from Article I, Section 8 of the United States Constitution:
The Congress shall have Power…To declare War
Now I know the country has been through Korea, Vietnam, the Gulf War, etc. etc. without declaring war. Finally for the first time since World War II congress actually may issue war bonds–still without a war declaration.
No big deal?
I thought separation of powers was the whole point of the constitution.
The eeriest part of this, to my way of thinking, is that this hasn’t even entered the public discourse. “The president has declared war…” one network newscast stated, as if that were the way these things ought to be done.
Despite the complexities of fighting terrorism, it wouldn’t seem too hard to issue a declaration against Afghanistan.
As was pointed out in this thread in GQ, Congress has done what is pretty much as close as we’ll likely get to a formal declaration of war, the Authorization for Use of Military Force Bill. Remember, when that was passed, we didn’t really know who to declare war on. There were actually at least two proposed “declaration of war” bills in the House, H.J. Res. 62, which would have declared that a state of war exists between the United States and “(1) any entity that committed the acts of international terrorism against the United States on September 11, 2001, or commits acts of international terrorism against the United States thereafter; and (2) any country or entity that has provided or provides support or protection for any entity described in paragraph” and the similar H.J. Res. 63 formally declaring war on “any entity determined by the President to have planned, carried out, or otherwise supported the attacks against the United States on September 11, 2001” but that language was evidently rejected in favor of the Authorization for Use of Force Bill, which declared that the President is authorized “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”.
Given the way formal declarations of war have fallen out of favor, and given the nature of this conflict (can you “declare war” on an individual, or a non-state organization?), that’s probably as formal as we’ll get.
And note that, while it may not have formally “declared war”, Congress did vote to authorize the action, so it wasn’t a question of the President unilaterally “declaring war”.
Is it even legally possible to declare war on Afghanistan in these circumstances? We do not (as like most of the rest of the world) recognize the Taliban as Afghanistan’s government. Instead, the Northern Alliance holds Afghanistan’s UN seat, etc., and we aren’t declaring war on them;
A little broader - generally speaking (with massive caveats, of course), it is a violation of international law to invade another country, which is essentially what we are doing in Afghanistan. But since we are doing it with the effective permission of the recognized Afghani government, what would international law say? To make it even clearer, Somalia has no recognized government. Could we just wander in again and do what we pleased without violating international law?
The fact that our government (read: “The President” because it’s purely up to the prez if he/she will diplomatically recognize another government) does not extend diplomatic recognition to a particular government does not mean that our government does not consider either that country or its current government (such as it is) to be nonexistant, but merely to be worthy of a diplomatic snub. It’s just one of those games government play with each other that sadly have real, and tragic, effects on real people’s real lives.
Ah, Somalia. Interesting problem, there. The territory of that country now has warlords fighting each other for control and other things in parts of the country and in another part, there’s actually a government trying to get things done in what that government calls Somaliland (http://www.somalilandgov.com). IIRC, they have even less diplomatic recognition than the Taliban does.
Well, it is not neccesarily a violation of international law to invade another country. For instance, Coalition troops invaded Iraq during the Gulf War. I don’t believe that was a violation of international law. I imagine there is some sort of language about “aggressive war”, but you can fight back if someone attacks you.
But of course the point is moot, since international “law” exists only when other nations attempt to enforce it. Nobody is going to try to arrest George Bush and put him up on charges in the Hague, even if they believe he deserves it.
Fair enough, Lemur, both on this and your second point about the illusory quality of international law. I phrased my question poorly. To put it better, is it even possible for someone to make a valid assertion that a country has violated international strictures against aggressive war when that country invades a nation without a recognized government?
Interesting point. As far as international law is concerned, shortly after Sept. 11 the UN granted the USA broad permission to retaliate against terrorism.
The constitution doesn’t define what entities congress can or can’t declare war on. I agree that it might open up a legal can of worms to apply that concept to an unrecognized government, even if that body does control 95% of a country. On the other hand, aren’t we opening up a different can of worms as the nation effectively cedes this important power to the executive branch?
Why do you suppose there’s so little public debate about this?
But where has Congress or the nation ceded that power to the executive branch? Congress voted to authorize U.S. military action. Of course the executive branch is now in charge of carrying out that action; that’s what the executive branch is for.