nationalsecuritylaw United States v. Harpham (E.D. Wash.) (32-year sentence in MLK parade attempted bombing case)

December 21, 2011

Details from the DOJ press release appear below:

SPOKANE, Wash. – The Justice Department announced today that Kevin William Harpham, 37, of Colville, Wash., has been sentenced to 32 years in prison for the placement of the improvised explosive device alongside the planned Martin Luther King Jr. Day Unity March held on Jan. 17, 2011, in Spokane, Wash. Harpham will serve the rest of his life under court supervision after he is released from prison. Harpham pleaded guilty in Sept. 7, 2011, to two counts of a superseding indictment; attempted use of a weapon of mass destruction and attempt to cause bodily injury with an explosive device because of actual or perceived race, color and national origin of any person.

On March 9, 2011, Harpham was arrested for placing the explosive device alongside the Unity March. The march was attended by approximately 2,000 individuals, including racial minorities. The explosive device placed by Harpham was capable of inflicting serious injury or death, according to laboratory analysis conducted by the FBI. Harpham admitted that he is a white supremacist and white separatist, and that he placed the explosive device at the march with the intent to cause bodily injury to the person or persons in order to further his racist beliefs.

“Acts of hate like this one have no place in our country in the year 2011, but yet, unfortunately, we continue to see attempted violence in our communities due to racial animus,” said Thomas Perez, Assistant Attorney General for the Civil Rights Division. “The Justice Department is committed to enforcing the Matthew Shepard and James Byrd Jr. hate Crimes Prevention Act, and all the tools in our law enforcement arsenal, to prosecute such egregious crimes.

“This case underscores the continuing threat from those who seek to express their hatred through violence and the serious consequences these individuals face for such actions,” said Lisa Monaco, Assistant Attorney General for National Security. “The sentence handed down today is the culmination of an outstanding investigation conducted jointly by federal, state and local law enforcement officials.

Michael C. Ormsby, U.S. Attorney for the Eastern District of Washington, said, “I commend the law enforcement efforts at all phases of the investigation and prosecution of this matter. This was one of the most thorough investigations that I have ever seen and involved multi-levels of law enforcement and multiple offices and other professionals. Our office received significant assistance from the Civil Rights Division and National Security Division of the Justice Department. All who participated should be thanked and congratulated, this was truly a team effort.” U.S. Attorney Ormsby also added, “It is very important that Mr. Harpham receive the significant sentence that he did today to send the message to our community that hate and violence will not be tolerated.”

“Today, Mr. Harpham faces the consequences of his hate-filled act. A prototypical “lone wolf” such as Mr. Harpham presents a particularly vexing threat—with nothing foreshadowing a carefully planned attack,” said Laura M. Laughlin, Special Agent-in-Charge of the FBI Seattle office. “However, the actions of everyday citizens, the Spokane Police Department, the Spokane Explosives Disposal Unit, and the round-the-clock work of Joint Terrorism Task Force and its local, state, and federal members unraveled Mr. Harpham’s plan and swiftly brought him to justice. We will continue to tirelessly disrupt and rapidly apprehend others who attempt to express their hatred though violence.”

This investigation was conducted by the Inland Northwest Joint Terrorism Task Force comprised of the FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the U.S. Marshals Service, the Federal Air Marshal Service, the U.S. Border Patrol, the Department of Homeland Security – Homeland Security Investigations, the Spokane Police Department, the Spokane County Sheriff’s Office and the Washington State Patrol, and with assistance from Stevens County Sheriff’s Office and Washington State Employment Security Department. The Stevens County Road Department also provided significant assistance.

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nationalsecuritylaw United States v. Mehanna (D. Mass.) (guilty verdict)

December 21, 2011

A jury has returned a guilty verdict against Tarek Mehanna, in a case that raises questions about the scope of criminal liability for online activities promoting violence. The case raises very interesting First Amendment issues, which I discuss briefly here and which we’ll likely see developed more fully on appeal to the First Circuit.


nationalsecuritylaw United States v. Alwan (W.D. Kentucky Dec. 16, 2011) (guilty plea in Iraq insurgency case)

December 16, 2011

What an interesting day for the question of how to address cases involving participation in the insurgency in Iraq.

Earlier today we learned that Ali Musa Daqduq, the last American military detainee in Iraq (who is believed to have orchestrated the capture, torture, and murder of a group of U.S. servicemembers in Iraq), was turned over to Iraqi authorities to face prosecution at their hands rather than being removed to face prosecution in U.S. custody.

