Terror trials by military

November 13, 2001 10:06 PM

Terror trials by military is president Bush's plan for speedy wartime tribunals. He enacted this without the need for congress' approval, and the sole purpose is to process terrorists faster and in a more secretive setting than a standard civil trial. Is this too much or does it sound fair, considering this is wartime?
posted by mathowie (49 comments total)

I think I'm going crazy. I just saw this thread.
posted by trioperative at 10:08 PM on November 13, 2001

I think I'm going crazy. I just saw this thread.

It was quite the troll, rather than cut out the offensive bits, I rewrote it and reposted it.
posted by mathowie at 10:10 PM on November 13, 2001

Ahh. Yeah, I'd have to agree.
posted by trioperative at 10:10 PM on November 13, 2001

Now no one will see my artful dig at FDR!
posted by thirteen at 10:11 PM on November 13, 2001

Yeah, that damn bastard.
posted by trioperative at 10:12 PM on November 13, 2001

John Dean made a convincing case for doing exactly this, a month and a half ago.

I think it's an excellent idea.
posted by Steven Den Beste at 10:14 PM on November 13, 2001

This will be controversial, but it's hard to see what a better alternative will look like. Given that the terrorists are a threat to national security, there is a good argument that it should be handled militarily. It's doubtful that the U.S. criminal justice system, or a world court, is prepared to handle this....

Ultimately, though, diplomacy and continued good relations will probably demand international observers at these trials. This is a good sign, it indicates that they are preparing for the eventuality that top members of Al Qaeda are captured alive. If they weren't preparing for that eventuality, then one would have real cause for concern about how the military intended to deal with these (alleged) criminals....
posted by mattpfeff at 10:20 PM on November 13, 2001

This post is lesson 24 in the "How to Post to MeFi Clinic." The moral: link objectively and no trolls.
posted by TacoConsumer at 10:21 PM on November 13, 2001

Michael Scardaville, policy analyst for homeland defense at the conservative Heritage Foundation, said there are legitimate reasons for holding the trials in private.
"This isn't Judge Judy, two people fighting over who gets the car after a divorce. It's about very classified elements of America's national security"

This illustrates perfectly the contempt the proponents of secret trials have for the law system they pretend to respect. Sickening!
posted by MiguelCardoso at 10:25 PM on November 13, 2001

Eh, shit happens, Miguel. I'm more concerned about my four hundred cable channels and my 3000 mp3s. Pass the McDonalds, please.
posted by trioperative at 10:27 PM on November 13, 2001

Can they be executed if found guilty by a military court? If so, it would certainly be superior to the world court.
posted by owillis at 10:30 PM on November 13, 2001

Of course. Because might makes right.
posted by trioperative at 10:31 PM on November 13, 2001

Oliver, the answer is "yes". This has happened before: there were Nazi saboteurs who were captured during WWII who were tried by a military tribunal and some of them were executed.
posted by Steven Den Beste at 10:53 PM on November 13, 2001

I think it really depends on what happens next. If indeed we are engaged in a long war against a shadowy enemy that has the power to successfully strike at our interests all over the globe, then this is a correct solution.

However if these events turn out to be relatively isolated, they should be treated as the heinous criminal acts they are and tried in criminal court under our Justice System. I don't think you can compare these acts to Nazi war crimes, or crimes during war... yet.
posted by chaz at 11:00 PM on November 13, 2001

I don't know what good can come of 'bringing the evildoers to justice' by bypassing the criminal justice system. I thought this was for all the people who died - are we denying their families the kind of transparency the process needs to have for them to see that justice is done?

This was supposed to be an attack on the nation, or free world depending on whose speech you're working from, but the nation and the free world don't have a valid interest in seeing what happens and making sure the system doesn't get carried away. Like it has in other places. Historical places. Many of them in this century...
posted by holycola at 11:16 PM on November 13, 2001

I might not be so concerned, except that the administration is concurrently supporting the American Servicemembers Protection Act, which would bar the US from cooperating with or participating in the International Criminal Court, once the ICC treaty gets ratified by every other western democracy besides the US. Clearly, the administration intends for these military tribunals to be a long-term solution, not a stopgap measure.

