Arms and influence

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.

Original sin and the Constitution

IN THE NEWS
The ongoing discussion of the Department of Defense "torture memo" leaked to The Wall Street Journal confirms fears I've expressed earlier on this blog. If there is an original sin, a fundamental mistake, a central corruption whose stain has spread into other areas, it was the Republicans willingness--and in many cases, eagerness--to ignore the Constitution's clear requirements on warmaking. Most fundamentally, if we are in the midst of a major war, we should have a declaration of war. Otherwise, we have no way of knowing whom we're fighting, why, and when we're done. The "spreading stain" this refusal to honor this part of the Constitution is the ongoing corruption of the rule of law in general. If you're willing to ignore something as fundamental as the requirement to declare war, what other parts of the Constitution, or laws that spring from it, are you willing to break?

As I argued earlier, the Cold War distorted our sense of how the Constitution should work. A uniquely dangerous situation existed, in which the very existence of the nation could end in hours or minutes, that required some creative thinking about how best to handle that risk. The fear was the chain of events that could be set into motion by a declaration of war. If the United States became involved in a regional conflict...And if the Soviets also became involved...And the United States "planted the flag" by declaring war against the Soviets' ally...And if the Soviets then felt that we had de facto declared war on them...The escalation spiral could easily end in nuclear annihilation. Compromises like The War Powers Act were supposed to be temporary measures, however, designed to give Congress some echo of its formal constitutional role without the unintended calamity that a declaration of war could trigger. Congress still retained other explicit Constitutional controls over warmaking, such as the federal pursestrings and treaty ratification. Even if wars weren't declared between 1945 and 1989, the Cold War still respected the Constitutional sharing of powers in all other ways.

If that respect for the Constitution persevered at a time when billions of people could die in minutes, it certainly should exist now. (As frightening as nuclear terrorism might be, it hasn't happened yet, and there are no "ticking bombs.") Since the nuclear escalation spiral no longer exists, the US government should formally declare war in major conflicts without even questioning the necessity of using that Constitutional instrument. However, I fear, the Cold War lasted long enough that American political culture became far too deformed about warmaking, so that the idea of declaring war is now itself unthinkable.

Declarations of war are vital tools. They tell us whom we're fighting, why were expending our blood and treasure, and when we think we're done. Congress has the power to declare war (an explicit check on the risks of a military dictatorship), as well as other powers it can (and should) exercise during the beginning, duration, and conclusion of a war. On occasion, this system can be messy, but the Framers felt quite strongly that it would simultaneously manufacture the best decisions possible (especially given the number of self-correcting mechanisms) and preserve liberty.

There is no Presidentprinzip like the nasty fiction described in The Memo. The White House does not have privileges; it has shared powers. It does not, therefore, have any privilege, on its own, to decide what really threatens us, how much, for how long, and how many Constitutional articles, laws, and treaties it needs to suspend along the way. It cannot do all this in secret, concealing from both the public and Congress vital information about our enemies. Nor does it have the privilege to hide the information needed to judge how well we're doing at defeating them. (Excessive secrecy usually hides incompetence or corruption, not vital national interests.)

The Memo is another manifestation of the original sin I've described here. The fact that no one in the Bush Administration or the Congressional Republican leadership has indisputably and loudly condemned it, is deeply disturbing.

The dam and the river

THEORY
Declarations of war and war aims are intimately connected. They intersect in a place that most Americans today don't appreciate, except in the rare moments when they glimpse it. That place is the lost realm of political rhetoric.

Rhetoric, as the Greeks and Romans defined it, was the art of speaking clearly, persuasively, and artfully. Rhetoric could inspire people to take risks, face the unknown, trust in the speaker to guide them. Rhetoric took some natural ability, but it also demanded considerable training, practice, and discipline. The great Greek orator Demosthenes originally had no natural ability: he stammered, struggled to make himself clear, rushed through phrases that needed time to hear and digest. Under Aristotle's tutelage, Demosthenes practiced hard, famously stuffing his mouth full of rocks so that he forced himself to be heard clearly.

