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Rutgers–Newark Law School Professor Frank Askin to Argue Challenge to Constitutionality of Iraq War at April 21 Hearing in Newark Federal Court  

Newark, NJ, April 14, 2009 – The constitutionality of the War in Iraq will be the subject of a hearing in Newark’s Federal District Court on Tuesday, April 21, at 11 am. The suit brought by the Constitutional Litigation Clinic at Rutgers School of Law–Newark challenges the legality of the invasion of Iraq without a Congressional Declaration of War. The plaintiffs are New Jersey Peace Action, a non-profit anti-war group; an Iraq war veteran; and two New Jersey mothers, members of Military Families Speak Out, whose sons were deployed in Iraq.

*point of disclosure I have assisted with this case.

Rutgers School of Law-Newark  
  Rutgers, The State University of New Jersey          
   123 Washington Street • Newark, NJ 07102-3026
     www.law.newark.rutgers.edu  
      Contact:    Janet Donohue
        Manager of Public Relations
         jdonohue@andromeda.rutgers.edu
FOR IMMEDIATE RELEASE       t: 973-353-5553, f: 973-353-1717

Rutgers–Newark Law School Professor Frank Askin to Argue Challenge to Constitutionality of Iraq War at April 21 Hearing in Newark Federal Court  

Newark, NJ, April 14, 2009 – The constitutionality of the War in Iraq will be the subject of a hearing in Newark’s Federal District Court on Tuesday, April 21, at 11 am. The suit brought by the Constitutional Litigation Clinic at Rutgers School of Law–Newark challenges the legality of the invasion of Iraq without a Congressional Declaration of War. The plaintiffs are New Jersey Peace Action, a non-profit anti-war group; an Iraq war veteran; and two New Jersey mothers, members of Military Families Speak Out, whose sons were deployed in Iraq.

     The April 21 hearing before U.S. District Court Judge Jose L. Linares is in response to the government’s motion to dismiss the Complaint.  

     Rutgers Professor Frank Askin, Director of the law school’s Constitutional Litigation Clinic, and Bennet Zurofsky, Newark attorney who is general Counsel of New Jersey Peace Action, will appear on behalf of the plaintiffs. The brief in opposition to the motion to dismiss the lawsuit can be found at http://law.newark.rutgers.edu/...

     The complaint was drafted by Rutgers’ law students under Professor Askin’s supervision, after a year-long study of the Constitutional Convention of 1787 and the adoption of the Constitution’s Article I, Section 8, lodging the power to declare war in the Congress, rather than the President.

     The suit does not ask the Court to take any direct action against ongoing activities in Iraq. It claims that the President is not authorized under the Constitution to launch a preemptive war against a sovereign nation and seeks a Declaration that can be used as a guide to the legality of such actions in the future.

Originally posted to Doughnutman on Tue Apr 14, 2009 at 02:42 PM PDT.

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Comment Preferences

  •  It wasn't dismissed outright (27+ / 0-)

    and that is a step in the right direction.

    What would prevent Captain America from being a hero "Death, Maybe" Si vis pacem, para bellum

    by Doughnutman on Tue Apr 14, 2009 at 02:43:01 PM PDT

  •  Wikipedia. (1+ / 0-)
    Recommended by:
    Catte Nappe

    The [Authorization for Use of Military Force Against Iraq Resolution of 2002] authorized President Bush to use the Armed Forces of the United States "as he determines to be necessary and appropriate" in order to "defend the national security of the United States against the continuing threat posed by Iraq; and enforce all relevant United Nations Security Council Resolutions regarding Iraq."

    it fitfully blows, half conceals, half discloses

    by Addison on Tue Apr 14, 2009 at 02:46:43 PM PDT

    •  Which came into effect upon a (9+ / 0-)

      Presidential Finding that Iraq posed an imminent threat. Which finding was falsified, and as such, under Federal Law, a felony in and of itself.

      The AUMF enactment was on the basis of an illegality, and so itself is, and has been all along, without legality.

