Unconstitutional Wars?

 “To The Shores of Tripoli” by Raymond Massey

One of the pieces of misinformation that seems to be prominent this election cycle is the idea that the American actions in the Middle East for the last twenty-five years were illegal and unconstitutional. This idea was first floated by liberal Democrats to discredit the two Bush Administrations, but it’s gained traction in the military community in general and the supporters of Ron Paul in particular. Unfortunately, this rhetoric demonstrates a plebian understanding of the Constitution, history and the actions of the US Congress. Except for the Clinton administration adventure in Kosovo and the most recent actions in Libya, it’s just not true.

Before we dive into the discussion, we need to see what the constitution says on the matter.

Article II, section 8 defines the powers of Congress, among these is the power To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

That’s it. There’s no rules concerning the form that such a declaration of war should take, the recipe for doing so, or any magic incantation that would differentiate an authorization for the use of force from a de facto Declaration of War.

The Constitution deliberately built in a tension between the Presidency and Congress, for while the Congress retains the sole power to declare war, Article II section 2 states that The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.

The implication of this is that the President can do whatever he wants with the military during peace time, except commit them to combat. Presumably this includes deploying the military to foreign lands with which we have military cooperation agreements, for joint exercises.

This was an acceptable state of affairs in the eighteenth century, when communications took days and you would be aware of an approaching army weeks or months in advance. But technology overwhelmed this concept to the point where Congress could go to bed in peacetime, and wake up to a shooting war with US troops engaged in combat. Worse, with the advent of intercontinental ballistic missiles and submarine launched attack systems, the President’s reaction time to respond militarily to an imminent attack on the USA could conceivably be reduced to mere minutes.

In 1973, the US congress, in a fit of collective amnesia, passed the War Powers Act, codifying the precise conditions and limits under which the President can deploy the military in today’s fast moving world. Many people misunderstand this to be a constitutional amendment. It is not. It’s just federal law designed to define the constitutional roles of Congress and the President within the realities of the Twentieth Century and beyond.

Some History

The political and diplomatic turmoil around the world that resulted from the power redistribution and decolonization that occurred after World War II led to a number of circumstances that were unforeseen by the founding fathers. The end of WWII found US soldiers on every continent in the world except South America, cast in the role of liberator or conquering hero. In both cases, the local government was typically non-functional, and the US administration of these countries was considered appropriate by all until a functioning government could be established. In the case of our former enemies, such a government necessarily had to conform to certain requirements of the conquering allies to ensure that the conditions that gave rise to WWII could not be resurrected.

This would have been an orderly progression of recovery from the devastation of WWII, except for a couple of flies in the ointment. First, the Soviet Union was exercising a methodic campaign to foment a socialist movement nearly everywhere it could assert influence. Such movements weren’t above using violence – indeed the Leninist model demanded that at some point violence would be necessary to throw off the bourgeoisie. Second, the US State Department was primarily concerned with preserving friendly ties with our wartime allies – particularly to present a united front to the growing menace of Soviet hegemony. This meant that a number of indigent populations in colonial lands owned by our allies were thrown under the bus in the post-war realignments. Very often this happened over the protests of US administrators in these areas. The OSS in French Indochina vehemently disagreed with the idea of returning that colony back to France after the war, saying that the Vietnamese and Cambodian people would not tolerate it, but they were ignored by the European desk of the State Department, which was calling the shots.

Tensions between the Western Allies and the Soviets peaked in 1948 with the Berlin Airlift. It became plain to the President and Congress that our nation simply could not afford to keep our commitments to our allies and oversee an orderly postwar realignment and still draw down our nation’s military to pre-war levels. This was confirmed when Chinese-supported North Koreans crossed the demarcation line between the occupation zones in 1950, and attempted to reunite the country under a communist government. The ensuing war was a disaster for the Communist bloc, and ended in an uneasy stalemate that continues to this day.

Realizing that a direct invasion by proxy would result in a powerful response from the western powers, the Soviets and China began pouring resources into low-key communist insurgencies. This placed the Western powers and the US in particular in an awkward situation. In order to prevent a power vacuum that would make a communist take-over a fait accompli, the US found itself supporting some right bastards as virtual dictators in countries who had recently cast off their colonial shackles. This was a less than optimal situation, and while these guys were bastards, at least they were our bastards.

