I’ve written a bit about the loose political coalition that formed to keep George Bush in office in 2004, a coalition that included libertarians like Steve Green and Glenn Reynolds who found a certain wisdom in the idea of a exporting a strong national defense to fight international terrorism. But what I haven’t noted much is the increasing tendency of certain anti-war libertarians to try to tear down their pro-war counterparts as they drift increasingly toward a coalition with their counterparts on the anti-war left. And I’m not talking here simply about nutters like Justin Raimondo, either.
For instance, here’s Reason’s Jesse Walker, who rips a Glenn Reynolds quote from a 1999 Reason piece out of context in order to pull off one of the anti-war contingents’ favorite rhetorical plays: the “gotcha” moment. Walker titles his post, “The Past Is Another Planet,” after which follows:
Glenn Reynolds, writing in Reason in 1999:
[O]ur current situation--with so many foreign troop deployments that even military buffs can’t keep track of them all and with wars initiated essentially on presidential whim--would have horrified the Framers.:
In an update, Walker seems to intimate that his original post had no real point to it other than, say, “times change,” or something equally as innocuous, but the highlighting of a quote that speaks to “wars initiated essentially on presidential whim” in the midst of a war that many critics have suggested we were “lied” into on the whim of a crazed fundamentalist despot, strikes me as quite loaded—despite Walker’s subsequent protestations or lack of attendant editorial comment in the original post.
Notes Reynolds in response:
WHEN MINDLESS SNARK SUBSTITUTES FOR THOUGHT: Jesse Walker quotes something I wrote in 1999 about how “wars initiated essentially on presidential whim” would have horrified the Framers, and it’s supposed, I guess, to indicate some change in my views.
Er, except that war on Al Qaeda, and the invasion of Iraq, were explicitly authorized by Congress, in declarations of war and everything. After, you know, an actual attack on the United States.
A pretty lame effort on Jesse’s part—really, a cheap shot—but typical of what passes for antiwar analysis, even among libertarians today, I’m afraid.
In his update, Walker affects the attitude of one perplexed by denial of the obvious, noting that Glenn “denies (not very convincingly) that his views have changed, and claims, bizarrely, that the Afghan and Iraqi campaigns were preceded by congressional declarations of war.”
This is, of course, a predictable semantic dodge, as Walker wants us to differentiate actual declarations of war from authorizations for the use of force—something that notorious Bush Kultist Joe Biden, for instance, has explicitly refused to do [see also, Doe v Bush, with thanks to Peter Jackson]– in order to claim that Glenn’s distinction between war based on “whim” and war based on congressional authorization is “bizarre.”
But what is truly bizarre is to confuse a “whim” with a bi-partisan Congressional authorization for the use of force, which is what one must do to declare, as Walker has, the Reynolds has changed his tune over 7 years.
BECAUSE OF THE HYPOCRISY.
But as Reynolds himself notes in an update:
I’m not really sure what point Walker was trying to make in his post anyway. That—as some of his commenters libellously suggest—I’m on the White House payroll? (Er, no again). That I hated Clinton back then, but love Bush now? No, in fact I co-wrote a book generally regarded as a Clinton defense, though I was pretty disappointed in him by the end. But I didn’t let my disappointment with Clinton turn into a hatred of all his policies, the way that some people seem to have let their dislike of Bush turn into a belief that all of Bush’s policies—and anyone who defends any of them—have become evil. Indeed, regular readers of InstaPundit will see that my references to Bush and the Republicans are not exactly uniformly positive. (And I have managed to praise Clinton when I thought he deserved it, too.) One would think that libertarians, as Walker claims to be, would be less anxious to divide the world up into teams, but that seems not to be the case, alas.
I’m a subscriber to Reason — and my wife and I both enjoy much of it, especially when it takes care to avoid its rather obvious biases against the war—but at times, it reads not a whole lot differently from, say, The Nation with an appetite for free music downloads and legalized hash brownies.
****
In the comments, Jesse Walker responds:
You can assume all you want about my motives, Jeffâ€â€you too, Billy, though if you really saw jealousy of Glenn in my post I suspect there’s more than a little projection going onâ€â€but it’s simply not true that I ripped Reynolds’ quote out of context. If anything, he ripped it out of context in his reponse, by acting as though this is about presidential whims rather than the general skepticism towards intervention abroad that the original context provides.
[my emphasis]
I’ll allow that Jesse may have intended to highlight this point, but I’ll also say that by including, in his implied “argument,” the suggestion that presidential whims are animating such interventions—particularly when he does so with no editorial gloss in our current highly partisan atmosphere—was at the very least dubious, if not unnecessarily loaded.
Walker continues:
And it’s not a semantic dodge to point out that there was no declaration of war before either the Afghan or Iraqi campaigns. Glenn’s a law professor. He should know the difference between a declaration of war and an AUMF. (It was his failure to draw this distinction, by the way, that I called “bizarre,†not his views on the relative merit of Bush’s and Clinton’s wars.)
