Private: Who Declares War in the 21st Century?

by Nicholas Alexiou- Editor-at-Large
Recent comments by Congressman John Murtha (D-PA) discussing possible changes in the deployment strategy of U.S. troops in Iraq have sparked another round of heated debate as to the proper way to end U.S involvement in the region. This question of an "exit strategy" has garnered a significant amount of media attention, which is to be expected since the issue is of vital importance.#160; However, an equally important discussion, taking place on a much smaller stage, is developing over the constitutional questions surrounding the initial use of force.
John Yoo, a professor at Boalt Hall and a former deputy assistant attorney general in the Office of Legal Counsel from 2001-2003 (during which time he was reportedly an author of the "torture memos"), has jumped to the front of this constitutional debate on the use of force with the publication of his recent book, The Powers of War and Peace : The Constitution and Foreign Affairs after 9/11.#160; In both virtual and face-to-face debates Professor Yoo has challenged the traditional notion that the Constitution requires ex ante Congressional approval of the use of force.#160; This viewpoint has been met with vociferous opposition from a host of scholars.
The constitutional focus of this debate often begins with Article I, Section 8, Clause 11, also known as the Declare War Clause. This provision grants Congress with the power to "declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."#160; While many view this as a clear requirement for ex ante authorization by Congress, Professor Yoo claims that when combined with other parts of the Constitution, this clarity vanishes.#160; For example, the Executive is given the title of commander in chief of U.S. forces in Article II, Section 2, Clause 1 while the Legislature is given the "power of the purse."#160; This ambiguity stands in sharp contrast to the clarity Professor Yoo sees in Article I, Section 10, Clause 3.#160;

No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

Furthermore, during the Virginia ratifying convention, James Madison noted that it would be the budgetary power possessed by Congress which could reign in a warmongering executive.#160; If Congress had the desire to end war launched unilaterally by the Executive, they possess the power to de-fund the campaign.
If the framers were so exacting with their language regard the rights of individual states to engage in war, why would they leave the language regarding the use of force by the federal government vague and divided throughout the Constitution?#160; Yoo maintains that the Declare War Clause serves more of as a "diplomatic notification" rather than an ex ante requirement.#160;
Critics maintain that while this ambiguity may exist, a lack of clarity is no reason to vest full constitutional authority to the executive.#160; In addition to the Declare War Clause and the generic power of the purse, Article I, Section 8, Clauses 12-14 grant the legislature specific powers with regard to the armed forces.#160; In addition to these textual arguments, Executive Director of the ACLU of Illinois Colleen Connell noted in a recent debate that the intent of farmers were to vest the Legislature with the war making power, in part to ensure that the nation would not be rushed into war.#160; This desire is evidenced in Federalist #69 in which Alexander Hamilton contrasts the procedure for beginning a prosecuting a war in Great Britain with the system envisioned by the new U.S. Constitution:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies -- all which, by the Constitution under consideration, would appertain to the legislature.

James Wilson, a member of the Constitutional Convention points to the benefits of vesting the war making power with the multitude of individuals who comprise the legislature, rather than the single person Executive.#160; Vesting power with Congress "will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large."
As for the idea that Congress can still wield significant power through the budgetary process, many wonder if any sizeable portion of Congress would be willing to de-fund a war effort while fighting was continuing.#160; Critics maintain that such a stance would be tantamount to political suicide, and to expect a veto proof margin in both Congressional chambers (which is what would be needed to override a near certain Presidential veto of de-funding his own military undertaking) is unrealistic.
Both sides of the debate also raise policy rationales for their positions.#160; Yoo notes that Congress has no real desire to issue declarations of war as evidence by the lack of any such declaration since World War II.#160; In addition, in a world of intercontinental ballistic missiles, weapons of mass destruction, and terrorism, the deliberative process that is the hallmark of the Legislative branch may cost millions of lives.#160; Critics, such as Georgetown Professor David Cole, note that Congress has actively tried to reassert itself in the war making process, most evidently with the adoption of the War Powers Resolution.#160; The deliberative nature of the Congress can also be set aside when facing a looming threat as Congress has the ability to pass a war declaration in short order.
Despite what some theorists may claim, history is not over and it is more than likely that the United States will engage in another war sometime in the not too distant future.#160; The conversation currently being held will likely not have a decisive impact on the outcome on that conflict, but could determine how that war will begin; we must heed the advice of the ancient Greek philosopher Thucydides who wrote some 2400 years ago, "It is a common mistake in going to war to begin at the wrong end, to act first, and wait for disaster to discuss the matter."