Of course, having a pleasant voice or good penmanship isn't enough to speak or write well. Having something to say is the foundation of rhetoric. Focusing on the key points; building understanding; choosing words carefully; saying just enough to persuade, but not so much that you bore and confuse the audience--all of these skills are as challenging to master as speaking with a mouthful of stones.

Although sometimes people joke at corporate mission statements, since they often have little to do with what managers and employees actually do, the people who write these statements instantly appreciate the importance of choosing your words carefully. When a company that manufactures cars decides to write its mission statement, the executives agonize over the words that are supposed to win over the employees, the shareholders, and the customers. Crafting a formal declaration of war poses the same challenges, and the stakes, needless to say, are much greater.

When a nation goes to war, the statements a leader makes matter greatly to the citizens asked to fight, the allies asked to support you, and the enemies asked to submit. Whether you draft an official announcement of hostilities, or you speak a few casual words into a microphone and quickly leave the podium, you have declared war. You can find in yourself rhetorical gifts you didn't know you had, or you can toss off a few words about danger, struggle, and inevitable victory over something, somehow. How you, as a leader, face this rhetorical responsibility is, of course, the difference often between great leaders and miserable failures.

In his first inaugural address, Abraham Lincoln gave himself a great deal of wiggle room on the question of whether the abolition of slavery was the necessary outcome of the war with the South. Given the political realities of the moment, and Lincoln's own insecurities about being a newly-elected President in the darkest of circumstances, we shouldn't be surprised that he didn't display as much rhetorical brilliance as he did in the second inaugural or the Gettysburg Address. He did, however, end this lesser speech with an uplifting sentence:

The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

In the rest of the speech, Lincoln was saying, "Restoration of the Union is primary." He ended the speech talking about "the better angels of our nature," an effective prod to the collective conscience on the national sin of slavery.

When other leaders needed to declare the goal of fighting, the pressures of the moment gave birth to equally stirring words. Though the Cold War had no formal declaration, Kennedy's inaugural adress, defined a new phase of this struggle in the following passage:

Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty.

No one who reads or hears these words can forget them. The rest of the speech flows from this passage. Kennedy defines a new battlefield, the twilight struggle with that generation's terrorists and guerrillas. His speech depicts what victory will be, how each person can contribute ("ask not what your country can do for you..."), and why it's worth bearing the necessary burdens. "Will you join that historic effort?" was an irresistable invitation for an idealistic generation, some of whom joined the Peace Corp, and others who went to fight in Vietnam, Laos, and Cambodia.

When a nation goes to war, therefore, the declaration provides more of an opportunity than a constraint. The opportunity only comes once, at the beginning of the conflict. Once the brutal realities set in, further attempts at explanation will be lost in the noise, confusion, and carnage. The price of war--in dollars, lives, the maiming of bodies, the mutilation of souls--will overshadow the landscape of events. The chance to justify that price, to explain why the world after the war will be better than the one before it, will be lost.

Of course, in any democratic society, there is one other important reason for leaders to make a clear declaration of war: those words become the standard by which we hold elected leaders accountable. Democratic responsibility isn't possible otherwise.

Rhetoric isn't mere words. Rhetoric invokes the moral power needed to do great things, or defeat great threats. The words that commit the nation to a particular course of action simultaneously free it from its natural immobility.

PRACTICE
Needless to say, the people responsible for explaining the actions of the Bush Administration are not great rhetoricians. Bush himself seems largely unconcerned with the words he speaks. He may not be, as most people describe him, someone who's clumsy with words. Instead, he may be indifferent to the words he speaks. His signature unwillingness to speak very often, or speak where his statements might be challenged, gives the impression that public speaking is a chore he'd just as soon get out of the way as quickly as possible. Words spray out of his mouth, he turns, and leaves.

Bush's indifference to words has a predictable outcome: in spite of dramatic events, his entire Administration is memorable for its lack of memorable words. The one phrase that stands out, the axis of evil, is noteworth only for how irrelevant and inaccurate it is. After al-Qaeda terrorists--a shadowy force beholden to no one, slipping through and around the cracks in global society--attacked the United States, Bush denounced the governments of Iran, North Korea, and Iraq. If these three countries were an axis of evil, they weren't driving al Qaeda. Bin Laden went where he wanted, accepted support from whomever would give it, and killed anyone whom he hated.

What then was the evil around which this alleged axis turned? Was it support for terrorists? The determination to build weapons of mass destruction? The torture and execution of innocents? Bush and the people who crafted his words--Karen Hughes, Karl Rove, and others--could never say. Instead, they spoke vaguely about a particular brand of evil one day, and discarded it the next if it proved inconvenient (such as when no one could find weapons of mass destruction in Iraq). The next statement was as quickly cobbled together as the first, with even less sincerity and persuasiveness as an automobile company's mission statement.

Bush has supporters who believe in him. The emphasis for many however, is belief in Bush, not in the results of his actions. The communion of values or religious faith that they feel Bush, or the gesture (not the outcome) of "doing something about terrorists," are the important political measures for this group. What matters less, it seems, are the consequences of American military action abroad, or police action at home.

On 9/11, Americans felt that the dam of history had broken. They were terrified what would happen, now that the barriers against a hostile world had crumbled. The words Bush spoke at that moment would make the critical difference between a fear of being drowned by forces they couldn't fight, and a confidence that the new tide of history would lift the nation off its comfortable moorings and propel it into a different but perhaps better future. Rhetoric--which should have been refined and codified in a declaration of war--could have directed a political and spiritual river propelling the entire country, not washing over an already dedicated segment of true believers.

Instead, Bush had nothing memorable to say, except to describe a conspiracy of nations that had nothing to do with al Qaeda terrorists--a conspiracy, in fact, that didn't even exist. (Since words do matter, the term axis, of course, implies the formal alliance of Nazi Germany, Fascist Italy, and Imperial Japan. The more sinisterly-phrased "axis of evil" consisted of three nations, not allied with one another at all, whose opinions of one another ranged from indifference to hatred.)

What Bush gave the country, and to an equal extent the world, was an unconvincing dribble of words. Once this weak rivulet encountered resistance in one direction, it tried a different course. If that, too, was blocked, it found a third direction, or it went nowhere at all. Meanwhile, the American people were ready to fight shadowy enemies, make the necessary sacrifices to defeat them, and in the process, embrace a new national mission. When touched by the words unleashed by the dam of history, Americans weren't moved by river of powerful rhetoric. Instead, they were drenched by random streams of gibberish.

Reviewing history's catastrophes, everyone naturally looks for some kind of original sin, a fundamental mistake that made all subsequent calamities possible. In my case, looking back on the chain of events since 9/11, the weakness of that chain starts with Bush's unwillingness to accept rhetorical responsibility. Failing to declare war, if invading Afghanistan and Iraq was the only way to prevent another 9/11, evaded a Constitutional duty, betrayed his contempt for the American public, undermined democratic accountability, and lost an historical opportunity. Words and actions, politics and war--one cannot succeed without the other.

War and the US Constitution

THEORY
Last time, the topic declarations of war in general. This post, we’ll look into the wording and intent of the separation of powers in the US Constitution, when it comes to warmaking. How the Framers intended the Constitution to function in times of war is, of course, one of the most important theories that we need to be translating into how we practice war against terrorists, insurgents in Iraq, and other adversaries.

Before getting into any specifics about powers and responsibilities, it’s important to note that the term separation of powers is a bit of a misnomer. The Framers didn’t strictly divide responsibility for different .spheres of activity (taxation, foreign affairs, legal matters, etc.) and assign each one to a different branch of government. Instead, the Constitution creates a set of overlapping powers, in which no branch holds exclusive power over anything. The Constitution, therefore, deliberately institutionalizes tensions and inefficiencies. Disagreements will inevitably erupt, compromise or consensus may be necessary to get any work done, and some work won’t get done at all.

The Framers understood the inefficiencies this system would create. However, their job was not only to make a smoother-running government than the Articles of Confederation had provided, but also to ensure that the Constitutional machinery generated liberty, justice, democracy, and good decisions. The Constitution needed to guard against demagogues, the tyranny of the majority, the corrupting influences of excessive power, the nasty character of politics decided by “faction,” star chamber courts, and unwise decisions made in the heat of the moment—just as they needed to avoid the paralysis and illegitimacy of the Articles of Confederation. The Constitution, according to James Madison, assumes a variety of different kinds of human wickedness, and takes great care to guard against all of them—rather than giving too efficient, unchecked instruments of government that a tyrant or a mob could control.

In foreign affairs, during times of both war and peace, the Constitution also enshrined these overlapping responsibilities. The executive negotiates treaties; the legislature gives them binding power through ratification. The executive appoints ambassadors; the legislature blesses their appointment. The President is commander-in-chief of the military; the Congress controls the purse strings and has the exclusive power to declare war.

Of course, the declaration of war clause (Article I, Section 8) hasn’t stopped the United States from fighting any number of undeclared wars, starting early in its history. However, the people who fought the earliest “little wars,” like the expedition against the Barbary emirates, did tug their forelocks respectfully at the principle of declaring war. Either the war was already effectively declared by the enemy, as Jefferson argued in the case of the Barbary emirates, or the military action was too small, short, and insignificant to merit being called a war. (The notion of a police action is as old as clearing shipping lanes of North African privateers in the early 19th century, or the punitive actions in the Pacific, Latin America, the Caribbean, and Asia during the same period.)

At the time the states ratified the Constitution, the two hot issues concerning war-making were (1) the alien concept of maintaining a standing army and navy, (2) regular troops as the major part of that new standing army (as opposed to state militias). . Therefore, the Federalist Papers focus on these two questions, rather than discussing equally important issues, such as whether the standing army could be the platform on which an ambitious President could turn his office into a functionally monarchical or imperial title. Hamilton, in the Federalist #26, in fact, dismisses the idea that the executive could abuse his power as commander-in-chief, since Congress could always retaliate by cutting off military expenditures.

The other ways in which the federal government might abuse its warmaking power were, in fact, very hotly discussed in the parlors, workshops, and taverns. These fears were crystallized in the widely-felt concern that George Washington might turn into a Roman-style dictator. When he announced that he had served his two terms as President and had no interest in running again, a mass exhalation of relief occurred. Many at the time felt that, even more than Valley Forge or Yorktown, his decision to step down was his greatest, noblest moment.

Given the anxieties that inspired them, it’s no surprise, then, that these Constitutional guidelines on waging war and negotiating peace were canon for future generations of American politicians. Leaders who tried to bend or break them in the name of expedience or national emergency generally got an angry reception. There was no argument that a national emergency was at stake in the War of 1812 or the Civil War; there was just no need to toss away hard-won Constitutional protections for justice and liberty.

A good example is the Alien and Sedition Acts, the great stain on the presidency of John Adams. The Acts were officially designed to root out the enemy within, agents of the British, insurrectionists, and other colonial fifth columnists. Given the number of Tories still smarting from Britain’s defeat, plus the British navy still prowling the Atlantic, these were credible threats to the still-fledgling republic. Unfortunately, not only were the Alien and Sedition Acts unjust, but they were also blatantly designed to advantage the Federalists by keeping out immigrants, most of whom joined the Democratic-Republicans. The Alien and Sedition Acts were also part of a bizarre plot that Hamilton had conceived, in which be might become an American Caesar, carried to supreme power on the shoulders of an army he would lead to crush these purported enemies within. Hamilton died in a duel with Burr, and the Acts expired. Adams spent the rest of his life defending his sponsorship of the Acts from numerous (and justified) critics.

To sum up, the Framers expected the Constitutional assignments of overlapping powers to be taken very seriously by future generations. Wars were serious business--so serious that the nation needed to re-think its views on militias and a standing navy. However, the more serious the issue, the more the Framers expected that leaders would cleave to the Constitution, and not abandon it. It’s worth recognizing that, even though the Constitution may not be “a suicide pact,” it has no emergency clauses.

PRACTICE
As we’ve seen recently, the Bush Administration has gone beyond Cold War position that the commander-in-chief needs the latitude to fight major wars without a declaration. (As I argued in the last post, we as a nation should be re-considering this policy, now that there’s no risk that a declared war could trigger an escalation with a superpower adversary to nuclear levels.)

This week, Solicitor General Ted Olson argued before the Supreme Court the executive branch’s case for the detention of enemy combatants. In this case, the two enemy combatants in question are actually American citizens. The facts of the case--were the two litigants actually involved in planning or executing terrorist attacks?--are not the issue. What’s at stake is a principle: can the executive branch, by assigning someone to the “enemy combatant” category, arrest that person without making charges, indefinitely detain him without charges, deny him access to the outside world altogether (including a lawyer), and block the person from even mounting a challenge to the accusation of being an “enemy combatant”?

Needless to say, I don’t agree with the government’s position. Neither did the Framers, whose worries about warmaking had everything to do with how human wickedness might tempt us to destroy ourselves, and next to nothing about how the country would defend itself from foreign enemies. As discussed earlier, the Federalist Papers—the voice of the Constitution’s author and most fervent supporters—casually dismiss the question that the country would rise to its own defense. Instead, the Federalist Papers spends more time assuring their audience that the federal government’s powers to raise armies, fight wars, and negotiate treaties will not be abused, if the checks and balances are allowed to work as designed. Rather than identifying times when a national emergency might require suspending parts of all of the Constitution, the Federalist Papers argue that the Constitution’s machinery most need to continue functioning during these times.

Which, again, calls into question why, if we are fighting a major war in Iraq, we’re not following the Constitutional stricture that the federal government must declare the wars it fights. Force of habit from Cold War years isn’t reason enough.

At the risk of sounding as though I’m harping on a dry, legal position, I’ll spend the next post linking the declaration of war with the successful conclusion of a war. There are good, practical reasons to think we shot ourselves in the foot by not declaring war (or even talking about why we should or shouldn’t use this part of the Constitution, as designed).

The dog that didn't bark

THEORY
The last few "theory and practice" posts have focused on the slipperiness of war aims, and the disasters that can result when you lose your grip on them. In short, when it comes to how you fight a war, flexibility is a good thing. Flexibility over goals, however, is usually a polite way of describing confusion. As we've discussed, a nation unclear about why it's fighting, or what victory means, is usually on the proverbial road to ruin. Ending a war is often hard enough; confusion over what constitutes victory makes reaching the end that much harder.

The most pungent example, of course, was the seach for "peace with honor" in the Vietnam War. What was an acceptable peace, and exactly what about the nation's honor was at stake? The bitter disagreements over these questions complicated and delayed the achievement of these goals--however hawks, doves, or someone in between (like Lyndon Johnson) might envision them.

Fortunately, governments have ways to enforce clarity about war aims--tools that are as inescapable as the law, in fact. Formal declarations of war may not be as common as they used to be, but they're useful instruments for defining war objectives.

Of course, the United States hasn't declared a war since 1941. Before getting into the reasons why, let's rewind a bit further in history.

Formal declarations as we think of them have a long history. The Hundred Years War began with Edward III's letter to King Philip VI of France. Edward claimed the French throne was legitimately his, and "we give you notice that we intend to conquer our inheritance by force of arms." At this point in the history of Western Europe, war was a struggle between dynasties, in which the warring parties mobilized forces of mercenaries and anyone who owed a feudal obligation. Later, in the Age of Reason, when states as we think of them first came into being, the sovereign declared war to articulate a change in the relationship with some other sovereign, including the usual list of demands and grievances. Up to this point, declarations of war were communications between leaders, from feudal to absolute monarchs, and were considered part of the normal diplomatic intercourse between these authorities. With the rise of the nation-state, a declaration of war took on a new meaning: a statement made not just between sovereign governments, but to one's own population. The declaration aimed to mobilize the population, justify the losses to come, and explain the goals for which the nation would be fighting.

Not every war, of course, involved a declaration--but most did. The French monarchy's struggle with the Hugenots may not have involved a formal declaration of war, but its earlier battle with the Cathars did--the papacy's blessing of a crusade against heretics. Rebels, schismatics, and other internal enemies often did not deserve the trappings of civilized diplomacy; nor did relations with the infidels. However, a declaration of war, however framed, remained the norm.

States in the 19th and 20th centuries increasingly fell into patterns of fighting "little wars" without formal declarations. The American republic's first protracted war after independence, the struggle with the North African emirates (the so-called "Barbary pirates"), seems to have been the first time the United States fought an undeclared war--very early in its history, during the presidency of Thomas Jefferson. Even though Jefferson evaded the responsibility of going to Congress for a declaration before deploying a squadron to the Mediterranean, he was, in fact, adhering to the conventions of war declarations. Jefferson justified the deployment by saying that it was purely defensive, to protect American shipping. If, once the infant US Navy arrived in the Mediterranean, the commander of the expedition found that a de facto state of war between the United States and the Barbary kingdoms already existed, a de jure declaration of war would be unnecessary. (In fact, the pasha of Tripoli obligingly began hostilities.)

Still, the United States, like other powers, was willing to take military action in small conflicts--Nicaragua, China, Haiti, etc.--without formal declarations of war. However, once the United States emerged as a world power, formal declarations with Spain, Germany, and other enemies certainly were the rule for major conflicts.

What changed this pattern was the Cold War. Declarations of war "plant the flag," creating commitments, raising expectations, and investing prestige. Once a government declares war, it either wins or loses it, in the eyes of the nation. In Korea, the US public certainly wanted a WWII-style total victory, with the aggressor state not only vanquished, but dismantle. US leaders, of course, were worried that escalating the Korean War to the point where we could have won such a victory might have spiralled out of control--a WWI-like dynamic of commitment and escalation among great powers, but now with nuclear weapons.

After 1945, therefore, the United States therefore went to war many times without once declaring war. It's hard to think of Korea and Vietnam as minor conflicts, even though they were "limited wars." However, US leaders still kept clear of the legal and psychological commitments that a declaration of war would have created, preferring instead to look for some other legal instrument (a Congressional authorization, a UN mandate, a mutual protection clause in a treaty) to formally trigger and define the conflict.

The first Gulf War was, arguably, the last major Cold War conflict fought in this fashion. Even though the Cold War was officially over (in fact, the USSR had ceased to exist), the United States was still not sure of the likely Russian reaction.

PRACTICE
In 2003, no one seriously believed that Russia or China would come to the defense of Iraq. If the Iraqis did have WMDs, a declaration of war wouldn't have made a difference one way or another: either they would use these weapons to defend themselves, or they wouldn't. (The Bush Administration barely asked for a UN mandate.) The second Iraq War was certainly a major conflict. There was no risk of nuclear retaliation against US cities. The Bush Administration argued that, in the normal terms of foreign relations, the Iraq War was fully justified.

So why didn't the United States declare war?

Even more perplexing is why we did not declare war against the Taliban regime. We had a direct connection between the 9/11 attack, cited as the Pearl Harbor of our time, and the Taliban alliance with al-Qaeda. However, we didn't declare war as we did in 1941.

This question points out the proverbial "dog that barked in the middle of the night." (If you need the context, it's from a Sherlock Holmes story, "Silver Blaze," in which the fact that a guard dog had not barked at an intruder was the significant clue.") The question is so obvious that it begs asking. Fully mobilizing the country, if in fact Iraq was the center of gravity in the war against terrorists, would have been completely justified. You might not think that "rogue nations" deserve civilized courtesies, but the US public certainly does. So, again, why no declaration of war?

I'll leave it up to you to answer this question for yourself for the time being. I have my own opinion, which I'll post later.