Now comes news that another individual alleged to have been involved in insurgent attacks on US troops—Waad Ramadan Alwan, who was arrested in Kentucky, but had been in Iraq previously—has pled guilty to a host of charges. The plea agreement is attached, and the press release follows below:

BOWLING GREEN, Ky. – Iraqi citizen Waad Ramadan Alwan pleaded guilty to federal terrorism charges today in U.S. District Court before Senior Judge Thomas B. Russell, announced Lisa Monaco, Assistant Attorney General for National Security; David J. Hale, U.S. Attorney for the Western District of Kentucky; and Elizabeth A. Fries, Special Agent in Charge of the FBI Louisville Division.

Alwan, 30, a former resident of Iraq, pleaded guilty to all counts of a 23-count indictment charging him with conspiracy to kill U.S. nationals abroad; conspiracy to use a weapon of mass destruction (explosives) against U.S. nationals abroad; distributing information on the manufacture and use of improvised explosive devices (IEDs); attempting to provide material support to terrorists and to al-Qaeda in Iraq; as well as conspiracy to transfer, possess and export Stinger missiles. Alwan was indicted by a federal grand jury in Bowling Green, Ky., on May 26, 2011.

Alwan faces a maximum sentence of life in prison under the sentencing guidelines and a mandatory minimum of 25 years in prison. His sentencing is scheduled for April 3, 2012, at noon in federal court in Bowling Green before Judge Russell.

Alwan’s co-defendant, Mohanad Shareef Hammadi, 24, is charged in the same indictment with attempting to provide material support to terrorists and to al-Qaeda in Iraq, as well as conspiracy to transfer, possess and export Stinger missiles. Hammadi has entered a plea of not guilty to all charges and is presumed innocent unless and until proven guilty. A trial date for him has not been scheduled. Hammadi and Alwan were first arrested on criminal complaints on May 25, 2011.

“The successful investigation, arrest, interrogation and prosecution of Mr. Alwan demonstrates the effectiveness of our intelligence and law enforcement authorities in bringing terrorists to justice and preventing them from harming the American people,” said Assistant Attorney General Monaco. “I applaud all the dedicated professionals in the law enforcement and intelligence communities who are responsible for this successful outcome.”

According to the plea agreement and other court documents filed in this case, from about 2003 through 2006, Alwan knowingly conspired to kill U.S. nationals in Iraq. During this period, Alwan was in Iraq where he conspired with others to plant and detonate numerous IEDs against U.S. troops in Iraq. For instance, Alwan admitted that he and his co-conspirators planted an IED in a road near the Salah ad Din province in Iraq in an attempt to kill U.S. troops that traveled on this particular road. In addition, the FBI found two latent fingerprints belonging to Alwan on a component of a separate IED that was recovered by U.S. forces in Iraq in 2005.

Alwan also admitted today that from about October 2010 through May 2011, he knowingly taught and demonstrated to another individual in Kentucky how to manufacture and use an IED. Specifically, Alwan drew diagrams of different types of IEDs and also provided detailed oral instructions on how to manufacture and use those IEDs. He provided these diagrams with the intent that they be used to train others in the construction and use of such IEDs for the purpose of killing U.S. nationals overseas, including officers and employees of the United States.

In addition, Alwan admitted that from about September 2010 through May 2011, while in Kentucky, he knowingly attempted to provide material support and resources to terrorists and to al-Qaeda in Iraq, including money, weapons, and expert advice and assistance. On multiple occasions, for example, Alwan transferred money believing it would be provided to al-Qaeda in Iraq for the purpose of murdering U.S. employees or U.S. nationals overseas. In addition, he also transferred Stinger surface-to-air missile launcher systems, rocket-propelled grenade launchers, C4 plastic explosives, grenades, machine guns and sniper rifles, believing these items would be provided to al-Qaeda in Iraq for the purpose of murdering of U.S. employees or U.S. nationals overseas.

Finally, Alwan admitted that on March 16, 2011, while in Kentucky, he conspired with another individual to transfer, receive, possess and export two Stinger surface-to-air missile launcher systems.

Neither the bomb-making instructions, nor the Stinger missiles nor the other weapons or money transferred by Alwan while in Kentucky were actually provided to al-Qaeda in Iraq, but instead were carefully controlled by law enforcement as part of an undercover operation.

