Hamdan v. Rumsfeld

Julian Sanchez | March 28, 2006

Audio of the oral arguments has been posted over at Georgetown Law's website.

Comments

|3.29.06 @ 9:14AM|#

I loved it when Souter asked the govt lawyer something like "Are we at war?" I've been waiting for YEARS for someone to ask that! WE ARE NOT AT WAR! EVERY TIME THE GOVT USES "WAR" AS AN EXCUSE FOR UNCONSTITUTIONAL ACTS THEY ARE BREAKING THE LAW!

JMJ

R C Dean|3.29.06 @ 10:16AM|#

You know, JMJ has an interesting point. While we were most certainly at war with the Taliban regime in Afghanistan after 9/11, and with the Saddam regime throughout the '90s right up until we mopped up the last of his regime . . .

At this point, its a little harder to identify a state that we are at war with. (Technically, I think we are still at war with the Norks, but put them aside for the nonce).

I believe Iran and Syria are committing acts of war against the US in Iraq, so it is at least arguable that we are at war with them, but are too polite to say so.

Remember, there doesn't have to be a declaration of war (however dressed up) for us to be at war. If the other side declares war, then its on, whether our Congress says anything or not. What the Constitution requires is Congressional consent to initiating a war.

Given the indeterminate nature of the fighting between the US and its allies on the one hand, and the agents/forces of Iran and Syria, on the other, we would probably need such a declaration with respect to those countries before we crossed the border.

|3.29.06 @ 10:31AM|#

I believe Iran and Syria are committing acts of war against the US in Iraq, so it is at least arguable that we are at war with them, but are too polite to say so. . . . . If the other side declares war, then its on, whether our Congress says anything or not.

If Iran and Syria really are "committing acts of war,"* then do you think this counts the same as Iran and Syria "declaring war?"

FOOTNOTE

* Having a hard time believing the same people who sold us the 45 minute mushroom cloud crappola, so skeptical about this.

R C Dean|3.29.06 @ 10:47AM|#

If Iran and Syria really are "committing acts of war,"* then do you think this counts the same as Iran and Syria "declaring war?"

Pretty much, yeah. When it comes to acting in self defense, I don't think it matters much what kind of announcement the aggressor makes.

Iran and Syria are doing their very best to skirt the edges of engaging in a war with Iraq and its allies (including the US). While their uniformed armed forces have not crossed the border, their support in many forms of the violence aimed at killing Iraqis and destabilizing the Iraqi government counts as aggression in my book.

And no nation has the obligation to sit by in the face of murderous aggression of the kind being engaged in by Iran and Syria.

|3.29.06 @ 10:55AM|#

their support in many forms of the violence aimed at killing Iraqis and destabilizing the Iraqi government counts as aggression in my book.

Over there! Over there!

Maybe they are just emulating the US. Oh wait, I think I see the difference: Iraq was about to attack the US, so the US's response was pre-emptive aggression. On the other hand, there is little chance that Iran or Syria would ever be invaded from Iraq, so they don't have a similar prerogative. Makes perfect sense now.

|3.29.06 @ 11:01AM|#

Um, RC, isn't it at least plausible that your argument is equally applicable from the other side?
After all, "no nation has the obligation to sit by in the face of murderous aggression " and one could easily argue that the US attack on Iraq was murderous aggression.

And how amusing to hear a conquered country described in terms of its alliance with the conqueror...

hugs,
Shirley Knott

R C Dean|3.29.06 @ 11:16AM|#

The difference, Shirley, is that we are not attacking Iran and Syria. Iran and Syria are engaged in aggression against Iraq, although whether that aggression amounts to 'acts of war' is, I suppose, an interesting question.

A military response to the aggression emanating from Iran and Syria would not be "pre-emptive" at all - the threat from those countries is actual and present, not imminent or potential.

On the other hand, there is little chance that Iran or Syria would ever be invaded from Iraq, so they don't have a similar prerogative.

If they would shut down the violence emanating from their territory, there is little chance they would be invaded from Iraq.

Do you really think an invasion of either Iran or Syria would be imminent in the absence of their proxy war against Iraq? Do you really think they even attempt to justify the violence they sponsor as a "pre-emptive" response to an "imminent threat" of invasion or aggression?

one could easily argue that the US attack on Iraq was murderous aggression.

It was murderous aggression, directed at the Hussein regime (with whom we had been at war for over a decade). If Iran and Syria had wanted to ally themselves with Hussein and send troops to help fight the Americans, that would be fine. That's not what they are doing. Instead, they are sponsoring a campaign of violence aimed primarily at Iraqi civilians for the purpose of destabilizing an Iraqi government with a far better claim to legitimacy than either the mullahs or the Baathists.

I think the distinctions are pretty clear. Iran and Syria cannot justify their actions in Iraq as self-defense. Iraq and its allies could justify military responses to those actions as self-defense.

R C Dean|3.29.06 @ 11:18AM|#

And how amusing to hear a conquered country described in terms of its alliance with the conqueror...

One supposes that we cannot claim Japan or most NATO nations as our allies either, under this standard.

Granted, they often don't act like it, but I think they are in fact our allies, even though we conquered all of them (except Great Britain, of course).

|3.29.06 @ 11:23AM|#

If they would shut down the violence emanating from their territory, there is little chance they would be invaded from Iraq. Do you really think an invasion of either Iran or Syria would be imminent in the absence of their proxy war against Iraq?

Depends on who decides on whether the violence has been shut.

If Hans Blix gets to make this call about the end of the proxy war, then there is some chance that the "proxy war" would end, that Blix would announce the end and invasion would no longer be imminent.

On the other hand, if Jeb Bush (our next president) makes the determination, then the proxy war will never be deemed to be over and invasion will always be imminent.

It all comes down to a "who decides" issue.

|3.29.06 @ 12:00PM|#

RCD,

"Remember, there doesn't have to be a declaration of war (however dressed up) for us to be at war. If the other side declares war, then its on, whether our Congress says anything or not. What the Constitution requires is Congressional consent to initiating a war."

I don't recall any of those nations "declaring" war on us either. We are not Constitutionally at war and therefore the president should have one count of impeachment against his sorry ass for every unconstitutional thing he has done in the name of this "war" and one count for every time he has said "we're at war."

JMJ

R C Dean|3.29.06 @ 1:59PM|#

I don't recall any of those nations "declaring" war on us either.

As I clarified above, I don't think its necessary for a formal declaration to be issued for a war to be occurring. Wars are not defined by press releases, they are defined by the presence of violence and armed aggression.

Traditionally, war occurred only between sovereigns. What the "war on terror" is struggling with these days is how to deal with armed aggression from non-sovereign states.

However, I think what we have in Iraq is armed aggression emanating from two sovereign states (Iran and Syria) for the purpose of destabilizing a third (Iraq). The fact that neither Iran nor Syria has said the magic words is irrelevant to whether the armed aggression is occurring. It is.

|3.29.06 @ 3:35PM|#

RCD,

The CONSTITUTION explicitly states what a war is. Any CONSTITUTIOANL or extra-CONASTITUTIONAL action taken in the name of WAR but first meet the criteria for being related to an actual, constitutional WAR.

JMJ