Monday, July 21, 2008

Should Congress Declare War on al Qaeda?

Testifying before Congress today, Attorney General Michael Mukasey urged Congress to formally declare war on al Qaeda. Appearing to provide testimony about pending legislation concerning the decision in the Boumediene case that detainees in Guantanamo Bay do have habeas rights, Mukasey argued that the legislation should:
prohibit courts from ordering a detainee to be released within the United States, protect secrets in court hearings, ensure that soldiers are not taken from the battlefield to testify and prevent challenges from delaying detainee trials,

In addition, he said, "Any legislation should acknowledge again and explicitly that this nation remains engaged in an armed conflict with al Qaeda, the Taliban and associated organizations, who have already proclaimed themselves at war with us."

"Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda," and related groups, he said.

As readers of this blog, I have long argued that the congressional power to declare war is about the legal status of individuals under the jurisdiction of US law, rather than the power to deploy troops and initial hostilities, and Mukasey's request fits along that opinion.

However, it would be disastrous if Congress declared war. Fortunately, it's hard to imagine Congress doing so, especially as the Bush presidency comes to an end. But, if Congress agrees with Mukasey and does declare war, Bush would be placed at the absolute zenith of presidential power. Declarations of war are tools by which Congress recognizes the grave danger faced by the nation and expands presidential power to meet that threat. The expanded power enjoyed by the president under a formal declaration of war is, in essence, the power to legislate normally possessed by Congress. Thus, under a declaration of war, presidents are able to intern US citizens, seize domestic industry, censor the press, and take similar actions of a legislative nature. Clearly, these are the kinds of powers Mukasey has in mind, as he seeks stronger powers to detain, investigate, and try those suspected of involvement in international terrorism.

And that is why Congress should not declare war. Reasonable people can and do debate over the nature of the threat posed to the US by al Qaeda. But al Qaeda does not threaten to destroy the United States, and has not even be able to mount a successful attack against the US since 2001. While the threat may very well be serious, and may even be the most serious threat faced by the US today, it does not justify giving such broad powers to the president. True, the administration has faced several setbacks in its efforts to combat al Qaeda at the hands of the Supreme Court, which very well may hurt those efforts. But cutting the Court out of the process by getting a declaration of war is not the answer. Rather, the Bush Administration should consult more with Congress to get legislative backing for its policies.


dave said...

How will it help to consult more? Last time, the SC struck down the suspension of habeas corpus.

Seth Weinberger said...

Consultation with Congress helps assure, but does not guarantee, that a policy will be on firmer ground. SCOTUS is much more hesitant to strike down a policy that has been implemented through legislation than one that has been done solely through executive fiat. In the most recent case, SCOTUS did not strike down the suspension of habeas corpus (it hasn't been suspended; only Congress has done that), but rather found that the process in place at Gitmo did not satisfy basic requirements. Consultation with Congress had occurred, but didn't help. But, on balance, working with Congress will make it more likely that policies will withstand judicial scrutiny.

dave said...

"SCOTUS is much more hesitant to strike down a policy that has been implemented through legislation than one that has been done solely through executive fiat...SCOTUS did not strike down the suspension of habeas corpus (it hasn't been suspended..."

So, maybe you can correct a misunderstanding then. If I look at the Detainee Treatment Act of 2005 (a law not "an executive fiat"), which was at issue in Boumediene v. Bush, it says:

"(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

That's not a suspension? That's not legislation? What am I missing?

Seth Weinberger said...'re misapplying the ruling. The DTA was not a full-blown suspension of habeas. Rather,it is a law detailing the conditions under which suspected terrorists can be detained, and while it did attempt to deny habeas, it also replaced it with a process designed to replicate the protections of habeas. Thus, the Boumediene decision isn't about whether Congress can suspend habeas (it can, in in cases of rebellion or actual invasion, and it's not at all clear that the GWoT satisfies those conditions), but rather whether the process established by Congress to protect wrongfully detained people in the place of habeas was adequate. And it wasn't. Thus, Boumediene is an outlier from my general argument. It's always better when an executive action is backed by Congress, but as Justice Jackson wrote in the Youngstown decision, even when the president acts pursuant to an act of Congress, that action can still be unconstitutional.

Seth Weinberger said...

Note that even Scalia's dissent noted that this case wasn't really about the suspension of habeas (he thought it strange that power to suspend the writ is basically limited to domestic crises).

Barring a full-suspension of habeas, detainees under US jurisdiction are due some kind of hearing to determine their status. If it's not a formal habeas writ, it has to be a legitimate proceeding. The process established by the DTA and used in Gitmo was not. I'm much more sympathetic to Roberts' dissent, which looked to the Eisentrager case. But even in Eisentrager, the detainees had had some kind of judicial hearing (a formal traditional military tribunal).

Also note that if the detainees were POWs, they would not have the right to contest their detention. But if Bush wants to interrogate and try them, they can't be POWs. Thus, the enemy combatant designation. But, in order to do that, the Geneva Conventions, signed and ratified by the US, demand that a hearing be given. And that is what at issue here.

dave said...
This comment has been removed by the author.
dave said...

Thanks, that makes sense.

Matt said...

Hi Seth,

I used to blog at The Dominion Pages - you may or may not remember a few comments I've posted here over the last year and a bit.

Anyway, just fyi, your blog inspired a presentation me and a few friends did today for a "senior year" course in Interstate War. We presented the idea of the Security Dilemma and gave examples.

When we started to receive challenging questions from our class mates, it took everything I had to refrain from muttering "This Seth Weinberger thing is making me crazy."

Just thought you might like to know.

- Matt from Ontario

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