Stratfor Asks What Happened To The American Declaration of War?
From George Friedman of Stratfor
What Happened to the American Declaration of War?
In my book “The Next Decade,”
I spend a good deal of time considering the relation of the American
Empire to the American Republic and the threat the empire poses to the
republic. If there is a single point where these matters converge, it is
in the constitutional requirement that Congress approve wars through a
declaration of war and in the abandonment of this requirement since
World War II. This is the point where the burdens and interests of the
United States as a global empire collide with the principles and rights
of the United States as a republic.
World War II was the last war the United States fought with a formal
declaration of war. The wars fought since have had congressional
approval, both in the sense that resolutions were passed and that
Congress appropriated funds, but the Constitution is explicit in
requiring a formal declaration. It does so for two reasons, I think. The
first is to prevent the president from taking the country to war
without the consent of the governed, as represented by Congress. Second,
by providing for a specific path to war, it provides the president
power and legitimacy he would not have without that declaration; it both
restrains the president and empowers him. Not only does it make his
position as commander in chief unassailable by authorizing military
action, it creates shared responsibility for war. A declaration of war
informs the public of the burdens they will have to bear by leaving no
doubt that Congress has decided on a new order — war — with how each
member of Congress voted made known to the public.
Almost all Americans have heard Franklin Roosevelt’s speech to
Congress on Dec. 8, 1941: “Yesterday, Dec. 7, 1941 — a date which will
live in infamy — the United States of America was suddenly and
deliberately attacked by naval and air forces of the Empire of Japan … I
ask that the Congress declare that since the unprovoked and dastardly
attack by Japan on Sunday, Dec. 7, a state of war has existed between
the United States and the Japanese Empire.”
It was a moment of majesty and sobriety, and with Congress’
affirmation, represented the unquestioned will of the republic. There
was no going back, and there was no question that the burden would be
borne. True, the Japanese had attacked the United States, making getting
the declaration easier. But that’s what the founders intended: Going to
war should be difficult; once at war, the commander in chief’s
authority should be unquestionable.
Forgoing the Declaration
It is odd, therefore, that presidents who need that authorization
badly should forgo pursuing it. Not doing so has led to seriously failed
presidencies: Harry Truman in Korea, unable to seek another term;
Lyndon Johnson in Vietnam, also unable to seek a new term; George W.
Bush in Afghanistan and Iraq,
completing his terms but enormously unpopular. There was more to this
than undeclared wars, but that the legitimacy of each war was questioned
and became a contentious political issue certainly is rooted in the
failure to follow constitutional pathways.
In understanding how war and constitutional norms became separated,
we must begin with the first major undeclared war in American history
(the Civil War was not a foreign war), Korea. When North Korea invaded
South Korea, Truman took recourse to the new U.N. Security Council. He
wanted international sanction for the war and was able to get it because
the Soviet representatives happened to be boycotting the Security
Council over other issues at the time.
Truman’s view was that U.N. sanction for the war superseded the
requirement for a declaration of war in two ways. First, it was not a
war in the strict sense, he argued, but a “police action” under the U.N.
Charter. Second, the U.N. Charter constituted a treaty, therefore
implicitly binding the United States to go to war if the United Nations
so ordered. Whether Congress’ authorization to join the United Nations
both obligated the United States to wage war at U.N. behest, obviating
the need for declarations of war because Congress had already authorized
police actions, is an interesting question. Whatever the answer, Truman
set a precedent that wars could be waged without congressional
declarations of war and that other actions — from treaties to
resolutions to budgetary authorizations — mooted declarations of war.
If this was the founding precedent, the deepest argument for the
irrelevancy of the declaration of war is to be found in nuclear weapons.
Starting in the 1950s, paralleling the Korean War, was the increasing
risk of nuclear war. It was understood that if nuclear war occurred,
either through an attack by the Soviets or a first strike by the United
States, time and secrecy made a prior declaration of war by Congress
impossible. In the expected scenario of a Soviet first strike, there
would be only minutes for the president to authorize counterstrikes and
no time for constitutional niceties. In that sense, it was argued fairly
persuasively that the Constitution had become irrelevant to the
military realities facing the republic.
Nuclear war was seen as the most realistic war-fighting scenario,
with all other forms of war trivial in comparison. Just as nuclear
weapons came to be called “strategic weapons” with other weapons of war
occupying a lesser space, nuclear war became identical with war in
general. If that was so, then constitutional procedures that could not
be applied to nuclear war were simply no longer relevant.