Well, according to Joe Biden [see the link above] there is no Constitutional difference, but that aside, I’ll allow Peter Jackson to reply:
Okay, for the umpteenth time, the AUF is a legal declaration of war as per the First Circuit Court of Appeals. Jesse Jackson, Jim McDermott, Dennis Kucinich and other luminaries of the left took Bush and Rumsfeld to court complaining that with the AUF Congress had ceded their constitutional authority to declare war to the President. The case is known as Doe v. Bush. The Federal District Court that heard it dismissed it and dismissed an appeal from plaintiffs. The First Circuit then heard an appeal and affirmed the dismissal. The courts all agree that an AUF doesn’t require the magic words “we declare war†to be a declaration of war.
As a former Libertarian, I used to be all hung up about this too, thinking that Congress was passing the buck so the President would be hung out to dry if a particular military action turned out to be a disaster. But the but the courts settled the whole question in a very elegant, logical way that holds Congress responsible.
So it doesn’t matter what Scott McClellan says, or Gonzales, or Jesse Walker, or even actus believes: the Federal courts have determined AUF=act of war. Case closed.
I used to subscribe to Reason, Jeff, and let my subscription lapse. For a magazine that is supposed to uphold thinking, I had found very little real thinking left there.
I’ve said it before and I’ll say it again: Reason jumped the shark when Virginia Postrel left.
Wait a minute–are you trying to suggest that the folks who work at The Nation are against legalized hash brownies?
Jesse Walker’s an idiot, or at least his suggestion that an AUMF is not a declaration of war. Such a suggestion makes a mockery of the War Powers Act of 1973, whose principle purpose is to limit the President’s ability to introduce US Forces into hostility, for example, by requiring statutory authorization from the Congressâ€â€exactly what the President received when the joint resolution “Authorization for the Use of Military Force Against Iraq†was passed. See War Powers Act at:
http://www.policyalmanac.org/world/archive/war_powers_resolution.shtml.
(Sorry about the tags. Must learn usage.)
So let’s spell it out for Walker. The War Powers Act require statutory authorization, and that’s what the President received.
Jesse Walker’s an idiot, or at least his suggestion that an AUMF is not a declaration of war.
Add to the idiot list:
“GONZALES: There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force.
I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you’re possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice. And we’re not talking about a war declaration. This is an authorization only to use military force.”
http://www.washingtonpost.com/wp-dyn/content/article/2006/02/06/AR2006020601001.html
I suppose that counts as a gotcha moment, aka, the truth.
[via Greenwald
http://glenngreenwald.blogspot.com/2006/04/someone-please-teach-instapundit-what.html%5D
<blockquot>M: (Inaudible) Talbot(?). Senator, thank you for this broad gauged approach to the problems we face. My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom? (Scattered Laughter)
Joe Biden: The answer is yes, and we did it. I happen to be a professor of Constitutional law. I’m the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction … Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what … against whom we were moving, and what authority was granted to the President.</blockquote>For purposes of treaties and diplomatic relations, perhaps there is a difference. But to the guy who drafted the Use of Force Proposal—a constitutional lawyer (not a civil rights attorney)—there is no difference for Constitutional purposes.
I’m now in the process of throwing subscription renewals from Reason in the trash, after being a subscriber for fifteen years.
Jesse Walker is one of the major reasons. He’s superficial, snarky, has a warped idea of what libertarianism is, too-hip-for-words, and generally just not worth wasting time on. Besides, even if one wanted that kind of content, there’s an unlimited amount free on blogs, so subscribing to the magazine to get it would be foolish. (And do I detect a note of jealousy from Walker concerning how much credibility and attention Glenn Reynolds gets? Perhaps.)
Unfortunately, he’s not alone. I echo the above comment – Virginia Postrel gave the magazine depth and class. Nick Gillespie threw away both in pursuit of hipness. Of course, he’s probably happy because Reason now gets accolades from leftist sources.
As I mentioned in a Matt Welch-related comment over at qando.net, I used to open each issue of Reason with anticipation that there would be an interesting, challenging, well-researched article in there that would be well worth the time to read. I have not seen an article like that in a long time. I can pretty much figure out what the whole issue is going to say by glancing at the table of contents.
Vino, your right that the AUF is not the same as a declaration of war. However, the President having gotten an AUF from congress before both the Afghan and Iraq campaigns kind of puts the lie to the implied assertion that Bush went into those actions “on presidential whim”.
Whim: A sudden or capricious idea; a fancy.
Arbitrary thought or impulse:
Not to mention the fact that the lead up to the Iraq campaign was around a year in time (not very sudden, huh?).
