Let's debate Declarations of War.

Great Debates
1

We’ve done this a few times, but I have something else to add to the mix this time.

The argument is thus: Congress, in Article One, Section Eight of the United States Constitution, “shall have power to… declare war”. However, nowhere in the Constitution does it provide for a specific format that such a declaration must take. Therein lies the rub, because due to this ambiguity there is sharp disagreement about what a Declaration of War should look like.

Some people maintain that it must say the words “Declaration of War” or something similar (“A state of war exists…”). Others, like myself, maintain that legislation like the Gulf of Tonkin Resolution or the Authorization for Use of Military Force Against Iraq constitutes declarations of war because both were authorized by Congress, meeting the single requirement enshrined in the Constitution for it to be a Declaration of War.

I got into this earlier today with my Political Science professor, and he maintains that the declaration must be of the first kind (“I declare war…”). We are going to exchange notes on this later, so for the record this is not a homework assignment. As I was discussing this with him I thought of something. The Gulf of Tonkin Resolution, following its repeal, was replaced with something else, called the War Powers Resolution. This, I think, gives me even a bit more leverage in this argument, as I will explain.

Congress, when passing this law, had the opportunity to call it whatever they wanted to. However, they chose to use the word “War” in the name of the law. Because words have very specific meanings, and because Congress is very aware of that fact, I believe that the naming of this law constitutes de jure recognition that Vietnam was in fact a war and that the Gulf of Tonkin Resolution was in fact a Declaration of War, else the would have named it the “Conflict Powers Resolution” or something else.

It’s also worth noting that the law further reserves the right of Congress to determine wars by enabling them to withdraw forces after a maximum of 90 days without a prior or subsequent resolution. Of course, by de-funding a military action they have always had this right, but this states it explicitly. Which brings us back to what a Declaration of War should be, although they (perhaps unwittingly), in my opinion, affirmed that the Gulf of Tonkin Resolution was a declaration and therefore so was Iraq by precedent.

That’s my position. I’d like to hear what you think.

2

Your professor sounds like a lawyer, arguing over the meaing of “is”, when he makes that argument. “But you didnt actually say WAR!” :slight_smile:

The effect is more or less the same, though. The US military goes in, bombs things, kills folks, and forces the US goverment’s desires upon the target nation.

So I agree with you, speaking from a pratical and foreign diplomacy point of view. The Iraq AUMF and The Gulf of Tonkin Resolution are indeed declarations of a (conventional) war, usually with limited goals.

The “war” word carries the mental images of total war, such as fire bombing population centers, and that is why politicians and diplomats avoid using it.

Domestically speaking, with a formal declaration of war, I think that a whole bunch of powers are unlocked for the POTUS, like rationing strategic resources, instituting the draft, suspending certain citizen legal rights, and so on, that aren’t perceived as necessary as yet. (Notice the debate over wiretapping and the use of force/torture debates. If we were in a knock-down-drag-out fight with China, I daresay these debates would not be as fierce.) I think that Congress is a tad reluctant to grant such sweeping powers to the POTUS short of a serious perceived threat (which Iraq and Iran dont measure up to yet).

3

I very much dislike nitpickery over such issues. But to me there is a clear distinction between the power to commit troops to a given combat, which is constitutionally given to Congress, and the ability to (a) defend against invasion, rebellion, or attack, and (b) determine the strategy to be pursued in a given war, which is the President’s prerogative as Commander in Chief.

It’s very instructive to notice how the first “undeclared war” was handled: Korea, under Harry Truman. And in that case, it was regarded as a police action undertaken under the aegis of the United Nations, with the purpose of defending the Republic of Korea (South Korea) from aggression from the North. Truman was very explicit that it was not a war as he understood the term.

In Truman’s mind, this was not a word game, but a clear distinction between World Wars One and Two, in the first of which he had fought and during the second of which he had been Senator and Vice-President before taking office to bring it to a successful conclusion, on the one hand, and the need to contain aggressive Communist regimes from invading and overcoming neighboring states. The loss of China and Eastern Europe to Soviet domination (as he understood it) in the years immediately previous to the Korea attack contributed to his picture of the situation. But though we refer to it as the Korean War, Truman’s goal was to restore the status quo by UN action aiding to defend against aggression – and hence a police action, in force, rather than a war per se.

It’s interesting to see how the precedent he thus set has been expanded by subsequent Presidents to cover far different actions.

4

How does the War Powers Act of 1973 say anything about the Vietnam War generally, or about the Gulf of Tonkin Resolution specifically?

