I DECLARE

"This time, it's war"

Over the years, the meanings of words and the way things are done change, adapting to the realities of culture, technology, and other forces. For example, riding has gone from meaning horseback to motorcycles, bicycles, planes, trains, and automobiles. War is one of those concepts that changes over time as well. We use the term to describe a particularly brutal and extended argument, a conflict between sports teams, even a struggle to overcome some ill in society.

War even in the more specific, correct sense has changed. Rather than an extended armed conflict between two or more opposing nations, recent wars have been against portions of nations, against movements that reside in many nations. The very meaning of the word and what War imports is less easy to define and fit within neat boundaries.

As this has changed, so has the origin and structure of war. In the past, two nations would end up at odds because they had a quarrel they could not resolve any other way. Whether this was a warlord in ancient Breton fighting another for land or a tribe in New Guinea fighting another over slaves, the primary cause was the anger and mood of the people involved. Over time, this changed from a mob mentality to the decision of leadership. One king became upset with another and sent men to die over this quarrel. A set of rules were developed, steps that were taken to begin, fight, and end a war.

These rules were simply agreed upon by both sides, they were not laws nor did they hold any actual power beyond the honor and assent of either side. These "rules of war" included a basic beginning point, a stage at which both sides would announce to the other their intent, and thus began the official declaration of war.

The declaration of war provided both sides a specific, tangible starting point and a list of grievances for which the war began. It represented a time when in the west both sides considered themselves gentlemen and one's honor and character mattered more than life it's self for some. The point of the declaration of war was to mark the exact point when the hostilities began, to announce to the enemy their actions, to justify the cost and effort and blood of war, and to legally and officially change the state of a nation from peace to war.

In wartime, rights and freedoms necessarily must be limited to fight the war, maintain security, prevent enemy espionage and sabotage, streamline the government's efforts to defeat the enemy, maintain morale and public support, and to give the government the power to commit the nation's strength and wealth toward the cause of victory. Each nation treats this differently, and the more rights and liberties their laws and systems protect and guarantee the more careful that nation is and must be in limiting these ideals.

US LAW

The United States grants the power to declare war exclusively to the US Congress the representative branch of the federal government. Article I, Section 8 of the Constitution of the US limits congress to specific powers, including these pertaining to war and the military:

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.

As I've pointed out before, the US Constitution is not so much powers the federal government is given as powers it is limited to. This distinction is important to understanding everything about the ideals of government for the United States. Instead of assuming government can do anything except specific things, the US Constitution presumes the government can do nothing except what it is permitted specifically and legally.

Thus, no one but the Congress can declare war, the President does not have this power, nor does the Judicial branch (the courts). However, the President has power over the use and movement of the armies that the US Congress raises:

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

This is all the US Constitution says on the subject. The point is clear: the president is the highest general, he directs and controls the military when elected. When these forces are called into service (drafted or join the army; or are raised to fight in the case of militias), he has power and charge over each of them. Later law added the Air Force and Marines to the military, which the president has ultimate commanding authority and power over.

The system, thus, works like this: Congress raises money for, organizes the rules for, and calls up militias upon need while the President tells the militias and military how and where to act. The system is reasonably well constructed. This makes the cost and construction of the military under more direct control of the people through various representatives, and the direction and use of that military under one man preventing bureaucratic slowing and confusion when swift, definitive action may be called for.

Thus legally and constitutionally, the president may not direct the militias to form nor tell the armies how their rules and governing is to be directed, and the congress may not direct or command the military.

And only congress can specifically and official declare war.

HISTORY OF US WAR
This power has only been exercised by congress five times in the history of the United States:

• The War of 1812 (June 18, 1812)
• The Mexican War (April 25, 1846
• The Spanish-American War (April 25, 1898)
• World War I (April 6, 1917)
• World War 11 (December 8, 1941)

Official declarations of war are unmistakable and obvious statements of intent, they are unambiguous and clearly worded. For example, here is the text of the Declaration of War with Spain:

DECLARATION OF WAR WITH SPAIN

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, First. That war be, and the same is hereby, declared to exist, and that war has existed since the 21st day of April, A. D. 1898, including said day, between the United States of America and the Kingdom of Spain.

Second. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States and to call into the actual service of the United States the militia of the several States to such extent as may be necessary to carry this act into effect.

Approved, April 25, 1898.

Other declarations are similarly worded and precise. However, the United States has been involved in more than five wars. The total number of wars that the US has been involved in through history numbers from seven to nine depending on how you cuont them.

• Revolutionary War (War of Independence)
• War on Piracy (Barbary States)
• Indian Wars*
• Civil War (War Between the States)
• The Cold War*
  
• Korean War
• Vietnam War
• Gulf War (Desert Storm)
• War on Terror

As I've noted recently, I consider the Cold War to be a world war that the United States to be involved in as well. The Indian Wars were not an official war, but rather a very extended series of clashes between US forces and Native Americans that ended unofficially with the surrender of Geronimo in 1886. In total, the United States has involved its forces in over 200 conflicts, including such events as trying to pacify Somalia, bombing Kosovo and Bosnia, and removing Panama's dictator from power.