“Today in open court, Waad Alwan admitted to engaging in terrorist activities both here in the United States and in Iraq. He acknowledged he had built and placed numerous improvised explosive devices (IEDs) aimed at killing and injuring American soldiers in Iraq, and he admitted that he tried to send numerous weapons from Kentucky to Iraq to be used against American soldiers,” said U.S. Attorney Hale. “Bringing Alwan to justice is the result of a comprehensive effort by many in our law enforcement and intelligence communities. The FBI agents of the Louisville Division, along with the federal and local law enforcement members of the Joint Terrorism Task Forces here in Kentucky and our many other partners are to be commended. Their collaborative effort successfully thwarted the ongoing intentions of an experienced terrorist. The guilty plea today sends a strong message to anyone who would attempt similar crimes that they will face the same determined law enforcement and prosecution efforts.”

This case is being investigated by the Louisville Division of the FBI. Assisting in the investigation were members of the Louisville and Lexington Joint Terrorism Task Forces, U.S. Immigration and Customs Enforcement, U.S. Marshals Service, U.S. Department of Defense, U.S. Citizenship and Immigration Services and the Bowling Green Police Department.

This prosecution is being handled by Assistant U.S. Attorneys Mike Bennett and Bryan Calhoun from the U.S. Attorney’s Office for the Western District of Kentucky and Trial Attorney Larry Schneider from the Counterterrorism Section of the Justice Department’s National Security Division.

pdf.pdf


nationalsecuritylaw Rahmatullah v. Secretary of State for Foreign and Commonwealth Affairs (UK Ct of Appeal (Civil Division)) (Dec. 14, 2011)

December 14, 2011

An interesting Afghanistan habeas decision today, from the UK:

In an opinion by the Master of the Rolls (i.e., David Neuberger, Baron Neuberger of Abbotsbury), with concurrences from Lord Justices Kay and Sullivan, the Court of Appeal (Civil Division) holds that a Pakistani man held by the U.S. military in Afghanistan may pursue a habeas corpus petition against the UK’s Secretary of States for Defence and for Foreign and Commonwealth Affairs.

The petitioner—Yunus Rahmatullah—was captured in Iraq by British forces in 2004. He was then transferred to US custody pursuant to a memorandum of understanding that included provisions for (i) the arrangement to be governed by the Third and Fourth Geneva Conventions and (ii) the transferring state to have the option of reacquiring custody of the individual upon request. At some point thereafter, the United States moved him to Bagram in Afghanistan. After the Red Cross enabled Rahmatullah to speak with a relative in the UK, according to the opinion, that relative took steps to initiate this habeas proceeding on Rahmatullah’s behalf. It appears that the organization Reprieve is leading the litigation effort, while also pursuing related litigation in Pakistani courts simultaneously.

Today’s opinion observes that the war in Iraq is over, and that a Detainee Review Board in Afghanistan in any event (or perhaps for that reason?) ruled in June 2010 that Rahmatullah was “not an enduring security threat” and that continued internment was “not necessary to mitigate the threat he poses,” and thus that he should be released back to Pakistan. Citing these considerations (and emphasizing the lack of opposing argument suggesting that Rahmatullah nonetheless still lawfully may be detained), the Court of Appeal focused its analysis on the question of whether the UK government really was in a position to do anything about the situation, and whether the foreign affairs angle nonetheless precluded judicial intervention. As to the first, the Court concluded that there was enough reason to believe that it might be possible for the UK to take effective action, and as to the second it concluded that the foreign affairs consideration did not preclude intervention in this particular context.


nationalsecuritylaw new rules of court for military commissions

December 13, 2011

The 50-pager is posted here: http://www.mc.mil/Portals/0/pdfs/Trial%20Judiciary%20Rules%20Of%20Court%20%288%20Dec%2011%29.pdf


nationalsecuritylaw Deeks on the unwilling-or-unable test for using force without consent

December 12, 2011

An important and well-written article on an increasingly timely topic:

"Unwilling or Unable": Toward an Extra-Territorial Framework for Self-Defense

Ashley Deeks (Columbia Law School)
Virginia Journal of International Law, Forthcoming

Non-state actors, including terrorist groups, regularly launch attacks against states, often from external bases. When a victim state seeks to respond with force to those attacks, it must decide whether to use force on the territory of another state with which it may not be in conflict. International law traditionally requires the victim state to assess whether the territorial state is “unwilling or unable” to suppress the threat itself. Only if the territorial state is unwilling or unable to do so may the victim state lawfully use force. Yet there has been virtually no discussion, either by states or scholars, of what that test requires. The test’s lack of content undercuts its legitimacy and suggests that it is not currently imposing effective limits on the use of force by states at a time when trans-national armed violence is pervasive.