We had signed a peace treaty with the North Vietnamese in January 1973. The War Powers Act was passed that November. Unless the WPA says specific things about Vietnam of which I’m unaware, the WPA would hardly imply anything about Vietnam.

5

Airman,

Think sometime about the numberless times the president has used force against another country. Leave this president aside for a moment, just to avoid arguments.

I remember Bill Clinton using cruise missiles in Afghanistan, Sudan, Iraq and in the former Yugoslavia. He put troops on the ground in Bosnia, Kosovo, Haiti and a few other places. His predecessor intervened militarily in Somalia, Panama, Kuwait, Iraq, and a few other places besides.

Meantime, Congress has only formally declared war (by your professor’s definition) eleven times, and not since WWII.

It is obvious that the formal declaration isn’t necessary, by sheer virtue of wars happening in its absence.

6

I believe that argument has been tried unsuccessfully in court challenges:

7

I disagree that this was the first “undeclared war”. The first undeclared American war was our naval conflict with France between 1798 and 1800. (One could also count even earlier engagements against Indian tribes and confederations.) There have been many, many other such conflicts in American history.

In earlier times, the distinction between a declared and an undeclared war tended to focus on the intensity of the conflict. Hence, the War of 1812, which involved invasion and land fighting, was declared and the Quasi-War was undeclared.

In modern times, all wars are undeclared–possibly because all seem tame by comparison to the last declared war, World War II. Or, more likely, because the phrase “declaring war on” no longer fits our self-image in waging war; in modern wars, there is at least a pretense that we are fighting for the benefit of the people in the “host” nation–to save South Vietnam from Communist takeover, for example, or to oust tyrants from Panama or Iraq. Nobody thought of World War II as “saving the German people from Hitler” or of the War of 1812 as “saving the British from King and Parliament”.

In any case, I agree with Doors; the modern phraseology still meets the Constitutional requirement of a “declaration of war”.

8

Korea does not stand scrutiny as a war, even under the terms that I have set down, because the action was undertaken on behalf of the United Nations, an organization that (to the best of my knowledge) does not confer the right to make such a declaration upon itself. Korea is the one big exception of the 20th century.

Of course, this discounts the fact that North and South Korea had their own declarations, but I’m limiting the scope of this discussion to United States law.

The War Powers Resolution (yes, there is a difference) was passed following our withdrawal from Vietnam with the specific intent of addressing future military actions in light of the Vietnam War. It is in that context that it is exactly about the Vietnam War.

9

There doesn’t appear to be a legal requirement for a formal declaration of war.

However, by issuing watered-down “permission” to Administrations to commit substantial numbers of troops and materiel to major military operations, Congress has largely abdicated its Constitutional role. The result of this skittishness about declaring War is that Presidents from Johnson to Bush have essentially been given carte blanche to pursue open-ended conflicts.

There’s considerable similarity between the Tonkin Resolution in the Vietnam era and the permission slip given by Congress for Bush to conduct war in Iraq - failed/manipulated intelligence, Congressional timidity and subsequent lack of oversight. And now we have various born-again politicos who yammer about We Need A New Direction but still haven’t the guts to cut off funding for Bush’s “surge”.

Would a strict reliance on war declarations for major actions lead to more serious debate beforehand, and a greater willingness by Congress to demonstrate leadership?

I’d like to see it happen.

10

Desertion from the armed forces of the United States is punishable “by such punishment, other than death, as a court-martial may direct”, but if the offense is committed “in time of war”, the penalty is “death or such other punishment as a court-martial may direct”. A number of other provisions of the Uniform Code of Military Justice provide for more severe penalties for the same offense if committed “in time of war”. The UCMJ also includes Article 106, which gives the government the power to set up military commissions or courts-martial to prosecute and execute spies, but only “in time of war”.

Then there’s the Foreign Intelligence Surveillance Act, which among other things states that:

So questions of when the United States is in a “time or war”, or whether a resolution passed by Congress constitutes a “declaration of war”, do matter beyond semantic quibbles, as they may trigger various provisions of the law.

11

With the possible exception of a draft, (I believe) he can do that right now by Executive Order. As for debates in time of war being “not as fierce”, Lincoln suspended habeas corpus for the duration of the Civil War, resulting in immediate challenges that were only resolved after the war war due to the reluctance of the Supreme Court to deal with it decisively for the duration of the war (inasmuch as they have any enforcement powers at all, as Lincoln ignored their decision). These cases were addressed in Ex Parte Merryman and Ex Parte Milligan. I dare say that there are as many challenges during a war as there are any other time.

