty of them would still stand as long as Congress keeps them in force.

War Powers authorizations are valid until and unless revoked by Congress. Per the Constitution, they are the sole determiners of validity, both initial and continuing. It ain't over until they (as a body) say it's over, regardless of the protests of individual members.

Tully,

Well then by you interpretation of a "Declaration of War" This country has not been at war for about a dozen years since the turn of the last century. Frankly that is way, way, way, too broad of an interpretation for me and I would suspect, most of the founding fathers.

I reread the Authorization of force and here is the relevant passages that give the president the authority to use the US military.

SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) AUTHORIZATION. The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.

Is Iraq still a threat? No. Have the UN SCRs been enforced? Yes. This document has no relevance whatsoever to the activities in Iraq.

I would say that this argument about being at war is, at best, woefully inadequate to even begin discussion of any usurpation of power by the executive branch. But all this begs for an explanation, if all of this is so important, and if the country is OK with it, why not just pass the request laws to make the administration activities explicitly legal?

Ask Congress, Rick. And you're ignoring the other AUMF, and the long list of rationalizing conditions in the one you cited.

Well then by you interpretation of a "Declaration of War" This country has not been at war for about a dozen years since the turn of the last century

My standard? I'm speaking of the realisms of the Constitution. Would you like to clarify your statement? There have been only five "declared" wars in this nation's history, by the nit-picking standard of a formal and explicit declaration of war. Yet we have certainly been "at war" many more times than that, with the complete legal and constitutional approval of Congress, which is the only branch that has the constitutional authority to declare war. The "formal declaration" standard is completely irrelevant for constitutional and legal purposes. Congress has the right to determine the rules of their own proceedings, and the form in which their powers are exercised within the framework. As Brian put it, there's no constitutional requirement that they issue engraved invitations to throw a party. They can make their invites however they want.

If Congress authorizes the pre-emptive use of military force in attacking other nations, they do so only under their constitutional power of declaring war, or their power to punish "offenses against the law of nations." (Which is a tightly related authority, I note.)

As Biden said, "Under the Constitution, there is simply no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever."

It's really simple. Congress has the power to authorize the use of military force in foreign engagements. If they do so, the execution of same is then in the hands of the commander-in-chief. Congress can de-authorize that use. Congress can de-fund the military. Congress can "fire" the executive if need be. A formal declaration of war is a meaningless distinction as long as Congress makes the authorizations to use military force.

I keep waiting for someone to explain why it's so important that there be an explicit formal declaration of war. It isn't--it's irrelevant. Any Congressional authorization to the C-i-C to use military force is an exercise of the Congressional power to declare war, and fills the (legal, Constitutional) bill of having declared war.

Ask Congress, Rick. And you're ignoring the other AUMF, and the long list of rationalizing conditions in the one you cited.

I'm ignoring them because they are irrelevant they listed a bunch of stuff as to why they were doing it, the actual use of force statement was much more narrow because the congress, the people who get to declare war didn’t want to give the president a blank check from now to forever to claim to be “at war”. Pretty simple really.

And you can quote Biden all day long, doesn’t make it right. The reason a formal declaration of war is important is so the executive branch can’t use the war as an excuse to usurp and expand constitutionally limited powers. You’re right it’s not irrelevant, it’s important, I don’t want the executive branch deciding they are above the law and act without any oversight.

Tell me the executive branch in time of war can impose Marshall law and suspend habius corpus for citizens would you be alright with that?

Again under your definition we have never not been “at war, for most of my lifetime and most of the 20th century, your interpretation, and that is all it is regardless of your annoying habit of speaking as if your opinion on the matter is settled law, is simply not a settled question which is why free people can discuss the issue.

The Authorization of the use of Force is not a blank check, if the president wants one he can ask the congress to formally declare war against Al Qaeda (and there is historical president for declaring war against non-state actors, see the declaration of war against the Barbary pirates).

Again here are the parameters set by congress for the use of force:

(a) AUTHORIZATION. The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.

Those conditions have been meet, the president can no longer hide behind “War Powers”. Done, over, finished. For someone who leans libertarian you certainly have a strong stomach for giving up essential liberty. The founding fathers would crap themselves.

Rick, your argument fells awfully weak to me. First, condition 1 is vague enough to drive a truck through. As Tully suggests, once the authorization to use force is given by Congress to the commander in chief, he has the power to exercise discretion in using it until such time as congress acts again.

So President Bush is legally free to continue to use this authorization so long as he considers Iraq, in its current state, to continue to be a threat to our national security. You may not agree that Iraq is a national security threat in its current state, but you're not the one with the legal power to exercise discretion in making that judgement. The commander in chief is that person. Until such time as congress decides to to speak again to the issue is some way, Bush is acting legally within the discretion of his powers as commander in chief.

Obviously, you don't like what he's doing, and you don't agree with it. But it's not your discretion that matters here for deciding whether or not Bush is acting legally. Your opinion that Iraq is not a national security threat in its current state just doesn't matter legally. Bush as C-in-C currently is the single person who has the legal discretion to make and act upon this judgement, unless and until Congress acts again. Please notice that when congress was given the option to preclude our continuing involvment in Iraq, it overwhelmingly decides instead to approve our continuing involvement. It's laughable to all of us who understand how the government works to suggest that Bush is acting illegally while congress sits perseverating as helpless bystanders.

If you want to make an argument that Bush shouldn't be acting as he is acting, and that you don't think he should have such broad powers, why not make the argument more purely on that basis? I might even be persuaded to agree with you on it. I think your case is actually substantially weakened by trying to bootstrap it on to the argument of illegality. In other words, your righteous "hey is not hello" argument is bound to keep smashing on the shoals of the historically vast and enduring majority of people who think that for all intents and purposes hey is every bit as good as hello for all but the most unbearable nitpicking hairsplitters.

That was pure conflation, Rick, full of sound and fury but hooked to nothing in the way of factual citation, and loaded with what makes the grass grow green. You're wrong on the law, and you're wrong on the facts. Someone so inclined can parse through your post and list the non sequitars. Rebutting nonsensical tangents is a waste of my time.

But a point by way of illustration. Both of the Barbary Wars were authorized by Congress under the same style of AUMF issued in October of 2001 to go after AQ in Afghanistan, and NOT under any formal declarations of war. Of course, the Barbary authorizations did not cite the War Powers Act of 1973 at any point.

And please note that the president must go through periodic reviews of the use of force several times a year with Congress. Congress is "in the loop," and Congress has not withdrawn their authorizations or "fired" the executive.

While the executive and Congress dispute the actual full detailed extent of their respective powers in the "gray area" of conflict of constitutional authorites between branches, they have and are using an accomodative compromise that concedes nothing to the other, but still allows each to save face and do their jobs. That basic compromise has been in place since WW2, by the way, and has been used by every single president in that time frame. It was modified somewhat in 1973, but the structure is essentially the same.