Information by Congress and the President to the global community that there is impending conflict, which the world can both help avert or prepare to work around.
With these understandings of the purposes of a Declaration of War, and an understanding of what a Declaration of war is not, it is easier to determine "what is a Declaration of War."
A Declaration of War is not the use of "magic words."
- The document does not have to be titled a "Declaration of War," and
- Congress does not have to say: "We declare war."
A Declaration of War has to:
- Direct the President to fight a war (not leave it up to Executive decision).
- Typically, it also identifies and commits resources to that endeavor.
The following is an example of the language used in 20th century declarations of war:
“...the President is authorized and directed to employ the entire naval and military forces of the United States, and the resources of the Government to carry on war against [the Government of the particular nation]; and to bring the conflict to a successful termination all of the resources of the country are hereby pledged by the Congress of the United States.”
The italicized words in the Declarations of War in the 20th Century make clear that Congress was taking full responsibility for the decision. Each member was recorded as voting for or against the war and could be judged by their constituents for that act.
In contrast, for more than half a century, Congress has passed AUMFs (Authorizations to Use Military Force). An AUMF authorizes the president to make the decision and, thus, absolves Congress of that responsibility and relieves its members of accountability. The AUMF of 2002 against Iraq provided:
“The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to—
(1) defend the national security of the United States against the continuing threat posed by Iraq...
Presidents have acted as though the purported authorization from Congress to make the determination to use force was sufficient to order the military into action against countries that had not previously attacked the United States. As we have seen, the Records of the Consitutional Convention demonstrate that the President cannot accept delegation of the decision to go to war. Only Congress can make that decision.
The Uniform Code of Military Justice makes disobeying a lawful order a punishable offense. During wartime, the punishment can be death for disobeying lawful orders issued by certain officers. The United States no longer trains its soldiers to follow any order, but to obey only orders which are lawful. Thus, an AUMF places soldiers in a quandry: obey orders or risk Court Martial and the death sentence by insisting upon waiting for a Congressional Declaration of War. The third alternative, to litigate this controversy through the Supreme Court, is impractical given the time frame that follows the issuance of a military order.
(This has not been a technical legal expose of the definition of a Declaration of War. Rather, it is my observation drawn from reading and discussing both history and law. If you think that what I have said about the situation of young soldiers vis-a-vis their Commander-in-Chief is an exageration, please send me an email with supporting references: email@example.com.)
* Perhaps the Vietnam era conflict at home can be understood through this prism of power: it was a limited war because the President and Congress tried to further "butter" issues and civil rights at home while, at the same time, trying to fight the Cold War by using napalm and an almost unlimited number of "bullets" in SouthEast Asia, with unlimited sacrifice by the populus, including imposition of the enslavement of a draft at home which threatened every family that had birthed, sheltered, and raised teenage children.
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© 2008, 2009, 2010 Steven M. Blumrosen