# For legal/constitutional purposes, is the United States "at war" or not? **URL:** \ **Category:** Great Debates\ **Created:** [August 19, 2006, 1:46pm UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338 "2006-08-19T13:46:14Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [August 23, 2006, 3:27pm UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338/41 "2006-08-23T15:27:30Z")
[QUOTE=Bricker] The Conventions apply to any armed conflict. We may or may not be “at war,” as a term of legal art; we are most certainly involved in armed conflict. [/QUOTE] I know that. I’m challenging **Evil Captor** to recognize that his denial that we are involved in a war has consequences that he may not see as desirable. ---
**Author:** ![Triskadecamus](https://avatars.discourse-cdn.com/v4/letter/t/b19c9b/32.png) [@Triskadecamus](https://boards.straightdope.com/u/Triskadecamus)\ **Post date:** [August 23, 2006, 3:27pm UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338/42 "2006-08-23T15:27:54Z")
Who are we “at war” with? Iraq? I thought they were our boys, now. Afghanistan? Aren’t they our boys too? The President declared war on a tactic. Congress said OK. So we are now at war with a tactic, and the President has war powers as long as that tactic exists, and has not surrendered. Who needs amendments? Tris ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [August 23, 2006, 4:18pm UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338/43 "2006-08-23T16:18:37Z")
[QUOTE=DSYoungEsq] …Nor is it an unusual situation to be using our military to accomplish what Clausewitz would undoubtedly have considered covered by his use of the German word for “war;” we’ve been using the military that way since Washington’s administration (see the shores of Tripoli)… [/QUOTE] That was Thomas Jefferson’s excellent adventure, actually. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 23, 2006, 4:41pm UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338/44 "2006-08-23T16:41:23Z")
[QUOTE=Triskadecamus] Who are we “at war” with? Iraq? I thought they were our boys, now. Afghanistan? Aren’t they our boys too? The President declared war on a tactic. Congress said OK. [/QUOTE] Well, you could start by reading the AUMF. It did not declare war on a “tactic”. > [@](#): > > [Authorization for Use of Military Force](http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html) > > (a) IN GENERAL- 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. Congress has, AFAIK, not amended that joint resolution nor has it nulified it. ---
**Author:** ![AskNott](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asknott/32/5790_2.png) [@AskNott](https://boards.straightdope.com/u/AskNott)\ **Post date:** [August 23, 2006, 4:45pm UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338/45 "2006-08-23T16:45:15Z")
[QUOTE=Zoe] … If Congressional declarations didn’t matter anymore, then we overthrew _three_ national government that day. [/QUOTE] Yes, this is precisely true. Congress handed over their power to a monarchy. HRMGWB has claimed authorization for things the congress never intended. When HRM made it clear the congress was obsolete, they knelt down and said, “Whatever you say, sire. You da man.” ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [August 23, 2006, 4:52pm UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338/46 "2006-08-23T16:52:22Z")
What a lovely bit of phrasing, too. If the President “determines” a thing is so, he is authorized to act militarily. Are we to assume, then, that the authorization holds even if the President determines falsely that a nation harbors and supports terrorism? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [August 23, 2006, 5:03pm UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338/47 "2006-08-23T17:03:30Z")
[In other news . . .](http://www.thenation.com/doc/20060814/gillers) ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 23, 2006, 5:11pm UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338/48 "2006-08-23T17:11:35Z")
[QUOTE=elucidator] What a lovely bit of phrasing, too. If the President “determines” a thing is so, he is authorized to act militarily. Are we to assume, then, that the authorization holds even if the President determines falsely that a nation harbors and supports terrorism? [/QUOTE] Apparently. Although it didn’t appear to be enough for him to invade Iraq, since he sought an additional AUMF for that adventure. I’d be curious to know what the process will be for nulifying that resolution. Will President Jenna Bush still be able to use it 30 years hence? ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [August 23, 2006, 5:35pm UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338/49 "2006-08-23T17:35:26Z")
