Sunday, December 25, 2005

So, we are at war, eh?

By Stephen Pizzo
 
President Bush keeps saying it -- “We are at war.” He says it most often when he is caught violating domestic or international laws and the U.S. Constitution itself.

There's a lot wrong with all that, but one thing in particular – we're not at war.

Article I, section 8, clause 11, of the Constitution grants to Congress the power "to declare War." As Hamilton noted in 1793, this was an "exception" to the general grant of "executive power" to the President, and intended to be narrowly construed.

The last time I checked Congress has not declared war. In fact the last time Congress formally declared War was on December 11, 1941 after Japan bombed Pearl Harbor.

What Congress did give the President permission to do in October 2002 in a joint resolution was to use the US military, if necessary, to force Saddam Hussein to comply with numerous UN resolutions regarding his weapons programs. Saddam continued being too cute by half and Bush pulled the trigger. 

We can argue the rest of our lives whether Bush should have pulled the trigger why he did, whether he always intended to and whether he pulled a fast one on Congress. But those are minor issues compared to the key question: are we or are we not "at war," as defined in the US Constitution?

Once war is legally declared by Congress the President's role as Commander-in-Chief expands his authority in ways difficult to challenge, logically or legally.


But – and this is an enormous but – if we are not at war President Bush has broken the law, and not just one law, but many laws, and not just once, but countless times.

So, are we at war?

Not as far as the U.S. Constitution is concerned. Congress has not declared war and only they can.

Strange, isn't it, that it's conservatives who become sexually aroused at the very mention of the U.S. Constitution, now treat it as inconvenience?  These folks, the very ones who deride federal "activist" judges for twisting and stretching the Constitution to achieve social goals, now find imaginary powers in it themselves.


And now they dare not stop.  In for a ounce, in for a pound. Laws have been broken. People could go to jail. Their leader could be impeached.

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