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January 16, 2007


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Do present day executive unilateralists really consider the 'War On Terror' to be any more of a war than the 'War on Drugs'? Both feature a global caste of 'evildoers doing harm to America' but the latter 'war' has done incalculably more harm to Americans than the former (unless one factors in self-harm to political discourse, the rule of law, and civil liberties)

Frederick Hamilton


The War on Terror is a Congressionally approved war. It is a military war and not a euphimistic war as the war on Drugs.

Congress passed the Authorization to Use Military Force (AUMF) on September 18, 2001 by the 107th Congress. Signed into law by the president.

In the War on Terror, all phases and aspects of U.S. force (military, economic, political, intelligence, et al) are being used against those Muslim terrorist jihadists that wish to see Americans (all western infidels) dead.

Per the Constitution the only person with the authority to direct the military in this war is the president. If that is unitary, the Constitution was specific in wanting it that way.

I refer you to the WashPo op-ed piece of yesterday by Rivkin and Casey outling the powers of executive and Congress as it relates to conducting war.

You may have other ideas as to how to fight a war and who should be in charge, but for now in America we have to go by Constitutional authority. War by Congressional committees is forbidden. Again please refer to the piece I mentioned above.


The categories proposed are interesting analytical (or, perhaps rhetorical) tools, but they don't quite fit for me. I feel I'm mixing and matching them with my approach to the administration's behavior during this conflict.

Simply put, I've been trusting that our system would, in the end, do its work; that excesses would be noted as such and curtailed on the back end of the democratic process, either by the courts or congress, even if all abuse could not be prevented pro-actively; that there would be no enduring harm to the liberties we have managed to cultivate to this point in our history.

I told myself this was the "sober", "pragmatic" view of the situation. Increasingly, I am concerned that the more appropriate descriptor would be "naive". Nonetheless I now wait eagerly for the carefully separated powers enumerated in the Constitution to do their necessary work upon one another; for checks and balances to check, and balance.


I would appreciate it if somebody knowledgeable in this could explain to me how the denial of Constitutional rights to aliens is compatible with the strict wording of the Constitution. For example, the Fourth Amendement flatly states that "No person..." It doesn't say "No citizen..." yet in quite a few cases the courts have applied the (usually reasonable) notion that the strict language of the Constitution can be violated in special circumstances. The only rationale I have seen offered for this policy is the old "The Constitution is not a suicide pact" quote. Again, while some exceptions constitute reasonable policy, they are unquestionably in violation of the Fourth Amendment. So, are we all in a 'wink, wink, nudge, nudge' position with respect to the Fourth Amendment?

Joan A. Conway

Gaul was once adjoined to the continent and to Ireland during the Ice Age.

Joan A. Conway

I would appreciate it if somebody knowledgeable in this could explain to me how the denial of Constitutional rights to aliens is compatible with the strict wording of the Constitution.

I am not what I would call knowledgeable in this matter, but my hunch is that the denial of Constitutional rights to aliens lies with the Executive Office under Immigrants, and is a political question, that the courts refuse to give justifiability to under Article II and Article III.

Aliens treated disparately within the class of aliens have a better chance of adjudication then the fact aliens are treated with discrimination.

I hope this answers your inquiry for the time being until someone who can expound his comments upon your question does in this post.

Law Student

Even process theorists might have reasonable objections to the MCA on the grounds that it violates the Suspension Clause by suspending the writ despite the lack of "rebellion" or "invasion" as the text of the Constitution appears to require. This doesn't make them civil libertarians in disguise. True process theorists, for example, wouldn't uphold an executive action based on a crystal clear congressional authorization (from, say, the same Congress that passed the MCA) giving the President power to prevent publication of materials critical of the Republican party. Indeed, it's my intuition, however meaningless that might be to Professors Posner and Vermuele, that executive unilateralists would almost certainly object to such action. Process theorists will allow congressional authorization to trump poorly entrenched rights or rights not clearly in the text of the constitution. In fact, I think that all three positions consider there to be a floor of constitutional rights below which the executive cannot go. The President might have lots of inherent power, but not so much as to override textually or doctrinally clear limits. The President might have broad congressional authorization, but authorization that violates clear textual or doctrinal limits (as in my First Amendment example above) is itself unconstitutional. And for the civil libertarian, the "floor" is much more demanding.

Of course, this begs the question of which limits are textually or doctrinally clear. Do the September 11th attacks or the threat of future attacks count as an invasion for the purposes of the Suspension Clause now? I have no idea. But it seems to me that adherents of all three positions have to confront this substantive question. As many, many people have pointed out, process theory can't completely escape substantive judgments.

Joan A. Conway

Happy Birthday, Abe:

September 24, 1862, Proclamation Suspending the Write of habeas Corpus by Abraham Lincoln, requiring immediate judicial review, and later supported by Congressional action:

"Now, therefore, be it ordered, first, that during the existing insurrection and as a necessary measure for suppressing the same, all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission:

Second. That the Writ of Habeas Corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority of by the sentence of any Court Martial or Military Commission."

The State of Lincoln.

Joan A. Conway

"The Merryman case and others like it ignited a debate over Lincoln's actions. Democrats argued they were unconstitutional. Taney noted that Article 1 of the Constitution, where habeas corpus is discussed, deals exclusively with congressional powers, meaning that Congress alone can authorize the privilege's suspension. Although correct, Taney's argument framed the debate around a legalistic and secondary issue, that of congressional versus presidential power. It skirted the question of whether the situation warranted a suspension of habeas corpus at all. Thus when in March 1863 Congress passed the Habeas Corpus Act, effectively endorsing Lincoln's actions, civil libertarians were stripped of their main argument. (Taney also criticized Merryman's detention, noting that civilians aren't subject to military justice."

Joan A. Conway

Lincoln's suspension of habeas corpus. - By David Greenberg ...In his authoritative Fate of Liberty: Abraham Lincoln and Civil Liberties (1991), ... Thus when in March 1863 Congress passed the Habeas Corpus Act, ...

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