A court without possibility of appelate review and lax rules of evidence that is designed to prosecute non-Americans without international cooperation is bad enough when it's convened out of a need for expediency. As a long-term solution, it's a diplomatic and human rights disaster waiting to happen.
posted by shylock at 11:20 PM on November 13, 2001

The conviction rate in Federal Court is 99%, the trials are not televised,and regular people are not gonna get in to observe, so if it's gone that far,the outcome is preordained whatever they call the trial.BTW, anyone believe we'll put BINLADEN or OMAR on trial?
posted by Mack Twain at 11:42 PM on November 13, 2001

Odd that no one's pointed out that, despite the rhetoric thrown around, we are not legally at war with anyone (unlike World War II). Also, unlike the Civil War, there is no clear end to the use of military tribunals. There is also the fact that this is edging closer to effectively treating the terrorists as combatants in a war rather than as extreme criminals, which is just what they want; far better for their propaganda war to portray themselves as soldiers rather than murderers. And of course, it is hardly going to play well in the court of international public opinion. I can hear it now - America loves freedom and hates tyranny, except for foreigners (not necessarily my opinion).
posted by skoosh at 12:41 AM on November 14, 2001

A) The thought of "secret military trials" put on by our government is just plain scary - regardless of the situation, but may be necessary. I waffle heartily on issues like this these days.

B) Steven - or anyone else - are there any other links to or more on those WWII tribunals, how they were set up, who presided, took part, etc? If there is precedent, and this is it, I'd like to know more about it.

I wonder (but doubt) if there will be a Presumption of Innocence for the 'defendants' in cases like this.
posted by kokogiak at 12:42 AM on November 14, 2001

Any word on how this decision affects arabic foreign nationals currently being held by the federal government?
posted by Sqwerty at 12:53 AM on November 14, 2001

The Nazi Saboteurs who invaded Long Island and Florida in June 1942. All were arrested within a fortnight without committing a single act of sabotage, though they had $175,000 in US currency and a two-year gameplan; one had gone wobbly and turned himself in to the FBI. Our swift apprehension dismayed German intelligence and they never tried again. Six of the eight were sentenced to death and executed; the other two were granted clemency and freed in Western Germany in 1948.

I do suggest people read the article. There is a presumption of innocence, there is a prosecutor, and a jury, and defendants have legal representation, in addition to a government-appointed advocate who has access to secret evidence. Only non-citizens will be tried, this time. The trials themselves are not secret -- they are structured so that secret evidence may be presented.

So the Muslim world doesn't like military trials? How about Abdul Haq, who was "tried" and hung by dawn the morning he was captured?
posted by dhartung at 3:53 AM on November 14, 2001

Laura Murphy, director of the Washington office of the American Civil Liberties Union, said Bush needs to explain why the criminal justice system could not deliver "the timely prosecution" of terrorism suspects. "Absent such a compelling justification," she said, "today's order is deeply disturbing and further evidence that the administration is totally unwilling to abide by the checks and balances that are so central to our democracy."

Declaration of Independence: The History of the present King of Great Britain is a History of repeated Injuries and Usurpations, all having in direct Object the Establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid World: HE has affected to render the Military independent of and superior to the Civil Power. ...FOR depriving us, in many Cases, of the Benefits of Trial by Jury.

King George IV?
posted by Carol Anne at 5:47 AM on November 14, 2001

"gone wobbly" ah, made me morning. Ezra Pound was charged by military tribunal. (as where a whole lot of americans) To have a military trial would make sense to me. I'm sure the american people would not mind a drum head either.
posted by clavdivs at 6:05 AM on November 14, 2001

No one observes what seems obvious to me: that this favors the defendants in important ways. It is difficult to imagine that anyone even loosely affiliated with the Taliban or Al-Quaeda would ever be acquitted of even the smallest charge in an ordinary US trial -- it is simply inconceivable that all 12 jurors would see the case that way.

However, professional military lawyers and senior officers would be responsible for determining guilt in military trials -- and they would not hesitate to acquit where the evidence did not suffice. See, for example, the Nuremberg trials, where many, many people whose Nazi party membership and senior rank in the German military or government was undeniable, were nevertheless acquitted of war-crimes charges altogether, or convicted only of minor charges subject to short terms of imprisonment.

