Gonzales

Tue Feb 7 13:36:26 PST 2006

Mary's post is a very helpful reminder that the "law" of war, as such, is the least of it.  So, there are at least four questions:

1.  Does a state of war, or a declared war -- as opposed to a statutorily authorized military conflict, such as the one against Al Qaeda -- make any legal difference as far as the *Constitution* is concerned?  (Bobby's question.)  I don't think so, but perhaps I'm forgetting something.

2.  Does a state of war, or a declared war -- as opposed to a statutorily authorized military conflict, such as the one against Al Qaeda -- make any legal difference as far as *statutes* are concerned?  Yes, a few statutes turn on such questions.

3.  Does a state of war, or a declared war -- as opposed to a statutorily authorized military conflict, such as the one against Al Qaeda -- make any legal difference as far as *international law* is concerned?  I believe the answer used to be "yes," but that now most IL norms turn instead on the existing of "armed conflict."

4.  Does a state of war, or a declared war -- as opposed to a statutorily authorized military conflict, such as the one against Al Qaeda -- make any difference as far as *our thinking about a conflict,* i.e., the ideas, myths and arguments we develop about it?  (Mary's addition.)  As this thread demonstrates, the answer to this is probably "yes" -- but (Mary aside) we're not the best experts on *that* question, are we?

 -------------- Original message ----------------------
From: Mary Dudziak <mdudziak at law.usc.edu>
> To help complicate matters, there's a nice list of "Significant Military 
> Conflicts of the United States" in an appendix to Mark Brandon's essay in 
> Tushnet, ed., The Constitution in Wartime.  And see:
> http://www.au.af.mil/au/awc/awcgate/crs/rl30172.htm (
> 
> Instances of Use of United States Armed Forces Abroad, 1798- 2004); Max 
> Boot, The Small Wars of Peace.  What comes out of all of this is that it 
> becomes difficult to divide history into time zones 
> (wartime/peacetime).  We're always in some sort of military conflict -- we 
> simply choose to give some the label of "war."  So then what's interesting 
> is what role the idea/myth of time zones plays in our thinking about law & 
> war -- even though any real distinctions in actual historical times are 
> unbelievably slippery, especially in the years after WW II.
> 
> Mary Dudziak
> 
> At 04:06 PM 2/7/2006, Scott Gerber wrote:
> >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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