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August 20, 2006
AUMF vs. FISA, That's The Entire Thing
When I signed on to do an occasional post on LLP, I thought I would drop an article once every two weeks, max. Then Judge Taylor's ruling came down on Thrusday and I went to work. It took me this, this, this, and finally this to cover it all.
I don't like it. Sometimes succinct is better than thorough. The posts were just too big.
So I'm going to sum it up all in the title. Everything boils down to AUMF vs. FISA.
If AUMF is a declaration of war, FISA is irrelevant. If AUMF is not a declaration of war, or if it is but for some reason it does not include intelligence-gathering in the politically safe words "all approrpiate and necessary," then FISA is judged against the AUMF, and it is very likely that Judge's Taylor's analysis wins.
I think you have to agree with that, no matetr where you stand on this. Perhaps you think I read Ex Parte Quirin too broadly, or Hamdi too narrowly, but in the end I don't think there is any other legal conclusion that you can make about what this entire thing revolves around. It's AUMF vs. FISA. To let my geek side show, the argument is equivalent to the Hulk vs. Superman.
(Had I said that in ConLaw class, I think I would have been thrown out of law school.)
Granted, there is no set language for a declaration of war, but also grant that if the Congress deliberately uses subjective language then we are all forced to watch the lawsuits unfold and come to an end before we know exactly what's going on. I've made my opinion clear that I don't think FISA is on the same playing field as a declaration of war, and I think I will gladly depart from this subject for now.
Posted by Charles at August 20, 2006 11:10 AM
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Comments
Declaring war is equivalent to sending the troops off, with the president in charge. According to the constitution, it is Congress who must decide to go to war or not go to war.
The authorization for military force doesn't send the troops anywhere. It leaves the decision up to the president. The constitution does not authorize the president to make this decision, however.
Simply put, the AUMF is an unconstitutional delegation of congress's authority/responsibility to declare war.
Posted by: paul at August 21, 2006 09:09 AM
paul, out of all the dumb things I have seen you say, this one takes the cake. I have now officially given up on you.
Posted by: Charles at August 21, 2006 10:03 AM
So where's my cakes?
Posted by: paul at August 21, 2006 05:33 PM
Paul is 100% correct. Under no circumstances can congress "delegate" their authority to declare war.
Posted by: mark at February 3, 2008 02:10 PM