Submitted by John Smith on Fri, 03/26/2010 - 5:31pm
Posted in
Declarations of War, Authorizations for Use of Military Force, the Constitution, and OIF/OEF
In the history of the United States, the Congress of the United States has formally declared War only 5 times, first against Great Britain for the War of 1812, and subsequently for the 1846 Mexican-American War, the 1898 Spanish-American War, World War One and World War Two. There have also been numerous foreign “wars”, “punitive expeditions”, “police actions”, and other military actions that the US has engaged in that were not declared, but that were authorized by Congress, such as the 1798 Quasi War prosecuted by President John Adams, the first and second Barbary Wars of 1801 and 1815 prosecuted by Presidents Thomas Jefferson and James Madison, as well as our involvement in the Korean War, the Vietnam War, the first Gulf War, and Operation Enduring Freedom and Operation Iraqi Freedom.
The US Constitution specifically states in Article 1 Section 8 Clause 11 that “Congress shall have to Power To…declare War…”, but what legally constitutes a “Declaration of War”? Nowhere in the Constitution, the United States Code, or the Code of Federal Regulations is there to be found the legal definition of a “Declaration of War”, or what form such “Declaration of War” shall take. The question then becomes, what makes a ‘formally’ declared War any different than our “military expeditions” against the Barbary Pirates, or in Korea, Vietnam, Grenada, Panama, Iraq and Afghanistan when they too were requested by the President and authorized by acts of Congress and signed into law such as the Authorization for the Use of Military Force against Terrorism (AUMF), or the AUMF against Iraq other than the specific verbiage used in the Act of Congress?
How is it that among all of the forms our government uses for every type of legislation that no “US Form 1-Declaration of War” where Congress has merely to ‘fill in the blanks’ of whom we are declaring war against and for what reasons exists? Is it a matter of semantics that for one type of “war” we say “Declaration of War” and in others we don’t, even though they had/have the exact same consequence of sending our Soldiers and Sailors into harms way, or is there some ‘legal’ difference that in our 220+ year history all of our political leaders have somehow managed to neglect to specifically codify? Are we to believe that a legal definition of a “Declaration of War” is simply “understood” and as such no legal definition is necessary? If this is true, then why was it found necessary to include in the United States Code specific legal definitions of words such as “terrorist”, “torture”, “prisoner of war”, “armed forces”, “Army”, and almost every other word related to war and warfare?
Even when we consider our Treaty obligations such as the Laws of War of 1907, in which it states that before hostilities are commenced that “a reasoned declaration of war or of an ultimatum with conditional declaration of war” should be issued, it similarly fails to define exactly what form this “declaration of war” should take. In fact, there is no “legal” definition of a “Declaration of War” to be found anywhere in our, or international Law!
During the debates in the Philadelphia Convention, it was debated as to exactly who would have the power to “declare war”, and it was debated back and forth as to whether to give it exclusively to the President, exclusively to the Senate, divided between both, or what would be required. It was decided that Congress would have the authority to formally declare war, but that because Congress was such a deliberative body, and that something could happen while Congress was in recess and not immediately available to respond in a timely manner, that the President, as the Chief Executive and Commander in Chief of the Armed Forces would retain the authority to dispatch our military at his discretion in order to facilitate immediate reaction to any attack or incident that threatened the United States, and that Congress would be able to formally declare war, if they so chose, upon their return from recess, but there is no requirement that they do so. In fact, in each and every case where the United States has formally declared war, the process was exactly the same as every other piece of legislation that was codified into law, even though a state of hostilities already existed between us and the belligerent nation we were to declare war on, just as in every “undeclared War” that we have engaged in, there was similarly an act of Congress to authorize the President to prosecuted these “undeclared wars” even though they chose not to issue a formal “Declaration of War.
