Is so Congress can check the president's war powers, not so some nitpickers can hear the phrase "declare war." I doubt there is any constitutional scholarship that says otherwise.
It is a check and balance clause, not a Slashdot nit-and-pick clause.
Joe Wilson went on a fact-finding mission to Niger and returned and reported that Saddam was likely trying to get more yellowcake from Niger in his report. Wilson said Cheney sent him on that trip to Niger (lie). Then Wilson wrote the opposite of his report findings in a NY Times Op-Ed, that Saddam wasn't seeking more yellowcake. So either Wilson was lying the first time or the second. Which was it?
The Constitution is clear, ""the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."
Congress decides what the jurisdiction of the courts is, and this is a check written into the Constitution - unlike FISA. Congress "stripping power," to use loaded, biased phrasing, is exactly what Article III empowers Congress to do.
One could make the argument that FISA itself is unconstitutional. After all, can, by mere act of law (as opposed to constitutional amendment), Congress actually limit presidential powers?
So by merely passing a law (FISA), Congress can "strip" the president of powers, but by constitutional power under Article III, it cannot "strip" a judge of jurisdiction? Not to mention, the whole power of judicial review, "stripping" congress and the executive of powers by the lone unelected branch, is not mentioned at all in the Constitution. Who is "stripping" whom again?
Furthermore, is it really the position of Slashdotters that, prior to FISA's passage, the president had no powers to monitor spies and terrorists? That seems to be the logical extension of the argument of this judge and those here hailing him.
Slashdotters like to claim they are libertarians, but why is the answer to something a company does that you don't like always "lawsuit" or "sick the FTC on them"? Freedom of contract, people, which includes the freedom to make bad bargains as well as good ones, or not make them at all.
If you don't like a company's prices, don't buy it. That's freedom. Freedom isn't getting volutarily buying a service, then running behind Big Nanny's skirt and having a court or government agency to go after a company you don't like. That's government intrusion. I thought we didn't want that here, or are we only libertarians for ourselves, but screw the other guy?
As an Apple stockholder, I'm particularly sick of this "sue/regulate first, take personal responsibility and control your own destiny second" attitude towards companies.
Sounds a lot like the war on terra. My rights not to be spied on (even if the chances of that happening are 1/1000000000) outweigh the other guy's right not to be nuked. Oh, wait, that's different...
I'm not going to debate Bush here. We have a disagreement (although when I disagree with him, I'd go with incompetent or a mere disagreement on policy - I do not believe he is malicious).
Look, there are a lot of smart people on Slashdot, but many of them think that makes them experts on everything, when in fact they are very often just plain wrong. I am not an expert in programming or open source or medicine or astrophysics. But I am an expert in law based on my doctorate in the field and 10+ years of practice and teaching, and I see a lot of really wrong and dumb things said here about the American legal system. My field has certain ambiguities, but also certain hard-and-fast rules. So the fact that I have a doctorate in the field to distinguish myself, in this one area, from the plethora of jailhouse lawyers here is relevant, even if you think it pretentious.
Whether this decision was decided correctly is debatable. I think it was. That is a matter of opinion.
However, the definitions of "precedent" and "judical activism" and "originalist" are much less open to debate (and feel free to ask your wife to define them for you). To your point, state court decisions have zero precedential value to SCOTUS. SCOTUS, by law and tradition, only respects, via stare decisis, its own opinions, being the supreme court of the land, whose main purpose is in fact to review lower courts' cases! Nobody of any legal training really disputes this.
Even if SCOUTS was overturning its own case (as it did in Brown v. Board or Lawrence v Texas), that reversal in itself has *zero* to do with whether or not the court is or is not being "originalist." Originalist means that a judge believes in following the original intent view of interpreting the Constitution, not respecting previous interpretations of it. The tradition of following previous decisions of your own court is called stare decisis. An originalist justice could, exhibiting full intellectual honesty, overturn or uphold precedent in the name of original understanding, depending on how that precedent interpreted original intent.
