Gonzales

Tue Feb 7 13:54:51 PST 2006

Marty, aren't you already in a conundrum in the way you've framed these 
(helpful) questions?
state of war, or a declared war -- as opposed to a statutorily authorized 
military conflict
It would be one thing to say that it makes a legal difference whether we're 
in a declared war or a statutorily authorized military conflict.  But once 
you introduce the idea of "state of war", not connected to a declaration, 
you've moved into the difficulty of defining time zones.  (Unless I've 
missed something in your definition of states of war in an earlier post, in 
which case, apologies...)

But I support the drift of the questions -- which I take it are trying to 
keep us focused on the constitutional questions.  What we do in law school 
is work within what are sometimes mythic environments and figure out the 
doctrinal arguments anyway.
Mary

At 04:36 PM 2/7/2006, marty.lederman at comcast.net wrote:
>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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> > > >_______________________________________________
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> > >
> > >--------------------------------------
> > >
> > >Scott Gerber
> > >Law College
> > >Ohio Northern University
> > >Ada, OH 45810
> > >419-772-2219
> > >http://www.law.onu.edu/faculty/gerber/
> > >_______________________________________________
> > >To post, send message to Conlawprof at lists.ucla.edu
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> > _______________________________________________
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