A Brief Primer on War
David Barzelay posted a comment on one of my recent posts to which I must respond in full blog format. Here's the relevant part of what David (who I inexplicably sometimes refer to simply as "Barzelay") said:
In another part of the post, he describes the conflicts in Afghanistan and Iraq as "wars" with an emphasis on the quotation marks. Those quote marks already set me off on a rant once on Mike's blog.
Perhaps Barzelay and Mike were merely expressing aspirations about the way things should be in our legal system before something can be called a war or before military force can be used. I have no quarrel with that, I suppose.
But if they are arguing that a congressionally-authorized but undeclared military conflict is not, in fact, a war....or that the only way the United States government can authorize military force is through a declaration of war, they are wrong. They express the understanding of the majority of America...but they are in conflict with basically every modern national security law scholar. America has had over 200 uses of military force, but only 5 declared wars. As early as the 1800 Quasi-War with France (in the cases of Little v. Barreme and Bas v. Tingy) the Supreme Court held that Congress can authorize military force in ways other than declaring a full-scale war. Indeed, there is an argument that the act of "declaring" war was meant to create certain International Law consequences entirely apart from the authorization for use of military force (consequences which are now meaningless under the current state of International Law). The same clause that grants Congress the power to "declare war" also grants the power to issue letters of marque and reprisal. Technically, those letters were grants of military power to privateers, a practice the federal government hasn't used since the War of 1812. But the Founders often used the term "letters of marque and reprisal" to mean authorization of ANY low-intensity military conflict. Finally, every declaration of war in American history contained a separate authorization for use of military force.
So the conflicts in Iraq and Afghanistan are not "wars"....they are WARS! So was Korea. So was Vietnam. If Congress authorizes military force, it's a war.
But.....big "But" here (jokes about '90s rap songs aside)....there is a related debate in the national security law community as to whether Congress has the EXCLUSIVE power to initiate any use of military force or whether the President unilaterally send out the troops in certain situations. It was generally understood that the Constitutional Convention - in changing the Congressional power from the power to "make" war to the power to "declare" war - intended to leave room for the President to act quickly in the case of an invasion when there's no time to call Congress. If Bush had ordered the planes shot down on 9/11, that would have been a perfect example of the President-initiated force the Founders had in mind.
But future Presidents have sought to expand the situations where the President can start a conflict. And therein rages the debate. Scholars range all over the place, from John Yoo (batshit insane) to Stephen Carter (the President can't fart without Congressional permission) (that may be a slight exaggeration). Most are in between those two extremes.
Those of you who believe Congress should have to declare war would be at least partly pleased to know that I lean HEAVILY in favor of the Congress-centric view of who can start a war or otherwise initiate military force when we are not literally being attacked. Which puts me on the fringe of many national security law scholars, but not totally outside the spectrum.
What might push me outside the spectrum is my contention Congress can also control, to some extent, how the President may conduct the war. (This, by the way, is what I am researching right now for my national security law paper on defining the War on Terror.) At least, Congress may set the scope of the war and define what tools the President has at his disposal. It can even do these things in the middle of a war. That's part of my argument. Not many people are saying that. (Although, thankfully for my paper, I've found at least one article that argues my point.) Now I don't imagine Congress would actually get that involved in the nitty-gritty of conducting a war ("this tank should attack from the East, not the South") because, let's face it, a body of 535 people is ill-equipped to take such detailed, speedy action.
The depressing part of my paper (depending on your point of view) is that Congress has given President Bush an incredibly broad Authorization for the Use of Military Force to fight those responsible for 9/11 (read: Al Qaeda and the Taliban). And he's milking it for all it's worth. I might find some limitations in interpreting the AUMF, but it's a pretty broad grant.
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Interestingly, there IS a recent conflict which was performed entirely without Congressional authorization, forcing me to conclude that it was illegal: Kosovo. The House and Senate passed similar resolutions supporting some form of force against Serbia, but never agreed on the parameters of authorization. The conflict ended without Congress ever agreeing.