      Until we break the corporate virtual monopoly on what we hear and see, we keep losing, don't matter what we do.

      by Jim P on Tue Apr 14, 2009 at 02:50:50 PM PDT

      [ Parent ]

      •  Okay, but that makes it illegal (2+ / 0-)
        Recommended by:
        Addison, smileyman

        not unconstitutional right? It would seem there is a difference.

        Getting Dems together and keeping them that way is like trying to herd cats, hopped up on crank, through LA, during an earthquake, in the rain. -6.25, -6.10

        by Something the Dog Said on Tue Apr 14, 2009 at 02:52:01 PM PDT

        [ Parent ]

        •  it wasn't a declaration of war. (6+ / 0-)

          It wasn't a proper delegation of power. It was therefore an unconstitutional use of force to invade another country.

          What would prevent Captain America from being a hero "Death, Maybe" Si vis pacem, para bellum

          by Doughnutman on Tue Apr 14, 2009 at 03:03:29 PM PDT

          [ Parent ]

          •  Well there is that (1+ / 0-)
            Recommended by:
            Something the Dog Said

            But that would make just about every military action since World War II unConstitutional.

            (-5.12,-2.10): Left Libertarian http://www.politicalcompass.org/index

            by smileyman on Tue Apr 14, 2009 at 03:06:45 PM PDT

            [ Parent ]

          •  i dislike this war as much as anyone (1+ / 0-)
            Recommended by:
            Something the Dog Said

            but let's not string together ridiculous arguments about whether or not it was technically legal.  that's missing the forest for the trees.

            •  Declaration of War (3+ / 0-)
              Recommended by:
              Jim P, elwior, MinistryOfTruth

              is not a ridiculous argument. It's certainly a purely academic one, but it is a Consitutional issue in that Congress is the one authorized to declare war, not the President.

              Far as I know the SC has not ruled that a mere authorization of force is satisfactory for this purpose.

              I'm confident that if the issue ever got that far they would, but it'd be nice to have a ruling on it.

              (-5.12,-2.10): Left Libertarian http://www.politicalcompass.org/index

              by smileyman on Tue Apr 14, 2009 at 03:20:07 PM PDT

              [ Parent ]

              •  An AUMF is a Declaration of War. (0+ / 0-)

                The argument presented in the brief is too clever by half, and fails on that ground.

                The general legal condition as between nation-states is one of peace.  That legal condition limits the nation-states' capacity to use their military forces, and the ordinary principles of international law and custom apply to diplomacy, commerce, travel, etc.

                A state of war is an exception to that general legal condition.  A declaration of war serves legal notice on the combatants and other nation-states: they cannot rely on ordinary principles of law and custom in the theatre of war.  Instead, diplomacy, commerce, travel, etc., must be conducted under the laws of warfare until the hostilities have ended.

                The AUMF was a declaration of war - notice that hostilities were imminent and that a state of war would soon exist, as between the U.S. and Iraq.

                That the AUMF did not include the words "declaration of war" or "state of war" is a distinction without a difference, a point many of us made clear to Secretary Clinton during her candidacy.  Voting to give the President the authority to use military force to compel regime change in another nation-state is declaring war.  Her claim that she simply wanted to "strengthen the president's bargaining position" was rejected by many as transparently false, and that may well have cost her the presidency.

        •  Right... (2+ / 0-)
          Recommended by:
          elwior, Justanothernyer

          ...I think we're witnessing a little imaginative legal theorizing here.

          it fitfully blows, half conceals, half discloses

          by Addison on Tue Apr 14, 2009 at 02:55:33 PM PDT

          [ Parent ]

        •  The IWR asked for Presidential determination (3+ / 0-)
          Recommended by:
          Hornito, cotterperson, elwior

          Bush gave a mock "determination" to congress around the time he launched the invasion; that can be questioned in light of the fact that the UN inspectors reported in early March that no WMDs were found, and they presented strong evidence that he had no nuclear programs (which probably contradicted some claims made in the IWR (and in Bush's SOTU'02) on alleged Saddam's nuclear ambitions. There may therefore be a case that the IWR falsified before Bush invoked it to invade.)

          Going back, the claims of threats made by the authors of the IWR should can also be questioned.

