What is war?

Crescat blogger Donald, whose post about Saddam I criticized earlier, asks “What is war?” I’ll answer that in a second. But first, he says

we’re not really “at war.” The power to declare war is one reserved to the Congress. U.S. Const., Article I, Section 8, Clause 11. While Congress has authorized the use of military force by the President, it hasn’t issued a formal declaration of war.

This is not true. The Constitution sets no standard for distinguishing a declaration of war from any other sort of Congressional enactment. In fact, it does not even use the term “declaration of war,” but just says Congress has power “[t]o declare war….” This suggests that there is no formality for a “declaration” that has to be gone through—Congress simply “declares” war.

The Congressional Joint Resolution of September 14, 2001 gives the president authority to use all military force. If he has all military authority, then we are, by necessity, at war. No magic words are required for a declaration of war.

Even Senator Joe Biden has said that the September 14 resolution is the same thing as a Declaration of War:

I happen to be a professor of Constitutional law. I’m the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction…between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what...against whom we were moving, and what authority was granted to the President.

As one scholar has put it, “[a]s a matter of constitutional law, Senator Biden was exactly right; a joint resolution authorizing the President to use military force fully satisfies any requirement for legislative approval under Article I, Section 8, Clause 11 of the Constitution.” Robert F. Turner, The War on Terrorism And The Modern Relevance of The Congressional Power to “Declare War,” 25 Harv. J.L. & Pub. Pol’y 519, 521 (2002). Turner goes on to explain that the necessity of declaring war exists only for offensive combat, such as our incursion into Iraq, and not in cases of defensive combat, which was arguably the case in Afghanistan.

I know of nothing to support the claim that a Congressional resolution that grants the president full authority to use all necessary and appropriate military force is somehow less than a declaration of war, simply because it lacks the particular word “war.” There is a great case on this subject at 161 F.Supp. 932, in which the court held that

no special form of words is necessary to constitute a declaration of war. “The form of words used in a declaration of war is immaterial so long as there is no doubt of the intention to declare war.” However, a declaration of war cannot be inferred from a series of acts or statements; there must be a single statement, oral or written, to which one can point and say “this is the declaration of war.” Such a statement must (1) emanate from a proper authority, (2) be publicly announced and communicated to the other governments, and (3) say that war exists or is intended to exist. A declaration may recognize a state of war already in existence. That is a frequent form in declarations, “doubtless accounted for by desire to put the blame on the other party, to declare that the war initiated by the opponent is accepted. This is the usual form of declaration by the United States.”

Navios Corp. v. The Ulysses II, 161 F.Supp. 932, 941 (D.C.Md. 1958), aff’d 260 F.2d 959 (4th Cir.) (per curiam) (citations omitted). Likewise, the Supreme Court has noted that

“…it is essential that some formal public act, proceeding directly from the competent source, should announce to the people at home their new relations and duties growing out of a state of war, and which should equally apprise neutral nations of the fact, to enable them to conform their conduct to the rights belonging to the new state of things. War, says Vattel, is at present published and declared by manifestoes. Such an official act operates from its date to legalize all hostile acts, in like manner as a treaty of peace operates from its date to annul them. As war cannot lawfully be commenced on the part of the United States without an act of congress, such an act is, of course, a formal official notice to all the world, and equivalent to the most solemn declaration.”

Marks v. United States, 161 U.S. 297, 301 (1896) (quoting 1 Kent, Commenatries 55.) It is true that there is some dicta to the effect that the September 14 resolution is not a declaration of war. See, e.g., Doe v. Bush, 257 F.Supp.2d 436, 438-40 (D.Mass. 2003); Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564, 588 (S.D.N.Y. 2002). But even these cases concede that a defensive war, such as the present one, need not be declared by Congress before prosecuted; moreover the language from Navois is a holding, not dicta.

Not even Bruce Ackerman, in his recent article, This is Not A War, 113 Yale L.J. 1871 (2004), provides any coherent answer to these points, or explains why magic words are necessary.

Finally, as to what a war is, well, Navois discusses that as well.

Charles Cheney Hyde, a recognized authority, says: “War may in a broad sense be fairly described as a condition of armed hostility between states.” This is in accord with a statement by Justice Grier, in the Prize Cases, The Amy Warwick, 67 U.S. 635, 666 [1862]: “War has been well defined to be, ‘That state in which a nation prosecutes its rights by force’.” On the other hand, John Bassett Moore, also a recognized authority, says: “By the term war is meant, not the mere employment of force but the existence of the legal condition of things in which rights are or may be prosecuted by force.” It is evident that we are confronted with a choice between regarding “war” as primarily physical force or primarily legal status. Popularly, of course, the term war is given a very broad meaning. In international law, however, the experts are inclined to equate “war” with “state of war”. Thus, if one nation declares war against another, a state of war may exist before and force has been employed. On the other hand, force may be employed by one nation against another and yet no state of war may arise.

It has been noted that during the period between 1700 and 1900 there were nearly 150 wars, but only about twenty formal declarations of war, and that many of those were made after the commencement of hostilities. Stankus v. New York Life Ins. Co., [312 Mass. 366 (1942)]....

The Third Hague Convention, in 1907, required a prior declaration of war or its equivalent, a conditional ultimatum, and during World War I there were many declarations of war. Since World War I the principles of the Third Hague Convention have fallen into disuse. During World War II there were some declarations of war but also some attacks without a prior or subsequent declaration. The League of Nations condemned war, as does the Charter of the United Nations, and states often desire to avoid the opprobrium of accepting, by a declaration, responsibility for having established a state of war.Hyde says that war can come into being in four ways: (1) by hostile acts with design of making war, (2) by any unequivocal act by which a state shows that it regards the act of another state as war, (3) by non-compliance with an ultimatum, and (4) by declaration of war.

Navios, 161 F.Supp. at 939.