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Eugene Volokh argues that a formal declaration of war is neither necessary nor useful. Frankly, I cannot understand his argument. That Congress can authorize, and has authorized, military action without formally declaring war, I will agree (there are some Constitutional limitations here, but as far as I know, none of them have been transgressed). But Volokh also says
If on 9/12 Congress had debated whether to declare war, people would have had little idea of just what war measures the government would have to undertake, and in what circumstances they'd be applied. If given the question "Declare war and give the government flexibility, or don't declare it and deny the government this flexibility?," Congress would have, I'd wager, quickly declared war, with little debate about the then purely hypothetical details, no matter how important these details would ultimately prove to be. The same reasoning could be applied to our declarations of war in 1917 and 1941, of course: who could say what powers would be genuinely necessary for the government to prosecute these wars; what powers, though unnecessary in themselves, would serve as reminders to the American people of the gravity of the situation; and what powers were merely seized upon by empire-builders and the power-hungry under cover, as it were, of a war? We might reply that what was done sixty years ago has no bearing on what should have been done last September and what should be done today. But is that so? It would be futile to argue that Bush should be given the same powers, in the same words, as were given to FDR; this is not the same war. Yet one of the great flaws, I think, of this war is that Bush appears to be making one of the same errors in judgment that Johnson did with respect to Vietnam: of assuring the American people that nothing that will effect them is happening, or will happen; that we can fight this war on discretionary spending alone; that we can have both guns and butter. We can dispute the righteousness of the Vietnamese war; few though, I think, will dispute that, for good or ill, it would have had a very different outcome had Johnson gone before Congress in 1965 and called for a formal state of war, with war powers over the U.S. as FDR had had twenty years earlier. The debate could and should not, of course, been all at the moment of a declaration of war. Yet, I think, a "sunset" provision is needed in every proposal that the government be granted this or that authority to prosecute the war. I simply do not see the problem in making the sunset be at the moment that war is "undeclared". John "Akatsukami" Braue Thursday, June 13, 2002 |
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