Original sin revisited

IN THE NEWS
When I first started Arms and Influence, I argued that the original sin of current US foreign policy was the failure to declare war against Afghanistan and Iraq. Americans may have fallen out of the habit of declaring wars, but there are important reasons to revive the practice—not least of which is the clear Constitutional requirement to do so.

The Framers of the US Constitution clearly divided warmaking authority between the legislative and executive branches. Article I, Section 8 grants Congress the following powers:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress…

Article 2, Section 2, gives the President an important but more succinct role in wartime:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

If you still have doubts, you can always look to the Federalist Papers for guidance. In Federalist #4, John Jay describes how dangerous it can be to grant sole responsibility for warmaking to any monarch or other sort of executive role:

It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.

In Federalist #69,, Alexander Hamilton assures his audience that the Constitution does not give the president supreme authority for national defense:

Secondly. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.

You can rightly ask, If the Constitution clearly divides warmaking responsibilities between the President and Congress, why hasn't the United States declared war for 60 years? The answer lies in the nuclear "balance of terror between the Cold War superpowers.

American leaders in the first two decades of the Cold War feared that any direct confrontation with the Soviet Union would quickly escalate, and any direct conflict with its presumed allies—North Korea, the People's Republic of China, and North Vietnam most notably—would themselves draw the Soviets into the fight. To keep a regional conflict like the Korean War from rapidly escalating into a nuclear exchange between the superpowers, American decision-makers radically altered the process for fighting lesser foes like the North Koreans. Although, with the benefit of historical hindsight, we know that the Chinese government was already considering intervening on the side of the North Koreans before UN forces crossed the 38th parallel, observers at the time interpreted the Chinese intervention in World War I-like terms. Whenever a great power menaced a minor power, as Austria-Hungary threatened Serbia in 1914, the ally of that minor power—in 1914, Russia—would have no choice but to mobilize in its defense. Therefore, American leaders chose in the next land war in Asia to keep US ground forces out of North Vietnam, even while Air Force and Navy planes bombed North Vietnamese targets.

The World War I analogy also made American decision-makers wary of the commitment to win a conflict that a declaration of war clearly signaled. Therefore, the Korean War became a "police action," something to which the United States had not committed its blood and treasure with the same gravity as it did against the Axis powers in World War II. Having signaled to the Soviets that the United States was not fully mobilizing against the North Koreans or the North Vietnamese, American leaders hoped they would deflect any counter-mobilization like the Russian Empire made in 1914. After the Vietnam War, Congress reasserted its role in "authorizing" war with the War Powers Act, but again fell short on insisting the nation follow the explicit guidelines of the US Constitution about declaring war.

Without a balance of terror, this aversion to declaring war makes no strategic sense. Neither Afghanistan nor Iraq had the means to retaliate with strategic nuclear weapons, nor did they have a nuclear-armed patron who would rush to their defense.

While you might think that a declaration of war doesn't make a difference, imagine for a moment what the political atmosphere in the United States would have been like in 2001 or 2003 had the United States declared war for the first time since 1941. That fact alone would stand out in the minds of everyone, including potential allies and adversaries. US leaders would have felt a far greater compulsion to state American war aims far more clearly, so that the electorate would have a far better sense of exactly what Americans troops were being sent to accomplish. By extension, Americans would have had a somewhat clearer picture of how long these wars might be, or how they might be shortened or rendered more successful by a greater mobilization of effort. In practically every other way, it would have been easier for the Bush Administration to tap the vast resources of the United States in what would undoubtedly be a challenging series of conflicts in the most volatile region of the world.

We would now be faced with fewer questions about what the US government should and should not do in times of war. A substantial body of legal precedents and administrative procedures, such as the proper handling of "enemy combatants" and the restriction of some civil liberties during wartime, would have guided and justified executive branch policies if we were clearly at war. Instead, we're kinda, sorta at war, from both a political and a Constitutional perspective.

This problem surfaces regularly, though it's not always recognized as the result of the United States failing to follow its own Constitutional requirements for declarations of war. One of the rare instances when someone has identified the problem directly appeared in James Risen's recent book, State of War, in the section describing the NSA's warrantless domestic wiretaps:

The administration apparently has several legal opinions to support the NSA operation, written by lawyers at the White House, the CIA, the NSA, and the Justice Department. They all rely heavily on a broad interpretation of Article Two of the Constitution, which grants power to the president as commander in chief of the armed forces. Relying largely on these constitutional powers, Congress passed a resolution just days after the September 11 attacks granting the president the authority to wage a global war on terrorism, and Bush administration lawyers later decided that the war resolution provided the legal basis they needed to support the NSA operation to eavesdrop on American citizens.

Here, clearly, is the problem in the starkest possible terms. The executive branch convinced itself that it had supreme responsibility for warmaking, including the necessary intelligence-gathering. Rather than grappling with the Constitution's separation of warmaking powers, the Bush Administration chose not to even mention it.

It would be unfair to pin the blame solely on the White House. Americans—not just the Bush Administration—have a national blind spot about declarations of war. Not having used this part of the Constitution for a long time, they have forgotten the reasons for its existence. Perhaps it's time for Americans to re-educate themselves in the fundamentals of their own Constitution, now that the Cold War no longer provides an excuse for ignoring key parts of it.

Comments

[Dan]

You are right to focus on the enormous psychological impact of such a declaration. Legally, it doesn't really change anything. Congress can authorize use of force absent direct declaration, but again, psychologically and rhetorically, it would have severely narrowed the options for defeatists and democrats.

[beats by dre it]

This is all very new to me and this article really opened my eyes. Thanks for sharing with us your wisdom.