Gonzales

[Michael Zimmer]

We may be at "war" with organizations, persons, etc., responsible for 9/11 
attacks, but that does not put any use of force under the AUMF within the 
historic concept of war or armed conflict without that war or use of force 
being directed against another nation state. Perhaps the Taliban counted 
in Afghanistan as the government of the country and so the AUMF might meet 
conventional standards.  However, without finding some limit to the use of 
force based on whether the target is another nation state there no longer 
is a distinction between "war" however defined and crimes.  Such a broad 
approach to the use of force that would encompass Timothy McVeigh's 
actions as terrorism and therefore not as crimes tortures our whole 
Constitution beyond recognition.

Michael J. Zimmer
Professor of Law
Seton Hall Law School
One Newark Center
Newark, NJ 07102
973.642.8833
973.642.8194 fax



"Stephen M. Griffin" <sgriffin at law.tulane.edu> 
02/08/2006 12:25 PM

To
<RJLipkin at aol.com>, <JBAER at politics.tamu.edu>, <zimmermi at shu.edu>
cc
<lawcourts-l at usc.edu>, <conlawprof-bounces at lists.ucla.edu>, 
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Subject
RE: Gonzales






Here is Ely commenting on an argument by Gregory Sidak that congressional 
authorizations must literally have the words “declaration of war” 
attached:
 
“The real problem with Sidak’s suggestion is that given the flatly 
contrary history [Ely is referring to evidence that the framers were aware 
that most 18th century wars were  not declared and they approved] it would 
be justifiable only if it constituted the only effective way the War 
Clause’s underlying purposes could be effectively served under current 
conditions, and there has been no showing by Sidak (or anyone else) that 
those purposes could not be served equally well by reverting to a regime 
of serious enforcement of a less straightjackted requirement that is 
historically precedented, namely that there be some clear advance 
congressional authorization, however labeled, of acts of war.”
 
Ely, War and Responsibility, page 26
 
In other words, I assume most of us aren’t literalists.  We don’t think it 
matters that the Constitution does not refer to supporting an “Air Force.” 
 We attend to constitutional purposes as well.  There is no point to a 
requirement to literally include the words “declaration of war” when the 
evident purpose of the clause is to have Congress authorize the “war” or 
military conflict or whatever you want to call it.  And that is indeed 
recognized in the 1973 WPR.  Further, although the lack of a declaration 
seems to have mattered to the Court in Youngstown (I believe it was 
brought up in oral argument), the current Court would have to acknowledge 
that there is substantial authority that both int’l and domestic practice 
have changed.
 
Let me put my initial point another way.  On the basis of the Sept. 2001 
AUMF, I told my students we are at war with the organizations, persons 
etc. responsible for the Sept. 11 attacks because I don’t believe there’s 
any evidence that they have been defeated, captured, eliminated etc.  Did 
I make a mistake of law?  If so, what’s the mistake?  I don’t believe 
anyone has identified one.
 
Steve Griffin
Tulane Law School
 

From: RJLipkin at aol.com [mailto:RJLipkin at aol.com] 
Sent: Tuesday, February 07, 2006 3:19 PM
To: JBAER at politics.tamu.edu; Stephen M. Griffin; zimmermi at shu.edu
Cc: lawcourts-l at usc.edu; conlawprof-bounces at lists.ucla.edu; 
conlawprof at lists.ucla.edu
Subject: Re: Gonzales
 
            Is there a brief synopsis of the argument that Declarations of 
War and authorizations of force are constitutionally indistinguishable? 
Without having examined the sources mentioned, I find this claim 
counterintuitive.
 
Bobby

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware

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