Glenn Reynolds, in the course of giving Reason‘s Jesse Walker a good spanking, wanders into an interesting discussion of whether the Congressional Authorizations of Force against al-Qaeda and Iraq were really declarations of war or not. Many seem to think because the words “declaration” and “war” don’t appear in the text, those documents don’t fulfill the same legal purposes as a formal declaration of war. Reynolds notes how facile this argument really is:
A reader emails that the Iraq and Al Qaeda declarations were “informal” rather than “formal” declarations of war. This distinction, which has to do with the (fictional) notion that we don’t go to war since the U.N. Charter was adopted, isn’t really relevant for U.S. constitutional law. If you have an identified enemy, a casus belli, and an authorization for the President to go after them with the military, you’ve got a declaration of war. The Hamdan opinion responds to the claim of no formal declaration in essentially these terms. (And, lest I be accused of changing my views on this topic, I remember having this very discussion with John Hart Ely back when we were both visiting professors at U.Va, over ten years ago. As I recall, he agreed.)
Since people seem interested, click “read more” for an excerpt from an article by Ely with which I was, and am, in substantial agreement. It’s “KUWAIT, THE CONSTITUTION, AND THE COURTS: TWO CHEERS FOR JUDGE GREENE,” 8 Constitutional Commentary 1, 1991. But here’s the gist:
Judge Harold Greene’s decision in Dellums et al. v. Bush was plainly right in its central proposition, that (except in the event of a “sudden attack” upon the United States) the Constitution places unambiguously in Congress the authority to decide whether the nation goes to war. (Once war is congressionally authorized–note that there has never been a requirement that such authorization actually be labeled a “declaration of war,” only that it be clear–authority to manage it then passes to the President in his role as “Commander in Chief.”)
Indeed, there’s no doubt that the September 18, 2001 authorization for military force, and the subsequent authorization of military force in Iraq are both quite clear in their intent – to allow the President to fully use his powers as Commander in Chief to hunt down al-Qaeda and disarm Saddam Hussein. The language of both resolutions makes it clear that what Congress was doing was tantamount to a declaration of war. Indeed, what point would there have been to formally declare war against al-Qaeda, a non-state actor? The term “authorization of military force” is exactly what it says, and it has the same legal standing as a formal declaration of war.
Walker’s implicit argument – which Reynolds rightly calls out as snark over substance – is that he (and presumably others) who argued that the military shouldn’t be used on the whim of a President are somehow hypocrites if they supported the war in Iraq. Given that Congress did authorize the use of force against Iraq, that argument is utterly groundless. The idea that we “rushed” to war when there were months of deliberation in advance is the sort of shoddy argumentation that’s thrown out by people who favor talking points over rational thought. At the very least the run-up to the war in Iraq began with President Bush’s speech to the UN General Assembly on September 11, 2002. Realistically, the war in Iraq had been going on at a low-level since the invasion of Kuwait. UN Resolution 687 didn’t really end the war, it just created a temporary cease-fire. US forces never left the Gulf, and we never stopped attacking Iraqi military targets.
Sadly, Reynolds is also right that this kind of cheap shot is the sort of sloppy logic that we’ve all come to expect from the anti-war side. There’s a big difference between making an argument and just making things up – and the anti-war side seems to do more of the latter than the former.
UPDATE: Jesse Walker argues that I mischaracterized his argument (which was originally posted here). I think that there’s definitely a subtle and implicit accusation of hypocrisy here, although I concede I probably should have made it clear that was what I think was implied by the argument, not what Walker directly said.
UPDATE: I’ll let Walker have the final word on this one.
This is a pretty strained argument from a textualist perspective.
The Constitution says this:
“The Congress shall have the power to declare war.”
It does not say “authorize” war or “consider” war or “start” a war. It says “declare” war. And it does not say “military force.” It says “war.”
In that sense, any war declaration which does not explicitly *declare* *war* is not a declaration of war, and therefore is not in compliance with the textual requirements of the Constitution.
Reynolds (citing Ely) wrote:
“…note that there has never been a requirement that such authorization actually be labeled a ‘declaration of war,’ only that it be clear…”
Again, from a textualist perspective, this is off base. Where in the Constitution is this “clarity” element Ely seems to think is required?
Nowhere. He’s reading into it things he thinks or wants to be there. In doing so, he his betraying his textualist philosophy.
But I’ll admit that this is a purely academic debate. We are at war with … with … well, I’m not quite sure, maybe Terrorism? Radical Islam? Who knows, but we’re at war with someone, whether or not we have formally declared it.
Perhaps if one were to ascribe to a very strict form of textualism. Is there really that much semantic difference between an “authorization for the use of military force” and a “declaration of war”. Certainly in the case of the 2001 AUMF, a declaration of war wouldn’t make sense – you can’t really declare war against a non-state actor.