          Then the people that fed Powell faulty nonsense which he parroted at the UN should be questioned.

          The whole operation that took place in the lead up to the war should be strung out for judicial review and public examination. Taking the country on false premises and expending vast sums of tax payer money in doing so provide the impetus for prosecution, I think.

        •  US Code, Title 18, Section 1001 (0+ / 0-)

          Statements or entries generally

          (a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully -

          1. falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
          1. makes any materially false, fictitious, or fraudulent statement or representation; or
          1. makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

          shall be fined under this title or imprisoned not more than 5 years, or both.

          ... [law applies in these areas...]

          1. administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or
          1. any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.

          My emphasis.

          I remember John Dean bringing this up, and there were a few others awhile back. I'd hope nobody has come to believe that federal officials are allowed to lie on official documents with no penalty. At least, as far as the writing of the law goes.

          Until we break the corporate virtual monopoly on what we hear and see, we keep losing, don't matter what we do.

          by Jim P on Tue Apr 14, 2009 at 09:28:43 PM PDT

          [ Parent ]

      •  I don't think that is true. (2+ / 0-)
        Recommended by:
        Jim P, nickrud

        The AUMF enactment was on the basis of an illegality, and so itself is, and has been all along, without legality.

        While this might make "common sense," I am pretty sure that even if Congress were to vote to authorize Obama to invade Mexico based on the fact that the sky was green it would still be binding. Laws don't have to be based on fact for its consequences to be binding. Further, the AUMF was not enacted on the basis of an illegality, it was enacted when Congress voted for it.

        it fitfully blows, half conceals, half discloses

        by Addison on Tue Apr 14, 2009 at 02:54:43 PM PDT

        [ Parent ]

        •  The condition on which the powers of the (2+ / 0-)
          Recommended by:
          elwior, Johnny Q

          AUMF were to be invoked hinged on a Finding that Iraq was an imminent danger to the United States.

          Without the finding, the use of military force was not authorized. That was part of the law.

          Sorry, don't have the link, and rushing out to dinner, but I'd think a google on AUMF & Finding & Threat would have the details...

          Until we break the corporate virtual monopoly on what we hear and see, we keep losing, don't matter what we do.

          by Jim P on Tue Apr 14, 2009 at 03:00:05 PM PDT

          [ Parent ]

          •  you would have to demonstrate (0+ / 0-)

            opinions vis-a-vis whether or not iraq was a threat are not the basis upon which the AUMF is going to be declared illegal or unconstitutional.  

          •  But (0+ / 0-)

            Congress has continued to authorize the continuing use of force.

            The initial invasion may have been un-Constitutional, but the current status of things isn't.

            (-5.12,-2.10): Left Libertarian http://www.politicalcompass.org/index

            by smileyman on Tue Apr 14, 2009 at 03:04:42 PM PDT

            [ Parent ]

          •  No. That's the Durbin amendment... (2+ / 0-)
            Recommended by:
            burrow owl, Jim P

            ...and it failed.

            All Bush had to do was note that he was talking action and assert that diplomacy alone could not accomplish certain goals outlined in the AUMF.

            it fitfully blows, half conceals, half discloses

            by Addison on Tue Apr 14, 2009 at 03:05:17 PM PDT

            [ Parent ]

            •  You may well be right, but I'm not so sure. (0+ / 0-)

              text of AUMF

              SEC. 3. ...
              (b) PRESIDENTIAL DETERMINATION- In connection with the exercise of the authority granted in subsection (a) to use force the President shall, prior to such exercise or as soon thereafter as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that -

              1. reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq; and
              1. acting pursuant to this resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations or persons who planned, authorized, committed or aided the terrorists attacks that occurred on September 11, 2001.

              Looking at it here, I have to think they built in enough wiggle-room for Bush with 1(B). But he must have signed a determination at some point. I can't find the language of what he signed anywhere (if he did), but I'm pretty certain I recall that he claimed Iraq was a threat in that. Maybe I'm wrong on that point.

              Until we break the corporate virtual monopoly on what we hear and see, we keep losing, don't matter what we do.

              by Jim P on Tue Apr 14, 2009 at 10:02:03 PM PDT

              [ Parent ]

    •  That law is unconstitution. (0+ / 0-)

      The Constitution states directly that Congress declares war.

