Inspired by this thread but the question comes up in many and has never been a thread topic on its own, AFAIK. The Bush Admin claims (and many support that claim) it has much broader powers in the military and security spheres at this time than the presidency ordinarily could wield, because the United States is in a “state of war.” Are we really at war?
The “Global War Against Terrorism”: Are we in a state of war WRT al-Qaeda and other radical Islamist organizations? Can a state of war exist (for constitutional purposes) against an underground network of terrorist cells – an actor which neither is nor purports to be a state?
1a. If so, when did this state of war begin? There were many terrorist attacks on American targets before 9/11/01.
1b. And how do we know when it’s over?
Iraq/Afghanistan: Are we in a state of war WRT the insurgency (insurgencies, really, there are so many factions) in Iraq? Or in Afghanistan (where the Taliban still exists and still strikes an occasional blow at U.S. troops or the government)? Active combat operations were over when W declared “Mission Accomplished.” But we still have troops there, killing and being killed. But it seems to stretch the definition of a state of war to apply it to that situation, especially when it is one of our own making.
Congress, although it issued a Authorization to Use Military Force, has never issued a declaration of war against Afghanistan, Iraq, or (assuming the legality) al-Qaeda. Is it just too quaint to suggest that omission should be taken into account in determining whether the country is, in fact, in a state of war?
While a State of War must be declared as required by the Constitution, War Lite falls entirely under the discretion of the Unitary Executive. War Lite can be declared by the President pursuant to the War Powers Act by declaration, inference, suggestion, or shrug. Whereas a State of War requires a specific and defined enemy, War Lite requires only that the Unitary Executive deems a group to be “the enemy”. Thier soldiers are deemed by Himself to be “enemy combatants” regardless of whether or not they possess uniforms or weapons, and whether or not the actually engage in combat activity, and are legitimate targets for military action or intervention. Note: civilian dependents and potential co-conspirators are not so defined (“enemy combatants”) and fall under a different classification (“collateral damage”).
The actions of the President in a state of War Lite are subject to the review and oversight of the Unitary Executive. Congress is limited to two essential modes of action: craven, cringing compliance and enthusiastic approval. The political sphere is simplified, there being only two groups of citizens, traitors and patriots.
War Lite and the Unitary Executive are defined in the Constitution by thier absence, i.e., since they are not specificly denied, we may infer that they were heartily endorsed by the Founding Fathers, much the same way that the absence of any mention of God in the Constitution firmly and unequivocally implies the direct approval and support of said Deity.
(This support and approval is crucial in the practical military application of War Lite: God has sole responsibility for ascertaining the status of the deceased other, enemy combatant, collateral damage or oopsy. We retain our serene confidence that God is annoyed to be referred to as “Allah”, and we enforce His preferences accordingly.)
War Lite is declared at an end when the Unitary Executive determines that it no longer wishes to retain power, and should like to have all of its actions and decisions subjected to public scrutiny and judgement. This point in time and Judgement Day may, or may not, be identical, according to the sole discretion of the Unitary Executive.
Fortunately, most legal statutes that have some applicability during times of war actually define what constitutes a “state of war” for that law’s purpose. For example, FISA allows very broad wiretapping ability in the week after a declaration of war is enacted. Other statutes provide that a state of emergency is sufficient to give the President new powers. The Geneva Conventions are very clear that any state of armed hostilities are the trigger.
However, talking about “a state of war” as a concept unrelated to any other action is like talking about how many angels dance on the head of a pin.
Also, the question really shouldn’t be does a state of war exist, because there are three possible answers to that question that could contradict each other. The question really should be, does the current state of armed conflict justify (insert war-related action here)?
Examples: Does the fighting in Iraq allow the President to seize control of the US economy, like Truman trying to nationalize the steel industry? No, of course not. Does the fighting in Afghanistan allow the President to issue stop loss orders and keep troops in the service? Regardless of how much I sympathize with soldiers who’ve been screwed by these orders, yes, it does.
The War on Terror: no. You can’t be at war (the legal definition of war) with an idea or a concept. In the same vein, there is no war on drugs, AIDS, cancer, or poverty. It’s become a convenitent marketing position, but that’s about it.
Iraq and Afghanistan: arguably yes. As I’ve said many times before, the Constitution places the ability to declare war into the hands of Congress, but it does not say what form the declaration must take. Therefore, it is entirely possible to see Iraq, Afghanistan, and even Vietnam as declared wars because Congress passed resolutions to the effect that military force was authorized. That Vietnam was referred to as a conflict is entirely based upon political considerations.
Our involvement in Korea can never really be called a war because we went as part of the UN, and as the UN is not a country but an organization they cannot declare war. That said, we can pass our own resolution at any time and that would make it a war.
The answer to your question, therefore, is both yes and no, and even that depends upon who you’re taking to.
Although the congress has not declared war, our military folks have committed “acts of war.” When a nation invades another nation, (as we did in Afghanistan and Iraq) and it overthrows the existing government, any legal scholar would call that an “act of war.” Once that happens, the congressional approval doesn’t matter much. This is not a matter of shooting down a plane or capturing a smallish navy craft. We overthrew two national governments.
Hair-splitters will argue, long after we are dead, whether our executive branch had the legal authority to order these acts of war. They happened, though, so we are at war, legal or not.
No way. This can not end with any one signing a peace agreement. There is no authority . This is never ending and a battle against terrorism, No battlefield. No uniforms. This does not in any way qualify. It is declared one by Bush so he can seize powers only available to the govermment in a war. He was careful to call it that and to repeat it over and over. It in my estimation does not come close to qualifying.
What about War on Terrorists? Or War on al-Qaeda? The latter is not a state, but it is at least an organization with a definite existence and many acts of hostility to its credit. Then again, it would be laughable to think of the U.S. as ever being in a “state of war” (with all the special legal implications thereof) with a more ordinary sort of criminal organization, such as Cosa Nostra or the Medellin Cartel.
Well, then, what about Grenada? Qualifies as a country, got a stamp and everything. No war was declared, simply the opening of a much larger can of whupass than required. Or Panama, for that matter. We busted a whole country for possession with intent.
Come to think of it, most of the times we’ve gone to war has been entirely elective. We were attacked in WWII, but that’s about it. We mugged Mexico. Mugged Spain. Entered WWI, God alone knows why. Grenada, Panama. In the one instance, an unacceptable governance, another, failure to comply with our laws. The less said about Viet Nam the better. Korea, so we could hand the country over to the tender mercies of Syngman Rhee (currently roasting on the spit next to Mao). Wherever did we get the idea that we are a peaceful nation?
All right, elucidator, watch it. I had a reply planned just like yours, only not nearly as funny or as well thought out. Reading my mind is one thing. Reading my mind and improving on its contents is a whole 'nother thing!
[Darren McGaven mode]Not a finga![/Darren McGaven mode]
Not so, I assure you. In the Revolution, Texas kicked Santa Anna’s ass all by itself. Second time around, we got a bunch of Yankees to do it for us. But that ass needed kickin’ both times.
As a practical matter, these things are easy to sort out: there was war in Afghanistan and Iraq when we invaded them. We won both wars. We are now engaged in a military occupation of both countries, which is probably going to end badly, although just how badly remains to be seen. We have lost control of southern Afghanistan, if we ever had it, and Iraq is a very likely candidate for civil war after we leave, whenever that is.