I’m not a textualist, but I am an originalist. The reason why clarity is required is so that there’s little confusion as to Congress’ specific authorization of military action. Is there any meaningful legal distinction between the phrases “Congress shall have the power to declare war” and “Congress shall have the power to authorize the use of military force”? Is an authorization to use military force not tantamount to a declaration of war? (Arguably, it’s more specific – you can declare war but theoretically never use military force.)
As an originalist, I’d argue that a declaration of war in the guise of an AUMF doesn’t violate the principle of separation of powers that the Founders had intended there to be.
Legally, the courts have already decided that an AUMF is the same as a declaration of war, and the Supreme Court said the same in Hamdan, and also affirmed that principle in Hamdi and subsequent cases.
Besides, if your argument isn’t correct, wouldn’t the War Powers Act be unconstitutional since it allows the President to use military force without Congressional approval for 60 days?
That much is certain…
“Sloppy logic” from the ANTI-WAR side….that’s rich.
Will hits the nail on the head. This is more than semantics in question here. The checks-and-balances of our Constitution were designed to control the President’s authority in starting wars…..and the current case study unfolding before our eyes is Exhibit A on the matter. When a President gets to finnagle an “authorization of force” as a carte blanche declaration of war on demand, it puts far too much control in the hands of one man (or woman) to involve us in quagmired like the present one we’re up to our necks in.
But as always, kudos on testing the elasticity of situational ethics once again.
Is “war”, war? It depends on your definition of “is”.
Jay wrote:
“Perhaps if one were to ascribe to a very strict form of textualism.”
I’m not sure if you can cogently argue that there are varying degrees of textualism. The text is what it is, and it says what it says. There isn’t much flexibility there.
The flexibility in constitutional interpretation comes in when you invoke other methods of analysis. For instance, you can look at the history (at the time of the framing) to help interpret the text — to help decipher what the text meant to the people who were writing it, and what it should or does mean today.
You can also look at the precedent — i.e., the previous interpretations of the particular constitutional provisions.
Finally, you can consider the policy goals of the provision — the policy intended by the drafters at the time of the framing, and the ideal policy going forward. This last method of interpretation draws the ire of conservatives, who contend that policy-setting is the job of the politically accountable (legislative and executive) branches of government. This is the “legislating from the bench” we hear so much about.
Conservatives ordinarily confine their analysis to the text of the document and the history at the time of its framing. This interpretative philosophy is ordinarily referred to as originalism.
I’d be interested, Jay, to hear your explanation of how you can be an originalist but not a textualist.
I’m not familiar with the history surrounding the framing of the War Powers Clause, but I will say that the history of how it was later utilized cuts against you and Reynolds. To wit: the formal declarations of war issued by Congress in WWII, WWI, the War of 1812, the Mexican-American War, and the Spanish-American War. (Source: http://en.wikipedia.org/wiki/War_powers) If wars in the past had been formally declared by Congress, one would think wars of today would depend just as much on a Congressional declaration.
Admittedly, it’s a different world today. Who would Congress delcare war on in this conflict?
But with that said, if we’re going to be fighting Whoever-It-Is for the next 20 years or so, I’d appreciate it if Congress could decide on and formally declare an enemy. The next 3 years might be the most important. I don’t trust the mofo currently serving as Commander-in-Chief–whatever trust he had has been squandered–and the last thing I want is to see him with unbridled authority to keep this up until 2008.
I’ll save the debate on the War Powers Resolution for another day…
“Walker’s argument — which Reynolds rightly calls out as snark over substance — is that he (and presumably others) who argued that the military shouldn’t be used on the whim of a President are somehow hypocrites if they supported the war in Iraq.”
I wasn’t aware that my post contained this argument. Indeed, I wasn’t aware that my original post contained any argument at all. Did you read it, or did you just read Glenn’s peculiar summary of it?
As for the AUMF business – my comment (which in my reply to Glenn, and didn’t have much to do with the original post) didn’t say anything about whether “those documents…fulfill the same legal purposes as a formal declaration of war.” It said that they were not themselves declarations of war.
The two are related, but they’re not quite the same thing. A textualism is a much stricter form of originalism. I ascribe to the “original intent” school of thought – that the best way of judging the Constitutionality of a principle is based on the whole corpus of the Founder’s thoughts, not necessarily on the literal text.
In the case of the AUMF, just because it doesn’t literally say “we declare war on Iraq” doesn’t make it any less of a declaration of war. The whole point of that Constitutional principle was that the President must get the approval of Congress before going to war. In this instance, the President most assuredly did. Furthermore, Congress also has the power to arbitrarily end wars by refusing to pay for them at any time.
Again, it all comes down to the question of whether there’s any appreciable legal difference between an authorization of force and a formal declaration of war. Both of them authorize the President to use military force against a named set of targets. Both of them allow the President to exercise certain powers in pursuit of that aim. The courts (prior to the current Administration, no less) have already held that there’s no functional differnence between an AUMF and a declaration of war. They’re one and the same.
Actually, they have:
Now, there’s a pretty strong argument that that is a very broad mandate. President Bush could legally argue that this document gives him the right to bomb Pakistan – after all, the ISI was a major supporter of the Taliban and al-Qaeda. At the same time, in order to dry up sources of terrorist funding, the President has to have the authority to go after Saudi charities, Qatari banks, and Afghani terrorists all at the same time.