Gonzales was under oath. He is the acting attorney general. He swore to this nation’s lawmakers that there was no formal declaration of war.
In any event, I’ll see your Senator and raise you the Justice Department:
“The contrary interpretation of section 111 also ignores the important differences between a formal declaration of war and a resolution such as the AUMF. . . .The last declared war was World War II.”
http://www.globalsecurity.org/intell/library/reports/2006/nsa-authorities_doj060119.htm
This last comes, by the way, from a DOJ analysis arguing the NSA wiretapping was indeed legal (an analysis Jeff may have linked to before).
The key here, I suppose, is that Glenn originally had put in the qualifier “initiated on Presidential whim.” Though the AUMF is not a formal declaration of war, I doube it could be characterized as “Presidential whim.”
The drunken truth (IVV) needs to provide a better (WaPo) link to the Gonzales quote above, as it’s not in the link provided. Thanks
http://www.washingtonpost.com/wp-dyn/content/article/2006/02/06/AR2006020601359.html
Biden’s wrong. War declarations are formalities which kick in all sorts of requirements. We don’t have one of those. In fact, we avoid having those probably because of those requirements.
Just because one legislator feels that a law does something does not make it so. I should think that people around here would be into the text, rather than the understanding of one senator.
I see, the AUF is sort of like the reasons, other than WMDS, that the Administration gave for action in Iraq. It doesn’t count. As a matter of fact, nothing counts unless VV and Actus say it counts, and they will only it say it counts if someone other than George Bush said it or proposed it. But that’s not BDS, it’s just refusing to be a crawling on your knees, boot-licking, ass-kissing, Bush worshipper, like that awful Glenn Reynolds, who once upon a time worked for AL Gore.
And also, just becuase Biden and every one else in Congress thought they were aothorizing military action doesn’t mean they were actually authorizing military action. They were only talking about really, really, super-secret intensive diplomacy…with more special forces and covert sort of stuff. You know the kind of thing the left has always so vigorously supported.
actus: Biden’s “wrong”? Please to argue the point.
Which Constitutional and US legal requirements are those that we’re avoiding?
Or are you conflating, as I assume you are (presumeably along with AG Gonzales), “declaration of war” in the Constitutional sense (“Congress shall have the power to… declare War…”, Art. I, Sec. 8.) with the different sense the term has in “international law”, where a formal declaration means specific things?
Because, hey, the latter seems universally abandoned (since this sort of international law is “traditional”, does that mean it’s repealed?), as well as utterly irrelevant to the American question involving our Constitution and laws. (And to Reynolds’ original argument contra Walker about whim, of course, but you weren’t arguing that.)
Perhaps you could list some of those requirements.
(And, of course, this has nothing to do with whether the current war was undertaken at a “whim.” But now I’m interested in finding out what the difference is between declarations of war and authorizations.)
The ones Gonzales is mentioning.
You can assume all you want about my motives, Jeff—you too, Billy, though if you really saw jealousy of Glenn in my post I suspect there’s more than a little projection going on—but it’s simply not true that I ripped Reynolds’ quote out of context. If anything, he ripped it out of context in his reponse, by acting as though this is about presidential whims rather than the general skepticism towards intervention abroad that the original context provides.
And it’s not a semantic dodge to point out that there was no declaration of war before either the Afghan or Iraqi campaigns. Glenn’s a law professor. He should know the difference between a declaration of war and an AUMF. (It was his failure to draw this distinction, by the way, that I called “bizarre,” not his views on the relative merit of Bush’s and Clinton’s wars.)
No, actus, you are wrong as is the winesot above. Under our constitution, Congress has the power to declare war. It can do so in any manner it chooses, it can call it a declaration of war or an authorization to use force. The semantic distinction is a diplomatic one and not a constitutional one.
The winesot is amusingly taking Gonzales’ statement out of context of discussions of FISA completely as any reading of the transcript reveals – see Gonzales’ earlier references to the powers of the executive “waging war” under the AUMF. Where Gonzales refers to there not being a declaration of war he is clearly refering to treaty relations. Not US domestic or constitutional law.
Gonzales doesn’t mention any.
Perhaps you could list some of those requirements. You claim they exist. Name some.
Jesse, if you check back and see this, can you point to me where in the constitution or laws of this country lies the requirement that a declaration of war actually contain the phrase “We declare war”? Actus, you can help too if you wish.
Don’t respond that you think it is important that the phrase be there, that’s irrelevant. I want to know where it’s required. As for In Vino Veritas: if Gonzales is asked about a congressional act, he can only give his opinion, not state a fact. And if his opinion is contradicted by a congressman, he loses. That doesn’t make him a liar, it merely makes him wrong. So lose the “under oath” stuff. That’s irrelevant to your point.
TW: design. As in “show me where it’s in the design.”