As for the ultimate red herring, "but Congress didn't declare war!", talk about a strawman. The whole point of that clause in Article I was so the executive had to consult Congress to exercise military action - which Bush did and Congress approved of overwhelmingly, at least when it was popular - not so nit-pickers could hear the phrase "declaration of war." It was a check on executive power, not a legalism meant to hamstring the government working in full concert. But even if, arguendo, we accept your strawman that a declaration actually means something vis-a-vis POWs, most prior interpretations of American law and of Geneva suggest that POWs get more rights than unlawful combatants, not less. Geneva is quite clear in its carrot-and-stick approach: Sign and honor Geneva, get its protections. Don't, and you do not get to wrap yourself in it. Not until recently did SCOTUS - or any other court in the world - convey more rights to unlawful combatants than POWs get (access to civilian court review), and that, my friend, is activism.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The fact that James Madison distinguishes between "states" and "people" in the 10th Amendment shows that he believed the words mean two different things. And which word did he use in the Second Amendment?
A well regulated Militia, being necessary to the security of a free state, the right of the states to keep and bear arms, shall not be infringed.?
I think it is fair to assume that the author of the Bill of Rights (and essentially the Constitution as well) was smart enough not to make a mistake on choosing between those two words.
BTW, the DC Circuit makes this argument in its Heller opinion.
Wait a minute...are you suggesting that this one decision, this one moment in time, exonerates the current administration from all of the countless fuck-ups they've committed over the last seven years?
I don't agree with the CW on Slashdot that everything Bush has done is bad. And most of my disagreements with Bush come from the conservative side of the spectrum, not the radical, civil libertarian, the-Constitution-is-a-suicide-pact perspective that is so pervasive on Slashdot. But many here suffer from Bush Derangement Syndrome, or less elegantly, are haters. If Bush rescued kittens from a burning building, many here would have something snotty to say. That just isn't reasonable. Anyone who is happy with the Heller decision simply must recognize that without Bush in the White House appointing two justices, gun rights would have taken a serious hit today.
But if you suffer from BDS and don't care about a civil liberty so important that the framers listed it above search and seizure and right to counsel, then of course you are not interested in an objective, fair view of the 43rd president. Besides, it is much easier to call me names than to be reasonable and admit to something that flies in the face of your ideology. It is so much easier - and takes so much less thought and introspection - to just label Bush evil, with no redeeming qualities.
the fact that the so-called "originalists" on the court basically reversed about a centuries worth of decisions previously decided), but that doesn't matter.
Nonsense. Miller is the *only* 20th-century SCOTUS gun rights case that even addresses the Second Amendment, and only touched on taxation and registration of sawed-off shotguns, not the issue of individual gun rights in general. In fact, Heller upheld DC's licensing schemes.
Moreover, you have no idea what judicial activism means. It does not mean that a court is "active" in reversing precedent - especially if it is reversing case law inconsistent with the Constitution or statutory law (i.e., overturning activist cases is not activism). Activism means judges legislating from the bench, ignoring the Constitution or statute for their own public policy ideals. And "originalist" philosophy has nothing to do with upholding precedent (i.e., stare decisis); it is about judging consistent with the original understanding of the framers' intent, which this decision certainly does. You might disagree with the author of the Bill of Rights, but clearly he was talking about an individual right.
"(The Constitution preserves) the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms."
James Madison, The Federalist Number 46
For the record, I am a law professor, so I am not just talking out of my ass here, as most jailhouse lawyers here do. You are entitled to your own opinions, but not your own facts or law.
But since you are lamenting activism, I am sure that you are upset that, thanks to a recent SCOTUS decision, for the first time in American and world history, POWs/unlawful combatants now get access to civil courts. Now that's activism.
Oh, wait, you mean the Nazis and North Koreans and VC never got trials or habeas corpus? And we didn't need warrants to wiretap them? And US navy pilots and SpecOps guys all get "tortured" (waterboarded) during training? Which part of the constitution says that the Bush Administration has to confer rights that have never existed before in wartime?
I wonder, will Slashdotters be arguing that US Marines have to Mirandize enemy soldiers next?
If Gore or Kerry beat Bush, no way Roberts or Alito are on the bench, and no way this law gets struck down. Whatever freedoms Bush might have curtailed, this forum gets awful silent when it's time to thank Republicans or blame Democrats. Just remember who is controlling Congress right now the next time some further criminalization of intellectual property law passes.
Arguing for patents and copyright on Slashdot. Careful, you might get modded "troll."