(For the benefit of those following along, the original post that started this all is here.
In all fairness, I should (and will) add the caveat that you didn’t directly state that argument, but I would argue that it was implicit in your post. Calling it “The Past Is Another Planet” certainly sounds to me like a subtle accusation of hypocrisy.
Which seems to me to be a case of splitting hairs – if an AUMF is functionally and legally identical to a declaration of war, then the issue is only one of semantics.
One can argue that it’s better to formally declare war than to authorize military force (although I’d argue it’s pointless to declare “war” against a non-state actor, and the Iraq resolution was more conditional than a full declaration of war), but that doesn’t mean that a the conflicts in Iraq and Afghanistan are any less valid because of the way in which Congress worded their authorization.
Ultimately, the Founders wanted Congress to have the power to authorize military force and have the power of the purse to end a military conflict if necessary. Whether that’s authorized by an AUMF or a formal declaration of war doesn’t seem to matter all that much in my reading of things.
But if anyone can find a formal legal difference between the two, I’d be interested in hearing of them.
Jay: I’m not big on arguments about “hypocrisy.” I do think Glenn has changed his mind about the extent to which the U.S. should intervene abroad. He’s certainly changed the sort of rhetoric he uses. That doesn’t make him a hypocrite, it makes him a — flip-flopper! No, sorry; it makes him normal.
Now, I’m more in tune with what appear to be Glenn’s earlier views than with his current ones. (I supported military action in Afghanistan but opposed it in Iraq, and I think our stepped up fight against terror networks should be coupled with a disengagement from conflicts not related to our immediate security.) But you don’t have to agree with me about foreign policy to find Glenn’s earlier remark amusing in the light of the sort of stuff he says today. I was ribbing the man, not attacking him.
About the AUMF: My post didn’t say anything about whether the conflicts in Iraq and Afghanistan are valid, legally or otherwise. All I said was that Glenn was incorrect when he declared they were preceded by declarations of war. You summed up my views perfectly when you wrote that “it’s pointless to declare ‘war’ against a non-state actor, and the Iraq resolution was more conditional than a full declaration of war.”
Is the whole thing trivial? Hey, it was a trivial post, something I threw up because I thought it would amuse people. If I want to attack Glenn, I’ll go after him for something he wrote recently, not something he wrote seven years ago.
ay: I’m not big on arguments about “hypocrisy.†I do think Glenn has changed his mind about the extent to which the U.S. should intervene abroad. He’s certainly changed the sort of rhetoric he uses. That doesn’t make him a hypocrite, it makes him a — flip-flopper! No, sorry; it makes him normal.
Now, I’m more in tune with what appear to be Glenn’s earlier views than with his current ones. (I supported military action in Afghanistan but opposed it in Iraq, and I think our stepped up fight against terror networks should be coupled with a disengagement from conflicts not related to our immediate security.) But you don’t have to agree with me about foreign policy to find Glenn’s earlier remark amusing in the light of the sort of stuff he says today. I was ribbing the man, not attacking him.
About the AUMF: My post didn’t say anything about whether the conflicts in Iraq and Afghanistan are valid, legally or otherwise. All I said was that Glenn was incorrect when he declared they were preceded by declarations of war. You summed up my views perfectly when you wrote that “it’s pointless to declare ‘war’ against a non-state actor, and the Iraq resolution was more conditional than a full declaration of war.â€
Is the whole thing trivial? Hey, it was a trivial post, something I threw up because I thought it would amuse people. If I want to attack Glenn, I’ll go after him for something he wrote recently, not something he wrote seven years ago.
It seems, based solely on the wording of the AUMF shown here, that Congress understood that this conflict was to be unlike any other we have ever seen and thereby gave authorization of a broader form than any simple declaration of war could have.
Knowing the difference between the actors in this arena, and the ones envisioned under the original text, alterations to the format HAD to be made to allow for the type of conflict envisioned.
The only other alternation would be a formal declaration of war on…terror. And there is simply no way to do that within the specifications of an old-style declaration of war.
Didn’t we technically never declare war in Viet Nam?
Jack wrote:
“…alterations to the format HAD to be made to allow for the type of conflict envisioned.”
You guys are putting me in the uncomfortable position of arguing from the conservative position, but the Constitution prescribes the method of making “alterations to the format.” It’s called Amendment.
No, Will, you’re talking about a different thing.
Congress has the power to declare war, but without a state to declare war on, how do you word the declaration?
Rather than a simple declaration of war against a single or multiple nations, a way had to be found to describe the enemy we face. Hence the AUMF. It recognises the many guises terrorism can take and ‘declares war’ on all of them.
Perhaps ‘alteration to the format’ wasn’t quite the right term. Congress adapted what needed to be done to fit within the definitions of their power to declare war. Their wording acknowleged the open ended and variegated nature of the conflict we find ourselves in.