Of this list of up to 14 wars only five were officially declared by the US congress. How can this be?

OFFICIAL AND UNOFFICIAL
The fact that an official declaration of war has been so rarely use in over two centuries of US history throws the concept into some confusion. It is clearly unnecessary for a declaration of war to be given by congress for the military to take action. Over the history of mankind, an official declaration of war is actually the rarity, even once the rules of war were generally agreed upon in western civilization. The truth is wars generally start after a series of military incursion, actions, and assaults that force the other side to commit to full military action. So it is only after military action has been taken that official declarations of war are eventually given, if at all.

Since the US Constitution gives the President the power to send troops into action when and where he sees fit, the President can in effect start a war without Congress although he can't pay for war without it. In 1973, the US Congress passed the War Powers Act which was an attempt to reign in this power of the executive branch and put it under control of the legislative. The result is what we've seen most recently. Instead of a request for an official declaration of war, the President requests congress for an authorization to use military force. The President does not need this constitutionally, but under the War Powers Act, the President and Congress work together to attempt to officially begin hostilities such as in Desert Storm or the War on Terror.

Since for sixty years the official declaration of war has not been used, is it now obsolete, unnecessary, and replaced by the Authorization for the Use of Military Force? Is the AUMF that congress passed in September of 2001 an effective substitute for a declaration of war?

THE SHORES OF TRIPOLI

"...all Nations who should not have acknowledged their authority were sinners, that it was their right and duty to make war upon whoever they could find and to make Slaves of all they could take as prisoners."
-Tripoli's Ambassador to England

To understand this we have to peel back the pages of time to the first war the newly formed United States of America became involved in. This was the War with the Barbary Pirates, an obscure conflict little considered by pundits today.

From the early 1600s until the 1800s, pirates from what were called the Barbary States in North Africa raided coastal cities and engaged in piracy through all Europe and Africa and the oceans nearby. Every merchant ship feared and had to deal with the threat of these pirates for centuries. To protect ships, the Islamic rulers of the nations such as Algiers would accept tributes under signed treaties, which in theory would protect a nation from predation. However, the rulers of these nations claimed they could not control these independent captains entirely, so some piracy was going to happen, treaty or not.

Finally in the late 1700s, the Jefferson government had taken enough and was determined to deal with this constant threat to commerce and the sovereignty and independence of the United States. Christopher Hitchens has a more detailed history, but in the end, Thomas Jefferson had to send navy ships to the Mediterranean to try to enforce the treaty which ended up in armed conflict with the pirates. Congress (including some signers of the US Constitution and founding fathers) never issued a declaration of war, never issued an authorization of force. They simply funded the expense of ships to deal with this problem, and even when the US joined British forces to shell Tripoli into submission, no war was declared.

At the time, some argued that negotiation was needed, that it was a foreign war, that the US had no business being entangled in the problem, that it was a British issue, that Jefferson was a bloodthirsty warmonger. As Hitchens puts it:

Questions of nation-building, of regime change, of “mission creep,” of congressional versus presidential authority to make war, of negotiation versus confrontation, of “entangling alliances,” and of the “clash of civilizations”—all arose in the first overseas war that the United States ever fought. The “nation-building” that occurred, however, took place not overseas but in the 13 colonies, welded by warfare into something more like a republic.

Lacking an Official Declaration of War, lacking congressional authorization, the US Navy was used to defend and protect US interests in a foreign land who had not declared war on the US, had not attacked US soil, and further was only a portion of nations rather than the nations themselves. The target was the pirates and the network of ports, businesses, and governmental protection that made them possible, not the governments and nations themselves. The purpose was to destroy piracy as a global threat, not destroy the nations it came from. It was a War on Piracy, without official declaration, without a tangible national target. And it was won, decisively. The fact that the enemy was driven by Islamic zeal and justification is not coincidental to our present situation.

So from the very foundation of the United States, the concept of requiring an official (or even unofficial) declaration of war is not needed to go to war. All that is needed is the decision by the government that the nation faces a clear and present danger that military action must be used to deal with. The very men who wrote the US Constitution and who founded the nation understood this was needed and required at times. They had no problem with the President authorizing the use of military force all by himself to deal with a threat he perceives.

MAKING IT OFFICIAL
With this historical context, there are then two questions to consider. The first question is obvious: what's the point of the declaration of war, have we moved beyond it, and was it always an empty gesture?

The difference between Presidential action in response to a threat, the congressional authorization of force under the War Powers Act, and an official declaration of war comes down to legal power and general perception. An official declaration of war makes the intent and action taken by a nation unmistakable; no one is left wondering if the country is really in a state of war or not.

When in a state of war, a nation as I mentioned above must change how it does things. To fight the battle requires a change in industry and economic direction - every nation that goes to war runs into debt, for example. It changes the freedoms the people of a nation enjoy.

