Are we "at war"?

January 16, 2006 12:23 PM

Is the United States "at war" or not? If Congress only authorized the use of force against Iraq, and did not formally declare war, what is our status under the Constitution? What about Afganistan?
posted by sushrob to law & government (18 comments total)

We are not at war. The Constitution doesn't cover it. Nor did it cover Afghanistan.
posted by devilsbrigade at 12:29 PM on January 16, 2006

The design (well, I'm thinking in terms of the federalist papers, so perhaps the 'intent' of at least a couple of the founders) is that the executive is charged with the responsibility of foreign affairs and national security because the legislature is designed to move slowly and grindingly. So it's not much of a constitutional problem for the President to attack other states without consulting with Congress explicitly about declaring war.

On the other hand, some people think that 'the gradual disappearance of the Congressional Declaration of War' is a scandal.
posted by Firas at 12:33 PM on January 16, 2006

The United States doesn't really declare war anymore. Since the end of World War II we've mostly fought under the War Powers Resolution, which is a CYA for both Congress ("We let the president decide") and the president ("Congress said I could").

It's all to deflect accountability and avoid responsibility, and the same shenanigans apply to financing. I believe the Iraq War hasn't ever been included in the actual budget, it's all been emergency spending.

I think we should go back to declaring war. In World War II, we declared war on Romania (they were allied with the Axis). Also, the DOD should go back to calling themselves the War Department.
posted by kirkaracha at 12:36 PM on January 16, 2006

"Make no mistake about it, we are at war."

"...the attacks reminded us that we are at war."

"War is the last choice a president should make, not the first...And, yet, we are at war."

So according to W, yes.
posted by youarenothere at 12:38 PM on January 16, 2006

But still, no.
posted by youarenothere at 12:38 PM on January 16, 2006

f we are indeed at war, then what will be the "end" of that war? How will we know that we are no longer at war? And if we do not have a marker for the "end of the war," then can the president (no matter who he or she is) keep doing whatever is wanted and note simply that we are at war and I am authorized to do what I am doing? And if we are at war, is the govt providing the G.I. Bill of Rights as it has done in the past, and will this continue till "the end of the war"?
posted by Postroad at 1:04 PM on January 16, 2006

I don't think you ever hear the president talk about war in the specific like the Iraq War. During Vietnam, you heard them use Vietnam Conflict but not war, at least that's my impression.

Make no mistake about, we are in an unconstitutional war.
posted by 6550 at 1:05 PM on January 16, 2006

It's incredibly annoying. Sure, the shrub says so, but that's what Presidents have been doing for some time now (War against Poverty, War against Drugs, War against Terror, etc) but according to the Constitution, it just ain't so, and I believe it's up to all of us to follow the Constitution. I do this by refusing to call it a war -- I call it the Iraqi conflict (and that little imperial adventure's been ongoing since '92, as far as I'm concerned -- President Bubba was directing the bombing of various targets in Babylon throughout his administration, y'know.) And before that, we were engaged in the futility of the Vietnam conflict. But they ain't wars 'cause Congress didn't declare 'em, and therefore they don't get my support.

Another way you can tell -- the US Coast Guard moves from the Department of Transportation to the DoD during War. This hasn't happened since WWII, and it may be moot now, with the Coast Guard now under the DHS.
posted by Rash at 1:10 PM on January 16, 2006

As far as political rhetoric goes, we are currently engaged in two wars: (1) the global war and terror, and (2) the war on drugs. Note that these two wars have in common that they can never been categorically "won" and there is no one on the other side who can surrender. This is also what distinguishes them from those things that were, in the past, called "war."

Whether these new kinds of wars can be used to justify what would normally be extra-constitutional behavior on the part of the President is subject of much debate.
posted by alms at 1:35 PM on January 16, 2006

It's all to deflect accountability and avoid responsibility

Well, maybe. I think that would require people to be a really weird and unlikely mix of smart and stupid.

