Is the United States at War? The US term GWOT (global war on terrorism) is frequently used, however, as I understand a nation is or is not at war (via declaration or some other formally documented mechanism) with another party. In order for the US to be at war, what are the requirements for the other party? In the distant past the party has been recognized nation states (Germany, Italy, Japan, etc.) QUESTIONS Is it possible for the US to be at war with a non-nation actor (ISIL, Al-Qaeda), in the same way that the US was at war with other recognized nations in WWII? If yes, has there been a declaration of war with XXXX (ISIL, Al-Qaeda, etc.) Do the conventions of war apply to ideological combatants (i.e. not representing a recognized state)?
Under Article One, Section Eight of the Constitution, The Congress shall have power... To declare war but does not say what follows from "declaring war", nor does it say what form such a declaration shall take. This rather long document analyzes the notion of "declaration of war". The primary significance of a "declaration of war" lies in international law, see the Hague Conventions of 1899 and 1907. Articles 1 and 2 say: The Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war and The existence of a state of war must be notified to the neutral Powers without delay, and shall not take effect in regard to them until after the receipt of a notification, which may, however, be given by telegraph. Neutral Powers, nevertheless, cannot rely on the absence of notification if it is clearly established that they were in fact aware of the existence of a state of war So if the US were to declare war on Canada, we would need to officially notify the government of Canada of this fact, which we could do because there is a country Canada whose government we can inform. This is not possible with "terrorism", which is not a nation. There were official declarations for the War of 1812, against Mexico, Spain, and WW I, WW II (11 declarations). Since "the South" was not (from the perspective of "the North") a separate country, the United States did not declare war on itself to conduct the Civil War. In fact, since the congressional action authorizing military action against the Algerine Cruisers (the 2nd Barbary War) in 1815, the actions authorized by Congress have not used the word "war" (except in mentioning a specific law, the War Powers Act), except in the aforementioned declared wars. Instead, the resolution described what could be done: it shall be lawful fully to equip, officer, man and employ such of the armed vessels of the United States as may be judged requisite by the President of the United States for protecting effectually the commerce and seamen thereof on the Atlantic Ocean, the Mediterranean and adjoining seas "Declared war" is a fairly limited genre of use of force, but "being at war" in the broadest sense, is common and can involve concepts and things (terrorism, poverty, drugs).
As with all international law, it depends on &quot;who says so&quot;: I will draw on the Geneva Convention Relative to the Protection of Civilian Persons in Time of War as most relevant. Article 3 distinguishes combatants from non-combatants, saying that Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. They then specifically prohibit murder: Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture but this only applies to non-combatants. There simply is no prohibition against killing combatants (unsurprisingly). Liberia acceded to that treaty, so for instance if one of their soldiers murdered a non-combatant, in principle they should try that soldier for the crime of murder under Liberian law. If some random dude (not a soldier) murders anybody in Liberia, in principle they should try him for the crime. Soldier may kill enemy soldier, even when the killed soldier is sleeping and poses no immediate threat to the soldier who kills him. That's the nature of war. In the case of Massaquoi, he might have been prosecuted by Sierra Leone, but negotiated immunity in Sierra Leone in exchange for information on his RUF colleagues. There was no such tribunal or arrangement w.r.t. his involvement in Liberia, and Finland opted to conduct an extraterritorial trial based on war crimes (not the killing of combatants). His acquittal was based on the lack of evidence that it was him that did the reported deeds (I don't know if there is a publicly available judgment, but it is 850 pages and in Finnish, so toivotan onnea projektille.
It’s legal under Ukrainian law for foreign nationals to join their defense forces Indeed, this is so common it may be considered the default position internationally: the US, UK, France, and Australia just to name a few all allow this. Generally, it’s usually legal for a citizen to join the army of a foreign state. It is usually not legal to fight for a non-state actor this is where fighters for ISIS are in trouble. Where issues arise is if they take up arms against the country of their citizenship. That’s called treason and it usually attracts the most severe punishment available: death or life imprisonment typically. So, as long as you aren’t Russian and are not from one of the few countries that prohibits foreign military service, there are no legal issues.
Greendrake's answer says that a country can declare any jurisdiction it likes. This is true, but in practice it is the convention that a country should claim jurisdiction only over its territory and its citizens. The point about "citizens" is normally not pushed, as when you go to a foreign country you are normally subject to its laws rather than those of your home, but for instance there are laws against child sex tourism where the perpetrators can be prosecuted at home for offences committed abroad. However this basic principle gets more murky with long-distance communication such as the Internet. Someone in country X can, for example, provide a service to someone in country Y which is illegal in country Y. At this point the laws of country Y have been broken by someone sitting in country X. Y is not claiming extraterritorial jurisdiction; the crime occurred inside its own territory, but the criminal is currently resident in X. From a legal point of view this is the same as if both had been inside Y when the crime was committed, but then the perpetrator fled to X before they could be arrested. So in the Kim Dotcom case, Dotcom is alleged to have committed criminal copyright violations by supplying movie files to people in the US. In the Meng Wanzhou case, Meng is alleged to have made fraudulent statements to American banks to the effect that Huawei was complying with US sanctions law (otherwise those banks would not have been able to do business with Huawei). The accounts I've read don't say whether Meng was in the US for those meetings, but the fact that they were made to American banks in order to do business in America makes the precise location of the meeting irrelevant.