      They cannot assign this power (or responsibility) to the President...or anyone else.

      These guys should either obey the Constitution, or admit they no longer consider themselves bound by it. And expose themselves for the criminals they are...

      When a government violates the unalienable rights of the people, it loses its legitimacy.

      by Rayk on Tue Apr 14, 2009 at 04:18:51 PM PDT

      [ Parent ]

  •  Using State Troops (Reserves, etc) (2+ / 0-)
    Recommended by:
    bobdevo, Johnny Q

    to fight the drug war in afghanistan IS totally unconstitutional.. look it up.

    WELCOMING the Al Franken Decade!!

    by Superpole on Tue Apr 14, 2009 at 02:47:12 PM PDT

    •  No, it has never been ruled on. (2+ / 0-)
      Recommended by:
      burrow owl, bobdevo

      It seems like it might be unconstitutional, but short of a Supreme Court ruling we don't know.

      Getting Dems together and keeping them that way is like trying to herd cats, hopped up on crank, through LA, during an earthquake, in the rain. -6.25, -6.10

      by Something the Dog Said on Tue Apr 14, 2009 at 02:48:01 PM PDT

      [ Parent ]

      •  Perhaps more accurately, (3+ / 0-)
        Recommended by:
        Superpole, elwior, Edgewater

        anyone who reads the Constitution without bias recognizes it as unconstitutional. That a Supreme Court (of suspect integrity) will someday confirm or repudiate a common-sense reading of the document--either supporting or subverting the plain meaning--remains in the future.

        Until we break the corporate virtual monopoly on what we hear and see, we keep losing, don't matter what we do.

        by Jim P on Tue Apr 14, 2009 at 02:55:52 PM PDT

        [ Parent ]

        •  Well, you could say that about any (0+ / 0-)

          SC decision. But it is our system, so railing against it is not really effective, unless you want to change the Constitution in regards to the SC.

          Getting Dems together and keeping them that way is like trying to herd cats, hopped up on crank, through LA, during an earthquake, in the rain. -6.25, -6.10

          by Something the Dog Said on Tue Apr 14, 2009 at 02:58:27 PM PDT

          [ Parent ]

          •  There's the difference, however, between (2+ / 0-)
            Recommended by:
            elwior, Edgewater

            what could be said in any circumstance, and what is true. We're not in a court, we're at a blog.

            And the Supreme Court's makeup might well be changed before the issue comes before them.

            Until we break the corporate virtual monopoly on what we hear and see, we keep losing, don't matter what we do.

            by Jim P on Tue Apr 14, 2009 at 03:02:12 PM PDT

            [ Parent ]

            •  Well I would refer you to Socrates (1+ / 0-)
              Recommended by:
              Jim P

              on "Truth".

              But we are a blog in a nation that uses a particular system of law. If we have a ruling like the recent 2nd Amendment case that explicitly says that gun ownership is an individual right, not a collective one, then we know where the law is. If we don't then both of us are as likely to be wrong as we are to be right.

              I will leave "truth" to those that deal with gods, in my house we deal with the Law, it is far more predictable and stable than truth.

              Getting Dems together and keeping them that way is like trying to herd cats, hopped up on crank, through LA, during an earthquake, in the rain. -6.25, -6.10

              by Something the Dog Said on Tue Apr 14, 2009 at 03:10:03 PM PDT

              [ Parent ]

              •  Truth ain't that tricky, imo. (0+ / 0-)

                Justice, just as abstract a thing after all, is why such things as law even exist. Without it, in fact, the law is worthless.

                Most of our lives are dominated and determined by invisible things that are not codified anywhere.

                Until we break the corporate virtual monopoly on what we hear and see, we keep losing, don't matter what we do.

                by Jim P on Tue Apr 14, 2009 at 10:35:40 PM PDT

                [ Parent ]

        •  I don't know what you're talking about. (0+ / 0-)

          Please expand your argument, because I don't see your point.