I think a simpler explanation is that we now reserve full-on no-shit declarations of war for wars of total mobilization, like WW2. For lesser conflicts, we just authorize the use of force, which doesn't imply the same degree of domestic disruptions (draft, rationing, the war effort consuming ~1/2 of economic activity, etc).
posted by ROU_Xenophobe at 1:38 PM on January 16, 2006

Constitutionally, no you're not at war. As noted above, the US doesn't really do that anymore.
posted by Count Ziggurat at 1:52 PM on January 16, 2006

I guess it depends on your definition of war. To me, the conflicts in places like Iraq and Vietnam and Korea absolutely are/were wars.
posted by 6550 at 4:10 PM on January 16, 2006

...Badges? We don't need no stinking badges!....
posted by zaelic at 5:24 PM on January 16, 2006

The Vietnamese were fighting a War, and we were fighting a "conflict" the winners, Vietnam

The Iraqi insurgency is fighting a War, right now, we are only fighting a "conflict" and so far, we are stacking up a big body count, but not so much with the winning of hearts and minds.
posted by Megafly at 5:25 PM on January 16, 2006

For lesser conflicts, we just authorize the use of force, which doesn't imply the same degree of domestic disruptions

Sure. President Bush told us shopping was our patriotic duty after the September 11 attacks. I just wish we could forbid the president's hyperbolic war statements if we're not actually at war. But then I could wish in one hand and shit in the other and see which one fills up faster.
posted by kirkaracha at 5:36 PM on January 16, 2006

No, we are not at war.

I had a similar question and asked a fellow Mefite to show me the text of the resolution. It does not declare war, and it explicitly cites a section of the War Powers Act that defines what happens when the Congress has not declared war.
posted by NortonDC at 6:45 PM on January 16, 2006

We are at war.

PL 107-40: Authorization for Use of Military Force Against Those Responsible for the Recent Attacks

PL 107-243: Authorization for Use of Military Force Against Iraq
[wikipedia]
Ignore all the WHEREAS clauses, the meat is later

PL 93-148: War Powers Resolution [sometimes Act]

First of all, note that the principle of necessity means that a state of war may exist without any action taken by Congress. Originally Congress was only in session intermittently and would need to be summoned to Washington by (at best) stagecoach, so an attack could take place initiating hostilities weeks before any legal declaration of war.

In modern times, the speed of an ICBM attack could also obviously create a de facto war in which Congress might be destroyed, scattered, or otherwise unable to convene. This does not mean that a state of war cannot legally exist.

Second, the War Powers Resolution [because of the Nixon veto, many are reluctant to call it an Act] explicitly outlines language such that it is intended to provide a legislative path equivalent to a declaration of war.

2. (c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

Both resolutions authorizing force use the following language:

(c) War Powers Resolution Requirements.--
(1) Specific statutory authorization.--Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) Applicability of other requirements.--Nothing in this joint resolution supersedes any requirement of the War Powers Resolution.

8(a)(1) reads:
SEC. 8. (a) Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred--

(1) from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution

and 5(b):
(b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

The language in both clearly sets out a legal equivalence between a formal declaration of war and "specific [enacted] authorization". From the point of view of Congress, they were declaring war, but under the authorization process defined by the War Powers Resolution, which places particular requirements on the President with regard to informing Congress.

It may be argued, and has, that a Use of Force Authorization is not the same as a Declaration of War. Sen. Joseph Biden has specifically stated otherwise:
Senator ... do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom? (Scattered Laughter)

JB: The answer is yes, and we did it. I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction ... Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what ... against whom we were moving, and what authority was granted to the President.


If we are indeed at war, then what will be the "end" of that war? How will we know that we are no longer at war?

That's a good question, for which there is no good answer.

I guess it depends on your definition of war. To me, the conflicts in places like Iraq and Vietnam and Korea absolutely are/were wars.

Yes, they were wars, and are generally named as such today. Politically it may have been convenient to use fig-leaf language, but from the standpoint -- for example -- of military records and disposition of casualties, those were wars. "Vietnam War" at site:mil garners 90,000 results. The problem there was that Congress authorized the President "to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression", which was rather open-ended and never mentioned any state entity. Several years later, Nixon would interpret this to authorize the expansion of the war zone to include Laos. This problematic language was a direct precursor to the War Powers Resolution.
posted by dhartung at 1:33 AM on January 17, 2006

"The language in both clearly sets out a legal equivalence between a formal declaration of war and "specific [enacted] authorization".

I reject that characterization.

Go back to the text you cited: "unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces"

The two qualifying cases are distinct and cited separately, though either may qualify for that statutory purpose. That fact that either of the two conditions qualifies in that use does not negate broader set of very real differences between them, specifically including the fact war is still legally determined by declaration by Congress.

Regarding Biden, it's not the first time a politician has misrepresented his work.
posted by NortonDC at 7:32 PM on January 19, 2006