My Bottom Line: Congress has not officially declared war, and the President therefore has no right to claim the extraordinary powers of an executive at wartime.
The idea that we are a nation at war has become common wisdom among pundits and politicians on both sides of the aisle. But as the President and his supporters have taken to claiming the extraordinary and almost limitless powers of an executive at wartime, I’ve been wondering: when did Congress actually declare war? Is there a limit to this war? Is there an end date? And who are we at war with?
Now, I’m no lawyer or Constitutional scholar. You might be best advised to consult with your local Congress-critter for a more definitive answer. But here are the facts as best I can tell:
(a) On September 18, 2001, a week after the 9/11 attacks, Congress authorized the use of military force “against those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
(b) On October 16, 2002, Congress issued another authorization of military force, this time for the purpose of ”(1) defend[ing] the national security of the United States against the continuing threat posed by Iraq; and (2) enforc[ing] all relevant United Nations Security Council resolutions regarding Iraq.” The language of the resolution urges the President to first seek a diplomatic solution.
(c) The 1973 War Powers Resolution makes a distinction between a “Declaration of War” and “specific statutory authorization,” and from what I can tell, Congress issued the latter. No formal Declaration of War exists in the U.S. today. (If you discover otherwise, please use the comments section to point me to the relevant document.)
So we’re in a military action, not a war. Not that it makes much difference to the people who are getting shot at—certainly to them this is a war. But domestically, this fine point makes a huge difference. President Bush might be able to claim certain privileges in a period of extraordinary threat to the U.S. (i.e., wartime) that he’s not allowed otherwise, like suspending habeas corpus or spying on Americans without a warrant.
Let me just say that I think I understand that in the real world, there’s not much practical difference between a “Declaration of War” and a “statutory authorization.” I’m making the point here that I believe there should be a difference. I’m saying that we should set a higher standard for engaging in war, and we should meet a high bar of justification when we cede any authority from one branch of government to another. In public, members of the Administration are repeating the phrase “We’re at war” endlessly as prelude to the justification of actions that make my stomach turn. I believe that, as a matter of policy, we should draw some clear and careful lines around the act of war; this country should not be allowed to edge its way sideways into war.
Here’s the thing, too: I’ve never felt that my day-to-day life has been altered one bit by this conflict. I have a couple of casual acquaintances who are active military, but I don’t really know or come in contact with anyone who knows anyone involved in the military. I haven’t been asked to sacrifice, to participate in scrap metal drives or victory gardens. I’ve been asked to go shopping, to go on with my life, to keep the economic wheels turning.
But now the stakes have been raised. Now the sacrifice that I’m being asked to make is the suspension of civil liberties. I’m supposed to cede my claim to the protections enumerated in the [Bill of Rights] and the Constitution. I’m supposed to accept that the Fourth Amendment doesn’t apply anymore, and that the separation of powers is no longer operative. I’m supposed to abide by the erosion of the rights of free assembly and free speech.
So I’m trying to understand this. When did my Congress declare war? And with whom? And when will it end? If you want me to give up my liberty, then follow the rules: lets debate the declaration of war, let’s discuss what we need to do to resolve the crisis, and let’s decide how we will declare victory.
Until that happens, I maintain that we are not at war, and my Constitution and my Bill of Rights are still in effect, and no one—not the President or anyone—has the right to declare them null and void.
Further reading:
Revised 5/1/06
It is only appropriate that my first post should be in support of my friend Lloyd’s new experiment. 
