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Author Topic: A Legal Challenge to War
Babbler # 1064

posted 07 March 2003 02:25 PM      Profile for 'lance     Send New Private Message      Edit/Delete Post
Some US activists are arguing that an invasion will be unconstitutional without a Congressional declaration of war.

On Tuesday, Lessin sat in a federal courthouse in Boston, where a three-judge panel of the US Court of Appeals for the First Circuit heard arguments regarding the suit that she sees as an essential step in reasserting democracy in America. The lawsuit, which is the premier legal challenge to the President's authority to wage war against Iraq, looked to be going nowhere when it was dismissed by Federal Judge Joseph Tauro in mid-February. But the plaintiffs' lead attorney in the case, Boston lawyer John Bonifaz, filed a successful motion for expedited review before the appellate court. On Tuesday, Bonifaz faced off against top lawyers for John Ashcroft's Department of Justice before Judges Sandra Lynch, Conrad Cyr and Norman Stahl.

This time, the case was not dismissed. Bonifaz argued that an invasion of Iraq without further action by Congress would violate Article I, Section 8 of the United States Constitution, which states that "Congress shall have Power...[t]o declare War." He explained that the October resolution on Iraq that was passed by the House and Senate had failed to declare war and, in fact, had unlawfully ceded to the President the authority to decide whether to launch an invasion of Iraq.

"We are not saying that the war cannot occur if Congress declares it. Our position is that the Constitution requires the President to go to Congress before launching a premeditated, first-strike invasion of another country," explains Bonifaz. "This is precisely what the framers of the Constitution intended to prevent. They placed Article 1, Section 8 in the Constitution to assure that the President of the United States would not have the power that European monarchs had held in the past in matters of war and peace."

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[ 07 March 2003: Message edited by: 'lance ]

From: that enchanted place on the top of the Forest | Registered: Jul 2001  |  IP: Logged
jeff house
Babbler # 518

posted 07 March 2003 05:47 PM      Profile for jeff house     Send New Private Message      Edit/Delete Post
Good luck on this, guys. The Courts never ruled on the legality of the Vietnam War, even though it lasted at least 10 years with US troops in-country.

There is a "political questions" doctrine which allows the courts to sidestep some issues, like war, and they use it.

The basic legal point, that Congress cannot "delegate" the right to declare war, makes some sense. But once they have said the President may make war, the President as Commander-in-Chief must have some discretion as to when and how hostilities commence. So, it seems to me some element of delegation is inherent in the separation of powers.

From: toronto | Registered: May 2001  |  IP: Logged
Babbler # 560

posted 07 March 2003 06:24 PM      Profile for Michelle   Author's Homepage     Send New Private Message      Edit/Delete Post
If I'm not mistaken, I think this is one of the arguments behind the Historians Against The War movement in the US.
From: I've got a fever, and the only prescription is more cowbell. | Registered: May 2001  |  IP: Logged

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