Constitutional War Powers: Executive Authority in the War on Terror [POLICYbrief]
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Constitutional War Powers: Executive Authority in the War on Terror [POLICYbrief]


I think the September 11th attacks would meet
most everyone’s definition of war. The thing that’s hard about 9/11 is not the
kind of attack that it was, but who carried them out. The threat of terrorism is a different kind
of threat. A small group of people can launch attacks
within the United States in ways that we couldn’t detect or stop. The difficulty is that terrorism, because it’s
not a state, the enemy doesn’t wear uniforms, they don’t have cities, population, territory
to defend … they seem to look more like criminal gangs sometimes than an enemy’s armed
forces. The Framers would have known that you could
have wars between nation states, but that you could also have wars with non-state actors. In our day, it’s terrorist groups like Al-Qaeda
and ISIS. In the late 18th century and in the 17th century,
there were more kinds of non-state actors than were today. Slave traders, mercenaries, pirates … the
United States and other countries used force against these kinds of groups regularly. Declaration of war comes from the British
experience. And if you look at the wars that the British
waged, in the 100 years before the Constitution, they only declared war once before hostilities
started. The best example that everyone’s read of a
declaration of war is the Declaration of Independence. Our Declaration of Independence is a declaration
of war. The President’s power comes from the Constitution. The Commander-in-Chief clause makes a president
the commander of the armed forces. Several other parts in the Constitution talk
about “engage in war” or “levy war” or “engage in hostilities or attacks.” And only in that one clause does the Constitution
use the phrase, “declare war” so I would think if the Constitution and its framers meant
declare war meant start war, it would have used that phrase consistently throughout,
but it doesn’t. Congress declares war quite infrequently. Congress has only declared war five times
and the last time was in World War II. But the United States has used military force
abroad more than 100 times in our history. Sometimes Congress passes a statute that authorizes
the president to use force. Now those aren’t declarations of war specifically
under the Constitution. Declaration of war is more important in my
mind for legal purposes, rather than to start hostilities. I think a declaration of war is a changing
of the legal status between the United States and its citizens and another country and their
citizens. The Framers spoke about perfect versus imperfect
war. The imperfect war would be things that were
short of a declaration. A lot could fall into that. Ranging from border skirmishes all the way
up to just short of declared wars, like Iraq and Afghanistan, that look like the kinds
of hostilities you’d have in war but are not fully legal … so they’re not perfect. The declaration of war actually was a way
to perfect hostilities into a full-blown war, where you’re really breaking off all relations
with another country. If you think about the kind of challenges
a country faces, war is going to be the one that has the most unforeseen circumstance, the one that arises without predictability. So it would make sense to vest the power to
respond to those in the Executive Branch. And that’s why the Framers when they discuss
the Presidency, they concentrated executive power in one person. Once a war starts, anything the President’s
power to decide, when to fight, where to fight, how to fight, become paramount and
Congress’ influence, uh, starts to fall. I don’t think that Congress can give direction,
that’s what the President’s Commander-In-Chief power means.

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