Paradoxically, if nuclear warfare represented the highest level of
warfare, there developed at the lowest level covert operations. Apart
from the nuclear confrontation with the Soviets, there was an intense
covert war, from back alleys in Europe to the Congo, Indochina to Latin
America. Indeed, it was waged everywhere precisely because the threat of
nuclear war was so terrible: Covert warfare became a prudent
alternative. All of these operations had to be deniable. An attempt to
assassinate a Soviet agent or raise a secret army to face a Soviet
secret army could not be validated with a declaration of war. The Cold
War was a series of interconnected but discrete operations, fought with
secret forces whose very principle was deniability. How could
declarations of war be expected in operations so small in size that had
to be kept secret from Congress anyway?
There was then the need to support allies, particularly in sending
advisers to train their armies. These advisers were not there to engage
in combat but to advise those who did. In many cases, this became an
artificial distinction: The advisers accompanied their students on
missions, and some died. But this was not war in any conventional sense
of the term. And therefore, the declaration of war didn’t apply.
By the time Vietnam came up, the transition from military assistance
to advisers to advisers in combat to U.S. forces at war was so subtle
that there was no moment to which you could point that said that we were
now in a state of war where previously we weren’t. Rather than ask for a
declaration of war, Johnson used an incident in the Tonkin Gulf to get a
congressional resolution that he interpreted as being the equivalent of
war. The problem here was that it was not clear that had he asked for a
formal declaration of war he would have gotten one. Johnson didn’t take
What Johnson did was use Cold War precedents, from the Korean War, to
nuclear warfare, to covert operations to the subtle distinctions of
contemporary warfare in order to wage a substantial and extended war
based on the Tonkin Gulf resolution — which Congress clearly didn’t see
as a declaration of war — instead of asking for a formal declaration.
And this represented the breakpoint. In Vietnam, the issue was not some
legal or practical justification for not asking for a declaration.
Rather, it was a political consideration.
Johnson did not know that he could get a declaration; the public
might not be prepared to go to war. For this reason, rather than ask for
a declaration, he used all the prior precedents to simply go to war
without a declaration. In my view, that was the moment the declaration
of war as a constitutional imperative collapsed. And in my view, so did
the Johnson presidency. In hindsight, he needed a declaration badly, and
if he could not get it, Vietnam would have been lost, and so may have
been his presidency. Since Vietnam was lost anyway from lack of public
consensus, his decision was a mistake. But it set the stage for
everything that came after — war by resolution rather than by formal
After the war, Congress created the War Powers Act in recognition
that wars might commence before congressional approval could be given.
However, rather than returning to the constitutional method of the
Declaration of War, which can be given after the commencement of war if
necessary (consider World War II) Congress chose to bypass declarations
of war in favor of resolutions allowing wars. Their reason was the same
as the president’s: It was politically safer to authorize a war already
under way than to invoke declarations of war.
All of this arose within the assertion that the president’s powers as
commander in chief authorized him to engage in warfare without a
congressional declaration of war, an idea that came in full force in the
context of nuclear war and then was extended to the broader idea that
all wars were at the discretion of the president. From my simple
reading, the Constitution is fairly clear on the subject: Congress is
given the power to declare war. At that moment, the president as
commander in chief is free to prosecute the war as he thinks best. But
constitutional law and the language of the Constitution seem to have
diverged. It is a complex field of study, obviously.
An Increasing Tempo of Operations
All of this came just before the United States emerged as the world’s
single global power — a global empire — that by definition would be
waging war at an increased tempo, from Kuwait, to Haiti, to Kosovo, to Afghanistan, to Iraq, and so on in an ever-increasing number of operations. And now in Libya, we have reached the point that even resolutions are no longer needed.
It is said that there is no precedent for fighting al Qaeda, for
example, because it is not a nation but a subnational group. Therefore,
Bush could not reasonably have been expected to ask for a declaration of
war. But there is precedent: Thomas Jefferson asked for and received a
declaration of war against the Barbary pirates. This authorized
Jefferson to wage war against a subnational group of pirates as if they
were a nation.