The attempt to stall the Communist insurgencies and infiltrations of these countries required new ways of thinking when it came to manipulating military and political force. Unfortunately, the American mindset was educated from our recent military experiences in WWII and Korea. Our overwhelming victory in WWII gave us the political power to literally dictate terms to both our enemies and our allies resulting in an excessive amount of diplomatic hubris. These factors resulted in heavy-handed and inappropriate responses from the US in what had become the client states that we had sponsored after they had been decolonized. In our position as the world’s preeminent economic and military super power, we were unwilling to learn from the success of the British in the communist insurgency in Malaysia, which used a small number of highly trained counter-insurgency operatives and a dedicated campaign to win the hearts and minds of the locals and deny the enemy the advantages that an insurgency typically enjoys. The result of this was a series of ongoing US commitments of conventional ground forces into brushfire wars, and a general attitude that America had become the policeman of the world. This attitude was what made the American reaction to the invasion of Kuwait almost automatic.

Some More History

The main point of contention among the contemporary critics is that American soldiers were sent into Afghanistan and Iraq without a declaration of war, and that these actions are therefore unconstitutional.

This point is without merit.

The precedent of sending American soldiers overseas into a combat situation began in 1801 when then-president Thomas Jefferson (remember him? He had a bit of a hand in the forming of our government) deployed a naval frigate squadron and the US Marines to the Mediterranean coast of Africa to put an end to the Muslim pirates of the Barbary Coast. In many ways this action was little different than the deployments and fighting that’s been done since 1990. Was it constitutional? Jefferson felt it was, because he had Congressional approval starting with the 3rd congress, session 1, chapter 12, An Act to provide Naval Armament, which cited the depredations of the Algerian Corsairs as the reason for the Naval Appropriation. Congress further provided its approval and authorization for the use of force in the 7th congress, Session 1 chapter 4, An Act for the protection of the Commerce and Seamen of the United States, against Tripolitan Cruisers. It very explicitly gave sanction to conduct military operations and to prosecute a war in the 8th congress, Session 1, chapter 46, An Act to further protect the commerce and seamen of the United States against the Barbary powers, which specifically authorizes, “warlike operations against the regency of Tripoli, or any other of the Barbary powers.”  There were in fact ten such congressional acts passed pertaining to the barbary wars, but you get the idea. Note that Congress did not specifically declare war on any other nation, nor was the term “Declaration of War” used.

For the folks who insist that America’s involvement in Iraq, Afghanistan and yes, Vietnam was unconstitutional, please compare the legislation that Jefferson used to prosecute his military expedition, and those of the more recent congresses:

Authorization to invade Afghanistan, Public Law 107-40

Authorization to invade Iraq, Public Law 107-243

Authorization to prosecute Desert Storm, Public Law 102-1
One could argue that Desert Shield didn't get congressional approval, but Desert Shield was a massive deployment to an allied nation, and not a combat deployment, so there's a question whether the war Powers Act applied, a question the courts chose to abstain on in Ange v. Bush.

Authorization to commit military forces to fight in Vietnam, Public Law 88-408

All of these actions were authorized by congress under the same theory of law that Thomas Jefferson used for his actions against the Barbary pirates. Any political office holder – particularly any Congressman who was sitting when these laws were passed – who claims that these wars are unconstitutional is just being disingenuous (that’s a fancy word for “lying through his teeth”).

In closing, the idea of a “Declaration of War” is quickly becoming an archaic term. In the historical context of the day, a declaration of war meant that the people and government of one nation-state was at war with the people and government of another nation-state. In today’s context, this is rarely the case with the use of the US military. The United States is a constitutional republic, dedicated to the concept that people should be free to be governed by their consent. Most American ventures since WWII have been against regimes in support of the oppressed people they govern. It’s not the position of the USA to declare war on the people of a nation, rather we draw a distinction between the people and the government that we assume is not acting in the best interests of those people. The term “Declaration of War” carries a connotation of war against the people as well as the government of a nation that isn’t appropriate with the interests and goals of the United States. This doesn’t mean that our military ventures are unconstitutional, unless you’re willing to take the absurd position that Thomas Jefferson’s action was unconstitutional.

Whether these wars were ill-advised or properly executed is a different argument altogether. But no one can rationally make the argument that the conflicts mentioned in this article were unconstitutional.