A Brief Primer on War
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.