(no subject)

[kathygnome]

Well, a judge in Virginia has dismissed a lawsuit by a German citizen who was tortured by the US. What's extraordinary is that if you read his decision, it makes it clear that the constitution is null and void.

"In times of war, our country, chiefly through the executive branch, must often take exceptional steps to thwart the enemy."

Comments

[veiledrachel2.livejournal.com]

It's not too surprising. The "political questions" doctrine whereby courts stay out of political issues, especially what is and is not justified for national security, in particular in times of war, is well rooted in American jurisprudence. This same doctrine was used to uphold the internment of Japanese Americans in camps during WWII, to hold that courts could not consider the Constitutionality of the Vietnam War even though the Constitution clearly says only Congress can declare war because the definition of "war" is a political question, and to dismiss hundreds of lawsuits by those persecuted on suspicion of being Communists in the 1950s. It is highly unlikely the judge's ruling will be overturned. Not only is the 4th Circuit, the appellate court above him, the most conservative circuit in the country, but the Supreme Court, even many of its liberals, are somewhat enamored of the political question doctrine. That doesn't make it right...just predictable.

[becky44.livejournal.com]

I think it's called 'xenophobia'!

If they're not US citizens and they didn't vote for us, then they don't count!

Human rights apply to everyone - not just US citizens who voted for Bush!

[lassiter.livejournal.com]

"In times of war, our country, chiefly through the executive branch, must often take exceptional steps to thwart the enemy."

Any judge that does not realize that we are not in "times of war" without a validly ratified formal congressional Declaration of War is prima facie incompetent to sit on the bench and should be forced to resign.

Of course, even a formal declaration of war does not suspend constitutional law, but as we aren't in a "war" in the first place, his decision is doubly idiotic.

The constitution gives the Executive branch two, and only two, powers regarding foreign policy. One is the signing of treaties, and the other is the appointment of ambassadors. Decisions regarding the waging of war are solely the prerogative of the legislative branch. The president as "Commander-in-Chief" is limited solely to carrying out the intent of the Congress in this arena. Back to Civics 101 for Virginia judges.

[veiledrachel2.livejournal.com]

Well technically we are at war both in Iraq and Afghanistan. Congress passed declarations of war for both and the declaration included a line about allowing Mr. Bush to take all means necessary to wage the war, including means on the domestic front. It is this line the White House has exploited to claim cover for its eavesdropping. As for decisions regarding the waging of war, the US Supreme Court has interpreted firstly that the President has discretion in chosing how to wage war after Congress declares it as part ofhis carrying out the will of Congress, and secondly that the Congress' power is to declare war, not to prevent the President from introducing troops, thus in reality the Court sees no problem with Presidents using troops outside a declared war context, hence Vietnam, Lebanon, Grenada, Bosnia/Hercegovina, and countless other places we have sent our troops as peace keepers, stabilization forces, or anything else that has not been a declared war.

[lassiter.livejournal.com]

Sorry, but no. there was never any Declaration of War as required by the US constitution (nor has there been since WW II)- merely a monetary authorization and a resolution stating that the president was free to spend that money as he saw fit. The monetary authorization is illegal without the formal declaration of war, and the Supreme Court has repeatedly ruled (in other areas of the law) that one branch of the federal government may not voluntarily relinquish its consistutional responsibilities to another branch of government, so therefore the "authorizations" givng the president the war-making powers reserved to the Congress are totally invalid.

secondly that the Congress' power is to declare war, not to prevent the President from introducing troops, thus in reality the Court sees no problem with Presidents using troops outside a declared war context, hence Vietnam, Lebanon, Grenada, Bosnia/Hercegovina, and countless other places we have sent our troops as peace keepers, stabilization forces, or anything else that has not been a declared war.

There is no constitutional power for the president to send US troops anywhere they have not been specifically invited by the duly-recognized government, so Grenada, Panama, etc. were illegal actions from top to bottom, and the rest of the cases you cite became illegal as soon as shots were fired against combatants.

[veiledrachel2.livejournal.com]

You or I may read the Constitution that way but the courts do not. As recently as 2000, in CAMPBELL V. CLINTON (DC Cir. 2000) the federal circuit court for D.C. held that President Clinton had the power to take military action in the former Yugoslavia so long as he in good faith felt it was "necessary for the national security" of the United States as the Constitution allows the President to take defensive military action without a Congressional declaration of war. The Supreme Court denied cert. The Campbell case was consistent with opinions dating back to the Vietnam War. The dissenters in Campbell said that the Court should require evidence of the necessity be presented, but the majority, following the "political questions" doctrine said that a court appraisal of the necessity would put the court in the position of determining national security and policy, a role for the Executive, not the Judicial Branch. In practice so long as there is not evidence that the President intentionally sent troops without any rational basis for a national security concern, the courts allow the President almost unlimited ability to wage military campaigns without a declaration of war. You or I might think this is blatantly unconstitutional but we are not charged with interpreting the Constitution...the courts are.

[kathygnome.livejournal.com]

Yes.

What does the lack of a formal declaration of war have to do with the claimed greater powers of our beloved leader though?