Wednesday, May 28, 2008

New jersey Peace Action et al v Bush

Last week a group of Rutgers Law students, led by the legendary Frank Askin, did something very interesting, but not covered much in the main stream press: they filed a lawsuit in Federal District Court in Newark accusing Bush of conducting an illegal war in violation of Article 1, Section 8 of the U.S. Constitution. The lawsuit asserts that only Congress may declare war.

The lawsuit was filed on behalf of New Jersey Peace Action, and members of the New Jersey Chapter of Military Families Speak Out. Good for them. It’s about time someone did something sane regarding this war, with the Democrats in Congress lacking a backbone to do anything substantive.

Some interesting points for conservative Republicans who support this war AND the U.S. Constitution:

1- At the 1787 Constitutional Convention, the framers made it abundantly clear that they wished to deny the president the power to make war independently of Congress.

2- The lawsuit cites Supreme Court rulings from the 19th century that an ‘all-out’ war could only be declared by Congress, and that Congress could only authorize the president to conduct a ‘quasi’ or ‘limited’ war.

According to New Jersey Lawyer, “the plaintiffs seek a declaration that the president’s unilateral decision to launch a full-scale invasion without congressional approval is ‘capable of repetition’.
My neo-conservative buddies just love to quote the Federalist Papers when it comes to interpreting the Constitution. Like in Federalist No. 69, which stated that a president’s war making power should be “much inferior” to that of a king.

Or Federalist No. 26, which said that Congress should have the power to declare war by a formal vote, and be required to explain their vote to constituents.

Good work, Rutgers.

5 comments:

Anonymous said...

Couple of questions...

1. Are we currently in a legal state of war?

2. Wasn't the conflict under Bush Jr. 'legally' a continuance of the original Persian Gulf war?

Remember UN Resolution 687 created the terms for a cease fire which called for UN monitors to be set up. When these terms were not met by the Iraqi government the US and British forces would normally resume the Iraqi conflict.

For an example, read Bill Clinton's speech at CNN:Clinton explains Iraq strike that explains his December 16th, 1998 bombing of Iraq.

So haven't we legally been at war since 1991 with Iraq? That this past conflict was just a recinding of the ceasefire because Iraq refused to meet it UN monitoring obligations?

Now... before anyone flames me for my questions I am simply asking are these not viable arguments in a court of law.

It is sad I have to beg not to be yelled at for asking a question such as this but such is the times we live in.

Personally... I hate it.

Anonymous said...

Well, I don't recall Congress declaring war against Iraq back in 1991, either. And if the reason we went in to Iraq was their violation of the UN resolution 687, I would be compelled to think that it would be the UN to send in troops, not just us and the British.

Your reasoning could have some frightening results---we are officially still "at war" with North Korea, perhaps. We merely have a ceasefire agreement. Could we march in there, too?

Very disturbing.

Joey Novick

Anonymous said...

Congress did in 1991 what it did it 2002: it gave the President the authorization to use military force under the War Powers Act of 1973 http://en.wikipedia.org/wiki/Authorization_for_Use_of_Military_Force_Against_Iraq_Resolution_of_1991

Your blog post says that the law students are suing based on Article 1, Section 8 of the U.S. Constitution; that only Congress may declare war. But the War Powers act of 1973, which was suppose to curtail the power of the President to have these “long term military engagements”, actually allows it so long as Congress continues to authorize the engagement.

My understanding (from Wikipedia) is that Bush has so far complied with the War Powers act by asking for a resolution (2002) and by reporting to Congress within the time frame specified ( see http://en.wikipedia.org/wiki/War_Powers_Act#Questions_regarding_constitutionality ).

However under the War Powers act Congress can tell the President that its time to bring the troops home, right? See Section 5(c) http://www.yale.edu/lawweb/avalon/warpower.htm

Section 5.(c) states: Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.

So the question is how will the Rutgers law students have a case against the President if Congress has been continuing to give its authorization for Iraq under the War Powers act? Will they attack the constitutionality of the act? Even if they did, that would possibly make matters worse not better.

May I also be so bold as to inject an idea here… I know this is a Democratic blog and that mostly the Democrats are upset about this war. It seems likely that the Senate and the House will become more Democratic after this election and if Obama wins you will have both the Whitehouse and Congress.

Why not ask for a NEW War Powers act of some sort that greatly reduces the ability for both the President AND Congress to engage in these military endeavors without declaring war legally? The War Powers act of 1973 obviously isn’t good enough… otherwise the troops would be home now correct?

Seriously if you really want ‘change’ to take place you have to stop allowing these ‘military expeditions’ to happen. Otherwise you have no one else to blame but yourselves.

Sorry for the rant… love the blog.

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