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Bring back the Declaration of War
Posted by: Jon Henke on Monday, November 14, 2005

Arguing for the necessity of Declarations of War, Kevin Drum:
There's no reason we should have to guess about this. If the president wants to go to war, he should get a declaration of war. Not an "authorization of force" six months before the fact, but a declaration of war a few days before the invasion. Not only is that what the constitution requires, but it also means that members of Congress can no longer play games about what their vote really meant. After all, a declaration of war can hardly be misinterpreted.
Leslie Gelb and Anne-Marie Slaughter, in Atlantic Monthly:

Of course, those who count themselves Originalists should need nothing more than Article I, Section 8 of the Constitution which says gives Congress the explicit and sole power to declare war.

Those who count themselves libertarian would do well to review the pre-war comments of Secretary of Defense Donald Rumsfeld, who said...
...I don't believe we've had a declaration of war in this country since World War Two, and we've been through Korea, Vietnam, Haiti, you know, Panama, one thing and another, a whole series of things. ... And clearly, over decades, the changes in our world circumstance have been such that successive presidents of both political parties and successive congresses have made a judgment that a declaration of war was either not necessary or inappropriate or both. I'm most certainly not the best person to go into the reasons for all those. And my recollection is that the reasons were different in different circumstances.
Can you imagine conservatives and libertarians tolerating that kind of bureaucratic rationalization from a Secretary of [anything else]? Imagine the Secretary of Education saying...
"I don't believe Congress has passed any legislation giving us jurisdiction over State school districts, but between one thing and another, over decades, the changes in our world circumstance have been such that successive Presidents of both political parties and successive Governors have made a judgment that actually putting schools under federal jurisdiction was either not necessary or inappropriate or both. We just paid off the States and did it anyway."
Actually, you probably don't have to wonder about the conservative/libertarian reaction to that might be. It's happened, and Republicans have been both angry about it and complicit with it.

Gelb and Slaughter make a recommendation which I think is perfectly in line with original intent and libertarian interests...
We propose a new law that would restore the Framers' intent by requiring a congressional declaration of war in advance of any commitment of troops that promises sustained combat. The president would be required to present to Congress an analysis of the threat, specific war aims, the rationale for those aims, the feasibility of achieving them, a general sense of war strategy, plans for action, and potential costs. For its part, Congress would hold hearings of officials and nongovernmental experts, examine evidence of the threat, assess the objectives, and explore the drawbacks of the administration's proposal. A full floor debate and vote would follow.

In the case of a sudden attack on the United States or on Americans abroad, the president would retain his power to repel that attack and to strike back without a congressional declaration. But any sustained operation would trigger the declaration process. In other words, the president could send troops into Afghanistan to hunt down al-Qaeda and punish the Taliban in response to 9/11. But if he planned to keep troops there to unseat the government and transform the country, he would need a congressional declaration. (Without one, funding for troops in the field would be cut off automatically.)
The problem with this is two-fold:
  1. The minority party might be willing to limit the majority Party's power, but—being a minority—they can't get legislation passed. And...

  2. ...the majority party is never willing to cede power.

The only way to pass this kind of power-limiting legislation is to have a Congress actually interested in limiting the power of the Executive branch. i.e., gridlock. Now, if the Democrats could really run the board in '06...

I suspect this kind of Originalist-friendly legislation would be popular in a relevant, bipartisan and attention-grabbing way that most policy proposals are not. Americans, I think, could be very keen to return to the Founders vision for the separation of power.
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Previous Comments to this Post 

Except that even from the Framers’ perspective, we did not need a Declaration of War to go to war. A declaration is just the Congress taking the leash off the Commander in Chief, to commit to unrestrained warfare—as in, "The state of Germany needs killing. We hereby promise you anything you need; accomplish it however you can."

Philip Bobbitt (Constitutional law professor and longtime public servant) discusses this in his book The Shield of Achilles.

War-with-limits is perfectly constitutional. Congress actually maintains more accountability against the President when they say precisely what war powers they are investing in the President. If the POTUS oversteps his bounds, the Congress can pull the financial plug and wash their hands of the Commander in Chief’s actions. With a declaration of war, though, there are no such bounds. Congress is putting a name on a hit list and handing it to the POTUS—"I don’t care how you do it. Make them a bad memory."