[Correction:] It turns out that Little v. Barreme was an 1804 Supreme Court case, not 1800. But it still arose out of that same Quasi-War with France.
Oh, and also, I think we should formally have to declare war in order to wage war.
In another part of the post, he describes the conflicts in Afghanistan and Iraq as "wars" with an emphasis on the quotation marks. Those quote marks already set me off on a rant once on Mike's blog.
Perhaps Barzelay and Mike were merely expressing aspirations about the way things should be in our legal system before something can be called a war or before military force can be used. I have no quarrel with that, I suppose.
But if they are arguing that a congressionally-authorized but undeclared military conflict is not, in fact, a war....or that the only way the United States government can authorize military force is through a declaration of war, they are wrong. They express the understanding of the majority of America...but they are in conflict with basically every modern national security law scholar. America has had over 200 uses of military force, but only 5 declared wars. As early as the 1800 Quasi-War with France (in the cases of Little v. Barreme and Bas v. Tingy) the Supreme Court held that Congress can authorize military force in ways other than declaring a full-scale war. Indeed, there is an argument that the act of "declaring" war was meant to create certain International Law consequences entirely apart from the authorization for use of military force (consequences which are now meaningless under the current state of International Law). The same clause that grants Congress the power to "declare war" also grants the power to issue letters of marque and reprisal. Technically, those letters were grants of military power to privateers, a practice the federal government hasn't used since the War of 1812. But the Founders often used the term "letters of marque and reprisal" to mean authorization of ANY low-intensity military conflict. Finally, every declaration of war in American history contained a separate authorization for use of military force.
So the conflicts in Iraq and Afghanistan are not "wars"....they are WARS! So was Korea. So was Vietnam. If Congress authorizes military force, it's a war.
But.....big "But" here (jokes about '90s rap songs aside)....there is a related debate in the national security law community as to whether Congress has the EXCLUSIVE power to initiate any use of military force or whether the President unilaterally send out the troops in certain situations. It was generally understood that the Constitutional Convention - in changing the Congressional power from the power to "make" war to the power to "declare" war - intended to leave room for the President to act quickly in the case of an invasion when there's no time to call Congress. If Bush had ordered the planes shot down on 9/11, that would have been a perfect example of the President-initiated force the Founders had in mind.
But future Presidents have sought to expand the situations where the President can start a conflict. And therein rages the debate. Scholars range all over the place, from John Yoo (batshit insane) to Stephen Carter (the President can't fart without Congressional permission) (that may be a slight exaggeration). Most are in between those two extremes.
Those of you who believe Congress should have to declare war would be at least partly pleased to know that I lean HEAVILY in favor of the Congress-centric view of who can start a war or otherwise initiate military force when we are not literally being attacked. Which puts me on the fringe of many national security law scholars, but not totally outside the spectrum.
What might push me outside the spectrum is my contention Congress can also control, to some extent, how the President may conduct the war. (This, by the way, is what I am researching right now for my national security law paper on defining the War on Terror.) At least, Congress may set the scope of the war and define what tools the President has at his disposal. It can even do these things in the middle of a war. That's part of my argument. Not many people are saying that. (Although, thankfully for my paper, I've found at least one article that argues my point.) Now I don't imagine Congress would actually get that involved in the nitty-gritty of conducting a war ("this tank should attack from the East, not the South") because, let's face it, a body of 535 people is ill-equipped to take such detailed, speedy action.
The depressing part of my paper (depending on your point of view) is that Congress has given President Bush an incredibly broad Authorization for the Use of Military Force to fight those responsible for 9/11 (read: Al Qaeda and the Taliban). And he's milking it for all it's worth. I might find some limitations in interpreting the AUMF, but it's a pretty broad grant.
