One of my heroes, in the category of foreign/military policy analysts, retired Col. Andrew Bacevich, offers a fresh reminder of a fact about the U.S. Constitution and the war powers.
To have a constitutional war, Congress is supposed to declare it. See Article I, Section 8.
Congress has not literally passed a declaration of war since a few days after Pearl Harbor in 1941.
The next big war, the Korean War, was begun by President Truman pursuant to a United Nations resolution. The next big one, the Vietnam War, was conducted under the congressionally passed Gulf of Tonkin Resolution, which was passed under the apparently mistaken impression that North Vietnam had attacked an American ship. As Bacevich explains:
With near unanimity, legislators urged President Lyndon Johnson “to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression” across the length and breadth of Southeast Asia. Through the magic of presidential interpretation, a mandate to prevent aggression provided legal cover for an astonishingly brutal and aggressive war in Vietnam, as well as Cambodia and Laos. Under the guise of repelling attacks on U.S. forces, Johnson and his successor, Richard Nixon, thrust millions of American troops into a war they could not win, even if more than 58,000 died trying.
You could get all hung up on the precise term “declare war,” which are, after all, the words in the Constitution. Up to and including World War II, Congress actually used those words. Since then, for reasons that are not obvious, it never has, although the U.S. has certainly continued to do things that look a lot like war and has, in truth, never really been at peace.
Nowadays, the Congress sometimes arguably fulfills its responsibility by passing an “Authorization for the Use of Military Force” (AUMF). That’s what it did in the false pretense or belief that Saddam Hussein had weapons of mass destruction in Iraq. Maybe that’s close enough to a declaration of war, except that in that case the factual basis for it turned out to be either a lie or a mistake.
And, as Bacevich explains, Congress also issued an AUMF in the aftermath of the 2001 attack by al-Qaida on the World Trade Center, authorizing the president 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.”
I think it’s reasonable to suggest that “war,” as the Framers understood it, was something that happened between nations, with troops, on battlefields, and ending with a surrender by one side or the other or a treaty reestablishing the state of peace between the belligerents. But in 2001, Congress not only jettisoned the old-fashioned “declare war” language, but also, for the first time, authorized the use of force against things other than nations — like “organizations or persons” — with a wide-open goal of preventing future attacks.
As Bacevich points out, the post-9/11 AUMF has been used to wage something that looks a lot like war in countries that had nothing to do with the 9/11 attacks and against organizations that didn’t exist at the time of the attacks. In short, the 15-year-old authorization/declaration is, as Bacevich says, “a blank check [to whomever is president] to go anywhere, invade any country, kill anyone based on your own ‘determination’ of what they may be planning; feel free to fill it in any way you like.”