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Old 01-11-2003, 10:53 PM
GKW is offline
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Another question on Cecil's draft column


In this column-
http://www.straightdope.com/classics/a1_140b.html
Cecil explains how the Federal government is able to draft men. "This means that Congress can send draftees off to foreign countries after a declaration of war, which has the force of law. But doesn't include undeclared conflicts like Vietnam." He goes on to say that a number of inductees tried to get out of going by using this argument with varied success.

I have searched high and low but haven't been able to find any court cases where it was argued that since the Vietnam Conflict was unconsitutional (an undeclared war), the draft was illegal.

Can Cecil or one of his Bunny Watson minions please direct me to cites that document these cases? Wouldn't the Gulf of Tonkin Resolution allow for the draft? Did the cases he mentioned take place before 1964?

Thanks!
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Old 01-11-2003, 11:14 PM
samclem is offline
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Quote:
I have searched high and low but haven't been able to find any court cases where it was argued that since the Vietnam Conflict was unconsitutional (an undeclared war), the draft was illegal.
I took the column to say and mean that, while the draft was legal, perhaps sending draftees ot fight overseas in an undeclared war or in peace time might be arguable.
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Old 01-12-2003, 08:32 AM
John W. Kennedy is offline
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There is a basic problem in the Constitution here: only Congress can officially declare war, but there is no serious doubt among legal scholars that the President, as Commander-in-Chief, can authorize military action without Congress first doing that. (Suffice it to say that we know perfectly well that the Framers did not envision a Congress that sits year-round every year.) For that matter, if we were to be suddenly attacked by the Canadian Army, any colonel in the North Dakota National Guard has the authority to fight back.

Vietnam was not (at least from the viewpoint of US law) an "illegal" or "unconstitutional" war, though it was not an official war.

The War Powers Act has put a time limit on how long the President can fight an undeclared war without Congressional authority, but that's modern, and is only a bit of putty applied to the Constitutional crack.

In any case, the Gulf of Tonkin resolution was not a declaration of war. In fact, I don't believe it had any actual legal force at all.
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Old 01-12-2003, 01:40 PM
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Hmm, I am more confused than when I started.

samclem so you understood from Cecil's article that a man had been honorably discharged from the Army because he had successfully argued that it was illegal for him to have been sent to fight overseas during an undeclared war? Not that the war was unconstitutional or the draft illegal because the war was undeclared?

John W. Kennedy I thought the Tonkin Gulf Resolution authorized military action in Vietnam. Why do you believe that it didn't have any legal force? "... the Congress approves and supports the determination of the President, as Commander in Chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression."

In September 2001, Congress authorized President Bush by passing Public Law 107-40 "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons . . . " Isn't this resolution that gave Bush the go ahead to attack the Taliban in Afghanistan. Do you think that resolution also has no legal force? It sounds an awful lot like the other one.

I just want to know if people have successfully argued that the use of the draft was illegal during the Vietnam Conflict because the conflict itself was an unconstitutional war. I though that this was what Cecil's column implied. Hopefully, a staff member will be able to answer more definatively.
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Old 01-12-2003, 04:11 PM
John W. Kennedy is offline
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"Approves and supports" doesn't mean "authorizes". Legally speaking, it's an "attaboy".
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Old 01-12-2003, 08:30 PM
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GKW, you've got a big reading comprehension problem. The article says that several people TRIED (read: unsuccessfully) to get out of the draft by arguing that Congress's power to draft American citizens is supported by a clause in the Constitution that doesn't apply to an undeclared war. It also says that one plaintiff was honorably discharged to prevent a court from ruling on the issue.

NOT that the war was illegal, or unconstitutional;
NOT that the draft had ever been found illegal;
NOT that anyone had ever successfully argued the theory.
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Old 01-13-2003, 08:15 AM
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Okay, thanks for clearing that up.

I still would like to see the cites or be directed to where I can read about this particular case that Cecil brought up about the person being honorably discharged to avoid a court ruling.

I'd also like to actually read about the other inductees who "pursued this notion during the Vietnam period with mixed success"

I'd appreciate if Cecil or one of his researchers could point out some documentation of at least one of the "number of occasions" the selective service had "found excuses to reject potential draftees when it appeared they might have had a good chance of winning a court fight" Is this too much to ask? Otherwise its just sounds like hearsay.
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