Gonzales

Stephen M. Griffin sgriffin at law.tulane.edu
Tue Feb 7 13:11:04 PST 2006


The point of my comment was that while there have been no declarations
of war since WWII, there have been important statutory authorizations of
military force which have the same constitutional status.  Ely argued
that those included the Gulf of Tonkin resolution.  I have some doubts
about that one, but as he showed, it's arguable.  Other authorizations
include the first Persian Gulf war and the latest authorizations for the
wars on Al Qaeda and Iraq.

Steve Griffin
Tulane Law School

-----Original Message-----
From: owner-lawcourts-l at usc.edu [mailto:owner-lawcourts-l at usc.edu] On
Behalf Of Scott Gerber
Sent: Tuesday, February 07, 2006 3:07 PM
To: SLevinson at law.utexas.edu
Cc: Judith Baer; cornell at mail.wsu.edu; marty.lederman at comcast.net;
conlawprof at lists.ucla.edu; lawcourts-l at usc.edu
Subject: RE: Gonzales

I'm jumping in midstream here, and I apologize if someone already 
posted what I'm about to say:  formally we haven't been at war since WW 
II.  Functionally, we've been at war many times since then, including, 
I'm sorry to say, now.  FYI, this is a great teaching issue during Con 
Law 1 (or at least at has been fun when I've discussed it w/ my 
students).

Scott Gerber
Law College
Ohio Northern University


Sanford Levinson wrote:


>For what it is worth, several of the opinions in the Steel Seizure Case
>aluded to the fact that it didn't take part in a declared war.  I have
>no idea whether this was truly important in explaining any of the
votes,
>but it at least appears in somem of the opinions.
>
>sandy 
>
>-----Original Message-----
>From: conlawprof-bounces at lists.ucla.edu
>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
>marty.lederman at comcast.net
>Sent: Tuesday, February 07, 2006 2:27 PM
>To: Judith Baer; 'cornell at mail.wsu.edu'; conlawprof at lists.ucla.edu;
>lawcourts-l at usc.edu
>Subject: RE: Gonzales
>
>Judith:  I'm curious what you mean by that.  Certainly this is very
>different from other wars we've fought -- but that's true of most wars
>when they occur.  Congress authorized the use of military force against
>Al Qaeda.  Id' say that more or less puts us at war with AQ for all but
>a few statutory purposes (i.e., statutes that are triggered by a formal
>war declaration).  
>
>To be sure, there's not a *declaration* of war here -- but then that
was
>true of Vietnam and Korea, too (and Bosnia, and the Gulf War, and
>Kosovo, and Haiti, etc.)  There *is* a consensus view of the political
>branches (and the Court in Hamdi) that we are engaged in a military
>conflict with Al Qaeda.  Given that that's so, what would follow from a
>conclusion that it's "only" a statutorily authorized military conflict,
>and not a "war," as such?  What turns on the distinction?  Something
>legal (other than the statutes I mention above)?  Something rhetorical?
>
>
>
> -------------- Original message ----------------------
>From: Judith Baer <JBAER at politics.tamu.edu>
>> A gentle reminder, Cornell. We are not at war. Therefore, comparing 
>> Gonzalez to peacetime AG's is appropriate.
>> Judy
>> 
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--------------------------------------

Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty/gerber/


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