War and the Constitution: Has War on the Terrorists Been Properly Declared?


ACRU Staff


August 16, 2007

The following is an article of mine that ran in UPI papers on September 19, 2002 – after we had declared and commenced war on anti-American terrorists but before the Iraq War:

Commentary: Are we at war?

The United States does not legitimately go to war because the president says so. Or because the United Nations, or NATO, or any other organization says so. Or even because some other nation commits an act of war against it.

The only legal way for the United States to go to war is stated in the Constitution, which gives Congress the power “To declare War, grant Letters of Marque and Reprisal….” The Framers gave that power to Congress, and only Congress, because they were mindful of European wars begun by kings, without the consent of the people who paid the price in blood and taxes.

So, are we now at war? Contrary to what many careless commentators have said and written for months, we are at war now. Why? Because Congress has already acted as the Constitution requires.

Here is the operative text of Senate Joint Resolution 23, passed by the Senate on Sept. 14, 2001, and included by the House in the Anti-Terrorism Act, passed on Sept. 18, 2001:

“This joint resolution may be cited as the ‘Authorization for Use of Military Force’.

“(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.”

(The boilerplate and whereas clauses have been left out of the seven US declarations of war that are discussed here.)

Nowhere is the phrase “declaration of war” used. Isn’t that necessary?

No. The Constitution requires no particular language, unlike the Presidential Oath, which is specified word for word. Two centuries ago this year, Congress committed us to war against the Barbary Pirates — Muslims operating on the high seas and across the boundaries of several nations.

Then, as now, the declaration of war applied to those attacking the United States wherever and whenever they could be found. It did not name a nation as the enemy:

“An Act for the Protection of the Commerce and Seamen of the United States, Against the Tripolitan Cruisers.

“… it shall be lawful fully to equip, officer, man, and employ such of the armed vessels of the United States as may be judged requisite by the President of the United States, for protecting effectually the commerce and seamen thereof on the Atlantic ocean, the Mediterranean and adjoining seas.

“…to subdue, seize and make prize of all vessels, goods and effects, belonging to the Bey of Tripoli, or to his subjects,… and also to cause to be done all such other acts of precaution or hostility as the state of war will justify, and may, in his opinion, require.”

(Feb. 6, 1802.)

This 200-year-old declaration is open-ended, in the same way and for the same reasons as SJR 23. The enemy was not the product of a single nation-state, or alliance of states. The declaration of war could not have the clarity of those against Germany and Japan in World War II:

“… that a state of war exists between the Imperial Government of Japan and the Government and the people of the United States….”

“… that a state of war exists between the Imperial German Government and the Government and the people of the United States….”

It does not matter that Congress used broad definitions for current circumstances. The Constitution only requires that a majority of the House and the Senate concur. They have.

The president has no legal role in a declaration of war; however, he has a leadership role. He must present to the Congress and to the people the reasons why the nation should take up arms. President Thomas Jefferson did that concerning the Barbary Pirates. President Franklin D. Roosevelt did that concerning Germany and Japan. President George Bush did that concerning Iraq in 1991. President George W. Bush has done that concerning the terrorists and those who support and harbor them, in 2001.

Congress could have acted with more clarity. Here is the operative text of House Joint Resolution 63, introduced on Sept. 13, 2001, by five members of the House:

“Congress hereby declares that a state of war exists between the United States of America and any entity determined by the President to have planned, carried out, or otherwise supported the attacks against the United States on September 11 , 2001.

“The President is authorized to use United States Armed Forces and all other necessary resources of the United States Government against any entity determined by the President to have planned, carried out, or otherwise supported the attacks … to bring the conflict to a successful termination.”

The same day, nine other members of the House introduced HJR 62, which said:

“… a state of war exists between the United States and

(1) any entity that committed the acts of international terrorism against the United States on September 11 , 2001, or commits [such] acts… thereafter; and

(2) any country or entity that has provided or provides support or protection for any [such] entity….

“The President is hereby authorized and directed to employ the entire naval and military forces of the United States… to carry on war against such entities and countries….”

These were free-standing resolutions and used the words “declaration of war.” Both of these were tabled and SJR 23 was passed, giving the president the same authority without using those three words.

Had either House resolution passed, even CBS News, the New York Times, and other major media outlets would have noticed, and would not have run stories this year claiming that legal counsel in the White House had concluded that “no authority from Congress was needed” for the president to conduct the war. The correct statement would have been no additional authority was needed, because Congress had already acted.

So, what is the purpose of President Bush’s speech this year to the United Nations, and the presentation of the issue of Iraq to Congress this year?

Here is the operative language of the 1991 declaration of war against Iraq:

“Authorization for Use of Military Force Against Iraq Resolution.”

“(a) AUTHORIZATION. The President is authorized, subject to subsection (b), to use United States Armed Forces pursuant to United Nations Security Council Resolution[s] [Citations omitted.]

“Before exercising the authority granted in subsection (a), the President shall make available to [Congress]… his determination that

(1) the United States has used all appropriate… means to obtain compliance by Iraq with the United Nations Security Council resolutions…; and

(2) that those efforts have not been successful….”

This is a declaration of limited war. The power granted by Congress ended when Iraqi troops were removed from Kuwait; because that was the limit of the UN Resolutions. Why was UN participation mandatory in 1991, but not in 2001? Because then the United States was not directly attacked. It could not then invoke Article V of the UN Charter, the right of self-defense for any nation which is attacked.

Asking Congress to act again in 2002 with respect to Iraq is not a matter of the
Constitution but of common sense. Congress will have to vote the money for the war. The additional assent of Congress will demonstrate the commitment of the people to prosecute this war to victory. Note that the United States has already conducted acts of war in the Philippines this year concerning two American missionaries who were held captive. This was done under the 2001 authority and without objection.

Will Congress have the integrity to use the word “war” in the new resolution it will shortly pass? It should, because that is what Congress is confirming. Congress should not hide behind “authorization to use military force.” We have military forces to fight our wars. As a colleague who served in the 82nd Airborne said, “Our job is to kill people and break their toys.”

It will indicate a lack of commitment and candor, if in the 2002 confirmation — not declaration — of the war on Iraq, Congress cannot this time utter the word “war.”

The Barbary War example not only makes clear we are “at war” today, it also suggests the extent of this war. That war was a low-grade one across international boundaries. It continued until the second “Treaty of Peace and Amity” in 1816. The American people should understand, and Congress should confirm, that this will be a much smaller war than World War II, Korea, or Vietnam, but no less important to national safety, and likely to last about 10 years.

No war has ever begun with clear knowledge of how long it will last or what it will cost. But this war has already begun, already been declared. Now it is the role of Congress to do what is necessary for victory. Congress has sometimes been deficient in this role, beginning in the American Revolution. We will shortly see whether Congress is deficient in this war.



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