---------------------------------------------------
Interestingly, there IS a recent conflict which was performed entirely without Congressional authorization, forcing me to conclude that it was illegal: Kosovo. The House and Senate passed similar resolutions supporting some form of force against Serbia, but never agreed on the parameters of authorization. The conflict ended without Congress ever agreeing.
[Correction:] It turns out that Little v. Barreme was an 1804 Supreme Court case, not 1800. But it still arose out of that same Quasi-War with France.
posted by Ben at
10:28 PM
5 Comments:
Certainly the power to engage in not-so-minor conflicts with Congressional approval is nothing new. Let us not forget that the Civil War was technically an undeclared war.
But that war notwithstanding, the practice seems be used whenever decision makers want to avoid a big debate over the subject at hand, fearful that they would lose if all the facts were on the table. Picture Granada '83, Panama '89 - even Vietnam and Korea. Would those wars have happened if the debate over them had occurred with the gravity that is due a full-blown declaration of war? What's even more insidious is the covert use of force that the people only find out about after it's already done. This is often done through the CIA or some such organization. See: Iran '53, Guatemala '54, Chile '73. There's no way our leaders could have justified those to the people. I guess I don't like AUMFs because they're too easy, they're easier for the average citizen since they don't require the same amount of sacrifice as a declared war, and so on.
Of course, to be honest, three of our five declared wars (Mexican, Spanish, WWI) weren't exactly good ideas. But that's not the point.
That having been said, I suppose the biggest culprit is the fact that people are led to believe that war is inevitable, that it's the only option, that people are powerless to stop it. I would have thought that sentiment would have died, oh, say, around 1973 or so. Alas.
I think the debate over congressional AUMFs is whether they grant the President "wartime powers" or not, in this case vis-a-vis the domestic warrantless spying thing. My gut leans towards no. It seems absurd to me that the President would have been able to declare martial law to take down Panama. And I don't think people would be so quick to support an AUMF if it meant giving up some of their freedoms. Furthermore, if we accept this premise, since we're very rarely without our military doing something against someone somewhere (here's a rather sobering list of all the U.S. military actions since 1890), are we ever that far from being under martial law?
But then, Lincoln putting Maryland under martial law was the only thing preventing his capital from being surrounded by rebel forces, and as mentioned earlier, that war was undeclared. Eep...
By
Jeff, at 4/19/2006 12:40 AM
Okay, you've got several threads of arguments going.
First you argue that all wars should be entered into with the gravity and seriousness of a declaration of war. I couldn't agree with you more. Whether you call it a declaration or something else, I think state-sponsored violence should only be used as a last resort, not as casually as it has sometimes been used in American history.
But again, that's aspirational, not a description of the current legal reality.
And, like you said, even declaring war doesn't mean doing it was a bright idea. The War of 1812 might not have been all that great an idea either....certainly it almost made us a British colony again.
Your second point, about people believing it is inevitable...again, no real argument there. War rhetoric is a powerful force to get people to fall in line. Such has been the case since ancient times. Nothing much has really changed there. So I can't say I would have expected the anti-Vietnam movement to change that.
ALTHOUGH that brings up an interesting point. You say that AUMFs are too easy...that they don't require the same sacrifice from an average citizen as a declaration of war. But what war affected enough average (or at least well-educated) citizens that it set off the biggest, most effective anti-war movement in American history? Vietnam - an undeclared war! So perhaps it's the size of the conflict that affects whether average citizens are affected, not the question whether it is declared.
The question whether AUMFs grant Presidents "wartime powers" seems pretty clear to me. Of course they do. BUT before the "War on Terror" there hasn't been a war where a President tried to claim such powers WITHIN the United States since the Civil War. (When Truman tried to claim the Korean War gave him increased domestic power to seize the steel industry, the Supreme Court shot him down. No military pun intended.)
