War or "War?"

[So the professors at my school went on a retreat last weekend, planned a while ago for the purpose of discussing various issues and plans for the place. It turns out that all anyone wanted to talk about was Iraq, so I guess that's what they did. One of the things they decided to do was to postpone our regularly scheduled syllabus this week and discuss the U.S. invasion in each class, using it as a teaching tool to apply the legal principles taught in each course as a lens.]

[My Real Property professor gave it a miss, because while I'm sure there are some deep, crypto-psycho-socio-political connections one could make between Anglo-American notions of property and what's going on, it would have been folly to speculate about them over the allotted three hours. Plus, we're in the middle of some really arcane stuff anyway, so it was just as well.]

[Civil Procedure, on the other hand, was a blast. The prof brought in one of the several actions brought by anti-war members of Congress against Bush and Rumsfeld (not, you'll notice, against the government itself; several members of the military and their families were joined as plaintiffs, too, and it's dicey enough for a soldier on active duty to sue his Commander-in-Chief.) We went over each section, argued loud and long, and it really felt like something. We argue loud and long in every class at New College (leftist poltical activists who want to be lawyers...you do the math), but this time, it was good.]

[I had the most fun during the count alleging that Congress's fawning declarations allowing Bush to invade are an unconstitutional ceding of its right to declare war. While they never actually say so, they're implying that the War Powers Act, under which every conflict the U.S. military's been involved in during the last third of a century has been justified, is unconstitutional. I happen to disagree (the Commander-in-Chief, whoever he might be, does need to use the military in an emergency), but I think the Act itself needs to be tightened up, including its title.]

[Anyway, what got me going was the plaintiffs' constant, casual use of the word "war." Everyone knows what war is, right? Apparently Reps. Conyers, Lee, Kucinich, et al. don't (more power to 'em, though), because what we're involved in isn't a war. It's an illegal invasion. "War," is a very specific legal concept. I haven't looked it up, but I glean it to mean an official state of declared hostilities between two sovereign nations. ("Sovereign..." Don't even get me started on the term "sovereign...")]

[The United States hasn't been at "war" with any nation since the end of the hostilities commonly called World War II. The Constitution gives Congress, and only Congress, the power to declare "war." For political reasons which should be obvious, it has not chosen to do so with regard to Iraq (or Vietnam, or Panama, or Grenada, or Somalia, or Yugoslavia, or many of the other places we've stuck our nose where it arguably didn't belong.) In a complaint suing the President and the Secretary of Defense, therefore, the attorneys really shouldn't have used that term, don't you think? (By the way, that's why September 11th wasn't an "act of war." By which country? Nope, not Afghanistan. The "war on terrorism" is a misuse of the word.)]

[The 1st Circuit court judges denying the appeal didn't deny it on those grounds, of course, nor on the grounds that the War Powers Act is unconstitutional. They denied it on the weenie notion that the suit, since it was brought as a violation of the Constitution, isn't yet ripe for consideration because...wait, what was it? Oh, yeah: "Congress has taken no action which presents a 'fully developed dispute between the two elected branches.'" Well, of course it hasn't! It's packed with assholes of both parties who probably wish we'd nuked Baghdad in 1991 so they and their "corporate paymasters" (as Gore Vidal so piquantly puts it) could've reaped the oil profits sooner rather than later. Since a majority of members voted for the damned thing, they're sure not going turn around and create a "fully developed dispute" arguing they didn't have the right to do what they just did!]

[You can't blame the judges, of course. Imagine the career path of any judge enjoining the President from using his military power after the buildup we've all been thru. But it still sucks, and so does the imprecision of language of the plaintiffs. Of course it's a war: bang, bang, death, destruction, mayhem, big bucks, and maybe somebody'll make a sequel to Three Kings. It's just not a "war."]

[One other bit that came up in class: is the United Nations Charter a "treaty" as described in Article VI of the Constitution? Maybe not (Prof allowed that he isn't an international law expert), but it might be, and if it is, isn't the United States obligated to follow all of its provisions as though they were a law passed by Congress? No wonder conservatives have been yammering about us leaving the U.N. for decades.]

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