The Constitution in Wartime

Findlaw has an excellent essay discussing the history of law in wartime. The author makes the point very elegantly that inter arma silent leges (usually translated "in time of war the law is silent", but I prefer "in the face of arms, the law is silent"). Richard Stallman has an essay on a similar theme, not quite as good, but still worth reading.

Comments

Re:Well..

[pubudu]

Actually, I was reading that, in the US, there is some law.. I forget the name. Something about declaring a state of national emergency. In such a state, the president has power to, well, basically, do anything, and ignore the constitution.

The U.S. President has a variety of emergency powers, but none of them can in any way affect the rules set out in the Constitution. Congress, through the years, has expanded presidential power; these powers came with strings attached. In emergency, some of these strings come off, but the basic constitutional protections remain.

This is not to say that Presidents have not violated the Constitution. Lincoln suspended the right of filing writs of habeas corpus (as did Davis). The loyalty oaths and attendant disqualifications from office may have constituted ex post facto laws and bills of attainder, but the Fourteenth Amendment, in making such disqualifications part of the Constutition, resolved that issue. And let's not forget about internment camps during World War II.

Presidents may act unconstitutionally, but unlike Great Britain, unconstitutional acts, if they go unpunished, do not set a precedent for their constitutionality.

Somebody explain something to me

[Zen Mastuh]

IAAA (I am an American), but I don't understand why we are at war--especially with Afghanistan. We were attacked by people who have never claimed responsibility. It is possible that all who were involved perished in the crashes. Our government and the major media want us to believe that Osama ibn Laden was responsible, despite the fact that he actually claims responsibility for his attacks. He is a guest of the Taleban, who has told us (since 9/xx) that they will turn him over upon receipt of conclusive evidence. The Taleban has offered to negotiate several times; meanwhile, Bush's claim that "we will use Diplomacy" remains untrue (he has rejected every offer). Bush refuses to turn over any evidence, citing "National Security"--does that mean that Americans would riot in the streets if they knew what was really happening? Now we are bombing the shit out of the poorest nation in the world because they are bound under their Holy Law to protect their guest. We slander them on TV with false stories about opium (which can't grow in a four-year drought...), while we are using neighboring Uzbehkistan--#2 worldwide in opium production--as an air base for our troop transports, just like we did with Laos/Cambodia during VietNam (search on google.com for Bo Gritz if this doesn't ring a bell).

Back to the topic, our politicians and lobbyists are shredding the Constitution with the full support of the misled American majority. This wasn't in the EULA. I wish to move to a country with more civil liberties, such as Germany.

protecting the constitution

[Kellindil]

In Bush's speech on Sept 11, ge referred to the US as the world's brightest beacon of freedom, and said that we would keep that light shining. Nadine Stroussen, ACLU president, was speaking on campus here about a week ago and mentioned that line, saying she and the ACLU were working with Bush to make sure he kept that promise.

Basically, now is when it's most important to have groups like the ACLU. Like most liberal groups, they're being attacked as unpatriotic, but considering we have cases like Korematsu on the books and not overturned, having groups that will watch out for violations of our rights and raise public awareness is important.

And it's not like it's only leftist groups fighting for these thigns, either. The article in the post didn't mention things like the Alien or Sedition Acts, but some of the languge in the bill Ashcroft is trying to ram through congress. There was a coalition of groups from the ACLU and gay rights organizatons to the NRA and anti-aborition activists all united in opposition, saying that we can find ways to protect the security of citizens *without* depriving them of rights.

Inaccurate at best. Please research first.

[dangermouse]

It turns out that every single one of those Executive Orders has been revoked and replaced. This is what I found from the NARA disposition tables:

10990 -> 11612 -> 11807 -> REVOKED BY 12196
10995 -> REVOKED BY 11556
10997 -> REVOKED BY 11490
10998 -> REVOKED BY 11490
11000 -> REVOKED BY 11490
11001 -> REVOKED BY 11490
11002 -> REVOKED BY 11490
11003 -> REVOKED BY 11490
11004 -> REVOKED BY 11490
11005 -> REVOKED BY 11490
11310 -> REVOKED BY 11490

The interesting bit is that 11490 was itself revoked by 12656. PEO 12656, "Assignment of emergency preparedness responsibilities", is still on the books.

Of particular note is Sec. 102, which states in part:

(b) This Order does not constitute authority to implement the plans prepared pursuant to this Order. Plans so developed may be executed only in the event that authority for such execution is authorized by law.

As well it should... it's not within the Executive's powers to make law, only to regulate how its agencies carry out the execution of law defined by the Legislature.