[QUOTE=elucidator] What a lovely bit of phrasing, too. If the President “determines” a thing is so, he is authorized to act militarily. Are we to assume, then, that the authorization holds even if the President determines falsely that a nation harbors and supports terrorism? [/QUOTE] The check on that is another Congressional resolution forbidding the President from sending troops into that country. Or Congress can simply refuse to fund the invasion. For all of the Bushies’ fantasies about the “unitary Presidency”, the fact of the matter is that, at the end of the day, the Executive is utterly beholden to Congress, because Congress controls the money. Sua ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 23, 2006, 5:43pm UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338/50 "2006-08-23T17:43:31Z")
[QUOTE=SuaSponte] The check on that is another Congressional resolution forbidding the President from sending troops into that country. Or Congress can simply refuse to fund the invasion. For all of the Bushies’ fantasies about the “unitary Presidency”, the fact of the matter is that, at the end of the day, the Executive is utterly beholden to Congress, because Congress controls the money. [/QUOTE] Frankly, I don’t think even Bush would use the 2001 AUMF to just launch another invasion. But I doubt that Congress would defund a military action that is still underway (ie, Iraq). So, even if the Dems win control of both houses in November, we won’t see them force Bush to pull out of Iraq any faster than he wants to. And if they tried to (which they wouldn’t) the Pubs could still filibuster in the Senate. That’s the sad part for someone like Joe Lieberman. While I can understand CT voters wanting him out because he supports “staying the course”, having Lamont in the Senate won’t bring one soldier, marine, or airman home earlier than if Lieberman were still there. But thems the breaks in politics. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [August 24, 2006, 12:34am UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338/51 "2006-08-24T00:34:41Z")
[QUOTE=Zoe] (aside) Sam Houston and Davy Crockett? _Yankees_? Yore insultin’ a homeboy. [/quote] Last I checked, Crockett was dead a decade before the Mexican-American War, and Houston was serving as a senator in D.C. Thus, due to decomposition and political office, neither Crockett nor Houston was available to join the Yankees we suckered into kicking Santa Anna’s ass the “second time around.” ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [August 24, 2006, 12:59am UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338/52 "2006-08-24T00:59:27Z")
[QUOTE=Ravenman] If we are not at war, then logically the laws of war must not apply, right? Why should the Geneva Conventions apply if we are not at war? [/QUOTE] We were at war when we invaded Afghanistan and Iraq, which is when we got our prisoners. Neither war lasted very long, however. So far as I know, if you capture someone and keep them long enough that the state of war no longer exists, that doesn’t make them not your prisoners. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 24, 2006, 2:31am UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338/53 "2006-08-24T02:31:57Z")
[QUOTE=elucidator] What a lovely bit of phrasing, too. If the President “determines” a thing is so, he is authorized to act militarily. Are we to assume, then, that the authorization holds even if the President determines falsely that a nation harbors and supports terrorism? [/QUOTE] Yes. The President is the one who determines. The authorization doesn’t include a mechanism to reverse his determination if he’s wrong. Of course, Congress could close that loophole tomorrow, if they wish to. It’s up to them. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [August 24, 2006, 2:49am UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338/54 "2006-08-24T02:49:09Z")
[QUOTE=Bricker] Yes. The President is the one who determines… [/QUOTE] [Ahnold] He’s the Determinator! [/Ahnold] ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [August 24, 2006, 3:29am UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338/55 "2006-08-24T03:29:27Z")
[QUOTE=Evil Captor] We were at war when we invaded Afghanistan and Iraq, which is when we got our prisoners. Neither war lasted very long, however. So far as I know, if you capture someone and keep them long enough that the state of war no longer exists, that doesn’t make them not your prisoners. [/QUOTE] And if we picked up the prisoners either (a) not in the warzone, such as the guy who was kidnaped in the Balkans and sent to Guantanamo, or (b) captured after the “war was over,” like every suspected Iraqi “terrorist” we’ve caught since May 1, 2003, then it is reasonable to conclude that the Geneva Conventions should not apply because those people couldn’t be prisoners of war, because the war was over (or never there) before they were captured. Isn’t this the logical conclusion of the argument you are laying out? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [August 24, 2006, 10:17pm UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338/56 "2006-08-24T22:17:35Z")