Although it is possible that a military court might determine -- as Nurenburg did of the Nazi Party and the SS -- that Al Quaeda was a criminal organization putting a presumption of at least some guilt upon its officers, I suspect that they would reach the conclusion that the Taliban movement is not such a criminal organization ... in the same way that the German Army (excluding Waffen SS units), German Navy, and German Air Force were deemed to be non-criminal ... requiring that even very highly ranked generals and admirals be shown by strong evidence to have been culpable in specific criminal acts, before they could be punished.
posted by MattD at 6:14 AM on November 14, 2001

So the Muslim world doesn't like military trials? How about Abdul Haq, who was "tried" and hung by dawn the morning he was captured?
As your comment suggests the 'trial' of Abdul Haq probably did not adhere to international standards of justice. Then again, he was being tried for being a threat to the taliban, not for the murder of 28 civilians in 1984 when he bombed Kabul airport. Or for indiscriminately bombing Kabul with 'poor rockets; we cannot control them. They sometimes miss' which killed an unknown number of civilians.
Good job he was on the right side, or these facts may have been included in the simpering obituraries printed recently.
posted by asok at 6:31 AM on November 14, 2001

but because of recent events a lot things suddenly seem permissible to Americans

Not to some of us. I don't see a single thing which is "suddenly" more permissable now than ever. Except perhaps being subjected to longer waits at airports due to their inefficient and at least somewhat ineffectual security procedures (and the tide of public opinion is already beginning to turn back on that one, given recent reports, which was inevitable all along).

Terrorism was always a legitimate possibility. The fact that it has now occurred changes nothing, any more than having one of your parents murdered should suddenly revolutionize your views on murder, crime, prosecution or punishment. Case studies do not make good policy.
posted by rushmc at 7:31 AM on November 14, 2001

I don't see a single thing which is "suddenly" more permissable now than ever.

Although Jonathan Alter does. And one wonders how much of an example this combination of political action and public speculation sets for that "broad-based regime" everyone wants in Afghanistan.
posted by holgate at 8:15 AM on November 14, 2001

there is a valid security concern in using a civilian trial for Osama bin Laden - much of the information that needs to be presented is highly classified and has to remain classified as long as the sources are still active and Al-Qaeda operatives are at large, which means it would still be a largely closed trial and documents would be sealed.

intelligence officials have to go through security clearance processes that can take anywhere from a couple of months to two years to complete. Imagine doing this for an entire jury and any other civilians involved. using a military court is a very practical solution, unless you honestly think that for whatever reason, military personnel are less capable of being objective. I can't think of any reason why that would be the case. In fact, I would imagine, that having dealt with the horrors of war before and being trained to analyze them in a very academic manner, they would be less affected by the emotional elements of the case than the man on the street and *more* capable of objectivity.
posted by lizs at 8:58 AM on November 14, 2001

So the Muslim world doesn't like military trials? How about Abdul Haq, who was "tried" and hung by dawn the morning he was captured?

What precisely is your purpose with this statement? That somehow "the Muslim World" being leery of secret military trials has anything to do with a guerilla leader killed by a criminal regime that enjoys none of the minimal support it once did?
posted by cell divide at 9:18 AM on November 14, 2001

Mathowie :

He enacted this without the need for congress' approval, and the sole purpose is to process terrorists faster and in a more secretive setting than a standard civil trial.

He did this cause the 106^th Congress repealed the use of 'Secret Evidence.' He knows he might not have enough votes to pass a bill. Executive Orders are always easier. And it all depends on the definition of 'terrorist' to see who gets more frequently tried in the Special Military Tribunal. This previous thread has a few good links to previous usage of Secret Evidence and selective enforcement of the law.
posted by tamim at 10:04 AM on November 14, 2001

"considering this is wartime"

As much as some people would like you to believe that, this is not wartime. Only congress can declare war, and they have not yet done so. I reject "we're at war" as a justification for any action until we actually are at war.
posted by DevilsAdvocate at 10:23 AM on November 14, 2001

According Joseph Persico's book, FDR wanted a swift trial of the accused Nazi saboteurs with certain results.

"And he [FDR] said to Biddle, in effect, `These are agents of the enemy. They've come ashore in wartime th--in civilian clothes. I don't think there can be any doubt as to what their fate must be.' So he keeps the--this case out of the civilian courts because the rules of evidence are strict, the opportunities for appeal seem to be endless."
posted by euphorb at 2:09 PM on November 14, 2001

I just turned on the radio to listen to the News Hour with Jim Lehrer and they were interviewing a man with a Middle Eastern accent about his imprisonment for obscure reasons under an order that didn't specify the term of incarceration... The punch line, it's a man who was in the Taliban's Kabul prison. Before that fact was mentioned, I had no way of knowing it wasn't a story from the U.S.

