Saturday, March 5, 2011

What Is A Legal War?

Politian’s, Political Writers, and others claim that an undeclared war is an illegal war.

Are they correct?

What does the Constitution have to say on the matter and what is the History of American Wars?

Article One, Section Eight of the U.S. Constitution says 'Congress shall have power to.. Declare war'

That is all the Constitution has to say. No specific format or terminology is defined or specified, nor is the term "Declaration of War" found anywhere in the Constitution.

Furthermore, despite the constitutional requirement that only Congress declare war, it does not require that a war must be declared. In practice, throughout history the United States has fought wars based on 'authorizations' and only used the term 'Declare War' at the specific request of the President.

The term 'Declaration of War' has been used for 5 events:
War of 1812 under James Madison
Mexican-American War (1836)
Spanish-American War (1898)
World War I (1914)
World War II (1942) had muliple declarations

Authorized wars, not using the term 'declaration' include:
Quasi-War (1798) under President John Adams
First Barbary War (1801)  under Thomas Jefferson
Second Barbary War (1815) under James Madison
Raid on Slave Trade (1820) under James Monroe
Retaliation on Portugal (1859)
Korea War (1870)
Philippine-American War (1898)
Intervention in Russian Revolution (1918)
Protection of Lebanon (1958)
Viet-Nam War (1964)
Multinational force in Lebanon (1983)
Invasion of Panama (1989)
Persian Gulf War (1991)
War in Afghanistan (2001)
Iraq War (2002)

The Korean War (1950) was not authorized by the U.S. Congress, but was fought under authority of a United Nation resolution.

There have also been a number of ‘Police Actions’ in which U.S. Armed Forces have been deployed, such as Clinton's use of troops in the Kosovo War.

Note that the first two wars were not 'declared' wars.  Surely, those early Presidents knew the wording and the intent of the Constitution.

Congress, after World War II, limited its own power to 'Declare War' to using 'Authorizations of Force'. The reasoning behind this action was that a ‘Declaration of War’ gave unbridled power to the President to wage war in any manner and with any weapons as he deemed appropriate. Whereas, an 'Authorizations of Force' would permit Congress to set limits.

The 'War Powers Resolution of 1973' limits the power of the President to wage war.  This act clearly defines how many soldiers can be deployed, and for how long without approval of Congress. The constitutionality of this act has never been tested, but with the sole exception of President Clinton's use of troops in the air campaign during the Kosovo War, all Presidents have received Congressional authorization as required under the act.

The wording of the Constitution and the historical actions of Congress indicate that any Act, either 'Declared' or 'Authorized', that provides funding and approves the use of deadly force meets the requirements of 'Legality' for the President of the United States to wage war.

The remaining question on a ‘Declaration of War’ is; Does the President, need authorization from Congress before he commits the Armed Forces to battle?

From a practical standpoint-- It can be reasoned that the Constitution grants full power to the President to wage war without prior approval of Congress.

The Constitution prohibits the states from engaging in war without the consent of Congress, unless the state is actually invaded or is in imminent danger. There are no such constitutional restrictions placed on the President

The Constitution charges the President with the protection of the nation and its citizens. One can envision many scenarios in which to fulfill that obligation the President would need to act immediately. When the Constitution was enacted Congress was part-time and could takes days or weeks to convene. It doesn't seem reasonable that the Constitution would have tied the President's hands to act for that long. Today, Congress could convene in far less time, but warfare has also changed; modern long range weapons may require the President to act in minutes.

The 'War Powers Resolution of 1973' indicates that the Congress recognizes the Presidents’ unilateral power to engage in war and with this act Congress attempts to limit that Presidential Power.

There is another serious issue. Sadly, Congress leaks like a sieve! Congress has probably always had leaks, but in the 1800’s it took weeks for a leak to spread. Today you can't tell Congress a secret because the New York Times will publish it, mainstream media will broadcast it, and it will be on the Internet before it stops echoing off the walls of the Congressional chambers.

Comments are invited!
Send feedback to: WatchDog


Legal Beagle said...

Thank you for the heads-up E-mail on this update!

Your previous excellent work on this subject was, I believe, back in 2007.

I was happy to see that you have incorporated my suggestions in the revision.

I will with your kind approval, use the new version in my Constitutional Law programs

JDW said...

Great! Simply great!

Hard to find fault with this!

SBG Esq said...

Good solid argument.

And sound reasoning.

Fox Lady said...

ASell it to the Pauls'.

They are both out in left field on this issue.

X Spook said...

Talk about leaks!

Some years back, I was on an NSA panel which conducted a closed door (classified) briefing of the Senate. The briefing ended at about 11:30 AM. As we were driving back to Ft. Meade (NSA Headquarters) we heard on the 12:00PM radio news broadcast the very material that we had given to the Senate.

Suspected source—Sen. Leahy!

"Old spooks never die -- they just fade in to the background."

Sue May said...

War is never justified!

Tracy said...

I will place a link to this on my blog.

Esq 2B said...

From what is reported in this article, it would seem that the Congress has done away with the "Declaration of War".

In that case, the best you can get is an "Authorization of Force".

That was another effort by Congress to usurp Constitutional Power of the President

Right-Winger said...

This was true when we had a government that recognized that we had a Constitution!