[QUOTE=DSYoungEsq] After all, there is nothing in the Constitution that says the President doesn’t have the ability to reduce the scope of the rights granted to us during a state of armed conflict that hasn’t been declared as a war. Of course, there isn’t anything in there that says he CAN do it, either. [/quote] There’s a helluva lot of text, not to mention precedent, that are certainly strongly suggestive one way, but the other way? Not so much. But it’s good to see that you apparently do agree now, after all, that the distinction does indeed matter after all. > [@](#): > > in the absence of such a Declaration by Congress, we have not as a nation Declared War. Then you even think the distinction is a \*clear \* one. Or does your position simply depend on who you’re replying to? 😕 ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 24, 2006, 11:46pm UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338/57 "2006-08-24T23:46:20Z")
[QUOTE=Bricker] Yes. The President is the one who determines. The authorization doesn’t include a mechanism to reverse his determination if he’s wrong. Of course, Congress could close that loophole tomorrow, if they wish to. It’s up to them. [/QUOTE] I wonder if the Dems will try and do that should the gain control of Congress. That would certainly strike a serioius blow to the “wartime presidential powers” argument. I doubt they’d be succesful in passing it, though. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [August 25, 2006, 1:31am UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338/58 "2006-08-25T01:31:17Z")
[QUOTE=John Mace] I wonder if the Dems will try and do that should the gain control of Congress. That would certainly strike a serioius blow to the “wartime presidential powers” argument. I doubt they’d be succesful in passing it, though. [/QUOTE] In the (highly unlikely, I admit, at least WRT to the Senate) the Dems should gain control of Congress this November, why wouldn’t they be successful in passing it? Would the Pubs dare to filibuster – and provoke the Dems to implement the “nuclear option” (the Pubs having opened that door already)? ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [August 25, 2006, 1:38am UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338/59 "2006-08-25T01:38:53Z")
[QUOTE=ElvisL1ves] There’s a helluva lot of text, not to mention precedent, that are certainly strongly suggestive one way, but the other way? Not so much. But it’s good to see that you apparently do agree now, after all, that the distinction does indeed matter after all. Then you even think the distinction is a \*clear \* one. Or does your position simply depend on who you’re replying to? 😕 [/QUOTE] Years go by, and you still pick fights with me for no apparent reason other than your dislike of me. :rolleyes: I have said from the beginning: There is a technical distinction in the Constitution, the meaning of which I take to mean we are not technically “at war.” I also believe it to be a distinction of no true value in today’s world, where no one declares war, and where we engage in armed conflicts of quite large nature without such a declaration. I don’t care who I’m talking to; that’s been my position from the beginning. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [August 25, 2006, 1:50pm UTC](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338/60 "2006-08-25T13:50:03Z")
[QUOTE=Ravenman] And if we picked up the prisoners either (a) not in the warzone, such as the guy who was kidnaped in the Balkans and sent to Guantanamo, or (b) captured after the “war was over,” like every suspected Iraqi “terrorist” we’ve caught since May 1, 2003, then it is reasonable to conclude that the Geneva Conventions should not apply because those people couldn’t be prisoners of war, because the war was over (or never there) before they were captured. Isn’t this the logical conclusion of the argument you are laying out? [/QUOTE] If so, it would imply those prisoners, not being POWs, are ordinary criminal suspects and should be treated as such. The third designation – “unlawful enemy combatant” – would not apply since they were not combatants at all. [Previous page](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338.md?page=2) [Next page](https://boards.straightdope.com/t/for-legal-constitutional-purposes-is-the-united-states-at-war-or-not/369338.md?page=4)