Eerily parallel to the way some passengers on a plane carrying the man who wanted to pee in the last 30 minutes of a flight momentarily thought the air marshals waving guns and making them all put their hands on their heads were hijackers...
posted by Zurishaddai at 3:14 PM on November 14, 2001

From Ty Webb's link in the later thread: Do we really intend to bring bin Laden to trial as if he were a common thief or murderer — times, of course, 7,000?

Why not?
posted by rushmc at 3:15 PM on November 14, 2001

What exactly is all this highly classified evidence that everyone keeps referring to? Obviously I'm not asking for specifics, but really, is all the evidence so sensitive that it must be kept secret? After we've captured the people it pertains to?
posted by Nothing at 5:04 PM on November 14, 2001

Nothing -
re; highly classified evidence - names and places and confirmations of events that would make it obvious who the sources were and how the information was obtained. theoretical example - let's say a meeting took place the week before september 11th with 2 Saudi civilians and two known Al-Qaeda officers. One of the Saudi civilians is friendly to U.S. intelligence and has provided information about the meeting and somehow recorded the conversation. (this would be *too* perfect, but i'm trying to make the example as straightforward as possible.) The guy is still on the ground in Saudi and still a useful source for u.s. intel.

it is revealed in the trial that the Al-Qaeda operatives were involved in the september 11th attacks, one of the civilians was implicated, and specific evidence details the exact conversation. the attorney for the defense demands to know how the evidence was obtained to make sure it's "valid". We reveal the fact that we recorded it using gadget of the week, which after the trial, of course, is no longer a useful tactic because everyone knows about it. CNN "dutifully" broadcasts the trial in excruciating detail to the rest of the world.

There were only four people at the meeting and three of them are indicted for or implicated in the 9/11 attacks. Our useful source still on the ground has been exposed and would likely be dead (and obviously no longer a useful source) in a matter of hours. Even if the second civilian hadn't been implicated and even if there were more people at the meeting, the mere association would raise suspicion and that source would be closely watched and in more danger.

the reality is that we will never capture "all the people" it pertains to because it's a huge network and there are a lot of people on the periphery. it's very hard to develop human on-the-ground intelligence and if sources know that our government isn't taking all necessary steps to protect them, we will quickly run out of sources. even if we cripple or kill Al-Qaeda, we have other security concerns in the region, many of which are intertwined with the same people in Al-Qaeda or other terrorist groups in the region as well as state actors. We don't just pull out the intelligence agencies when things like 9/11 happen. They have to be operational and well-oiled at all times to be effective and being negligent with those that provide us with information would destroy our intelligence capabilities.
posted by lizs at 6:30 PM on November 14, 2001

...it's hard to see what a better alternative will look like.
No, it's not.

Given that the terrorists are a threat to national security, there is a good argument that it should be handled militarily.
No, there's not.

The conviction rate in Federal Court is 99%, the trials are not televised,and regular people are not gonna get in to observe, so if it's gone that far,the outcome is preordained whatever they call the trial.
Moot.

There is a presumption of innocence, there is a prosecutor, and a jury, and defendants have legal representation, in addition to a government-appointed advocate who has access to secret evidence.
Moot.

Only non-citizens will be tried, this time.
Moot, disengenous, and xenophobic.

The trials themselves are not secret -- they are structured so that secret evidence may be presented.
Moot.

HE has affected to render the Military independent of and superior to the Civil Power.
Now you're getting somewhere...

...this favors the defendants in important ways.
Moot.

However, professional military lawyers and senior officers would be responsible for determining guilt in military trials -- and they would not hesitate to acquit where the evidence did not suffice.
Moot, disengenous, and groundless.


The only relevant point is, it's absolutely illegal.
posted by nickmark at 12:15 PM on November 16, 2001

Wow, nickmark, you really are smarter than everyone else here. If only you actually offered an argument to back up even one of your claims, your post might actually have been worth reading.