The fact is that there have been far more occasions where we have used our War Powers without a “Declaration of War” than we have with a formal “Declaration of War”, so are we to assume that the majority of our “wars” and military actions have been unconstitutionally waged, and if so, how is it that so many of the Founding Fathers, including Adams, Jefferson, and Madison, the men primarily responsible for writing or influencing the Declaration of Independence, the Constitution, and the vast majority of our earliest laws, could knowingly violate the very document that they fought a war, and sacrificed their lives, fortunes, and sacred honor to give us?
Are we to believe that they were ignorant of what they were doing? Are we to believe that they were intellectually disingenuous? Did they simply not care what the Constitution said, or is it not far more likely that they knew something that some people today simply choose to completely ignore, that being the fact that Article 1 Section 8 Clause 18, more commonly known as the “elastic clause” gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers…”, including laws necessary and proper pursuant to their power to “declare war”, including the ability to “declare war” without having to use the specific verbiage “Declaration of War”. As such, ANY Bill authored by Congress, and signed by the President, authorizing the use of military force against a foreign power, or even a single individual as in the case of the Mexican Expedition against Pancho Villa, constitutes a de facto, and a de jure, Declaration of War.
If we are to believe that all of these previous “wars”, including OIF and OEF were/are “unconstitutional”, then how is it that in our 220 plus year history that no President has ever been charged, much less impeached for an “unconstitutional” use of military force? The answer is simple, because there was nothing “unconstitutional” about them, just as there is nothing “unconstitutional” about OIF or OEF.
The question of the wisdom of our various wars is certainly a subject of necessary and legitimate debate by and beween honest people of differing belief, but to assert that a war is/was “unconstitutional” because there was no “formal” Declaration of War, even after the Congress approved Bills authorizing them, as well as funding them, is unseemly, intellectually disingenuous, and in reality nothing but childish “sour grapes” being expressed by those who were on the losing side of the debate on whether or not to engage in the wars in the first place, or who voted for it before they voted against it.
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Re: Declarations of War, Authorizations for Use of Military ...
I thank you for your well-reasoned and solidly-referenced explanation of the formal declaration of war relative to original intent of the founders. At the time you wrote this, we had yet to tromps as far into the muck as we find our current depths: the NATO led, Libyan kinetic action incurred to extend UN credibility based on a "responsibility to protect". Now, I imagine the OLC justifications for use of force in Bosnia on the rationale that "maintaining the credibility of United Nations Security Council decisions, protecting the security of United Nations and related relief efforts, and ensuring the effectiveness of United Nations peacekeeping operations can be considered a vital national interest" may pass for precedence on this initiative in Libya as similar rationales for action were cited by the OLC for force in Haiti and Somalia: longstanding U.S. commitment to maintaining the credibility of the United Nations Security Council and the effectiveness of its actions to promote international peace and security. I can not claim to have a broad-base of historical reference for the application of our founders' vision for our use of the follow 3 categories:
1)military action as a vehicle for guiding US interests in foreign policy other than defense of the people of the United States,
2)military action as an obligation to further the interests of an alliance
perhaps more significantly
3)military action as a responsibility to relieve oppressed peoples within a sovereign nation.
So my question to you, is what would the founders say? There seems an inherent conflict between maintaining a military capable of consistent response to those 3 justifications and yet limited in scope to providing a common defense and ensuring domestic tranquility. I also imagine there would be some harsh and pointed words from Jefferson reminding the OLC the government itself exists as an extension of authority of the people, for the people and serves solely as an instrument of protection for the individual's liberty from threat, foreign and domestic. Perhaps Jefferson and his peers would cringe at the application of such an instrument for purposes of legitimizing any peripheral alliance's orders of any sovereign nation. Maybe there are examples where in our early history we engaged in military action to help enforce the directives of a few allied nations on sovereign leadership of a non-participating nation?