This Article provides the first sustained descriptive and normative analysis of the test. Descriptively, it explains how the “unwilling or unable” test arises in international law as part of a state’s inquiry into whether it is necessary to use force in response to an armed attack. It identifies the test’s deep roots in neutrality law, while simultaneously illustrating the lack of guidance about what inquiries a victim state must undertake when assessing whether another state is “unwilling or unable” to address a particular threat. Normatively, the Article plumbs two centuries of state practice to propose a core set of substantive and procedural factors that should inform the “unwilling or unable” inquiry. It then applies those factors to a real-world example – Colombia’s use of force in Ecuador in 2008 against the Revolutionary Armed Forces of Colombia – to explore how the use of these factors would affect the involved states‟ decision-making and the evaluation by other states of the action’s legality. The Article argues that the use of these factors would improve the quality of state decision-making surrounding the use of force in important substantive and procedural ways.


nationalsecuritylaw forthcoming scholarship

December 12, 2011

Countermeasures in the Cyber Context: One More Thing to Worry About

Yale Journal of International Law (Fall 2011)

Katharine C. Hinkle

As cyber-warfare rapidly evolves from a theoretical possibility into an imminent threat, scholars have rightly focused on how international law should apply to this new security concern. Of particular debate is how to define which cyber-acts would constitute an "armed attack" implicating a state’s right to forcible self-defense under Article 51 of the U.N. Charter. The leading proposal for answering this question is an effects-based inquiry that asks whether the impacts of a cyber-attack resemble those caused by military force. But this approach is as notable for what it leaves out of the "armed attacks" category as what it brings into it. Under an effects-based analysis, a broad range of damaging and disruptive cyber-actions would remain outside the scope of "armed attacks" under international law. Jus ad bellum only gets you so far on the cyber frontier.

Cyber hostilities falling below the "armed attack" threshold are increasingly prevalent on the international stage. Because these lesser uses of cyber-force can still have disruptive and threatening effects, states will want to react to them quickly and effectively. Countermeasures—temporarily lawful actions undertaken by an injured state in response to another state’s internationally wrongful conduct—offer one acceptable response under international law. As such, they have the potential to play a central role in governing the responses of states faced with cyber-incursions.

Apart from the bare suggestion that countermeasures might have some bearing on the cyber context, little has been written on how exactly that legal framework would apply. This Essay seeks to fill that gap by using the 2007 cyber-attacks on Estonian networks as a vehicle for assessing how states might use countermeasures to respond to cyber-assaults that fall short of an "armed attack." In light of this analysis, I argue that cyber-tactics unsettle the necessity and proportionality inquiries designed to restrain how injured states can respond under the international law of countermeasures. In particular, I contend that "reciprocal countermeasures"—which have been cited by the U.S. Department of Defense and several scholars as being an effective and even preferable mode of self-help in the cyber context —are deeply problematic for an international legal regime that seeks to appropriately constrain state responses to cyber-conflict.

"Killing Al-Awlaki: The Domestic Legal Issues"

Idaho Journal of Law & Public Policy, 2012
U of St. Thomas Legal Studies Research Paper No. 11-38

ROBERT J. DELAHUNTY, University of St. Thomas School of Law (Minnesota)
Email: RJDELAHUNTY
CHRISTOPHER J. MOTZ, affiliation not provided to SSRN
Email: motz1190

The killing of Anwar al-Awlaki, an American citizen, by a US drone strike in Yemen last September, caused considerable controversy. Some critics of the Obama Administration’s decision to target and kill al-Awlaki objected that the President lacked statutory authority to conduct military operations against al Qaeda in the Arabian Peninsula (AQAP). Other critics argued that al-Awlaki may have been an effective publicist and recruiter, but had not been shown to be engaged in AQAP’s operational activities against U.S. targets. Still others claimed that as a U.S. citizen, al-Awlaki had a constitutional right to more due process than he had been given by a so-called "death panel." This essay examines the domestic legal arguments on both the "powers" side (i.e., whether the President had sufficient legal authorization) and the "rights" side (i.e., that al Awlaki was entitled to greater process). It focuses on open source material relating both to al Awlaki and AQAP. It concludes that under domestic law, the killing was lawful.