I've read Article I many times, and taught it, in fact. You are doing quite a spin on that clause. These are enumerated powers, intended as a limit on federal power by listing exactly what Congress can do - 17 powers, that's it. What it actually says is that Congress is "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Funny how you left out the "by." When you include that, it sounds like less of an example than a mandate of how Congress is to promote science and art. Unless you have some words from the Framers saying otherwise? Good luck with that. I seriously doubt the framers intended for the federal government to spend significant revenue on science research.
I was pointing out hypocrisy. Obviously the situations are not identical. But one of the main arguments you/. lefties use to argue against telco immunity is that they broke the law. I've read it scores of times here. But lawbreaking is apparently OK if it is done by someone or a cause you are more sympathetic to. Hence, hypocrisy (what liberals call "moral relatavism"). Of course, since someone challenged your world view and the conventional wisdom here, he must be called stupid. I think you can tell from my prose, that is not the case. But liberals love to call people who have a good faith disagreement with them names, rather than debating with some degree of civility and reasonableness. Liberals simply do not like debate. A great irony, considering that you are all howling about how the Bush Administration is taking away all of your freedoms. You holler about how government surveillance of phone calls will hurt your freedom of expression and privacy, but you don't even want to express yourself to those who disagree with you in good faith - you only want to name-call.
The good news is that a large majority of the country disagrees with you too (yes, I know elitist libs, they are stupid too). Most of the country does think it is reasonable to give the telcoms immunity, since they were assisting the government after 9/11 in good faith and relied on the government's assurances they would be immune. I can only imagine if the government went back on a promise to you, oh-so-brilliant Tenebrousedge, you would find that unfair and be calling for heads. And that, too, would make you a hypocrite.
I do think it is funny that you use the word "treasonous." First you lefties redefine "patriotism" as slamming and criticizing your country. Now defending it is treasonous. Unbelievable. Up is down, black is white. Groupthink on Slashdot is smart, challenging it is dumb.
You may now resume your deep thinking, expressed as petty insults at dissenters.
Your argument is so compelling you had to post it anonymously and call names. I so I wish I were as smart as you. Why do Slashdotters have to always be so snotty with people who disagree with them? Keep on validating those no-social-skills IT stereotypes.
DoE is a giant, inefficient sinkhole that wastes 30 cents on the taxpayer dollar by filtering it through a large bureaucracy and redistributing it in ways that in no way consider how the actual taxpayer would like them spent in his local schools. DoE should be abolished. Education should be a local concern and the money spent accordingly.
I'd rather see my tax dollars go where Article I says they are supposed to, not where modern day liberals would like. Besides, the private sector is a hell of a lot more efficient.
and who are all such sticklers for prosecuting lawbreakers, I'm sure you want to see this guy prosecuted too, right? Fine, mod me troll, but it is inconsistent to claim you are all so concerned about the law being followed when it is a corporation trying to help out after 9/11, but when it is some hacker who is a lot more like you nerds than AT&T happens to be, will you be consistent? After all, who else's grades did he snoop into?
For the record, I think it is grossly excessive, and sad that young people can get 25+ years for doing things similar to what I did in high school when most of it wasn't illegal then. But then again, I am for telecom immunity for companies that tried to help after 9/11 in good faith, and relied on the government's assurances that they would not face legal sanction. I'd imagine that this hacker got no such assurances from authorities before he broke in!
In World War II, Germans were tried in the US an executed via military tribunal, and SCOTUS upheld that (Ex parte Quirin, 317 U.S. 1 (1942)). The poor little terrorists eat a lot better on much softer beds than the Nuremberg defendants like Hermann Goering did. Too bad for Bush and America that SCOTUS decided to ignore its own precedent on the matter.
I love this "the war wasn't declared" nonsense. Total red herring. All you left wingers love to shout about illegal wars, violation of international law, whenever you get the chance. But suddenly the internal political intricacies of a nation matter in judging an international action? By that standard, a dictator (Hitler, Saddam, whatever) "declaring war" on a neighbor has more legitimacy than the US did in Korea or the Persian Gulf liberation of 1991.
It is silly to use this "declaration" word as a standard when the whole point of it being in Article I was to make sure the President consults with Congress on major military action, not some need for someone outside of the country to hear the actual word "declaration." Presidents since Thomas Jefferson have used military police powers without an actual declaration, and I'd think Jefferson in particular would know a little about what presidential power entails.