Here ya go:
And <a href=”http://www.press.uchicago.edu/Misc/Chicago/960315in.html>here is John Yoo</a> discussing some of the other impacts of war declarations. A snippet.
Apparently we can all agree, including Mr. Walker himself, that Mr. Walker’s prose lacks clarity. One certainly must compliment his back tracking skills though.
Okay, for the umpteenth time, the AUF is a legal declaration of war as per the First Circuit Court of Appeals. Jesse Jackson, Jim McDermott, Dennis Kucinich and other luminaries of the left took Bush and Rumsfeld to court complaining that with the AUF Congress had ceded their constitutional authority to declare war to the President. The case is known as Doe v. Bush. The Federal District Court that heard it dismissed it and dismissed an appeal from plaintiffs. The First Circuit then heard an appeal and affirmed the dismissal. The courts all agree that an AUF doesn’t require the magic words “we declare war” to be a declaration of war.
As a former Libertarian, I used to be all hung up about this too, thinking that Congress was passing the buck so the President would be hung out to dry if a particular military action turned out to be a disaster. But the but the courts settled the whole question in a very elegant, logical way that holds Congress responsible.
So it doesn’t matter what Scott McClellan says, or Gonzales, or Jesse Walker, or even actus believes: the Federal courts have determined AUF=act of war. Case closed.
:peter
This is the nut of the disagreement:
“If anything, he ripped it out of context in his reponse, by acting as though this is about presidential whims rather than the general skepticism towards intervention abroad that the original context provides. “
I read the Reynolds phrase as one of checks and balances, meaning that the founders would be upset at the idea of a President intervening abroad, and bombing other countries without congressional sanction (whether you call it DOW or AUMF is entirely irrelevant). Mr. Walker is arguing that Reynolds was saying the founders would want us to be skeptical of ANY interventions abroad, whether congressionally sanctioned or not. I don’t see where he gets that but reasonable people can disagree.
I’m not certain why it is important to distinguish between DOW and AUMF. It is without doubt that Bush had congressional sanction to send troops to Iraq and initiate conflict.
Obligatory ”ignore acthole” comment.
It’s not just a job – it’s a lobor of love.
lobor=labor
Or, one could argue, to end the conflict.
“Or” is fine. I’d say he had both.
The point is, that no one is arguing to impeach Bush because he used the armed services without congressional sanction. Even the farthest of the far left is arguing that he should be impeached because he lied to congress to get that sanction.
Is that like a loogie of love? I mean, it involves acthole and all.
That’s not what the holding is. For example:
Later, they say the dispute isn’t clearly framed. Basically, since both congress and the president agree, the courts won’t get involved.
The case also includes this informative footnote:
“Suppose, however, that Congress did pass a law stating simply, “The United States declares war on Iraq.” This would still leave to the President all determinations concerning timing, strategy, and tactics; the President would decide both when and how to start an attack and when and how to stop it.”
In terms of presidential whim, the court sees little difference between a simple declaration of war and a detailed authorization for the use of military force.
(That’s the difference between the two, BTW. One leaves the entirety of decision making to the president. The other conditions presidential actions.)
Such as the United States war powers not being hostage to the UN…
So I guess it is a settled point if Congress says so, the President says so and the Courts won’t touch it. Fin.
I actually put Peter Jackson’s courts link in a comment over at Walker’s post, and he deleted my comment.
Figures.
TV (Harry)
I understand we haven’t had an “official” Declaration of War, in so many words, since WWII, for exactly the reasons under discussion: to use the terms “declaration of war” is to kick in a bunch of stuff passed in the late ‘40s and ‘50s by war-weary Congresses elected by an entire nation in the grip of PTSS. I can’t fault my grandparents for not wanting to study war no more, after what they’d been through (my mom’s ration book is still pasted into her baby album), but commanders-in-chief since WWII have been forced to seek their authorizations to make war in other terms, because WAR as now defined may be too circumscribed to be effective.
i’ve reposted peter jackson’s comments; let’s see how long they last.
Nope; they – and Callahan’s original one – are still there. Looks like a quirk in the archiving process. Glad to see that Walker’s not deleting; I withdraw my disdain.
That being said: when you have David Ehrenstein agreeing with you about something, you really should be wondering not only if you’re right, but whether you want to be…
That’s good! I’m going to steal that and hope I have an opportunity to use it.
…if anyone ever agrees with me.
A good exercise for Jesse would be to review how many of our wars have been preceded with the declaration he’s groping for. He might be surprised at the results, and back off a bit.
Just as the Federal Courts have determined abortion = legal?
Oh, and should I ever become a lawyer and try to present such a weak-ass “collusion” case to support my argument, which even a semi-concussed duckling could see through, please feel free to call a tactical strike down upon my head.
Me:
Jesse:
As Glenn himself might say, heh. I can’t even figure out what that’s supposed to mean. That I’m jealous of Glenn? That I’m jealous of Jesse? Who am I supposed to be projecting onto here, again? If it’s Glenn (which is the simplest interpretation), then why would I be defending someone of whom I’m jealous?