"Leashing the Surveillance State: How to Reform Patriot Act Surveillance Authorities"

Cato Institute Policy Analysis, No. 675

JULIAN SANCHEZ, affiliation not provided to SSRN
Email: julian

Congress recently approved a temporary extension of three controversial surveillance provisions of the USA Patriot Act and successor legislation, which had previously been set to expire at the end of February. In the coming weeks, lawmakers have an opportunity to review the sweeping expansion of domestic counter-terror powers since 9/11 and, with the benefit of a decade’s perspective, strengthen crucial civil-liberties safeguards without unduly burdening legitimate intelligence gathering. Two of the provisions slated for sunset — roving wiretap authority and the socalled "Section 215" orders for the production of records — should be narrowed to mitigate the risk of overcollection of sensitive information about innocent Americans. A third — authority to employ the broad investigative powers of the Foreign Intelligence Surveillance Act against "lone wolf" suspects who lack ties to any foreign terror group — does not appear to be necessary at all.

More urgent than any of these, however, is the need to review and substantially modify the statutes authorizing the Federal Bureau of Investigation to secretly demand records, without any prior court approval, using National Security Letters. Though not slated to sunset with the other three Patriot provisions, NSLs were the focus of multiple proposed legislative reforms during the 2009 reauthorization debates, and are also addressed in at least one bill already introduced this year. Federal courts have already held parts of the current NSL statutes unconstitutional, and the government’s own internal audits have uncovered widespread, systematic misuse of expanded NSL powers. Congress should resist recent Justice Department pressure to further broaden the scope of NSL authority — and, indeed, should significantly curtail it. In light of this history of misuse, as well as the uncertain constitutional status of NSLs, a sunset should be imposed along with more robust reporting and oversight requirements.

"Security vs. Liberty: On Emotions and Cognition"

THE LONG DECADE: HOW 9/11 HAS CHANGED THE LAW, Oxford University Press, 2012
Minnesota Legal Studies Research Paper No. 11-45

OREN GROSS, University of Minnesota Law School
Email: gross084

The metaphor of balancing and the use of balancing tests have been invoked so regularly since the terrorist attacks of September 11, 2001, to explain the need for a trade-off between liberty and security that they have become “ambient feature[s] of our political environment.” In their book, Terror in the Balance, Eric Posner and Adrian Vermeule argue similarly that there exists a security-liberty frontier along which tradeoffs between security and liberty take place.

This paper examines critically the tradeoff thesis and challenges its basic assumptions through the prism of cognitive theory of decision-making. It argues that the assumption of interpersonal comparability between security and liberty cannot be maintained as the two are neither comparable, in general, nor are they interpersonally comparable in the sense that Posner and Vermeule suggest. Furthermore, I argue that in circumstances of extreme violent crises acts of balancing between security and liberty – of optimizing the tradeoff between the two – are, in fact, likely to be biased in ways that ought, at the very least, to be recognized and accounted for. Significantly, the pressures exerted by acute exigencies on decision-makers, coupled with certain unique features of crisis mentality and thinking, are likely to result in a systematic undervaluation of one interest (liberty) and overvaluation of another (security) so that the ensuing balance would be tilted in favor of security concerns at the expense of individual rights and liberties. The systematic nature of those biases suggests that failure to address them may turn such mistakes and errors into cognitive pathologies, i.e., decision methods that are not only mistaken but, indeed, irrational.

"From Antiwar Politics to Antitorture Politics"

SAMUEL MOYN, Columbia University
Email: s.moyn

This paper examines the political status and cultural salience in the United States of the law of war during the era of the Vietnam conflict, for the sake of comparison with the post-9/11 centrality of concerns about detention and torture. The main question is why, when the violations of the laws of war were so much worse in the earlier period, they were not the fulcrum of public debate around war. The answer proposed is that the presence of a powerful social movement agitating against the war itself — which meant concern about aggressive warfare to the extent international law figured in public debate at all — marginalized concerns about the conduct of war. Even once My Lai came to light, atrocity consciousness fed an antiwar movement. The main groups and figures covered are the Lawyers Committee Concerning American Policy in Vietnam, Richard Falk of Princeton University, and Telford Taylor of Columbia University.