I would like to also get your thoughts on a fine point differentiating the precedence cited by the OLC and the purpose defining present initiative objectives. The precedence cited clearly refers to the credibility of the UN decisions, arguably an extension of US decision because of our participation in the process and interest in outcome- suggesting our participation through to full implementation of the desired objective, would be constitutional as representing national interest. In so far as the United States of America is a sovereign nation that may participate in any temporary or permanent multi-country alliance for whatever purposes the people authorize, it may reasonably be argued the US may act on behalf of the alliance in the interests representing the people of the United States. The primary interest of the people prevails over any interest advanced by an alliance so our role in the alliance is self-serving, without apology. There is no obligation of the United States beyond the protection of the American people so our support of a decision advancing specific interests of the American people is justified but the general fortification of credibility for a non-US entity is not. This is the fine line, perhaps not so fine…. we have entered this military action out of expressed concerns for the legitimacy of a non-US entity, not the enforcement of a US interest advancing initiative.
According to obama (then me)"The writ of the United Nations Security Council (is hardly a US concern for it is a tool of convenience to which we are not obligated but to advance our sovereign interests) would have been shown to be little more than empty words(but we don't give a f*** unless those words represent us… we the people in some way that substantiate our interest in a product, a given writ), crippling that institution’s future credibility to uphold global peace and security. (global peace? What? That has never been an interest or initiative of the United States, we are concerned about protecting our individual liberty and we did not expect that to be a peace promoting idea for us let alone the whole damn world.)
what troubles me is that our troops are substantiating and extending the authority of a non-American entity, without any formalized recognition of the sovereignty of the United States or any defined UN limitations of power creating an exception to the collaborative, supportive role. If the UN is a global authority and we are in the globe... should their be something to clarify that this authority is not over us or the UN is limited to xyz?
It should generate even more concern that command of our troops is delegated to "prtner command", even if limited, we have never let other military command direct anything but their own guys, we shadow, guide, but not follow, this is new….a lot about our military is new. A quick glance at the army mil site show few recognizable icons of American culture, no eagles,stars-n stripes, no front and center images of Old Glory and even the portraits of the commanders are now posed against a backdrop with a old Glory sharing the stage with a secondary flag of equal proportion and visible prominence. The last handful of years a great deal of significant aspects of our military have been removed from the definitions, missions and tenants; changes to the mission statements no longer reference sovereignty & specification of USA has been replaced by 'nation'; soldiers allegiance is sworn now to the president in place of the old oath to up-hold the Constitution, which is no longer mentioned. One page shows divisions on the globe on an army map into "global com" regions…. all these have fundamentally transformed, by excision and neutralized a military force of the United states of American sworn to the charge of protection the Constitution to what is now an unrecognizable (to civilian on-lookers) generic force ... this may ease the objective to be a global force? easily sublet, I suppose.
I'd suggest to my fellow Americans that there may be a bit more to the UN gaining our legitimization of their new found global authority, for it seems we now have a military comfortably, in fact unnoticeably, under shared command of a joint, partially delegated authority comprised of foreign official-led cooperatives, engaged in non-American-centered, multi-national initiatives & operations. Mixed command of a global army.....Oddly enough it would appear that the changes have transformed our military to endure a collapse of the nation from which it was born with the removal of all reference to those uniquely American elements that constitute the soldiers allegiance to the Constitution of our sovereign nation, the United States of American as we know it and is defined by the laws protecting individual liberty. The army would now endure fully intact, operational and unchanged should a fundamental transformation from a Constitutional republic give way to collapse into a well-structured system of abject socialism imposed by any well-executed internally launched coup. The scariest aspect of all is that we, the people are our only protection at any moment should the remaining structure of our government, the courts, cease to be recognized as authority…. all these considerations pivot on the limitation of powers of the commander in chief to whom the allegiance of an entire army is pledged.
What would the founders do?
Re: Declarations of War, Authorizations for Use of Military ...
"The question of the wisdom of our various wars is certainly a subject of necessary and legitimate debate by and beween honest people of differing belief, but to assert that a war is/was “unconstitutional” because there was no "formal” Declaration of War, even after the Congress approved Bills authorizing them, as well as funding them, is unseemly, intellectually disingenuous, and in reality nothing but childish “sour grapes” being expressed by those who were on the losing side of the debate on whether or not to engage in the wars in the first place, or who voted for it before they voted against it".
Nice summation!