I keep hearing arguments (most recently in the treason thread) that various war-time powers — for instance, the power to punish people for treasonously aiding our enemies — are applicable only if the war is declared.
No no no. Did I say, "no"? Just in case, "no." That is not and has not been U.S. law. I canvassed the caselaw on this here, but the short answer is that U.S. law has not treated our undeclared wars (e.g., the Civil War, the Korean War, the Vietnam War) differently from declared wars (e.g., World War I or World War II).
I realize that some people might argue that the law should distinguish declared wars from undeclared wars. But they should acknowledge that this is a change from longstanding American legal understanding, and they should also discuss how this would apply in situations where wars have generally not been declared (e.g., civil wars, wars in which we're attacked and conduct takes place before we have time to declare war, and so on).
But beyond this, the war against Iraq is a declared war. A declaration of war doesn't require magic words: A Congressional authorization to the President to use military force suffices. I blogged more about this here; but note in particular that Joe Biden, the drafter of the authorization of the use of force following Sept. 11, specifically said that he viewed it as a declaration of war. And the Iraq war is authorized by a very similar authorization of the use of force.
So the war has been declared; and even if it hadn't been declared, it would have still been a war for legal purposes.
An interesting version of this argument came up in Hamdi v. Rumsfeld, where the Court seemed troubled by the idea there could be an indefinite "war on terror" where the President would effectively have war powers until he decided to call the war off. The Court ducked the question, reasoning that right now it's clear we're involved in active hostilities regardless, but after we're done in Iraq and Afghanistan the question is likely to come up again.
A similar issue arose during the Constitutional Convention. A twit proposed that the size of the regular army be limited to 5000 men. George Washington's only known intervention occurred at that point when he proposed an amendment to this prohibiting an enemy from invading "with a greater force".
The enemy has a vote. And they decide when the war ends.
The Cold War lasted just over 40 years. The German War (WWI &WWII) lasted just over 30 with a 20-year cease fire in the middle. The current war is probably good for 40 years or so (up and down). Once a generation and a half passes the conflict is likely to end because of changes in the conditions which started it. A 40-year war is long but not perpetual.
A careful reading of both resolutions tells a lot of the reasons for the Iraq war and why the Democrats don't want to admit they can read.
Isn't all that stuff kinda over at this point? (Nonjusticiable, sure, but still.)
The German War (WWI &WWII) lasted just over 30 with a 20-year cease fire in the middle.
False. While it is true that I and II had causal connections, if we're going to parse the law with respect to some conflicts, we should do so consistently with respect to others, at least from paragraph to paragraph.
Also, unless we wish to rename the WWs to "the War on Germans (and various other people, as needed)", considering it equivilent to the "War on Terror" is facile; even the cold war had an identified main actor, although it was a more subtle conflict. Otherwise, we may as well simply call what we're engaged in the "War on Bad Things", wait for Duncan's timer to run out, and not limit ourselves in the meantime. Sure, it doesn't have quite the rhetorical punch, but it is a lot more flexible.
Unfortunately, I suspect that it would be awfully convenient for some civilians in Iraq to be outside the UCMJ.
In general, this is my concern: when Congress does not formally declare war (and by formally, I mean by unmistakeable words), it allows the government to argue that it is fighting a war when, but only when, doing so is convenient.
In other words, any action by the Courts which holds, in passing, that a state of war exists exceeds the Judiciary's authority unless Congress has specifically declared war. And likewise for the Executive branch.
Article 2a(10) of the UCMJ says: "In time of war, persons with or accompanying an armed force in the field" are subject to the UCMJ.
Where in the uS Constitution is the uS Congress granted the authority to delegate the war declaration?
What about ending a declared war? The uS Senate is given the authority apporve treaties. Is a treay required to end hostilities with a hostile government?
http://www.libertypost.org/cgi-bin/readart.cgi?ArtNum=103539
One Republican member stated that the constitutional requirement that Congress declare war is an anachronism and should no longer be followed, while a Democratic member said that a declaration of war would be "frivolous."
Or is the disputed issue he references that, "But beyond this, the war against Iraq is a declared war. A declaration of war doesn't require magic words: A Congressional authorization to the President to use military force suffices."