Besides, the Milligan ruling explicitly notes that Milligan was "not a resident of one of the rebellious states, or a prisoner of war" -- which would not be true of suspected terrorists. The proposition the Milligan ruling objects to is that the commander of an armed force ... has the power ... to suspend all civil rights and their remedies, and subject citizens as well as soldiers to the rule of his will. This is not what is being proposed here. We have no cause to conclude the terrorists' civil rights will be unduly suspended; if anything they will be under international scrutiny. (You could argue that trial in federal court is a civil right, but, well, you didn't, did you?) And they are not citizens, except of a foreign power we are at war with.

(Since you didn't seem to read the original link, I'll excerpt some passages:

... only noncitizens would be tried before the military commission.

In either a military or a civilian court, any suspect would retain rights to a lawyer and to a trial by jury, the administration said. )

Of course, none of this is conclusive. This could turn out to be a disastrous idea, or it might be the only one that might have a chance of not becoming a farce. But you have to offer at least an approximation of an intelligent argument to support a claim one way or the other....

Nice try though.
posted by mattpfeff at 12:48 PM on November 16, 2001

The Milligan decision from 1866 was seriously considered, and overturned by the Supreme Court, in the Quirin decision in 1942. That is the legal precedent on which Bush is basing his decision.
posted by Steven Den Beste at 1:27 PM on November 16, 2001

I assumed that the arguments behind my statements were self-evident. That was the first reason for the format of the post; the second I’ll address in a moment. Since I was plainly mistaken in my assumption, I apologize sincerely, and will attempt to clarify.

Suspension of civil rights is exactly what is being proposed here. One need not argue that trial by jury is a civil right; it is enshrined in the Constitution. Supreme Court rulings subsequent to Milligan have clarified that not only citizens have the right to a fair and impartial trial by a court of law.

The Milligan case sets out that “Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction.” It furthermore makes absolutely plain that habeus corpus is the only right that can be suspended by the government in time of war: “[The Constitution] does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy by the use of direct words to have accomplished it.”

To claim, as you do, that “we have no cause to conclude the terrorists’ civil rights will be unduly suspended” misses the point entirely – a military trial is itself a denial of their civil rights.

Since you didn’t seem to read the Executive Order, I’ll excerpt some passages:
The term "individual subject to this order" shall mean any individual who is not a United States citizen with respect to whom I [President Bush] determine … that there is reason to believe that such individual … is or was a member of the organization known as al Qaida…(as we’ve seen, non-citizens have the same right to trial as citizens)

Orders and regulations issued … shall include, but not be limited to, rules for the conduct of the proceedings of military commissions, including pretrial, trial, and post-trial procedures, modes of proof, issuance of process, and qualifications of attorneys…

…the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.

Thus, the commander of an armed force (George Bush) is indeed suspending civil rights (to a trial by jury and various other rights pertaining to fair trials) and their remedies.

As I said before, that’s illegal.

As to the second reason for the format of my post, it seemed to me that the focus of attention in the thread was on whether there was another alternative, whether military lawyers would be fair, and whether a national security threat made a good argument for a military court. I think those questions miss the fundamental point that the “courts” called for by the Executive Order are illegal, and I wanted to draw attention to that urgent fact. I apologize if that was less than clear, but as I said, the arguments seemed entirely self-evident.
posted by nickmark at 2:06 PM on November 16, 2001

Sorry, I meant to add a link to the text of the Executive Order -- here it is.
posted by nickmark at 2:46 PM on November 16, 2001

a military trial is itself a denial of their civil rights.

OK. I thought that's what you were thinking. But does a non-citizen, accused perpetrator of a crime against a country -- an act of war -- have a civil right to whatever that country defines as a fair trial? I'm not sure; and, if not, then they aren't being denied any civil right they actually have.

Perhaps there is an argument to be made for a person's natural right to some sort of "fair" trial here, but that gets very murky very fast -- and a civillian trial wouldn't necessarily be "fairer" than a military one, given all the outside factors that will inevitably influence it. (E.g., what jury picked from our ranks could possibly judge such a case fairly?) Such an argument, if accepted, would open up the question, OK, how do we do this, but it wouldn't rule out a military trial out of hand, not by any means.

(As for it being strictly illegal, I'm not sure how you can generalize the Milligan ruling to non-citizen accused war criminals, especially if it's been overturned, as SDB remarked above.)

I assumed that the arguments behind my statements were self-evident.