Even a grant as broad as the AUMF runs into limitations on the domestic front. For instance, the Hamdi case said the AUMF was limited by the 5th Amendment (even if the 5th doesn't have the full strength it would in, say, a criminal prosecution). I would argue the AUMF does not authorize domestic warrantless wiretapping because of the principle that detailed statutes win out over general statutes in defining what the law is. FISA is INSANELY detailed and openly contains language claiming to be the only way to wiretap in America. AUMF is very, very general and doesn't even make mention of wiretapping. In that battle of the statutes, FISA wins.
In my paper, I'll be arguing that the AUMF does not authorize the President to order targeted killings against American citizens in the United States, despite that fact that the International Law of War says - during wartime - any enemy combatant is fair game at any time in any place.
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Ben, at 4/19/2006 8:59 AM
DECLARED WAR 1: The War of 1812 - a war we were not prepared for which led to the sacking of Washington and almost made us a British colony again, if it weren't for (a) the genius of that asshole Andrew Jackson and (b) the British basically losing interest.
DECLARED WAR 2: The Mexican-American War - a blatant war of aggression and conquest on our part, dressed up to look moral.
DECLARED WAR 3: The Spanish-American War - See the Mexican-American War.
DECLARED WAR 4: World War I - Not sure I have a strong opinion on this one, but many (including Jeff) consider this to have been an unnecessary war for our us.
DECLARED WAR 5: World War II - A necessary war against an insatiable and evil enemy.
Looking over our declared wars 3 out of 5 (if not 4 out of 5) were ill-advised or immoral...certainly unnecessary. Jeff & David, I think I'm coming to disagree with you. Historically, I fail to see how our track record of declared wars were entered into with any greater seriousness, deliberation, or wisdom than Korea, Vietnam, or Iraq.
I also fail to see how an AUMF is any less "honest" than a declared war. I guess it is if people somehow don't believe it's a "real" war....but honestly how many people on the street actually think there ISN'T a war going on in Iraq? You think a declaration would really change anything? Maybe people would consider it more serious if there were a declaration...but again, our track record of declared wars belies that.
By mentioning vagueness, David does point out a unique and disturbing feature of the 9/18/2001 AUMF. The enemy is difficult to identify. It's any individual, organization, or person the President determines carried out or helped with 9/11...or harbored those who did. Now we've had AUMF's against non-state actors before (i.e. slave traders, the Barbary Pirates), but none quite so vague as this. The part about "the President determines" is disturbing, although perhaps somewhat limited by the Hamdi v. Rumsfeld decision.
But that's not an inherent problem in AUMFs. It's unique to this one.
If y'all are saying "if we are going to war, we should carefully weigh the costs, think hard about it, deliberate, and be SERIOUS about it", I fully agree. I just don't think declarations are any more likely to lead to that result than AUMFs. The War Powers Resolution might have accomplished that, but it has proven toothless.
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Ben, at 4/20/2006 2:44 PM
That's pretty much what I was getting at - or at least what I would have been getting at had I said anything sooner. But I didn't. Good comments, y'all.
Out of curiosity, Jeff, why do you say we shouldn't have gotten involved in World War I? I mean, certainly, the entire war itself was completely ridiculous - but it seems to me that if we hadn't gone in to help out when we did, it may have only escalated even further. Then again, that may be my nationalism combined with my limited knowledge of WWI talking.
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Mike, at 4/20/2006 6:24 PM
The war was already at cataclysmic heights (for the 1910s) when we entered. Our abstention wouldn't have made things worse - just longer. From a simple strategic perspective, I suppose if we were going to be there anyway we should have just jumped in at the beginning - then we would have been able to have more pull in the peace and possibly avert the disaster that was the Treaty of Versailles.
You're right, our presence probably ended WWI earlier. But I think we would have been better served to try to get the two sides negotiating/realizing how f'n stupid they are rather than sacrificing our troops to a war that was really just the deadliest proof of the Banditos Theorem ever.
By
Jeff, at 4/21/2006 1:17 PM
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