In line with the old (and still fully acceptable) definition of a declaration of war, we’re not breaking any old rules.
Written By: OrneryWP
URL: http://
The Constitution requires no specific wording to a declaration of war. Of course, in Iraq we had a declaration from Gulf I that didn’t even need refreshing, since the violations of the conditions of the truce were, as Clinton-Gore showed with their cruise missile attacks, reason enough to restore the attack.
Congress, since Korea, has welcomed a chance to straddle the fence just in case.
Written By: Walter E. Wallis
URL: http://
There are some things that don’t seem to ring true in OrneryWP’s post, but:

"In line with the old (and still fully acceptable) definition of a declaration of war, we’re not breaking any old rules. "

sounds correct. The constitution gives to the congress the power to declare war, but it doesn’t prescribe any particular procedure or phrasing. When the framers wanted the constitution to be that specific, the spelled out the phrases required—such as the oath of office for the president.

To Mr. Henke, in your conception of a better way to do things, would the President have the power to cruise the Navy in international waters off the coast of an inimical power in the expectation a war would be thereby started? If the other nation fired first, would we be at war, or would the Navy have to flee until Congress met and declared war? Would the failure of the congress to declare war mean that we cede international waters to this hypothetical other power until they were tired of giving chase or we were in our own national waters.

I think your post begs questions that don’t need answering. We went into Iraq the 2nd time after Congress said it was okay by it, why isn’t that unquestionably lawful and clear?

Yours, TDP, ml, msl, & pfpp
Written By: Tom Perkins
URL: http://
And BTW,

"The only way to pass this kind of power-limiting legislation is to have a Congress actually interested in limiting the power of the Executive branch. i.e., gridlock. Now, if the Democrats could really run the board in ’06..."

1) HAHAHAHHAHAHAHA ROTFLMAO HAHAHAHAHA Where do I send the dry cleaning bill?

2) As for the Dems running the board either generating this law of being recognizably good for any originalist purpose except by being a bad example;
HAHAHAHHAHAHAHA ROTFLMAO HAHAHAHAHA Where do I send the dry cleaning bill?

Yours, TDP, ml, msl, & pfpp
Written By: Tom Perkins
URL: http://
War-with-limits is perfectly constitutional.

Perhaps "perfectly constitutional", but also completely asinine. If they want to send American soldiers to war they need to do it wholeheartedly or not at all.
Written By: J
URL: http://
Perhaps "perfectly constitutional", but also completely asinine. If they want to send American soldiers to war they need to do it wholeheartedly or not at all.

First, Libertarians have this strange fascination with "Law" and "Legality". It’s as if you folks don’t really read history. Many, if not the MAJORITY, of the Untied States’ armed conflicts have had no declaration of war. Interventions running from 1798 (Undeclared Naval War with France) to the 20th Century have had NO declaration of war. In fact, the bloodiest and most constitutionally significant episode, 1861-1865 A.K.A. "The Recent Unpleasantnesses Between the States, was NEVER declared a war. To have declared it a war would have granted the Confederacy a legitimacy in International Law that the Union could not/would not grant them. It’s a war that killed between 2.5-5.0% of the populace of the United States, 7.5 to 15 MILLION dead in today’s terms, but was never covered by a Congressional Declaration.

Secondly, what is this strange dichotomy of "...wholeheartedly or not at all."? War is not always the Second World War. Clausewitz points out that war is an act of force designed to compel the enemy to do our will. It is NOT about total victory or defeat. Americans, at least Americans reared after 1945, seemed determined to view the world and conflict in terms of all or nothing. Very seldom is it such a thing. Most of the US’ conflicts have NOT been total, "...wholeheartedly or not at all" conflicts, and not just the unsuccessful ones either, unless you count the Revolutionary War, the War of 1812, the Mexican-American War, the Spanish-American War, and Korea as failures. In all these cases the US did not seek to dictate anything close to unconditional surrender terms to its opponents, not declare anything like "Total War." Violence is a continuum, not an on-off switch.

Congress HAS authorized the last two Gulf Wars, with "Authorizations of Force"... granting the Presidents Bush the right to "go to war." "A rose by any other name stinks just the same" I believe is the quote.
Written By: Joe
URL: http://
A really bad idea.

So, when do you declare war on Iraq?

Do you declare war before you begin moving anything to the Gulf, like in WW II? That means Iraq can attack us as we gear up for war. That means you have an even longer lead-time for letting the UN and diplomacy have their last gasp attemtps. Because if we are already at war, you lose the threat of going to war.

