From another thread, but well worth reading:
Thursday, Sep 13, 2001 9:26 PM
Respond to of 13174
America at ‘war,’ declared or not
Moves in Congress to formally declare war on terrorists
The last time the United States declared war: President Franklin Roosevelt signing the war declaration on the day after the Japanese Navy attacked
Pearl Harbor.
‘The Congress hereby declares that a state of war exists between the United States and... any entity that committed the acts of international
terrorism against the United States....’
— DRAFT WAR DECLARATION
By Tom Curry
MSNBC
Sept. 13 — Two days after the worst attack on the United States in its history, some members of Congress are seriously considering a step that has not
been taken since Japan attacked Pearl Harbor in 1941: a formal declaration of war. Presidents from Harry Truman to Bill Clinton have waged informal
wars without authorization from Congress, but the talk of a war declaration now indicates that some in Congress want to express the gravity of the
threat the nation faces.
SINCE TUESDAY’S attacks on the World Trade Center and the Pentagon, President Bush has repeatedly used the word “war” in an attempt to
solidify national resolve and to prepare Americans for the perils that lie ahead. Bush said Thursday, “war has been declared on us” by terrorists.
AN HISTORIC BREAK
Bush’s use of the word “war” is an historic break from the pattern of presidents since Truman who always avoided uttering that word when sending
American forces into action. Truman did not seek any authorization from Congress to wage the Korean war, which he referred to as “a police action.”
Bush’s use of the word “war” does not mean he thinks a formal declaration of war is necessary.
But he does think he needs Congress to express its support for him though a joint resolution similar to the one passed in 1991 authorizing his father to
order attacks on Iraqi forces in the Persian Gulf.
Secretary of State Colin Powell identified terrorist leader Osama bin Laden was a chief suspect in Tuesday’s terror attacks and U.S. officials hinted a
raid against Afghanistan, where bin Laden is believed to be based, could come within days.
“I do not believe the president intends a legal consequence from his references to ‘war.’ I think he is rallying the spirit of the American people at a time
of crisis,” said former California congressman Tom Campbell, who now teaches constitutional law at Stanford University.
In a throwback to 1941, Rep. Bob Barr, R-Ga., and nine other House members are circulating a draft of a “state of war” resolution. The draft says:
“the Congress hereby declares that a state of war exists between the United States and any entity that committed the acts of international terrorism
against the United States on September 11, 2001” or any country that “has provided support or protection” to the terrorists.
“If we make a declaration of war, we’re recognizing that a state of war exists, like Roosevelt did after Pearl Harbor,” Sen. Arlen Specter, R-Pa. told
The Associated Press. “We say to them, ‘We’re at war, turn him (bin Laden) over to us or there’ll be military consequences,’” Specter said.
A declaration of war that does not identify a specific country as the enemy would be unprecedented, but not unconstitutional, said Louis
Fisher, a constitutional specialist at the Library of Congress and the author of “Presidential War Power.”
WHO’S THE ENEMY?
Campbell said if he were a member of the House he’d hesitate to vote for a declaration of war that did not identify a specific country as the enemy.
Campbell warns of the precedent of the open-ended Gulf of Tonkin resolution that Congress approved in 1964. “Congress wrote a blank check which
President Johnson used to hugely expand our involvement in Vietnam. One of the things a declaration of war is supposed to do is to give authority but
also to narrow it: ‘Here are our enemies’ and thus implicitly others are not.”
Senate leaders indicated Thursday they were wrestling with the memory of the Gulf of Tonkin resolution and how to write a resolution giving Bush
enough — but too much — authorization to use military force.
“We are a co-equal branch and we need to make sure we think this through carefully,” Senate Minority Leader Trent Lott told reporters. Referring to
the far-flung network of terrorists suspected in Tuesday’s attack, Lott said “We’re not talking about a capital, a country, a military unit. ... We have to
make sure we think this through and that it’s not language we would later regret.” Standing at Lott’s side, Senate Majority Leader Tom Daschle voiced
similar sentiments.
A declaration of war and a joint resolution of Congress authorizing Bush to use military force are functionally equivalent, Fisher said.
He said the Constitution gives the president the power to repel attack on the United States, but the 1975 War Powers Act would require that Congress
approve a prolonged military campaign against terrorists.
The War Powers Act allows the president to use military forces for up to 60 days without consent of Congress.
But presidents of both parties have considered the War Powers Act — passed over President Nixon’s veto in 1975 — unconstitutional and have
simply ignored it.
Without exception since 1950, when presidents ordered troops into action, Congress has taken a more significant practical step than enacting a
declaration of war: passing the bills that provide the money to buy bombs, bullets and cruise missiles.
By Friday, Congress will likely approve the $20 billion in emergency funds Bush has asked for military readiness, anti-terrorism efforts and recovery
from Tuesday’s disasters.
TALKING THROUGH MONEY
“The operating theory among legal scholars these days is that Congress talks through its money,” said constitutional expert Doug Kmiec, dean of the
Catholic University Law School in Washington, D.C. “The authorizing of funds implies the authorization to take action. Therefore no declaration of war
is needed.”
But Kmiec pointed out the moral difficulties of waging war against a terrorist conspiracy.
“If we authorize bombing of terrorist training camps and other targets in Afghanistan and bin Laden is not there and we kill hundreds or thousands of
Afghan civilians, we’re simply repeating the crime,” he said.
That is why, Kmiec said, some of the debate in Congress Thursday focused on overturning the executive order signed by President Reagan in the 1980s
that forbids the assassination of foreign leaders or others.
If that executive order were repealed, the president could order a cruise missile strike to attempt to kill bin Laden or others who masterminded
Tuesday’s attacks — while minimizing the risk of killing innocent civilians. “The proposal for assassination seems parallel to the cruise missile — an
attempt to create a ‘cruise bullet,’” Kmiec said.
Or, as President Reagan did in 1986 when he ordered bombing of Libya and its leader Muammar Gaddafi, Bush could skirt the executive order by
ordering an attack on camps as legitimate military targets in Afghanistan, with the not-so-veiled hope that bin Laden and his aides would be killed by the
strikes.
Although all the talk in the Capitol on Thursday was of national unity, the Clinton presidency shows that waging war can be a divisive process.
‘A DESPERATE PRESIDENT’
On the eve of the House vote to impeach him in 1999, Clinton ordered air strikes on Iraq. Republican leaders charged Clinton with trying to divert
attention from his impeachment. “Never underestimate a desperate president,” said Rep. Jerry Solomon of New York.
Earlier that year, by a narrow margin of 219-191, the House voted to approve Clinton’s plan to send U.S. troops to the Serbian province of Kosovo.
Two weeks later Clinton ordered U.S. air strikes on targets in Serbia and the House voted again. It split evenly, 213 to 213, on a measure authorizing
Clinton to strike Yugoslavia. The tie vote meant Clinton did not have the support of the House but the bombing went on. In fact, Congress voted a few
weeks later by lopsided margins to pass a spending bill to pay for the bombing.
Maverick Campbell, a member of the House at that time, led a quixotic effort to force Congress to either declare war or vote to stop American attacks
on Yugoslavia.
In the end, Congress neither declared war nor cut off funding. It decided to live with the legal ambiguity and the undeclared war ended with almost no
American casualties
fred |