The great irony is, you nit-picker, is that the current detainees would have less rights in a declared war, since they could be held indefinitely until the war is over. This entirely flies in the face of the point of Geneva, being that the only ones who are supposed to get its protections are those who follow it(as an incentive to sign the Accords and live up to them), unlike al Qaeda. Instead, al Qaeda, flouting all the rules of warfare, get treated better than a POW would have been, thanks to an overreaching SCOTUS.
Oh by the way, Osama bin Laden declared war on the US. Is that good enough, or would you like to employ some other jailhouse law to hamstring the USA from defending itself? I'm beginning to think this isn't some concern for civil liberties, but actual bad faith on your part.
I would like to know, should US soldiers be Mirandizing al Qaeda in Baghdad? Are we really going to this level of absurdity? War not cops and robbers for crissakes!
Slashdot Mirror
Is so Congress can check the president's war powers, not so some nitpickers can hear the phrase "declare war." I doubt there is any constitutional scholarship that says otherwise.
It is a check and balance clause, not a Slashdot nit-and-pick clause.
Joe Wilson went on a fact-finding mission to Niger and returned and reported that Saddam was likely trying to get more yellowcake from Niger in his report. Wilson said Cheney sent him on that trip to Niger (lie). Then Wilson wrote the opposite of his report findings in a NY Times Op-Ed, that Saddam wasn't seeking more yellowcake. So either Wilson was lying the first time or the second. Which was it?
Americans are so f***ing scared of their own shadows that Bush only has to invent bogeymen.
How is this not flamebait? So now you can say anything in anyway so long as it agrees with the anti-Bush memes on Slashdot.
The mod system here is broken.
The Constitution is clear, ""the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."
Congress decides what the jurisdiction of the courts is, and this is a check written into the Constitution - unlike FISA. Congress "stripping power," to use loaded, biased phrasing, is exactly what Article III empowers Congress to do.
One could make the argument that FISA itself is unconstitutional. After all, can, by mere act of law (as opposed to constitutional amendment), Congress actually limit presidential powers?
So by merely passing a law (FISA), Congress can "strip" the president of powers, but by constitutional power under Article III, it cannot "strip" a judge of jurisdiction? Not to mention, the whole power of judicial review, "stripping" congress and the executive of powers by the lone unelected branch, is not mentioned at all in the Constitution. Who is "stripping" whom again?
Furthermore, is it really the position of Slashdotters that, prior to FISA's passage, the president had no powers to monitor spies and terrorists? That seems to be the logical extension of the argument of this judge and those here hailing him.
There should be a class action suit over this.
Slashdotters like to claim they are libertarians, but why is the answer to something a company does that you don't like always "lawsuit" or "sick the FTC on them"? Freedom of contract, people, which includes the freedom to make bad bargains as well as good ones, or not make them at all.
If you don't like a company's prices, don't buy it. That's freedom. Freedom isn't getting volutarily buying a service, then running behind Big Nanny's skirt and having a court or government agency to go after a company you don't like. That's government intrusion. I thought we didn't want that here, or are we only libertarians for ourselves, but screw the other guy?
As an Apple stockholder, I'm particularly sick of this "sue/regulate first, take personal responsibility and control your own destiny second" attitude towards companies.
Definitely an inductive reasoning problem.
But also a "my rights trump yours" problem.
Sounds a lot like the war on terra. My rights not to be spied on (even if the chances of that happening are 1/1000000000) outweigh the other guy's right not to be nuked. Oh, wait, that's different...
Look, there are a lot of smart people on Slashdot, but many of them think that makes them experts on everything, when in fact they are very often just plain wrong. I am not an expert in programming or open source or medicine or astrophysics. But I am an expert in law based on my doctorate in the field and 10+ years of practice and teaching, and I see a lot of really wrong and dumb things said here about the American legal system. My field has certain ambiguities, but also certain hard-and-fast rules. So the fact that I have a doctorate in the field to distinguish myself, in this one area, from the plethora of jailhouse lawyers here is relevant, even if you think it pretentious.
Whether this decision was decided correctly is debatable. I think it was. That is a matter of opinion.
However, the definitions of "precedent" and "judical activism" and "originalist" are much less open to debate (and feel free to ask your wife to define them for you). To your point, state court decisions have zero precedential value to SCOTUS. SCOTUS, by law and tradition, only respects, via stare decisis, its own opinions, being the supreme court of the land, whose main purpose is in fact to review lower courts' cases! Nobody of any legal training really disputes this.