Had Bush requested a declaration of war on al Qaeda
on Sept. 12, 2001, I suspect it would have been granted overwhelmingly,
and the public would have understood that the United States was now at
war for as long as the president thought wise. The president would have
been free to carry out operations as he saw fit. Roosevelt did not have
to ask for special permission to invade Guadalcanal, send troops to
India, or invade North Africa. In the course of fighting Japan, Germany
and Italy, it was understood that he was free to wage war as he thought
fit. In the same sense, a declaration of war on Sept. 12 would have
freed him to fight al Qaeda wherever they were or to move to block them
wherever the president saw fit.
Leaving aside the military wisdom of Afghanistan or Iraq, the legal
and moral foundations would have been clear — so long as the president
as commander in chief saw an action as needed to defeat al Qaeda, it
could be taken. Similarly, as commander in chief, Roosevelt usurped
constitutional rights for citizens in many ways, from censorship to
internment camps for Japanese-Americans. Prisoners of war not adhering
to the Geneva Conventions were shot by military tribunal — or without.
In a state of war, different laws and expectations exist than during
peace. Many of the arguments against Bush-era intrusions on privacy also
could have been made against Roosevelt. But Roosevelt had a declaration
of war and full authority as commander in chief during war. Bush did
not. He worked in twilight between war and peace.
One of the dilemmas that could have been avoided was the massive
confusion of whether the United States was engaged in hunting down a
criminal conspiracy or waging war on a foreign enemy. If the former,
then the goal is to punish the guilty. If the latter, then the goal is
to destroy the enemy. Imagine that after Pearl Harbor, FDR had promised
to hunt down every pilot who attacked Pearl Harbor and bring them to
justice, rather than calling for a declaration of war against a hostile
nation and all who bore arms on its behalf regardless of what they had
done. The goal in war is to prevent the other side from acting, not to
punish the actors.
The Importance of the Declaration
A declaration of war, I am arguing, is an essential aspect of war
fighting particularly for the republic when engaged in frequent wars. It
achieves a number of things. First, it holds both Congress and the
president equally responsible for the decision, and does so
unambiguously. Second, it affirms to the people that their lives have
now changed and that they will be bearing burdens. Third, it gives the
president the political and moral authority he needs to wage war on
their behalf and forces everyone to share in the moral responsibility of
war. And finally, by submitting it to a political process, many wars
might be avoided. When we look at some of our wars after World War II it
is not clear they had to be fought in the national interest, nor is it
clear that the presidents would not have been better remembered if they
had been restrained. A declaration of war both frees and restrains the
president, as it was meant to do.
I began by talking about the American empire. I won’t make the
argument on that here, but simply assert it. What is most important is
that the republic not be overwhelmed in the course of pursuing imperial
goals. The declaration of war is precisely the point at which imperial
interests can overwhelm republican prerogatives.
There are enormous complexities here. Nuclear war has not been
abolished. The United States has treaty obligations to the United
Nations and other countries. Covert operations are essential, as is
military assistance, both of which can lead to war. I am not making the
argument that constant accommodation to reality does not have to be
made. I am making the argument that the suspension of Section 8 of
Article I as if it is possible to amend the Constitution with a wink and
nod represents a mortal threat to the republic. If this can be done,
what can’t be done?
My readers will know that I am far from squeamish about war. I have questions about Libya,
for example, but I am open to the idea that it is a low-cost,
politically appropriate measure. But I am not open to the possibility
that quickly after the commencement of hostilities the president need
not receive authority to wage war from Congress. And I am arguing that
neither the Congress nor the president have the authority to substitute
resolutions for declarations of war. Nor should either want to.
Politically, this has too often led to disaster for presidents. Morally,
committing the lives of citizens to waging war requires meticulous
attention to the law and proprieties.
As our international power and interests surge, it would seem
reasonable that our commitment to republican principles would surge.
These commitments appear inconvenient. They are meant to be. War is a
serious matter, and presidents and particularly Congresses should be
inconvenienced on the road to war. Members of Congress should not be
able to hide behind ambiguous resolutions only to turn on the president
during difficult times, claiming that they did not mean what they voted
for. A vote on a declaration of war ends that. It also prevents a
president from acting as king by default. Above all, it prevents the
public from pretending to be victims when their leaders take them to
war. The possibility of war will concentrate the mind of a distracted
public like nothing else. It turns voting into a life-or-death matter, a
tonic for our adolescent body politic.
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