          We are building a team that is continuously being built. - Sarah Palin

          by burrow owl on Tue Apr 14, 2009 at 05:10:19 PM PDT

          [ Parent ]

    •  IANAL but . . . (1+ / 0-)
      Recommended by:
      Something the Dog Said

      By my reading:

      "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States"

      So if the governor authorizes the call up of Reservists (which is the militia for de facto purposes), than by default that allows the President to send them where he will, no?

      IANAL, but that's my reading of it anyhow.

      (-5.12,-2.10): Left Libertarian http://www.politicalcompass.org/index

      by smileyman on Tue Apr 14, 2009 at 03:03:10 PM PDT

      [ Parent ]

      •  Article 1 - Section 10: (0+ / 0-)

        No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

        "NO STATE, without the consent of Congress.."

        since when did Congress vote on certain states sending their Reserve troops to fight the drug war in Afghanistan?

        they did not, and there's no "imminent danger" from the drug war; heroin has been coming into the U.S. for decades; our country remains intact.

        WELCOMING the Al Franken Decade!!

        by Superpole on Tue Apr 14, 2009 at 05:03:42 PM PDT

        [ Parent ]

  •  Exercise in futility. (4+ / 0-)

    Why not use those resources to actually make a difference?  The court will use any of a number of available reasons to avoid any ruling at all.  This train goes nowhere.

    "...we all of us, grave or light, get our thoughts entangled in metaphors, and act fatally on the strength of them."

    by beagledad on Tue Apr 14, 2009 at 02:51:38 PM PDT

  •  Can they take up Gulf of Tonkin Resolution next? (8+ / 0-)

    After that, I remember something about the Maine...

    We must pick ourselves up, dust ourselves off, and begin again the work of remaking America.

    by Minerva on Tue Apr 14, 2009 at 02:52:22 PM PDT

  •  Your Link (0+ / 0-)

    Is broken, getting 'page not found' at site.

    "When it came to corporate greed, the Great Communicator [Ronald Reagan] was also the Great Enabler." - William Kleinknecht

    by jimstaro on Tue Apr 14, 2009 at 02:53:33 PM PDT

  •  If this is successful (1+ / 0-)
    Recommended by:
    Catte Nappe

    what would it accomplish (and I don't mean to be critical - I'm asking out of curiosity)?

    Good luck!

  •  The Genie can't go back in the bottle (1+ / 0-)
    Recommended by:
    burrow owl

    I would love to see this work for good, but I doubt it will come to anything.

    Still, a worthy effort, if not for anyhting else than the sake of the cause.

    Better yet, Demand a Special Prosecutor for Bush/Cheney. The genie can't be put back into the bottle, but we can make sure that we never let this happen again.

    Petition Badge
    Get Badge

    Good luck!

    A conservative is a man with two perfectly good legs who, however, has never learned how to walk forward. - FDR

    by MinistryOfTruth on Tue Apr 14, 2009 at 03:51:57 PM PDT

    •  IMHO, it's counterproductive. (1+ / 0-)
      Recommended by:
      Adam B

      It enables Bush supporters to - rightly! - say, "look at what those loons do."  

      The push to investigate, charge, and lock up Bush is good, and horse shit nonsense like this do nothing but work against that.

      We are building a team that is continuously being built. - Sarah Palin

      by burrow owl on Tue Apr 14, 2009 at 05:06:04 PM PDT

      [ Parent ]

  •  Dumb. (1+ / 0-)
    Recommended by:
    Adam B

    Just dumb.

    We are building a team that is continuously being built. - Sarah Palin

    by burrow owl on Tue Apr 14, 2009 at 05:03:52 PM PDT

  •  Preventive, not preemptive. Very important (0+ / 0-)

    distinction that people keep screwing up - this was not, by any stretch of the imagination whatsoever, a preemptive war.  Even Bush himself called it preventative.

    FWIW, "preemptive war" is actually a misnomer, it means a defensive war precipitated by a preemptive attack which is the key term of art.

    "Fascism should more properly be called corporatism because it is the merger of state and corporate power." -- Benito Mussolini

    by enhydra lutris on Tue Apr 14, 2009 at 08:24:18 PM PDT

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