Incredibly Stupid Statement of the Day, 06/13/07

Today's Incredibly Stupid Statement is actually an Incredibly Stupid Question:

Alright already. I'm an authoritarian-loving, goose stepping, anti-constitutional Bushbot. But that still won't answer the question the court refused to deal with: Are we at war or not?

Since author David Moran is referring to a court decision (the ruling of the US Court of Appeals, Ninth Circuit, in al-Marri v. Wright), it stands to reason that he's looking for a legally sound answer rather than a sentimental/emotional "of course." And since his implicit holding is "of course we are, that's why this ruling is ridiculous," he's being, well, incredibly stupid.

No, the US is not at war -- at least in a legal sense.

The Constitution vests the power to create, by declaration, a legal state of war in Congress. The last time Congress made use of that power was in December of 1941, and it subsequently ended the states of war so declared. There is, at this time, no extant declaration of war. Therefore there is, at this time, no state of war in a legal sense.

Some have attempted to re-frame 2002's "Authorization For Use Of Military Force Against Iraq Resolution" as a declaration of war ... but no such re-framing can withstand scrutiny.

First of all, nowhere in either the title or the body of the resolution is the resolution referred to or styled as a declaration of war.

Secondly, the resolution, in section 3(c)(1), specifically states:

[T]he Congress declares that this section is intended to constitute specific statutory authorization [emphasis mine] within the meaning of section 5(b) of the War Powers Resolution.

... and, in section 3(c)(2):

Nothing in this joint resolution supersedes any requirement of the War Powers Resolution.

Section 4 of the resolution specifies the reports which the president is required to submit to Congress per the War Powers Resolution.

So, let's have a look at section 5(b) of the War Powers Resolution, shall we?

Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or [emphasis mine] has enacted a specific authorization for such use of United States Armed Forces ...

Note the emphasized text in the Iraq resolution and the War Powers Resolution. The Iraq resolution specifies that it is a "specific statutory authorization." The War Powers Resolution makes a clear distinction -- "or" -- between a declaration of war and an authorization. One is not the other ... and the Iraq resolution states which one it is.

Only Congress has the power to declare war. Not only has Congress not declared war, it has been very careful to specify that it hasn't declared war. Therefore, the US is not, in any legal sense, at war.

Moran wants the US to be at war, and he wants to the Ninth Circuit to rule on cases as if the US was at war. But the measure of whether or not the US is at war, and the standard on which the courts must evalauate cases, is congressional action, not David Moran's preferences.