This is a great example of the superficiality of thought and expression that makes me utterly unimpressed by Walker’s writing. My original comment just wondered if the jealousy were there. Given his “I know what you are, but what am I?” rejoinder, I’d say my hypothesis is more likely that I first thought.
Courts can be right or they can be wrong—but what they decide sets the conditions that prevail, until they can be overruled or moved to overrule themselves.
There is a difference between “a declaration of war” and “during wartime”. Actus even knows this. This is the fundamental core of a troll – intentionally deceptive faux argument.
A and Callahan,
Reason wasn’t rejecting your comment, the server is as slow as pouring molasses in a -19F blizzard. Even regulars such as myself will have our posts get “posted” and then disappear into the abyss or get double or triple posted…just blame it on the squirrles that run the server
Hit and Run does censor comments that don’t conform to their ideological blinkers. I was banned from posting there because I pointed out the anti-semitism of Tim Cavanaugh, the web monkey who polices comments.
Reason’s brand of libertarianism doesn’t tolerate dissent.
Richard,
Problem is, Cavanaugh has male-PMS. If you catch him on a bad day, he’ll ban you for the most ridiculous of reasons (no pun intended).
One poster, linguist, made fun of one fo the ads recently and got banned by Cavanaugh for jacking the thread and other bs. And HnR is notorious for diversion of the posts and other crap! None of the regulars really get why Tim did that other than he got sand in his vagina or something…he really is a touchy guy.
Attorney General Alberto Gonzalez, testifying before the Senate Judiciary Committee last February:
Justice Department’s 42-page memo from January 19, 2006, defending Bush’s warrantless spying in violation of FISA:
Glenn Reynolds is a law professor. He should know the clear distinctions that even the Bush Administration insists upon.
Mona —
We’ve already been given the Greenwald talking points.
Really, try reading the threads before reposting, nearly word for word, what someone else has already posted.
Similarly, see Doe v. Bush and this further update from Glenn:
I already linked Biden AND Doe in the piece.
Walker is wrong. Greenwald is wrong. But your fidelity to Glenn G and his traveling legal spin show is endearing.
I just wish you’d read through the post and comments before you rushed to regurgitate things that have already been chewed over.
Mr. Goldstein, I’d like to request permission to refer to the act of getting soundly outmaneuvered and defeated by facts within 10 minutes of one’s ill-thought-out post to be called “getting Goldsteined.”
On a practical level, for those who agree with Mona, help me out here. Please explain the practical difference between a declaration of war and an authorization to use military force?
“here is John Yoo</a> discussing some of the other impacts of war declarations. A snippet.
“…in fact, one of the rights in the Bill of Rights can only be suspended during wartime.
Posted by actus | permalink
on 04/19 at 02:02 PM”
I followed this link, I read the John Yoo quote. Who gets to pick “which” article of the bill of rights gets suspended? Little help please.
At best, libertarianism is just anarchy with a necktie. At worst, the necktie is a clip-on to save time when they turn on each other.
It’s interesting how much success the left is having peeling off libertatians without letting up the anti-libertarian jihad in the academy/media one iota. I guess appeasement isn’t just for terrorists anymore…
Jeff writes:
You forgot a few—Alberto Gonzalez is wrong and so is the Bush Department of Justice.
moneyrunner asks:
That’s an excellent question, and I’d like to hear an answer from Gonzalez and the DoJ—they obviously consider it vital to their legal arguments that the AUMF be understood to be other than a formal declaration of war; Gonzalez went out of his way to say so emphatically before the Senate Judiciary Committee, and so did the DoJ’s January legal brief. I have my suspicions why this is so important to them—it has to do with some of their legal arguments regarding the warrantless wiretaps.
But I don’t actually know. (Some statutes are triggered by only formal declarations, but this is all beyond my area of legal expertise, and so I’d only be guessing as to what they are trying to avoid, other than I can see how any other position would make their FISA/NSA arguments far more difficult.) Some enterprising reporter should get to the bottom of all this, since those most adamantly insisting that the AUMF is not a declaration of war, are Gonzalez and the DoJ. One would think Glenn Reynolds would realize that this correct argument is the one adopted by the Administration he supports.
The arguments by Gonzales, et al—and some suggestions for differentiation—have been offered in the comments, Mona. In fact, the first person who brought up Glenn G’s talking points raised the same issues. So I didn’t forget to mention them; I simply didn’t repeat the mention of them.
Take some time to read through the comments instead of taking us all backwards. Please.
Hey, the Bush administration also behaves idiotically vis-a-vis illegal immigration and the Mohammed cartoons deal, so quoting their team of experts is something like quoting Greenwald.