This is known as a retroactive or ex post facto law. Such laws are explicitly forbidden by the US Constitution (Wikipedia reference), and are generally frowned on in jurisdictions where the rule of law applies, partly because it is difficult to prove criminal intent when your action was not at the time criminal.
Maybe To be a refugee (a necessary prerequisite to claiming asylum) you must meet the UN definition as incorporated in the host country’s domestic law: a person who: has a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’; ‘is outside the country of [their] nationality’; and is unable or, owing to such fear, is unwilling to avail [themselves] of the protection of that country’. It is important to note that “gender” is not one of the 5 grounds enumerated. However, while the definition is from the UN, the “the right of asylum is a right of States, not of the individual” or the UN. That is, each state decides who does and does not fall within one of the 5 categories even if their home state might not decide that way. This article discusses that “woman” (or a subset of “woman” e.g. divorced woman, transitioned woman etc.) could fit one of the categories - usually the “social group” or “religion” or “race”. It also mentions that common law jurisdictions have divergent approaches: Australian courts have adopted a ‘social perception’ approach which examines whether a group shares a common characteristic which sets it apart from society at large. In contrast, the jurisprudence in Canada, United Kingdom and USA has emphasised the ‘protected characteristics’ approach, which considers whether a group is united by an immutable characteristic or by a characteristic so ‘fundamental to human dignity that a person should not be compelled to forsake it’.
The fact that an explosive device is improvised is irrelevant to any law of war with which I am familiar. "Legal in war" is more a matter of deciding which treaty, convention, or custom you care to respect.
In other words, what thoughts regarding freedoms and rights from the founders of a nation support a leader taking supreme power over its Congress? Generally speaking, one doesn't take "supreme power over Congress", one instead, disregards laws duly enacted by Congress or express mandates of the Constitution, including those related to cooperation with Congress. The most notable recognized deviations from Congressional direction that are recognized (at least by some people) are: The authority of the President to direct the military as commander-in-chief, and to a lesser extent, to conduct foreign policy. U.S. Constitution, Article II, Section 2. This power is balanced with the power of Congress to declare war and regulate the military via the War Powers Resolution of 1973 which has never really been tested in a "when push comes to shove" kind of way so far. The War Powers Resolution (a.k.a. the War Powers Act) requires the President to seek Congressional approval for new conflicts that arise that could become wars and predominantly Presidents have done so without necessarily acknowledging that they are obligated in a constitutionally valid way to do so. The closely related power to unilaterally employ military force to ensure a Republican form of government or to respond to an invasion or insurrection or at the request of a governor, "domestic violence" without Congressional authorization. U.S. Constitution, Article IV, Section 4. The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence. Related to this is the power to suspend the writ of habeas corpus. U.S. Constitution, Article I, Section 9: The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. In practice, however, this theoretically unilateral power of the President has never been very meaningful, because no President has ever sought to invoke it in circumstances in which he didn't already have solid and prompt legislative support from Congress. For example, the suspension of habeas corpus by President Lincoln during the U.S. Civil War was backed by legislation from Congress, the Habeas Corpus Suspension Act of 1863. But, the emergency power to limit the right of habeas corpus has been significantly restricted by U.S. Supreme Court case law: In ex parte Milligan, the United States Supreme Court held that the Habeas Corpus Suspension Act [of 1863] did not authorize military tribunals, that as a matter of constitutional law the suspension of habeas corpus did not itself authorize trial by military tribunals, and that neither the Act nor the laws of war permitted the imposition of martial law where civilian courts were open and operating unimpeded. The emergency powers of the President to use the military domestically are also limited by the Posse Comitatus Act and related legislation, which prohibits the use of the military to enforce civilian laws domestically in most circumstances, absent an invasion or insurrection. The authority to pardon someone who has violated the law. U.S. Constitution, Article II, Section 2. The authority to veto legislation subject to Congressional override. U.S. Constitution, Article I, Section 7. The authority to not spend all funds that are authorized by Congress for a purposes that are not entitlements. This is implied in case law subject to limitations in a 1974 Act of Congress. This is called "impoundment of appropriated funds." But, one of the strongest limitations on Presidential power is that the President may not spend any money not appropriated by law by Congress. The President can constitutionally spend less than is appropriated by Congress, subject to the Impoundment Act of 1974, but not more. Since the Constitution prohibits many kinds of long term binding contracts and prospective appropriations that would bind future Congresses (except for the Naval contracts), see U.S. Constitution, Article I, this leaves the President on a fairly short leash and fairly accountable to Congress. The authority to exercise discretion in not fully enforcing all violations of the law. This is implied in case law, especially, the