"The Use of Force Against a Non-State Actor in the Territory of Another State: Applying the Self-Defence Framework to Al-Qaeda"

IONA EBBEN, affiliation not provided to SSRN
Email: iona_ebben

The question when the use of force in self-defence against a non-state actor within the territory of another state is lawful, can be separated in two parts, namely the application of the self-defence framework against the non-state actor, which allows the defending state to assess whether force can be used against the non-state actor as an entity, and the ‘second layer’ of the principles of necessity and proportionality, which allows the defending state to assess whether force can be used within the territory of another state. The case-study of Al-Qaeda shows that the requirements of Article 51 can be applied to non-state actors, and in the case of Al-Qaeda the use of force in self-defence could be seen as lawful because the events of 9/11 qualified as an armed attack, the US reported the use of force to the Security Council, and the measures the Security Council had undertaken against international terrorism did not curtail the right to self-defence. This paper examines the cases of Afghanistan and Pakistan in order to extrapolate guidelines concerning the ‘second layer’ of the principles of necessity and proportionality, in particular the ‘unable or unwilling’ principle. It follows that this principle can be applied through a 5-step test, which include an assessment of the territorial state’s obligations under international law, the duty to request the territorial state to take measures to prevent the terrorist activities in its territory, to give the territorial state time to comply with these demands, and if the territorial state continues to fail, the defending state should assess the territorial state’s control and capacity in the region from which the threat is emanating as well as the relations between (elements of) the territorial state’s government and/or military and the non-state actor.

"Restoring the Congressional Duty to Declare War"

Rutgers Law Review, Vol. 63, No. 2, 2011
Rutgers School of Law-Newark Research Paper No. 96

AL BLUMROSEN, Rutgers, The State University of New Jersey – School of Law-Newark
Email: ablumrosen
STEVEN BLUMROSEN, Rutgers, The State University of New Jersey – School of Law-Newark
Email: steven_blumrosen

For more than a century and a half, Congress declared war as the framers of the Constitutional Convention of 1787 directed when they wrote that Congress had the “power to declare war.” But starting in the 1950’s, Congress began authorizing the President to make the determination for war and voters were deprived of the power to influence their Congressional representatives. The result has been labeled an AUMF (Authorization for Use of Military Force). It was used in the Vietnam War of 1965-73 and the 2003 war against Iraq, 2003 to the present.

The Delegates to the Convention of 1787 were determined to create a stronger executive than under the Articles of Confederation, while not copying the European idea that kings had the prerogative to take their nation to war. This tension surfaced on June 1, when the Virginia Delegation recommended that the new president have the “executive powers” of the old Articles of Confederation. Delegate Charles Pinckney of South Carolina protested that such powers might include the power to take the nation to war, which would make the Presidency “a Monarchy of the worst kind.” His objection was supported by all who spoke; the Convention voted to put the war power in Congress. Virginian James Madison then moved to give Congress the power to authorize the new President to make the decision to commence war. The Convention rejected this proposal by a vote of 7 states to 3 states, assuring that the Congress would make the decision to “make war.” Several times during the Convention, the delegates re-affirmed that the war power would be in Congress, including the House of Representatives which, at that time, was to be the only body elected directly by the voters. In August, 1787, when the Convention was working on the final text of the proposed Constitution, Charles Pinckney pointed out that Congress might not be in session when the nation was attacked. The term “make war” was changed to “declare war” to allow the President to repel sudden attacks, and Congress was allowed to permit the President to call out the Militia to execute federal laws and suppress insurrections.

In using the power to declare war during the “quasi war” with France of 1798-1800, Congress defined in detail the hostile actions that the President could take in seizing French ships and limited the time in which the President could take action. The Supreme Court, in detailed opinions, upheld the Congressional power to determine what Presidential actions could be taken. These cases, Bas v. Tingy (1800) and Talbot v. Seeman (1801), settled the power of Congress to determine the scope of hostilities.

For over a hundred and sixty years Congress declared war, from the statutory limitations of the quasi-war against France, through the War of 1812 against the British, Algeria in 1815, the Mexican War (1846), the Spanish War (1898), World War I, to the several formal declarations of all-out war in World War II. Since the beginning of the “Cold War,” however, in stark contrast with the votes of June 1, 1787 Congress has authorized Presidents to decide whether to use military force against a foreign nation. Presidential decision-making has been disastrous for our nation. Particularly in the Vietnam War of 1965-1973 and the War against Iraq, started in 2003 and continuing today, we have squandered blood and treasure – and interrupted the tranquility of domestic life – in proceeding where we had no Constitutional basis for massive intervention.

The Federal Courts have ignored the history of both the language that was included in the Constitution and the decisions that were made during the first 160 years under the Constitution. Those were years when the nation was fraught with dangers, close to home and on its borders and overseas, that were similar to the present terrors we now face. In addition, the electorate – who was supposed to be able to vote for representatives in Congress who, in turn, were given the veto power over war – is deprived of influence over their representatives.