Yes, Mona, an AUMF is not exactly a declaration of war, but it’s pretty close. So close, in fact, that depending on what hair you’re trying to split they’re either pretty much the same or totally different. They’re different with respect to the Geneva Conventions, apparently, which don’t apply to terrorist entities but do apply to uniformed soldiers in the employ of a state when said state is at war with you. That’s a long discussion.
But for purposes of this discussion, those differences are academic. Jesse The Pill Walker complained about presidents committing troops all over the globe on a whim, and clearly a president who commits troops on the basis of either a AUMF or a formal declaration of war is not acting on a whim or exceeding his authority.
A Congressional Authorization to use Military Force is not a presidential whim, is it?
IT IS SINCE BUSH LIED
Turing word “end,” as in “END OF DISCUSSION”
Mona,
Supporting a war effort to which one’s country has already commited itself is not the same thing as supporting a politician. I would think that however one felt about the latter, one would be dedicated to the task of getting the facts straight vis-a-vis the former, including how that war was entered into, i.e. not on a presidential whim, however whimsical you perceive that politican to be.
Mona, I wouldn’t call Glenn Reynolds a “supporter” of the Bush “Administration.” Like many of the commenters here, he probably only agrees with Bush on a minority of issues (me, I’m down to 1 or 2). Your confusion is of your own making on this point, I’m afraid.
Jeff: I’ve read through the comments. The fact is, Gonzalez and the DoJ insist that the AUMF is not a declaration of war.
Richard Bennett writes:
I agree that Jesse should not have tried to get Reynolds on that point. But Reynolds did employ language of a formal war declaration, and that is just wrong. It didn’t happen, and the DoJ insists it did not.
But I don’t agree that for purposes of this discussion the matter is academic. Among otyher things, there is some reason(s) the Administration is straining to press this distinction, and it likely is one they must press to make their NSA/warrantless spying arguments work, since they were emphatic about it in their memo addressing exactly that controversy.
For the person asking about Yoo’s comments, I followed the link to his interview and am flummoxed. Yoo states (my emphasis):
If this is true, then it seems to me to be utterly beyond academic —indeed, a matter of surpassing importance of which a law professor like Reyonlds should be aware— whether Congress has formally declared war. But I really don’t know what Yoo means, and would have to see the case citations.
Dr.Steve writes:
No confusion. I’ve read Reynolds for years, and voted for Bush for much the same reasons he did in ‘04, almost exclusively for foreign policy reasons. Holding my nose due to serious unhappiness with fiscal and some social positions of the modern GOP.
However, Reynolds cannot, or will not —and I think this is true for many—concede that Bush has been a train wreck in the only area that justified their vote. They continue to insist the news from Iraq is really pretty good if only that darn media were not so negative & etc.
Reynolds, and other libertarians like him, will never abandon their support for Bush where it counts for them—in foreign policy, and to a lesser extent, domestic security issues. In that crucial area, their support is unflagging, if blind. One need only read the most recent entry at Iraq the Model—not the NYT or WaPo— to see how horribly Iraq is deteriorating.
Mona, you’re contradicting yourself. On the one hand you assert that the President wants to clearly separate a DOW from an AUMF because the AUMF gives him more power to suspend civil liberties, and on the other you offer authority to the effect that the DOW is more corrosive to civil liberties than the AUMF. You need to decide which way you’re going to try and spin the discussion and stick with it, because spinning in both directions isn’t working for you. So yes, we can see that you’re flummoxed.
As it stands, Reynolds made a remark about Clinton that Jesse Walker tried to use against him, but Walker failed as he ignored the main point of the remark. Reynolds is some sort of a law professor at a mediocre southern law school in a state that didn’t allow the teaching of evolution until a couple of days ago (Biblical days, of course.) But Walker is an even bigger fool than Reynolds, and that was Jeffy’s point.
Jeffy stands unrefuted, and Jesse looks like an even bigger fool that he did when Jeffy made the post.
Fine, Mona. Whatever you say. But make sure you have Greenwald and Walker give Biden a call. Or hell, call him yourself. Teach him a few things. You might want to call the justices who ruled in Doe and Hamdan, as well.
Me, I’m done with you. You’ve conceded the point of the post when you said: “I agree that Jesse should not have tried to get Reynolds on that point.”
Of course, I’d take that one step further and say that he shouldn’t have been trying to “get Reynolds” at all, but hey, one step at a time, I suppose.
I know I said I was done with Mona, but she snuck a post in that I missed:
And there, once again, we have it: if you don’t believe Iraq is the disaster Mona does, you are “blind” and a Bush Kultist. Whereas Mona, bless her clearsightedness, has the bravery to note that she voted for Bush and was wrong wrong WRONG—a position she predicates on her faith in the fact that Iraq is an unmitigated disaster.
