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.