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April 7, 2003

Declaration of War

Note: this is a post recovered from my old blog, before it died of an insufficient backup. Any comments/trackbacks on it have not been brought over, but can be seen with the original. The date is that of the original posting.

When the Constitution was written, there was not a lot of middle ground between war and peace. The primary armed force of the United States was the militia, which consists of armed male citizens of a certain age (I think 15 to 35 years, but I haven't read the definition in a long time). The army, in fact, could only be funded for two years at a time (this is still true, but now pretty much meaningless) in order to prevent the existence (and related dangers) of a large standing army. In order to make war in anything other than local self-defense, the army would have to be mobilized. In order to mobilize the army, there had to be a Congressional declaration of war.

Beginning during the campaigns to occupy the American West, and continuing with such operations as the putting down of the Moro rebellion in the Phillipines and the occupations of several Latin-American nations during the time before WWII, this line became blurred. Viet Nam was the war that finally muddied the line to invisibility. When Kennedy committed military advisors in a non-combat role, did that require a declaration of war? When Kennedy later authorized them to shoot in self-defense, did that require a declaration of war? When those advisors went on patrol with their trainees, and fired on VC groups setting up machine guns to kill them, did that require a declaration of war? When larger formations were deployed to pacify areas behind the front lines (to the extent they could even be defined), essentially acting as well-armed police, did that require a declartion of war? When those troops were then engaged by large enemy formations, did that require a declaration of war? And so on. The frog was well and truly boiled by that point, yet there had been no declaration of war either by Congress, or via delegated authority (as through the UNSC or invokation of the North Atlantic Treaty's article V). The closest it came was a Congressional resolution, the Tonkin Gulf Resolution, which amounted to a declaration of war, but without giving the President clear targets or undisputed authority to prosecute the war.

Finally, America recognized that warfare had become a spectrum. Absolute war and absolute peace rarely exist in the world. Most of the time, in most places, there is some kind of in-between situation. Transportation and the falling cost of increasingly powerful weapons means that ill-clothed tribesmen living in a 12th century culture in mountain caves without a road in a 500km radius could launch rockets with ranges of 30km and large high-explosive warheads. In this kind of world, how do we decide when and how the President can deploy troops in protection of American interests, while still maintaining the Congressional authority and accountability to decide when and where we commit those forces that could result in our destruction, should we lose? The answer to this question was the War Powers act.

Setting aside whether or not the Act is Constitutional (possibly not) or should have instead been passed as a Constitutional amendment with additional details supplied by enabling laws (probably), the War Powers act defined the conditions under which the President could act without the explicit authority of Congress. There are, under the War Powers act, only three conditions under which "the President as Commander-in-Chief [may] introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances:"

  1. pursuant to a declaration of war
  2. pursuant to specific statutory authorization
  3. or in "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces"

The President must: advise Congress in advance and regularly thereafter, report specific information to the Congress every six months (more frequently if required by statute), immediately withdraw troops if Congress so requires by concurrent resolution, and "shall terminate" the combat use of the military "unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States."

Clearly, the President is authorized to make war in Iraq, by the second test established in the War Powers act. In October, 2002, the Congress passed a resolution which states in relevant part:


(a) AUTHORIZATION- The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to--

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

While this resolution did not immediately declare a state of war to exist between the United States and Iraq, it did authorize the President to commit acts of war at a time of his choosing, as long as certain conditions were met. I am unaware of any way to construe a difference between authorizing the President to commit acts of war that are not necessary for national self-defense, and declaring that a state of war exists, that would make any Constitutional difference. As a result, this resolution was a declaration that a state of war could be brought into existence, should the President decide that this was necessary and appropriate.

I believe that this is why the President did not ask for, and Congress did not pre-emptively make, a declaration of war. A declaration of war is a recognition that a state of war already exists. Since the President still hoped to pursue a diplomatic solution to the Iraq crisis, this form of resolution removed the Constitutional obstacle to war without also demanding a war, as an outright declaration of war would have done.

What this all comes down to is that the Congressional resolution of last October 2002 is Constitutionally equivalent to a declaration of war.

Posted by jeff at April 7, 2003 12:51 AM

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