She has no historical military perspective from which to make that claim, of course. Instead, she relies on a few disgruntled former generals and the immediacy of carnage to shape her views. She refuses to acknowledge that she just might lack the background to see the big picture—or, less judgmentally, to appreciate that others see a different picture than she does, and that they do so in good faith and with a belief in their rectitude that is just as strong as hers.
Given that, it would be impossible for those war supporters to give up their support of Bush. Because, well, they haven’t lost faith in him.
Mona has. And to her, anybody who hasn’t is a lying partisan flack who simply won’t listen to the reasons she continues to offer.
What she doesn’t do, however, is allow that we do listen to her; we simply find her reasons unpersuasive and wrongheaded.
Jeff, you really do use better manners at this point than I would. I salute your patience!
Richard Bennett conflates issues:
No. No. First, I never said the DoJ is arguing that the AUMF is different from a DoW so that it may suspend civil liberties. The most salient aspect of the warrantless wiretap issue is a statute, not anything in the Constitution. The President is arguing (one of two arguments) that the AUMF triggers a particular section of the Foreign Intelligence Surveillance Act. That statute has language allowing him to violate FISA’s warrant requirement as “authorized by Congress.” He claims the AUMF implicitly—through some sort of silent amendation or repeal process—is an “otherwise authorized by Congress” for purposes of that FISA language.
The problem with that is, FISA on it face applies in time of war, and dictates that the Executive may have only 15 days to conduct surveillance without warrant after a war begins. So, they really cannot argue that AUMF is an “as otherwise authorized by Congress” for the FISA statute, if they are also going to argue that the AUMF establishes a state of war; it couldn’t implicitly repeal/trump a statute that explicitly controls in the circumstances it is establishing. I think they are planning, when and if this gets to court, to claim the 15 day FISA provision for war time, only kicks in following formal declaration of war; the AUMF is quite different from formal declaration of war; and magically voids FISA altogether. (In addition to their separate “inherent authority” argument.)
Second, I was merely trying to explain to someone who had wondered about Yoo’s claims, what they were about. It is news to me that a host of constitutional (not statutory) rights are subject to suspension during time of a formally declared war. But if so, then the distinction is very, very critical indeed, and not at all academic.
There’s too much here to read right now, let alone reply to, but I suppose I should reassure whoever it was who thought I deleted his comment that I haven’t been at my desk most of the day, and I certainly haven’t deleted any comments. I have no idea what happened to his post, but it was probably eaten by Reason’s crappy server.
Some of the comments here are so far removed from anything I said that I hardly know how to begin to reply to them. One person seems to think I don’t realize how many American military conflicts were not preceded by declarations of war. Another, apparently confusing me with Glenn, claims that I “complained about presidents committing troops all over the globe on a whim.” Another reader continues to suggest that I’m somehow motivated by jealousy of Reynolds, and someone else says I’m “backtracking” from a post that contained no claims in the first place. Etc.
So I’ll just repeat two points:
1. Glenn said the Afghan and Iraqi campaigns were preceded by congressional declarations of war. They were not. An authorization and a declaration are not the same thing. If you want to say their effects are legally equivalent, or that Congress is in no position to claim its power to declare war was usurped, or (as Hamdan puts it) that the AUMF “went as far toward a declaration of war as it might”—well, then those are fine points of law to debate, but none of them mean an AUMF and a declaration of war are identical.
2. Whether or not it’s a declaration of war is a side point to a side point, and doesn’t have much to do with my original post.
Did Congress approve the war? Yes they did, but the resolution they adopted in the fall of 2002 was titled “Authorization for the Use of Military Force Against Iraq” not “Declaration of War.” Therefor, the plaintiffs in Doe vs. Bush avered that the President was required to wait until a properly titled resolution was adopted, and, presumably delivered to Iraq on a silver platter by a servant wearing a cutaway and a peruke.
For those few of you who are interested in fine points of constitutional interpretation and who like the pterodactyl believe that historical context is relevant to constitutional interpretation, I offer the following as proof that the authors of the United States Constitution did not believe the formality to be important:
FEDERALIST No. 25
The Same Subject Continued (The Powers Necessary to the Common Defense Further Considered)
From the New York Packet. Friday, December 21, 1787. By Alexander Hamilton
“. . . the ceremony of a formal denunciation of war has of late fallen into disuse . . .”
So there.
Jesse Walker is trying to rewrite history. He criticized Reynolds for an inconsistency in the latter’s criticism of Clinton and non-criticism of Bush, claiming (in effect) that Bush was starting wars “on a whim” just like Clinton had. But Bush did no such thing, he sought and obtained Congressional authority before committing troops in Afghanistan and Iraq.
So Jesse is left with nothing but hair-splitting to defend his original charge against Reynolds. As much as it pains me to defend the idiot Reynolds, it’s clear that in this case it’s Walker who’s full of it, not the “he” man.