I want this on a t-shirt.... :)
posted by mattpfeff at 3:17 PM on November 16, 2001

Nickmark, one more time: ex parte Milligan was overturned by ex parte Quirin. Milligan does say what you claim it does, but Milligan is not the law of the land. Quirin is, and under Quirin what Bush proposes is completely legal.

Milligan is irrelevant. Milligan is inoperative. Milligan is obsolete. Milligan doesn't matter. Milligan isn't the law; it's just a footnote in history.
posted by Steven Den Beste at 4:06 PM on November 16, 2001

As written by John Dean:

No less an authority than Chief Justice William Rehnquist has addressed the cases of Ex Parte Quirin and Ex Parte Milligan, and the question of military tribunals. The Chief Justice has been prescient before (He wrote a book about impeachment long before he found himself presiding at President Clinton's Senate trial). Now he has turned out to be prescient again: In 1998, he wrote and published All The Laws But One: Civil Liberties in Wartime.

In the book, Rehnquist examines Milligan at some length. Rehnquist notes that the government, which at the time — 1866 — had yet to create the office of Solicitor General, had little experience presenting cases to the Supreme Court. Mr. Milligan, on the other hand, was extremely well represented. In making this contrast, Rehnquist implies that had the government done a better job, it would not have lost the case.

The Chief Justice also reads the ruling in Milligan as limited. He notes that some 75 years later in Quirin "the Court concluded that Milligan … was a non-belligerent, not subject to the law of war."

Finally, if these comments left any doubt about Rehnquist's skepticism about Milligan, Rehnquist resolves it. He writes: "One may fully agree with the rather disparaging but nonetheless insightful argument of Jeremiah Black [attorney for Milligan] in the Milligan case — soldiers are no more occupationally trained to conduct trials than are sailors or sheep drovers — and yet believe that Congress should be able to provide for trial of defendants by a judge without a jury in a carefully limited class of cases dealing with national security in wartime."
posted by Steven Den Beste at 4:23 PM on November 16, 2001

My second post was written before your note about Quirin, Steven. I was unaware of that case. I'm not a legal scholar, but my reading of Quirin differs from yours. Since neither of us sit on the Supreme Court, it's clear that neither of our readings ultimately matters, but for the sake of argument, I would say that your claim that Quirin makes Milligan "irrelevant", "inoperative", "obsolete" and "a footnote in history" seems a little excessive. (I would also argue that the footnotes are the most important part of history, but not in this thread.)

I think it's worth pointing out that Quirin deals with a case in which the accused have violated the law of war, in a situation in which Congress has declared war. It makes explicit reference to that fact. Congress has not declared war in this situation, despite the presidential rhetoric. I think that makes a difference.
posted by nickmark at 8:09 AM on November 19, 2001

Nick, it's true that my opinion on that doesn't matter either. But Chief Justice Rehnquist's opinion sure as hell does, and he says that Quirin overrides Milligan and that these kinds of trials are legal. (He wrote a book about it, as cited above.)

Also, Congress has declared war. It happened on September 13.
posted by Steven Den Beste at 9:41 AM on November 19, 2001

That's a nice bill you reference, SDB. According to Thomas (can't seem to link directly to the bill status, but enter "H J Res 63" into the "Search by Bill Number" box, then follow appropriate links until you get to the bill status), no action has been taken on that bill since it was referred to committee on Sept. 13.

Since neither house has voted on the bill, let alone passed it, Congress has not declared war.
posted by DevilsAdvocate at 11:45 AM on November 19, 2001

Congress also included a declaration of war in the supplemental budget bill which passed on September 14. It invoked the War Powers act.

Like it or not, we are legally at war.
posted by Steven Den Beste at 12:30 PM on November 19, 2001

Oh, very good, SDB. As evidence that congress has declared war, link to an article that notes in its very second sentence that congress has not declared war.

It has invoked the War Powers Act, which authorizes the president to use military force. That is not the same as declaring war. A declaration of war does more than simply authorize the use of military force--it invokes certain clauses of the constitution, most notably the power to suspend habeas corpus. While invocation of the War Powers Act likewise authorizes military force, it does not--despite its name--permit use of constitutional powers that are allowed only in wartime. WE ARE NOT LEGALLY AT WAR any more than we were legally at war in Vietnam.
posted by DevilsAdvocate at 1:22 PM on November 19, 2001