Gonzales

[Michael Zimmer]

If this is what is suggested, I am shocked that the "war" on terrorism is 
allowed to supplant criminal law and procedure whenever the President says 
so. 

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



"Volokh, Eugene" <VOLOKH at law.ucla.edu> 
Sent by: conlawprof-bounces at lists.ucla.edu
02/08/2006 06:10 PM

To
<conlawprof at lists.ucla.edu>
cc

Subject
RE: Gonzales






                 I wonder how confident we can be that the "historic 
concept of
war or armed conflict" under U.S. law has involved "that war or use of
force being directed against another nation state."  The Civil War,
obviously, was fought against an entity that the U.S. did not recognize
as a nation state.  Were the wars against the Barbary Pirates generally
understood to be against a "nation state"?  Were the wars against Indian
tribes, especially ones within the boundaries of the U.S. understood to
be against a "nation state"?  Cf. Montoya v. United States, 180 U.S.
261, 266-67 (1901), treating such a war as a war.  In Montoya, the Court
went further, and took the view that even an attack by "a collection of
marauders" could be an "act of war," if the marauders' hostile acts "are
directed against the government or against all settlers with whom they
come in contact," as opposed to being "for the purpose of individual
plunder."  "Levying war" for purposes of treason law has long been
understood as including fomenting small-scale rebellions, where the
warring party is surely not a "nation state."

                 I've certainly heard many claims that somehow "war" for 
the
purposes of U.S. law requires another nation state; but I haven't really
seen any legal or historical authorities that support this conclusion,
and (as I suggest above) quite a few that fail to support this
conclusion.

                 Eugene



Michael Zimmer writes:

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>,
<conlawprof at lists.ucla.edu> 
SubjectRE: 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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