Law Lesson: Declarations of War

Part of a Continuing Series: The national debate about the War on Terror has led to intense discussion of laws both international and domestic. In my other Law Lessons posts I’ve focused on international law because I believe conservatives too often assume that it is an obstacle to their goals. Leftists and lazy journalists like to rely on ignorance or distaste for international law to get away with shady arguments.

However, law that is wholly domestic is just as contentious as its international variation. Let’s face it, Americans love to argue about the law. So I am expanding my Law Lessons series to include issues of domestic law that have been the subject of debate during the last few years.

Update on Other Posts:Those of you who are looking out for future posts about international law need not worry. I still have several in the works, including ones which will apply Just War theory to the Iraq War and examine the importance of international rules of warfare. I’m also working on the much anticipated post (it is, right?), “International Law: What It Is, Why It Is Important, and Why We Should Stick To It.” That one is looking like it will have four and maybe five parts, the first of which will be up on Monday.

Enough preamble. My topic today is congressional declarations of war. I rather summarily dealt with the issue in the comments of an earlier post. I wrote:

When Congress points our military at another nation and says "fight them, overthrow their government, and occupy their territory" it is declaring war regardless of whether it uses magic words in the enabling act.

I think the topic deserves a little more than that.

Current Event That Prompts Discussion: The U.S. appears to go to war without issuing a “formal” Declaration of War (i.e. a piece of legislation with the words “This is a Declaration of War”). This prompts widespread examination of just what it means to go to war on both the left and the right years after the fact. (You will forgive me for picking on a 2005 post by Kevin Drum, won’t you? He gets it so wrong that I couldn’t help myself once I’d seen it.)

Leftist Commentary #1 (from Drum’s post): Article I, Section 8 of the constitution says flatly that "The Congress shall have Power...To declare War," but no Congress has declared war for the past 60 years. They've passed resolutions, they've passed authorizations, and they've passed budget authorities, but they haven't declared war. The 108th Congress certainly never declared war on Iraq.

Your Answer: Indeed, the U.S. Constitution says that Congress has the power to declare war. It doesn’t say that to exercise that power Congress must perform an arcane ritual of words and actions. There is no constitutional requirement that Congress use the specific words “Declaration of War.” Nor has the use of such language been the usual practice when the U.S. goes to war.

The U.S. has formally declared war only five times. The other 10 or so times a state of war existed between the U.S. and another country or countries, Congress simply authorizes the use of military force. For example, to authorize the First Barbary War, Congress directed President Jefferson “to cause to be done all such other acts of precaution or hostility as the state of war will justify.” And yet the Drums of the world would have us believe that Congress didn’t declare war on the Barbary pirates and Tripoli, their sponsor. (Other examples of wars for which Congress authorized military action, but didn’t use the magic words “Declaration of War, include the Second Barbary War, the Vietnam War, and the Persian Gulf War.)

It is worth noting the startling similarities between the Barbary declaration of war and the AUMF 2001, which declared war on the perpetrators of 9/11 and under which the invasion of Afghanistan was conducted. In neither case was a specific target identified. Rather, the authorizations focused on specific actions which when committed identified a target as being within the scope of the authorization.

For example, the Barbary declaration authorized armed force for the purpose of “protecting effectually the commerce and seamen thereof on the Atlantic ocean, the Mediterranean and adjoining seas.” Similarly, only those who “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons” come within the AUMF 2001.

Even more noteworthy is the fact that both war authorizations leave it up to the President to determine just which individuals or nations fall into the enabling language. (Think of this the next time you hear a hysterical ninny gulping about how the discretion Congress gave to President Bush is simply unprecedented.)

Leftist Commentary #2:There's no reason we should have to guess about this. If the president wants to go to war, he should get a declaration of war. Not an "authorization of force" six months before the fact, but a declaration of war a few days before the invasion. Not only is that what the constitution requires, but it also means that members of Congress can no longer play games about what their vote really meant.

Your Answer: The occasions in which a formal declaration of war is used are limited to those occasions when the President has asked Congress to declare war. Each of the wars (1812, Mexican-American, Spanish-American, WWI, WWII) had significant support from the public (with the exception of 1812 in many parts of the country) and unambiguous nation-state targets.

This is the true crux of the matter for leftists these days. They can’t actually infer a textual requirement for formal declarations of war into the Constitution, although Drum tries. In reality, they’re just hoping to restrain President Bush (what ever are they going to do with themselves after he leaves office?) They don’t like the fact that he’s been given discretion to fight for America’s interests as he sees them.

One way they can limit presidential power is by claiming that for a true, “legitimate” war to exist it must be formally declared. They like the fact that, owing to its unusual nature, formal declarations of war would difficult, if not impossible, for Congress to issue in the War on Terror. By insisting upon formal declarations of war, Lefties would bring war authorization to a crawl. (Not that the sixth-month, or twelve-year depending on how you look at it, lead-in to the Iraq War could ever be considered a sprint.)

Bonus Leftist Commentary: (Bonus because it doesn’t really have anything to do with declarations of war. I include it because Drum is simply hysterical.) The question of whether intelligence was manipulated is important, but I think the fact that we're arguing about it exposes an even more fundamental issue: did Edwards really vote for the war in the first place?

Your Answer: Oh, how I wish that Edwards or Clinton had claimed that they didn’t vote for the Iraq War.

Rightist/Ron Paul Supporter Commentary #1: I'm putting my support behind Ron Paul because he's the "strict constructionist" candidate. I don't think for a second that if Congress formally declared war after 9/11 against Al Qaida Paul would have a problem sending troops, ships, or nukes (if necessary) to whatever craphole needed to be douched.

Your Answer: As we’ve already noted, the Constitution only provides that Congress has the power to “declare War.” There is no textual requirement that Congress issue “formal” declarations of war. As we’ve seen with the examples of Jefferson’s war on the Barbary pirates and Madison’s War of 1812, the Founders appeared to have a “take it or leave it” view of declarations of war. And finally, we’ve seen that there has been no general practice of formally declaring war in U.S. history.

In other words, the “strict constructionist” could never claim that Congress has to “formally declare war after 9/11.” If someone claimed to be a strict constructionist and yet insist on the requirement of formal declarations of war, we would justifiably think he's an idiot.

posted by Gabriel Malor at 01:33 PM

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