[CLUE-Talk] [Fwd: MRC Alert Special: ABC's War News Touts Doubt and Dissent]

[Jed S. Baer]

On 26 Mar 2003 19:06:35 -0700
"Joe 'Zonker' Brockmeier" <clue at dissociatedpress.net> wrote:

> If a citizen travels to any country prior to the beginning of
> hostilities and declaration of war (have we declared war on Iraq? I
> don't think so...not formally)

http://volokh.blogspot.com/2003_03_09_volokh_archive.html#90665908

<quote>
I've also made a related but different point: A declaration of war need
not use the words "we declare war"; for instance, the authorization of the
use of force after Sept. 11, 2001 was legally speaking a declaration of
war.
</quote>

Quoting Sen Joseph Biden:
  http://volokh.blogspot.com/2002_06_09_volokh_archive.html#85167392

<quote>
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 ... Louis
Fisher(?) and others can tell you, there is no distinction between a
formal declaration of war, and an authorization of use of force. There is
none for Constitutional purposes. None whatsoever. And we defined in that
Use of Force Act that we passed, what ... against whom we were moving, and
what authority was granted to the President.
</quote>

And the 1st Circuit:
  http://www.ca1.uscourts.gov/pdf.opinions/03-1266-01A.pdf

<quote>
The plaintiffs appropriately disavow the formalistic notion that Congress
only authorizes military deployments if it states, "We declare war." This
has never been the practice and it was not the understanding of the
founders. See J.H. Ely, War and Responsibility 25-26 (1993). Congressional
authorization for military action has often been found in the passage of
resolutions that lacked these "magic words," or in continued enactments of
appropriations or extensions of the draft which were aimed at waging a
particular war. See, e.g., Laird, 451 F.2d at 34 ("[I]n a situation of
prolonged but undeclared hostilities, where the executive continues to act
. . . with steady Congressional support, the Constitution has not been
breached."); Orlando, 443 F.2d at 1042-43 ("[T]he test is whether there is
any action by the Congress sufficient to authorize or ratify the military
activity in question."); see also Ely, supra, at 12-46 (arguing that
Congress gave constitutionally sufficient authorization for ground war in
Vietnam and Cambodia).
</quote>

Man, Eugene Volokh is one guy whose got his head screwed on right. I
continue to find his commentary both useful and insightful.

jed
-- 
I wouldn't even think about bribing a rottweiler with a steak that
didn't weigh more than I do. -- Jason Earl