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Declare war, or don’t

REUTERS/Zohra Bensemra
A U.S soldier from Task Force Viper looks out as a Chinook CH-47F transport helicopter flies back to FOB Salerno, Afghanistan, on Dec. 2, 2009.

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.”

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Comments (21)

  1. Submitted by Paul Brandon on 04/06/2016 - 09:38 am.

    One factor

    We came out of WWII as masters of the universe, able to do pretty much whatever we wanted to.
    And as you point out, traditionally wars are declared against sovereign nations, and ‘terror’ is not a sovereign nation. It’s not clear that ISIL is, nor that they constitute an existential threat to the United States (as opposed to multinational corporations doing business in the United States).
    WWII was the last existential threat, the last time that United States territory (Hawaii and Alaska were not states yet), and the last time we formally declared war.

  2. Submitted by Edward Blaise on 04/06/2016 - 09:58 am.

    I was for it before I was against it…

    We’re now into our third Presidential election where we are constantly reminded who voted/supported the war in Iraq and who did not. Candidates get all tied up into knots trying to explain there way out of their vote. I have always wondered why those who supported it have not simply said:

    “We experienced a national tragedy and unilateral attack on our country on 911. Presenting a common front during times of great adversity is a long standing precedent in this country. When the President asked for the ability to use force as he saw fit, I believed to deny him that was not in keeping with this tradition of solidarity and support in a time of crisis”

    Seems better than:

    “I was for it before I was against it”

    • Submitted by James Hamilton on 04/06/2016 - 10:27 am.

      Why not

      a simple, “I was wrong.”

      If they care to elaborate, they can add, “There was never any indication of imminent danger to the United States as the result of Iraq’s alleged nuclear weapons initiative and there was no evidence it possessed any weapon of mass destruction capable of being deployed against us.”

    • Submitted by Steve Titterud on 04/06/2016 - 12:51 pm.

      How about

      “…I saw a crowd rushing in one direction singing ‘Patriotism’ and so I joined it.”

      THAT would be a whole lot closer to the truth.

  3. Submitted by Bill Kahn on 04/06/2016 - 10:11 am.

    Constitutional change being nearly impossible, I guess we’ll continue to use AUMFs, but Congress should at least require periodic reauthorizations and a statement of a less amorphous enemy than the original “Axis of Evil” and “outposts of tyranny” from the Bush-Cheney Admistration, something that has undermined many efforts at achieving world peace.

    One does not recover from war of any kind for many generations after, and in a state of perpetual war, never.

    • Submitted by Bill Kahn on 04/06/2016 - 11:15 am.

      Sorry. That last bit doesn’t make a great deal of sense as I wrote and saved it. The idea might be that we never stop paying for war, whether in blood or hard cash, and the folks who pay get less than nothing. I guess we have to stop paying or somehow make war industries creatures of world government, accountable to each member nation, but that doesn’t address terrorism; of course it is mostly war that spawns the terrorism.

      Maybe someday terrorism can be dealt with by treating it like a public health problem as well as through law enforcement.

      • Submitted by Steve Titterud on 04/06/2016 - 12:56 pm.

        “I guess we have to stop paying…”

        That is exactly how the Vietnam War ended: Congress cut off the funding. Of course, that didn’t stop the suffering, as it continues to this very day.

      • Submitted by Paul Brandon on 04/08/2016 - 06:46 pm.

        If terrorism were regarded as a public health problem

        it would be way down the priority list.
        The ten leading causes (according to the CDC):

        Heart disease: 611,105
        Cancer: 584,881
        Chronic lower respiratory diseases: 149,205
        Accidents (unintentional injuries): 130,557
        Stroke (cerebrovascular diseases): 128,978
        Alzheimer’s disease: 84,767
        Diabetes: 75,578
        Influenza and Pneumonia: 56,979
        Nephritis, nephrotic syndrome, and nephrosis: 47,112
        Intentional self-harm (suicide): 41,149

        Most of these are at least partially preventable.

    • Submitted by Paul Brandon on 04/06/2016 - 11:41 am.

      Eisenhauer

      We’re back to Ike and the military/industrial complex.
      As long as there are military facilities and weapons manufacturers in most states (Pentagon strategic planning at its best) Congress will support wars.

  4. Submitted by Dennis Tester on 04/06/2016 - 11:51 am.

    To the Shores of Tripoli

    In the late 1700s, the Muslim Barbary pirates considered Americans to be infidels and believed they simply had the right to plunder American ships. The US government wrung its hands and adopted a policy of paying bribes, or tribute, to the pirates.

    When he was elected president, Thomas Jefferson decided to halt the payment of bribes to the pirates.