As for Volokh's credentials they are pretty tough to beat. I hope he forgives me for tooting his horn and for the inaccuracies but here goes: Parents flee the Ukraine and arrive here when Eugene is like 10; Graduated college at 17 or 18; millionaire by 20 from writing code; graduated UCLA law school with highest GPA in history of the school; 9th Circuit and Supreme Court clerk; tenured prof at the age of like 28 or something; extremely prolific publisher; highly respected, if somewhat controversial, academic; nice guy. I am probably off on some of the details here but you get the point.
'suppress insurrections and repel invasions' is an Article 1 authority, ie it is the uS Congress' power and not the POTUS.
"I don't need to list here all the times the executive has used force without specific congressional authorization." Yes, many, many examples on how the uS Constitution has been proven to be just a piece of paper, to be disregarded at will and when convenient, by the Congress, POTUS and SCOTUS. Starting with Washington.
Jam: The power you mentioned actually allows Congress "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;" The Militia and the Army are distinct concepts in the Consitution. For instance, "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." Note the distinction between the Militia and the Army. The power you mention that is reserved to Congress is the power to use the States' militias to put down a rebellion or repel an invasion. Using the army to do it seems to be a foregone conlcusion. In the end, the line between the President's power as CiC and Congress' power to declare war is not set out clearly in the Constituion and, therefore, legal scholars have usually considered historical precedent. Whole books have been written analyzing the issue. I find it amusing that you can sit here 200+ years later and tell us about Washington's (and by extension Hamilton's) and Jefferson's faulty interpretations of the Consitution.
But what is the effect that this reality has on textualists? (who are quite often in favor of expanding/maintaining presidential authority, for what ever reason) Clearly the War Clause must mean something to textualists, but so many of them appear willing to allow that text to be rendered "a nullity" - as a previous poster put it. What would Justice Thomas do?
And, if memory serves me right, the FF were very explicit in not wanting the POTUS to have the war making power of the Royals.
War making power is at the hands of the people's House. And the uS Congress has no authority to delegate that power. Not even to the POTUS.
That depends on which FF you are talking about. Hamilton and Washington certainly thought the executive should have some flexibility in the use of armed force. Madison arguably wanted less flexibility. Jefferson seemed to be vehemently against the Executive unilateral use of the army (I don't think he wanted any standing army at all) until he became president, then he used force pretty liberally.
Could you imagine being a congressman raising the impeachment issue against Washington?
I offer the following as proof that the authors of the United States Constitution did not believe the formality to be important:
FEDERALIST No. 25
The Same Subject Continued
(The Powers Necessary to the Common Defense Further Considered)
From the New York Packet.
Friday, December 21, 1787.
HAMILTON
". . . the ceremony of a formal denunciation of war has of late fallen into disuse . . ."
Similarly, I don't think any of the Framers that became President would (or really could) have been impeached.
Those Presidencies were where we figured out conventions and customs; One of the constitutional conventions so developed is that the President has nearly unlimited jurisdiction over the military.
Now, what I wish we would resurrect:
Advice and consent (for treaties, not for nominations, for reasons which shall shortly become obvious) meaning that the President troops up to Capitol Hill and sits, as Washington did once, in the Senate, actually getting advice and hearing the arguments of the Senate. Probably best done in a closed session, as all treaty debates were til 1929. Lets everybody be honest, without fear of offending the countries whom the treaty is with.
I would suggest that unless we make a distinction -- not necessarily based on Congressional declaration or any such formality -- between "war" and "use of troops for non-war purposes," you'd be forced into the conclusion that any time the president feels like using troops anywhere he can take advantage of the special privileges that the federal government gets when conducting war.
Also, do any of your cases cover the case where the U.S. has conquered a foreign land and turned over sovereignty to a friendly government there? No.
and others who have noted the matter of when the war (any war) "ends," I can't give a definitive answer, but I can give one insight:
Congress declared war on Germany on December 11, 1941. Germany surrendered on May 7, 1945. Congress did not terminate the state of war, however, until October 19, 1951: Joint Resolution To Terminate the State of War Between the Unites States and the Government of Germany. As a formal matter, I don't think there has yet been a peace treaty between Germany and the Allies, but the Two-Plus-Four Treaty of 1990 is usually treated as such.
The state of war with Japan ended pursuant to the San Francisco Peace Treaty of September 8, 1951, six years after Japan's unconditional surrender. And Japan never signed a peace treaty with the USSR and still lacks one with the Russian Federation.
