Jennifer Elsea

Huh, it almost sounds like they’re saying the harm is irreparable after all.

Yes, got that, sorry. I had been wondering whether the position that we have been at war for 50 years had been thought through as it applies to Iran-Contra.

Right, since it turns out we were at war with Iran at the time, treason might have been charged. Is that the position?

The boss can’t suspend or pull the underlings’ law licenses for ethics violations, but can fire them for failure to follow orders, leaving them at the mercy of the state bar again for whatever they might have done before reaching their moral limit. Perverse incentive structure.

The idea is that both sides have equal rights and obligations in war regardless of whether the war was justified. Otherwise each would declare the other illegitimate, accord them no rights, and feel unbound by the in bello rules. That’s the theory, anyway, for separating ad bellum from in bello.

Declarations of war have always been phrased like that—declaring that a state of war exists. I don’t recall whether Congress used the FDR phraseology.

Also, according to the WPR, authorization to use force is not to be inferred from a treaty. Presumably including a mutual defense treaty to which the Senate consented,something the executive branch objected to specifically but was overridden. Not that a court will ever rule on who’s right.

Didn’t Japan create a state of war by attacking Pearl Harbor? Yet Congress declared war. Jefferson took defensive action against the Barbary Corsairs but asked Congress for authority to engage in offensive operations, which he received.

The Prize Cases Court did not even have to address the inherent power to repel sudden attacks on U.S. territory, but here we are.

Nice touch that the Due Process Clause of 5th Amendment is what winds up upending the constitutional order.

Odd. I heard the intelligence was exquisite.

That’s how it is working this time, but only because the sponsors chose to go different routes. As you noted, the concurrent resolution is widely viewed as unconstitutional in this context, but remains available under the WPR. (H.Con.Res. 38 may be an effort to set up a court battle.)

I’m a bit confused by your description of the termination resolution procedures, which suggests that the House procedure expedited concurrent resolutions, while the Senate’s privileges joint resolutions. The expedited procedures may be different, but either chamber can pass either kind.

I don’t know about escorting tankers, but DFC is supposed to encourage sustainable investment in development projects in under developed countries. Unless I missed the part about lowering gas prices domestically, it’s hard to figure how insuring tankers against risks we’re causing fits the bill.

I mean, I’m no expert, but the Development Finance Corporation “political risk insurance” program seems like a poor vehicle for providing shipping insurance. Maybe there’s a way to make such insurance support sustainable development in underserved areas abroad, but I just lack imagination.

How is an oil tanker a development project in a lesser or under developed country?

The Massie-Khanna resolution directs the President to “terminate the use” of the armed forces “from hostilities,” which could be read to make the military stop using force (unless to defend the United States from imminent attack). So I don’t see anything that prohibits continued troop presence?

Yes, the post hoc preemptivity justification.

Seriously, though, doesn’t “seek the means to possess and use” sound like a long-term goal? Must be diplo-speak.

“seeks the means to possess” doesn’t sound particularly imminent

New interpretation of the constitutional guarantee of a republican form of government just dropped

Mere kinetic action mongering, probably

Thing is, this is all based on the mistaken premise that Congress isn’t allowed to be involved unless operations amount to “war.” To be determined using a sliding scale of multiple criteria that have to coalesce just right, always seeming to coincide with the desired outcome.

She probably is not aware of the particulars, but she did mention state sponsorship of terrorism. So I’m guessing that’s the talking point and we are going to hear more about it.

Courts have held Iran responsible for 9/11, IED (etc.) attacks in Iraq and Afghanistan, Khobar Towers, the Beirut Marine Barracks bombing, Embassy bombing in Beirut, the USS Cole, and various terrorist attacks in mostly the Middle East. Default judgments, but this is likely what she’s referring to.

It looks like there is an effort to test that theory—the Massie-Khanna resolution is a concurrent resolution.

Congress’s powers extend beyond operations that “qualify as war.” The WPR applies to “hostilities.” Much lower threshold was intended.

60 days (or 90 if the President certifies it’s necessary for safe withdrawal of troops, but without “boots on the ground” seems unlikely.) But it’s only legit in the first place if there’s a declaration of war, AUMF or a national emergency created by attack on the U.S. or its armed forces.

That and INS v. Chadha nuking the concurrent resolution

Ideally. It would also be good if we don’t wind up paying off all these default judgments. But

Sounds more like a concept of a plan. Hope there’s a concept of a plan B.