law of prosecutorial discretion. The prosecutor's broad discretion in such areas as initiating or foregoing prosecutions, selecting or recommending specific charges, and terminating prosecutions by accepting guilty pleas has been recognized on numerous occasions by the courts. See, e.g., United States v. LaBonte, 520 U.S. 751, 762 (1997); Oyler v. Boles, 368 U.S. 448 (1962); United States v. Fokker Services B.V., 818 F.3d 733, 741 (D.C. Cir. 2016); Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967); Powell v. Ratzenbach, 359 F.2d 234 (D.C. Cir. 1965). This discretion exists by virtue of the prosecutor's status as a member of the Executive Branch, and the President's responsibility under the Constitution to ensure that the laws of the United States be "faithfully executed." U.S. Constitution, Article II § 3. See Nader v. Saxbe, 497 F.2d 676, 679 n. 18 (D.C. Cir. 1974). Complete executive branch control of prosecutorial discretion, however, has been limited by the creation of independent agencies within the federal government and by the enactment of laws authorizing the appointment of a special prosecutor, like Robert Mueller, in cases where there is a risk of a conflict of interest from the President. The authority to refrain from enforcing laws determined to be unconstitutional when that determination is not contrary to the controlling judicial branch ruling. This is implied in case law and in the duty to faithfully execute the constitution. U.S. Constitution, Article II, Section 1. This is closely related to prosecutorial discretion. Sovereign immunity as applied to executive branch officials including the President, is mostly a product of case law although it has some statutory acknowledgement in relatively pedestrian claims like lawsuits for ordinary tort liability against the United States seeking money damages which must usually be brought in the U.S. Court of Claims, if they are allowed at all (with an important exception established in the Bivens case). Case law has also recognized an "executive privilege" against forced disclosure of certain information by the executive branch although the scope of this privilege, which arises only from case law, is disputed. Only a handful of cases have addressed this, the most famous of which is United States v. Nixon discussed at the link. There is also an unanswered question regarding when, if ever, a President's actions are clear and intentional violations of the law, and yet still might not constitute impeachable offenses set forth in U.S. Constitution, Article II, Section 4, or what remedies are available when an impeachable offense is committed but Congress is unwilling or unable (perhaps due to Presidential action) to conduct impeachment proceedings. Other than these circumstances, the U.S. Constitution does not contemplate that the President has emergency powers of any kind. There are few precedents in which the President has defied the law and the will of Congress more generally based upon a claim of emergency powers. The emergency powers of the President, in particular, and government, in general, are qualitatively and quantitatively, different from emergency powers in most other countries, which are, generally speaking, more expansive and have more formal recognition in the governing documents and laws of the countries in question. For example, while a bipartisan coalition in the U.K. suspended elections during World War II, the United States has never, ever, under any circumstances suspended an election (except during the U.S. Civil War in the Confederate States, where the Confederacy that was the de facto regime there held its own elections instead). Specific Legislation Despite its name, the National Emergencies Act of 1976, doesn't really address the question. Analytically, this is just a law authorizing the President to do certain things under certain circumstances, just like any other law, and not a law that gives the President "supreme power over Congress". It is more like the laws governing disaster relief, which authorize the President, subject to specific criteria, to determine that a situation is a national disaster, upon which determination certain federal assistance is authorized. This is why, even though scores of "emergencies" have been declared, many of which are still in force, they don't feel, to the general public, like "emergencies." To the extent that the National Emergencies Act purports to go further, in ways not expressly authorized by the U.S. Constitution, it is an unconstitutional violation of the non-delegation doctrine and isn't a valid law. So, for example, Congress cannot delegate all of its law making power to the President via regulations. The Supreme Court ruled in J. W. Hampton, Jr. &amp; Co. v. United States (1928) that: "In determining what Congress may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination." So long as Congress "shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power." For example, Congress is not constitutionally permitted to give the President line item veto power. Clinton v. City of New York (U.S. 1996). Isn't the executive branch supposed to just execute? I.e. Execute the bills proposed by the party he represents, as supported by that party's allies? The Executive branch is supposed to "execute" although it has considerable discretion in how it does so and has some express instances of unilateral power like the veto power and the pardon power. But, the Executive branch is supposed to "execute" the laws enacted by Congress, not "the bills proposed by the party he represents, as supported by that party's allies." From a legal and constitutional perspective, until a bill is passed by Congress and duly enacted as a law, the Executive branch not only can, but must, ignore them, in any capacity other than as one more lobbyist before Congress among others, on a hypothetically equal footing as everyone else (except that the President has the veto power and the VP can cast tie votes in the Senate, per Article I of the U.S. Constitution).