And Walker’s weak reasoning is typical of the kind of drivel that oozes out of Nick Gillespie’s Reason, a sort of pop-culture pseudo-political rag that’s more concerned about what to wear to the next protest rally than whether to go at all.
The difference between the two, in terms of general usage, is semantic, Jesse. The point is key to your original post. Nothing in Glenn’s 1999 piece contradicts anything he’s said more recently, as far as I can find.
True, he would likely not write that piece today, but we’re at war now, and weren’t then. Writing of the drawbacks of maintaining a standing army seems pointless while the Army isn’t standing, but doing battle. That wouldn’t make it wrong, mind you. Just pointless, given the circumstances that exist now but didn’t then.
Richard: My “original charge against Reynolds” does not exist in my original post. Glenn assumed it was there, spilled a lot of pixels defending himself against it, and made at least two factual errors in the process (claiming the AUMF is a declaration of war and claiming Volokh’s post backed him up)–but that doesn’t change the content of my first post.
Pablo: I think we were at war then, actually – in the Balkans – but I might be misremembering the chronology. At any rate, you may have explained Glenn’s change – makes sense to me! – but that doesn’t mean the change isn’t there.
It’s not like my post was supposed to be some big critique of InstaPundit. If I ever do that- and Lord knows I’m tempted sometimes – I’ll cite something he wrote recently, not 7 years ago.
WALKER: You are hearby praised by the Rothbardian HIGH COUNCIL for your true loyalty to the CADRE. Take a bow young man. You will be praised for all time when libertopia occurs. The appostate zionist right-opportunist neocons will be purged. There heresy will be exposed. Praise be to Murray!
Hair-splitting and obfuscation, Jesse Walker. Your original post consisted of nothing more than Reynolds’ quote and your title “The Past is Another Planet”. One assumes that you’re charging that Reynolds has changed his views on warfare and armies and presidential whims and such, although it’s not as clear as it might be in the original text. You do seem to indicate here, within the limits of your literacy, that you’re claiming Reynolds has flip-flopped
Perhaps he has, but the quote you provide doesn’t show it. Congressionally authorized actions aren’t executive whims, as I’ve already pointed out.
Face it dude, you lied like Bush and now you’re busted.
It’s always possible that he initially had no actual point.
Farfetched, sure, but possible.
No, I haven’t Jesse. I explained that circumstances have changed, which likely impacts Reynolds’ choice of things to write about. It doesn’t mean that he’s changed a bit. He’d have to contradict himself to evidence that and he has not done so that I can see.
Have you become a different guy every time you select a different topic to write on?
Pablo: There’s a change in rhetoric and a change in focus. It looks to me like there’s a change in opinion about the wisdom of heavy intervention abroad, though it’s possible that he wrote other things around the same time that would change my mind about that.
Pew-Devin: I’ve gotten a lot out of reading Rothbard, but I’m not a Rothbardian. Kevin Carson isn’t a Rothbardian either, by the way. And none of the Rothbardians I’m familiar with write like that. Keep trying, though; someday you might manage to be funny.
Bennett: “One” might “assume” a lot of things, but “one” would be wrong. The fact that Glenn decided his little hyperbole about “presidential whim” was the heart of his quote doesn’t mean I thought as much when I posted it. If you look at the original context of the quote, you’ll see a lot about the dangers of “imperial ambitions” and “foreign entanglements” and so on, and nothing at all about congressional authorization of war.
For that matter, if you read my exchange with him, you’ll note that when he wrote the current wars “were explicitly authorized by Congress, in declarations of war and everything,” I didn’t respond by saying his claim that they were authorized by Congress was bizarre. I said his claim the authorization came “in declarations of war” was bizarre. Glenn has gone through great lengths since then to argue that the authorizations were legally equivalent to declarations of war, but that’s doubly beside the point: It doesn’t address his misstatement of fact, and it doesn’t address the reasons I found his older quote interesting.
Billy: You said that “perhaps” you “detect a note of jealousy from Walker concerning how much credibility and attention Glenn Reynolds gets.” Now, even if I were jealous of Glenn, which I certainly am not, my post did not contain a “note” of such envy. When someone “detects” something that plainly isn’t there, it’s probably safe to say the thing he’s detecting is in his own head.
That doesn’t mean I think you’re jealous of Glenn or, God forbid, of me. It just means I think you might be giving us a glimpse of how your mind works. I regret bringing it up, since I’m clearly not going to convince you I’m right and I can’t imagine that anyone else here cares. But you said you couldn’t figure out what I meant, so I figure I owe you an explanation.
So Jesse, you’re trying to say that ole W has imperial ambitions and ole Insty is on-board with them? How very Daily Kos of you.
The people who criticized the presidential whim thing were obviously giving you way too much credit.
Hi boys!1172ca4f97729c4bddb1c1c1fbc82301