Even if SCOUTS was overturning its own case (as it did in Brown v. Board or Lawrence v Texas), that reversal in itself has *zero* to do with whether or not the court is or is not being "originalist." Originalist means that a judge believes in following the original intent view of interpreting the Constitution, not respecting previous interpretations of it. The tradition of following previous decisions of your own court is called stare decisis. An originalist justice could, exhibiting full intellectual honesty, overturn or uphold precedent in the name of original understanding, depending on how that precedent interpreted original intent.
As for the ultimate red herring, "but Congress didn't declare war!", talk about a strawman. The whole point of that clause in Article I was so the executive had to consult Congress to exercise military action - which Bush did and Congress approved of overwhelmingly, at least when it was popular - not so nit-pickers could hear the phrase "declaration of war." It was a check on executive power, not a legalism meant to hamstring the government working in full concert. But even if, arguendo, we accept your strawman that a declaration actually means something vis-a-vis POWs, most prior interpretations of American law and of Geneva suggest that POWs get more rights than unlawful combatants, not less. Geneva is quite clear in its carrot-and-stick approach: Sign and honor Geneva, get its protections. Don't, and you do not get to wrap yourself in it. Not until recently did SCOTUS - or any other court in the world - convey more rights to unlawful combatants than POWs get (access to civilian court review), and that, my friend, is activism.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The fact that James Madison distinguishes between "states" and "people" in the 10th Amendment shows that he believed the words mean two different things. And which word did he use in the Second Amendment?
A well regulated Militia, being necessary to the security of a free state, the right of the states to keep and bear arms, shall not be infringed.?
I think it is fair to assume that the author of the Bill of Rights (and essentially the Constitution as well) was smart enough not to make a mistake on choosing between those two words.
BTW, the DC Circuit makes this argument in its Heller opinion.
His outrage at the legal process is understandable. After all, mayors and city councils are supposed to have dictatorial powers.
I don't agree with the CW on Slashdot that everything Bush has done is bad. And most of my disagreements with Bush come from the conservative side of the spectrum, not the radical, civil libertarian, the-Constitution-is-a-suicide-pact perspective that is so pervasive on Slashdot. But many here suffer from Bush Derangement Syndrome, or less elegantly, are haters. If Bush rescued kittens from a burning building, many here would have something snotty to say. That just isn't reasonable. Anyone who is happy with the Heller decision simply must recognize that without Bush in the White House appointing two justices, gun rights would have taken a serious hit today.
But if you suffer from BDS and don't care about a civil liberty so important that the framers listed it above search and seizure and right to counsel, then of course you are not interested in an objective, fair view of the 43rd president. Besides, it is much easier to call me names than to be reasonable and admit to something that flies in the face of your ideology. It is so much easier - and takes so much less thought and introspection - to just label Bush evil, with no redeeming qualities.
the fact that the so-called "originalists" on the court basically reversed about a centuries worth of decisions previously decided), but that doesn't matter.
Nonsense. Miller is the *only* 20th-century SCOTUS gun rights case that even addresses the Second Amendment, and only touched on taxation and registration of sawed-off shotguns, not the issue of individual gun rights in general. In fact, Heller upheld DC's licensing schemes.
Moreover, you have no idea what judicial activism means. It does not mean that a court is "active" in reversing precedent - especially if it is reversing case law inconsistent with the Constitution or statutory law (i.e., overturning activist cases is not activism). Activism means judges legislating from the bench, ignoring the Constitution or statute for their own public policy ideals. And "originalist" philosophy has nothing to do with upholding precedent (i.e., stare decisis); it is about judging consistent with the original understanding of the framers' intent, which this decision certainly does. You might disagree with the author of the Bill of Rights, but clearly he was talking about an individual right.
"(The Constitution preserves) the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms."
James Madison, The Federalist Number 46
For the record, I am a law professor, so I am not just talking out of my ass here, as most jailhouse lawyers here do. You are entitled to your own opinions, but not your own facts or law.
But since you are lamenting activism, I am sure that you are upset that, thanks to a recent SCOTUS decision, for the first time in American and world history, POWs/unlawful combatants now get access to civil courts. Now that's activism.
Congress could not have passed the Civil Rights Acts and SCOTUS could not have struck down segregation in Brown v Board.
I wonder, will Slashdotters be arguing that US Marines have to Mirandize enemy soldiers next?