Madsen v. Kinsella, 343 U.S. 341 (1952), has been cited alot recently in discussions over the jurisdiction of military tribunals, but for purposes of this discussion I think it is most relevant to note that Ms. Madsen was tried for murder by the United States Court of the Allied High Commission for Germany in 1950, i.e., five years after the cessation of hostilities (but before the state of war was officially terminated).
Several cases cited in footnote 12 to Madsen stand for the proposition that in certain circumstances war powers may continue even after a formal peace treaty. For instance, both Santiago v. Nogueras, 214 U.S. 260 (1909) and Neely v. Henkel, 180 U.S. 109 (1901), upheld convictions by military tribunals of individuals tried in Puerto Rico and Cuba, respectively, after the Treaty of Peace with Spain which gave the U.S. formal control over those territories. In those situations, and in other cases, the military commissions authority did not end until civil authority was reestablished.
The issue arose in the context of an insurance case he litigated in private practice.
Lydick argued that the Korean War was in fact a war, regardless of whether or not Congress had declared war, and the court agreed.
As the case illustrates, labels aren't controlling as to whether war exists.
And deliberately sabotaging the war effort by fomenting violence against your country's troops (e.g., American or British troops in Iraq) is treason whether or not war has been declared.
2) Declared v. Undeclared Wars: Formal declarations of war had fallen out of use among European states for over a century by the time of the writing of the Constitution (hence Hamilton's statement from Fed. 25 quoted above). Anyone--like the Framers--familiar with Grotius, Pufendorf, Vattel, and especially Burlamaqui would also know that these writers dealt with "imperfect" or undeclared wars at some length because they were so common. Finally, the now neglected power of Congress to grant "letters of marque and reprisal" was granted separately for use in undeclared wars.
3) "What would Justice Thomas do?" I would hope that he would quote liberally from Hamilton's "Pacificus" essays.
Laws like the Alien Enemy Act suggest that it may be useful to have some measure of formality in declaring law. The Act, upheld as constitutional by the Supreme Court during World War II, permits the President to deport or imprison, by executive order, all enemy citizens found within the country for the duration of hostilities without judicial intervention (other than to determine the prisoner's citizenship status and the existence of a war). Such powers suggest that it might be useful for Congress to indicate when it is simply endorsing a low-scale military action, and when it wishes to invoke the full internal powers inherent in fullscale war.
Laws like the Alien Enemy Act suggest that it may be useful to have some measure of formality in declaring law. The Act, upheld as constitutional by the Supreme Court during World War II, permits the President to deport or imprison, by executive order, all enemy citizens found within the country for the duration of hostilities without judicial intervention (other than to determine the prisoner's citizenship status and the existence of a war). Such powers suggest that it might be useful for Congress to indicate when it is simply endorsing a low-scale military action, and when it wishes to invoke the full internal powers inherent in fullscale war.
You're either posting on the wrong thread or you completely misunderstood Eugene's post. Nowhere does he state that there is no dispute. In fact he states just the opposite in the very first sentence. Perhaps you missed it: "I keep hearing arguments...that various war-time powers...are applicable only if the war is declared."
I keep hearing arguments does *not* mean There is no dispute. Not even close.
The term "declare war" in the Constitution seems to have been understood as a modification of the Continental Congress' power of "determining on peace and war," the difference being that "declare" was a narrower concept than "determining" because the Articles of Confederation had no separate executive vested with the power to conduct war and to "repel sudden attacks." "Declare" war basically meant "commence" war, and Congress would have the authority to commence war, whether formally or not, as it saw fit.
Here is a brief excerpt from Bas v. Tingy (1800), which Prof. Volokh mentions in his earlier piece. The Court (writing in the context of the Quasi-War with France) emphasized that it didn't matter whether Congress formally declared war: "It may, I believe, be safely laid down, that every contention by force between two nations, in external matters, under the authority of their respective governments, is not only war, but public war...it has been observed, that in no law prior to March 1799, is France styled our enemy, nor are we said to be at war. This is true; but neither of these things were necessary to be done: because as to France, she was sufficiently described by the title of the French republic; and as to America, the degree of hostility meant to be carried on, was sufficiently described without declaring war, or declaring that we were at war."