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Is the Constitutionality of the “War on Terrorism” Coming to an End?

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by Publius
Posted January 10, 2013, 9:44 AM

Lyle Denniston comments at Constitution Daily:

One of the conspicuous features of the war powers that the Constitution gives to the national government is that it anticipates that there will be wars, and provides how war is to begin, but says nothing about how or when a war should or might end. Past wars ended (more or less) with the signing of an armistice or a peace agreement.

But, in an age of wars of insurgency, by violent movements rather than by organized governments, a state of war can exist without ever being started in a formal, constitutional way, and it is difficult–at best–to define when it might end.

That appears to be the kind of conflict that the U.S. government has been waging for more than 11 years, in what used to be called a “war on terrorism” (the official government position is that it no longer uses that label).

Until just recently, it was routine for Washington officials to caution that there might never be an end to such a conflict. Part of the reason for that was to keep America on a state of alert and vigilance. But it is now clear that, in the highest councils of the Obama administration, some thinking is being done about an end-point to the “armed conflict” against terrorist networks around the globe.

That is what Jeh Johnson, the Pentagon’s top lawyer (until just this month), has been talking about quite boldly in public in recent weeks. He has spoken of at least a “turning point” in the successful efforts against Al Qaeda and the Taliban, a point at which he has said there will no longer be a legal justification for the U.S. to carry on “armed conflict” under the war authorization Congress enacted just days after the terrorist attacks of September 11, 2001.

Because there never was a formal declaration of war by Congress after those attacks, that resolution was–and remains–the only legal foundation for the ongoing conflict against terrorist movements.

When the Supreme Court, nearly nine years ago, ruled that the 2001 war resolution did indeed give the government the authority to wage war, the opinion actually stressed that the court was not endorsing an endless state of war.

The justices’ opinion said that the court was relying upon traditional law-of-law principles, including the notion that, at some point, there is an end to hostilities. Noting the unconventional nature of modern armed conflict, the decision suggested that, if the traditional notion that wars do come to an end is no longer the reality, the constitutional support for war “may unravel.”

Jeh Johnson and those within the government with whom he has been conversing about keeping “armed conflict” limited in time and scope appear to be thinking about something like an unraveling of the constitutional justification.

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