12

Agreed. Which is why this discussion is worth having.

13

I wouldn’t. I think the system we have was designed purposely to not necessarily make it easy to get into a war, but surely make it hard to get out of one. And being stuck in a war predisposes one to see it through to its (hopefully victorious) end.

Think how much worse it would be if getting out of a war were as easy as some would have it be. Would we have stood by an autocratic South Korea through 55,000 American deaths and a fifty year military presence to become a free and prosperous South Korea? That war wasn’t popular in the least.

14

Ask your professor when he thinks the first use of force authorization was passed that was not a declaration of war. He might say the Gulf of Tonkin Resolution.

Then you’ve got him. The first use of force authorization was passed by Congress on May 28, 1798, and related to French vessels harassing our ships. Another was passed on July 9 of that year. There was a Triploi resolution passed in February 1802, as well. That makes three use of force authorizations before the War of 1812. Use of force authorizations were considered and passed by the Founding Fathers themselves. I am aware a total of 12 use of force authorizations against foreign powers.

Your professor may seek to only argue a principle, but when it comes to law and history, he’s just wrong.

And I fully concur with MEBuckner’s points. There is a litany of laws that are triggered by a declaration of war but not authorization for force.

15

Per your link: “The War Powers Act of 1973 is also referred to as the War Powers Resolution.” Are you going anywhere with this?

It is ‘about’ the Vietnam war in that that war was very recent, and certainly informed the thoughts of the legislators to a significant degree.

But it isn’t ‘about’ the Vietnam war in the sense of limiting, replacing, or otherwise applying to the Tonkin Gulf Resolution, contrary to your assertion: the war was over, at least as far as our involvement was concerned. (If this had been the War Powers Act of 1972, you might have had a case.) Consequently, you lose the leverage you claim that would have given you.

16

Bush can force rationing of gasoline? He can declare martial law? I dunno. I don’t think so. But if he tried to go that far, I think it would be political suicide…

I agree, but I didn’t mean to imply that there would be or was absolutely NO debate, just that it’s shelved for the duration of the perceived emergency.

The Civil War definately was seen as an emergency by the US Congress. A hypothetical invasion (by China) of Guam or Hawaii would also scare Congress enough to grant the POTUS full war powers.

I think Saddam was perceived as being less of a threat (correctly, as it turned out), and the Congress did not see the need to declare war, (and unlock a lot of Presidential powers), but never-the-less were willing to grant a (what was thought to be) limited AUMF type powers.

17

I disagree that it was designed that way.

Consider the part of Article I, Section 8 that reads, “The Congress shall have the Power…To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.” In an era when “support the troops!” wasn’t exactly the rallying cry it is today, this would have required the Executive to re-justify a war to Congress on a regular basis.

Which is possibly useful when there’s a reasonable prospect of victory.

But when there’s a reasonable prospect of victory, the people can generally be talked into seeing it through to the end anyway. The problem is when we’re stuck in a war whose prospects of success are somewhere between slim and none, but the Executive, being politically invested in the success of that war, won’t drop it.

Think of all the lives we would have saved in Vietnam and Iraq. That would have been awful!!!

As I understand, the U.S. gave up on the ‘war’ part of the Korean war without any ill consequences whatsoever, when Ike, unlike Truman, decided to accept the military stalemate Truman bequeathed to him.

So a more easy abandonment of war would have saved American lives, but would not necessarily have cost us anything.

In the 1960s and 1970s, our presence in Korea was scarcely controversial. Eventually our support of strongmen like Park Chung Hee became controversial, though, but that’s another story. We were in Korea all that time, as we continue to be, not because it’s hard to back out of a war, but because very few Americans questioned that commitment at any point along the way.

18

Maybe I’m missing something here, but I don’t see how Congress taking a more forceful (and Constitutional) role in declaring war would mean our abandoning conflicts frivolously or prematurely.

Being “stuck in a (major undeclared) war” in the last few decades has so far resulted in one stalemate (Korea) and one loss (Vietnam). In neither case did we see things through to a triumphant end. And the odds of the current conflict in Iraq resulting in Victory Through Stubbornness aren’t so hot either.

Our record in declared wars is considerably better.

19

Well, our record in wars that don’t involve land combat in Asia is considerably better, too. :slight_smile:

20

When we don’t fall victim to one of the classic blunders, we’re almost unbeatable. :cool: