What Happened to the American Declaration of War?
March 29, 2011 | 0853 GMT
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By George Friedman
In my book “The Next Decade,” I spend a good deal of time considering the relation of the American Empire to the American Republic and the threat the empire poses to the republic. If there is a single point where these matters converge, it is in the constitutional requirement that Congress approve wars through a declaration of war and in the abandonment of this requirement since World War II.
This is the point where the burdens and interests of the United States as a global empire collide with the principles and rights of the United States as a republic.
World War II was the last war the United States fought with a formal declaration of war. The wars fought since have had congressional approval, both in the sense that resolutions were passed and that Congress appropriated funds, but the Constitution is explicit in requiring a formal declaration
. It does so for two reasons, I think. The first is to prevent the president from taking the country to war without the consent of the governed, as represented by Congress. Second, by providing for a specific path to war, it provides the president power and legitimacy he would not have without that declaration; it both restrains the president and empowers him. Not only does it make his position as commander in chief unassailable by authorizing military action, it creates shared responsibility for war. A declaration of war informs the public of the burdens they will have to bear by leaving no doubt that Congress has decided on a new order — war — with how each member of Congress voted made known to the public.
Almost all Americans have heard Franklin Roosevelt’s speech to Congress on Dec. 8, 1941: “Yesterday, Dec. 7, 1941 — a date which will live in infamy — the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan … I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, Dec. 7, a state of war has existed between the United States and the Japanese Empire.”
It was a moment of majesty and sobriety, and with Congress’ affirmation, represented the unquestioned will of the republic. There was no going back, and there was no question that the burden would be borne. True, the Japanese had attacked the United States, making getting the declaration easier. But that’s what the founders intended: Going to war should be difficult; once at war, the commander in chief’s authority should be unquestionable.
Forgoing the Declaration
In understanding how war and constitutional norms became separated, we must begin with the first major undeclared war in American history (the Civil War was not a foreign war), Korea. When North Korea invaded South Korea, Truman took recourse to the new U.N. Security Council. He wanted international sanction for the war and was able to get it because the Soviet representatives happened to be boycotting the Security Council over other issues at the time.
Truman’s view was that U.N. sanction for the war superseded the requirement for a declaration of war in two ways. First, it was not a war in the strict sense, he argued, but a “police action” under the U.N. Charter. Second, the U.N. Charter constituted a treaty, therefore implicitly binding the United States to go to war if the United Nations so ordered. Whether Congress’ authorization to join the United Nations both obligated the United States to wage war at U.N. behest, obviating the need for declarations of war because Congress had already authorized police actions, is an interesting question. Whatever the answer, Truman set a precedent that wars could be waged without congressional declarations of war and that other actions — from treaties to resolutions to budgetary authorizations — mooted declarations of war.
If this was the founding precedent, the deepest argument for the irrelevancy of the declaration of war is to be found in nuclear weapons. ............
It is said that there is no precedent for fighting al Qaeda, for example, because it is not a nation but a subnational group. Therefore, Bush could not reasonably have been expected to ask for a declaration of war. But there is precedent: Thomas Jefferson asked for and received a declaration of war against the Barbary pirates. This authorized Jefferson to wage war against a subnational group of pirates as if they were a nation.
Had Bush requested a declaration of war on al Qaeda on Sept. 12, 2001, I suspect it would have been granted overwhelmingly, and the public would have understood that the United States was now at war for as long as the president thought wise. The president would have been free to carry out operations as he saw fit. Roosevelt did not have to ask for special permission to invade Guadalcanal, send troops to India, or invade North Africa. In the course of fighting Japan, Germany and Italy, it was understood that he was free to wage war as he thought fit. In the same sense, a declaration of war on Sept. 12 would have freed him to fight al Qaeda wherever they were or to move to block them wherever the president saw fit.......
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