In peace, publishing troop movements is not a particular problem. Talking about where Johnny got sent in the Marines is a topic of conversation, taking offense at government programs and printing them in the news is the give and take of representative government. In war, secrecy is important, it means lives spent and battles lost to talk about what is going on militarily. It means a loss of intelligence and information flow if you print secret data on how we spy on the enemy. What is questionable judgment in peace becomes possibly treason at war. A state of war requires nations to work together as one to fight a shared enemy, to boost morale, to keep the spirit of a nation at war up and focused. Failing to do so is foolish, working for the opposite is to assist the enemy of war.

The problem is, unless you have that clear understanding and declaration of war, then it becomes a problem of public perception. If we are at war this burden is easier to understand and support. If we aren't, then these restrictions of liberty are oppressive and sinister. If you aren't sure either way then you can make strong arguments on either side and people simply choose what they prefer and want to be true.

Make no mistake, wars are not a question of official declaration or not. We were at war with Germany and Japan even if we'd not declared it officially. The problem is, without that official line drawn in the sand, the government has to rely on public appeal and support to take the actions it must. With an official declaration, they can point to the state and our commitment and appeal to the sacrifice to finish that job. And can take legal action against those who work against it.

Part of the reason, I believe, we're facing a divided nation that uses scare quotes around the war in War on Terror is because we've had no official declaration, no line in the sand. Thus, when the New York Times illegally prints classified documents that damage our war efforts and assist our enemies, does the government have the power to deal with this or not? Does the US government have the power and right to listen to US citizen's phone calls to terrorist leaders and members or not? Does the US government have the power to take prisoners of war or not? What is the status of a terrorist captured by the US forces? How do we deal with them legally? I believe these questions are only asked because it's not exactly clear whether we're really and official at war or not.

An official declaration of war changes the character of the debate, the perception of the people, and the understanding of what we're doing.

NEBULOUS WARS
The usual question asked here is how we can declare war on a concept. After all, we're not at war with Spain or Germany, we're not at war with a place or a people. We're at war with a nebulous and scattered portion of many peoples and places. This is a fair question: a declaration of war needs a target, an identified person to be at war with. We can't be at war with whomever we happen to find fault with, we can't officially declare war with scattered international terrorists and their supporters.

The Authorization for the Use of Military Force that congress passed officially gave the president power for "the use of United States Armed Forces against those responsible for the recent attacks launched against the United States." This was further defined in this way:

"That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he 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."

This can be interpreted very narrowly (as some do now) to mean only the terrorists who specifically and directly acted on September 11th, or more broadly to mean the organization and body of international terrorist who were represented by the ones who acted on 9/11. Yet with either definition, are we at war or not? This is not a declaration of war. It is simply a statement authorizing the president to use his constitutional power to fight against the enemies of the United States. It holds no more legal weight than a private statement by a congressman; it is simply putting support and approval down on paper, in record for all to read. The later authorization for use of force in Iraq is the same: it simply agrees this ought to be done, the president already had the legal power to take action.

The purpose of the War on Terror shares the same basic concept with the previous War on Piracy. It is to find and destroy international terrorists, to destroy their network of support and finance, to destroy the places they train, harbor, and are equipped, and to destroy nations who continue to support and harbor international terrorists and terrorism in defiance of the world.

Victory is achieved when terrorism is reduced to what piracy was: scattered, disorganized, denied by all governments, opposed in every port, rare, isolated, and disempowered. There will never be a day when there is no terrorism. But there can be a day when there is no terrorism sufficient to be a real and significant threat except in local and isolated instances.

Yet again, it is true that we cannot truly declare war with the concept of terrorism or the scattered participants. The official declaration of war does not suffice against such an enemy in the same way it did not suffice for President Jefferson against the Barbary Pirates.

Because we face this kind of enemy, I believe that neither effort - a declaration of war or an authorization for use of force - is sufficient to the task. The job the world faces now to eliminate this entrenched enemy of civilization and liberty is a long-term and difficult battle because instead of facing orderly ranks of uniformed soldiers we once again, centuries later, face a motley assortment of scattered zealots engaging in predatory behavior that causes innocent people around the world to suffer. This evil hides with people who either support (or simply dislike their enemies enough to not oppose) their efforts.

The enemy in this war is hidden in and working from various nations, moving in the ranks of the people without uniform or concern for the safety of those who harbor them. They strike without tactical concern against targets chosen not for their military value but their impact in world press and opinion. They lose every military fight but are working on a different strategic platform: to defeat the will of their enemies to fight. They are attempting to defeat their enemies on a psychological and public perception battleground, with the goal of intimidating and wearing down their foes at home rather than the military they face abroad.

Such an enemy and such a war defies the usual definition and structures. The devices and official structures of previous wars such as against the Axis forces are not sufficient to deal with this fight and we need a new and more useful system to deal officially with the war. This war is one that must be fought at home as well as abroad, more fiercely than ever before. All wars have propaganda and psychological portions; the War on Terror much more so than ever before. We cannot win without a people willing to go the distance, willing to do what has to be done, willing to fight and stand strong and united.

We can't have that without a real understanding we're at war, and we can't have that understanding without a new way to declare clearly and unambiguously what we're doing and why.

Essays