If Gore or Kerry beat Bush, no way Roberts or Alito are on the bench, and no way this law gets struck down. Whatever freedoms Bush might have curtailed, this forum gets awful silent when it's time to thank Republicans or blame Democrats. Just remember who is controlling Congress right now the next time some further criminalization of intellectual property law passes.
Be sure to get enough mirrors.
Making the NBA look tall.
I've read Article I many times, and taught it, in fact. You are doing quite a spin on that clause. These are enumerated powers, intended as a limit on federal power by listing exactly what Congress can do - 17 powers, that's it. What it actually says is that Congress is "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Funny how you left out the "by." When you include that, it sounds like less of an example than a mandate of how Congress is to promote science and art. Unless you have some words from the Framers saying otherwise? Good luck with that. I seriously doubt the framers intended for the federal government to spend significant revenue on science research.
I thought Ron Paul was popular here?
The good news is that a large majority of the country disagrees with you too (yes, I know elitist libs, they are stupid too). Most of the country does think it is reasonable to give the telcoms immunity, since they were assisting the government after 9/11 in good faith and relied on the government's assurances they would be immune. I can only imagine if the government went back on a promise to you, oh-so-brilliant Tenebrousedge, you would find that unfair and be calling for heads. And that, too, would make you a hypocrite.
I do think it is funny that you use the word "treasonous." First you lefties redefine "patriotism" as slamming and criticizing your country. Now defending it is treasonous. Unbelievable. Up is down, black is white. Groupthink on Slashdot is smart, challenging it is dumb.
You may now resume your deep thinking, expressed as petty insults at dissenters.
Your argument is so compelling you had to post it anonymously and call names. I so I wish I were as smart as you. Why do Slashdotters have to always be so snotty with people who disagree with them? Keep on validating those no-social-skills IT stereotypes.
At least if you claim to support Ron Paul.
I'd rather see my tax dollars go where Article I says they are supposed to, not where modern day liberals would like. Besides, the private sector is a hell of a lot more efficient.
and who are all such sticklers for prosecuting lawbreakers, I'm sure you want to see this guy prosecuted too, right? Fine, mod me troll, but it is inconsistent to claim you are all so concerned about the law being followed when it is a corporation trying to help out after 9/11, but when it is some hacker who is a lot more like you nerds than AT&T happens to be, will you be consistent? After all, who else's grades did he snoop into? For the record, I think it is grossly excessive, and sad that young people can get 25+ years for doing things similar to what I did in high school when most of it wasn't illegal then. But then again, I am for telecom immunity for companies that tried to help after 9/11 in good faith, and relied on the government's assurances that they would not face legal sanction. I'd imagine that this hacker got no such assurances from authorities before he broke in!
I'm sure Al Gore will want one to supplement his Gulfstream V.
"1024 bits ought to be enough for anybody." - Bill Gates
In World War II, Germans were tried in the US an executed via military tribunal, and SCOTUS upheld that (Ex parte Quirin, 317 U.S. 1 (1942)). The poor little terrorists eat a lot better on much softer beds than the Nuremberg defendants like Hermann Goering did. Too bad for Bush and America that SCOTUS decided to ignore its own precedent on the matter.
It is silly to use this "declaration" word as a standard when the whole point of it being in Article I was to make sure the President consults with Congress on major military action, not some need for someone outside of the country to hear the actual word "declaration." Presidents since Thomas Jefferson have used military police powers without an actual declaration, and I'd think Jefferson in particular would know a little about what presidential power entails.
The great irony is, you nit-picker, is that the current detainees would have less rights in a declared war, since they could be held indefinitely until the war is over. This entirely flies in the face of the point of Geneva, being that the only ones who are supposed to get its protections are those who follow it(as an incentive to sign the Accords and live up to them), unlike al Qaeda. Instead, al Qaeda, flouting all the rules of warfare, get treated better than a POW would have been, thanks to an overreaching SCOTUS.
Oh by the way, Osama bin Laden declared war on the US. Is that good enough, or would you like to employ some other jailhouse law to hamstring the USA from defending itself? I'm beginning to think this isn't some concern for civil liberties, but actual bad faith on your part.
I would like to know, should US soldiers be Mirandizing al Qaeda in Baghdad? Are we really going to this level of absurdity? War not cops and robbers for crissakes!