This may be the first and last time I talk about anything so directly related to school as this...but it was interesting (at least to me) and it's my blog...so there :) Any inaccuracies in my representation of ConLaw are my own fault (and the fault of the public education system which has clearly failed me so horribly)...
Had an interesting conversation with Prof. ConLaw today after class. We’ve been talking about whether/when it’s OK for the President to take the country to war without an express declaration by Congress. His opinion is that the Supreme Court will likely never rule on this because it is a political issue rather than a legal issue. But, we got to talking about what constitutes war. Prof. ConLaw said that he would go back to the old historical definition…basically that it’s not war unless there are people being physically injured and bullets are flying…what most of us would think of when we hear the word “war.” I told him that I would extend war to include information operations, and electronic warfare. (I am admittedly biased having spent the majority of my military time working primarily with personnel issues in the field of operational information warfare). Information warfare is commonly defined as “any action to deny, exploit, corrupt, or destroy the enemy's information and its functions; protecting ourselves against those actions; and exploiting our own military information functions.”
My point to Prof. ConLaw was that the defense and intelligence communities continually seek new means to engage in “warfare” in (a) ways that decrease risk to lives of military personnel and non-combatants, and (b) ways that are directly targeted to “exploiting, corrupting and destroying” the resources of the enemy. Whether the President has the singular authority to send this country to “war” as defined by Prof. ConLaw is iffy at best, I think most in my class would answer emphatically “No.” But, if the line is to be drawn with physical engagement of the enemy or bullets crossing over enemy lines, than where does that leave what I would argue is one of the most important weapons systems in use today (and one which I think will grow exponentially in importance in coming decades), operational information warfare? The danger in determining the President’s powers based on a traditional definition of warfare, is that warfare is going to be redefined at some point in our future history, at least in certain circumstances. I'm a little shocked that Prof. ConLaw would be willing to leave that territory open for interpretation when clearly he thinks the fact that a President can just march this country into war without tacit approval by Congress is a travesty. Anyway, this isn't really my usual thing on this blog, but I always feel happy when law school and Before collide.