Okay, so you plan to wait until hostilities are imminent and then declare. I guess you need to tell all the Congress people when the battle will start, no? Otherwise you lose suprise.

Then there is the ultimate: you’ve sent 300,000 troops into Kuwaiti desert and then Congress back out and require some more inspections...for say, 6 months. What’s the cost to morale, readiness, and just money. (Though my suggestion was always that the US should agree to 6 months of inspections as long as French and German troops would rotate into those tents in the desert.)
Written By: Harun
URL: http://
If the Congress passes a budget for the War Dept/DoD that authorizes expenditure of money for military operations, then they have declared war for Constitutional purposes.
Written By: Charles D. Quarles
When to declare war is an important question. Certainly, the president should have the ability to pre-position troops for invasion without a declaration of war, for against a sane opponent this has a good change of gaining capitulation and avoiding the fight. A show of force, a demonstration of a willingness to fight, should be a tool for the President to use in negotation. And clearly there are time when a small number of troops should be able to engage opponents without a formal declaation.

However, I don’t understand why we do more without a Declaration of War. It made no sense in Korea, Vietnam, Gulf War 1, all of Clinton’s little wars, or Gulf War 2. Once we’re talking about sending in a division or a MEF, we’ve clearly crossed the line where a Declaration of War was needed. This has never made sense to me.
Written By: Skorj
URL: http://
Joe, thanks for the quick history lesson and definition of a ’libertarian’. Firstly, I consider myself a libertarian, or at the least, to have libertarian leanings—so the latter was probably a bit unnecessary. I’m also a military officer, so I like to educate myself on military history and the ’use of force’ (or whatever the current euphemism is for shooting the enemy in the face. I don’t see a point in debating semantics).

My point was, if politicians feel military force is necessary, they need to authorize it, commit to its successful completion fully, and then take a hands-off approach in its execution.

I never said anything along the lines of "combat should always be conducted as Total War". That’s just stupid. Total War is a tool for the toolbox, not a magical catch-all.

You say "violence is a continuum." I disagree. This is not law enforcement. The enemy is the enemy. It does not matter if he is an Iraqi insurgent or a North Korean regular. If I see him on the battlefield, I am going to kill him by any and all means necessary and at my disposal, within reason. British Sea Lord Admiral John Fischer said the "essence of war is violence, moderation in war is stupidity." The best (bad) example of this I can think of is the escalation of the air campaign against North Vietnam. We halted bombing the ENEMY in order to bring him to the negotiations table.... Our politicians unilaterally hampered our military effectiveness and got nothing in return. Since you seem to know your history, I won’t bore you with telling you how well those Paris talks worked out.

Some of the stuff Orney said made it sound as if a Declaration of War is an authorization of the ends justifying the means. He said: "The state of Germany needs killing. We hereby promise you anything you need; accomplish it however you can." We have never engaged in an attempt to efface a nation from the earth, which seems like the implication. Even when we developed and employed nuclear weapons, that was not our goal in their use (even though I believe we used the only two we had at the time). We have never waived ourselves of the responsibility to maintain the high standards we hold our military men to in combat. Congressional declaration does not free us from the Laws of Armed Combat, the UCMJ, the Constitution, the international conventions we adhere to, American law, etcetera.

Of course, the reality is that our servicemen are always expected to adhere to these restrictions. The restrictions I was referring to was political interference with war fighting (as mentioned in the North Vietnam example). It’s that attitude, like Clemenceau said, that "war is much too serious a matter to be left to military men". Frankly, you can call it a "Congressionally Authorized Dance Around the Maypole" for all I care. Semantics really are moot.

Obviously, some circumstances do not require (nor would it make any sense to issue) a Declaration of War. For example, combat operations against a para-state entity or a ’criminal enterprise army’ (CEA), (to which McQ and LTC Peters refer). But whatever the case, I believe, the basic necessity of full government support of and minimal interference in its execution is still a good one.

If our government wants to engage in ’diplomacy through other means’ (since we’re throwing Clausewitz into the mix), then they should give that authorization to engage our men in combat after fully preparing for the grave consequences that that comes with. This isn’t chess. I subscribe to the Powell Doctrine. I also think it is too easy for us to committ to warfare without being prepared to see it through to its necessary end.

Truly, this is one of the great quandaries of living under a representative government that has been around since the British experience in the Spanish War of Succession.

You’ll have to excuse the long, meandering post.
Written By: J
URL: http://

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