    In April 1805 the US Navy, with U.S. Marines, launched an operation against the port of Tripoli. The objective was to install a new ruler. The detachment of Marines, under the command of Lieutenant Presley O’Bannon, led a frontal assault on a harbor fort at the Battle of Derna. O’Bannon and his small force captured the fort.

    Marking the first American victory on foreign soil, O’Bannon raised an American flag over the fortress. A new pasha was installed in Tripoli, and he presented O’Bannon with a curved “Mameluke” sword, which is named for North African warriors. To this day Marine dress swords replicate the sword given to O’Bannon.

    Much of the U.S. Navy and Marines history and tradition is based on the events surrounding an undeclared war against a collection of Muslim terrorists who were not an actual nation.

    The End

    • Submitted by RB Holbrook on 04/06/2016 - 12:46 pm.

      Or is it?

      The Barbary Wars were fought against independent or semi-independent states in North Africa. The first war ended when the US paid tribute of $60,000 to the Bashaw of Tripoli.

      Article 11 of the treaty ending the war with Tripoli famously said that “As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen; and as the said States never entered into any war or act of hostility against any Mahometan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.”

      The first American victory over a foreign power would be the capture of French frigates by the USS Constellation in 1799.

      And that’s the way it was.

      • Submitted by Ray Schoch on 04/06/2016 - 02:00 pm.

        Once again

        …my thanks to RB Holbrook. Adding that portion of the treaty was a nice touch…

      • Submitted by Jim Boulay on 04/07/2016 - 08:32 am.

        Being schooled!

        WOW!
        Great comment that really is enlightening! It answers more than one question about the US government’s views against colonialism and the taking of territory at the time. It also highlights how seriously they took the question of whether the US was a christian country or a secular state! We’ve all been schooled by RB this morning! Kudos!

        The only comment that I have is the way the middle east was divied up after WWI into western ideas of nation states that no one in the region believed in is only now being played out by spiraling down into tribal, ethnic and religious violence. The fact that the groups don’t fit into the boundries that were created and are artificial seems to be confounding the US military but really shouldn’t come as any surprise. The same thing played out in Yugoslavia. Russia repopulated the Crimea with people from Russia ousting the tartars into exile throughout Siberia! How does the world undo or fix these kinds of historical territorial mistakes through means other than war?

      • Submitted by Richard Hodges on 04/08/2016 - 08:57 am.

        Question

        I looked up the June 4, 1805 Treaty of Tripoli in the Yale Law Library. The only thing close to the above quote is Article 14. Is there another version of the Treaty? http://avalon.law.yale.edu/19th_century/bar1805t.asp

        • Submitted by RB Holbrook on 04/08/2016 - 10:24 am.

          Different Treaty

          The Article 11 I quoted was from the 1797 Treaty ending the First Barbary War: http://avalon.law.yale.edu/18th_century/bar1796t.asp.

          • Submitted by Dennis Tester on 04/10/2016 - 08:41 am.

            So you’re wrong, in other words

            The incident I was referring to was 8 years later.

            • Submitted by RB Holbrook on 04/10/2016 - 04:20 pm.

              So, No

              Yes, you described the US military action correctly. It was not, however, a strike against Islamic terrorists, but was directed against sovereign or quasi-sovereign nations (Tripoli and Algiers were technically Ottoman provinces, but were granted a great deal of autonomy in foreign affairs). It also did not end the payment of tribute to allow the passage of shipping. President Jefferson’s administration negotiated the First Barbary Treaty, which called for payment of $60,000 tribute.

              Th Barbary Wars, and the tribute exacted by the Barbary states, did not end until 1815..

  5. Submitted by RB Holbrook on 04/06/2016 - 12:02 pm.

    Declarations

    The US has issued only five formal declarations of war (War of 1812, Mexican War, Spanish-American War, WW I and II). Other (but not all other) uses of military force have had some congressional authorization without a formal declaration.

    Courts have held that the Constitution “envisages the joint participation of Congress and the executive in determining the scale and duration of hostilities.” Mass. v. Laird, 451 F.2d 26 (1st Cir. 1971) This does not appear to mean that the words “declaration of war” are required by the Constitution.

  6. Submitted by Jim Million on 04/06/2016 - 01:18 pm.

    Hot and Cold…

    sometimes tepid.

    Korean Conflict, Vietnam Conflict.

    When does a “Conflict” become a “War”?

  7. Submitted by Jon Kingstad on 04/07/2016 - 10:48 pm.

    Declarations of war

    seem to have become a moot point without a draft. The US does quite well applying force where “US interests” are concerned. Such as occupation of Haiti, Nicaragua, Dominican Republic in the 1910-1934 era. Or the CIA when client governments are not “reliable enough, as with Guatemala in 1952 and Iran in 1954.

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