President George W. Bush characterizes the attacks on the World Trade Center and the Pentagon as “acts of war.” What legal and constitutional powers does the president have to declare war or to launch a military action against the terrorists?
The United States has not formally declared war since World War II. Under Article I, Section 8 of the U.S. Constitution, Congress has sole power “to declare war [and] grant letters of marque and reprisal.” But Article II, Section 2 provides that “The president shall be Commander-in-Chief of the Army and Navy of the United States.” While it’s clear that the Framers intended for Congress alone to declare war, presidents don’t always check with Congress before acting. After President Harry Truman bypassed Congress to go to war in Korea, presidents have paid almost no attention to the constitutional requirements.
Declaring Less Than War
In 1973, an irate Congress passed the War Powers Act in response to President Lyndon Johnson and President Richard Nixon’s prosecution of the war in Vietnam without a congressional declaration. Under the War Powers Act, the president has 90 days after introducing troops into hostilities to obtain congressional approval of that action. It looks good on paper, but presidents have generally ignored the War Powers Act, citing Article II, Section 2 as their authority to send soldiers into combat.
Today, Congress met to discuss legislation to authorize the use of force under the War Powers Act. While lawmakers are still working out the language, the proposed measure will be a modified use-of-force resolution, modeled on the resolution used in 1991 to authorize action by President George Bush against Iraq prior to the Gulf War. That resolution authorized the president to “use armed forces pursuant to the UN Security Council’s resolutions passed in response to Iraq’s invasion of Kuwait.” The resolution (HR-77) went out of its way not to be a declaration of war. In fact, other than saying this constitutes authorization under the War Powers Act, it never used the word war at all. It did cite a U.N. resolution seeking to “restore international peace and security in that area,” so it was only a declaration of war if you can assume that the opposite of peace is sort of war.
Shoot To Kill?
Executive Order 12,333 prohibits assassination. This does not have the force of law but is merely a presidential pronouncement that can be repealed, modified, or suspended at any time by the president himself. As of last night, Congress was openly discussing ending the moratorium on assassinations.
The U.N. charter was ratified by the Senate, and as such the president is bound by its terms. Nevertheless, the attacks on New York and Virginia are clearly war crimes under the U.N. definition. Moreover, Article 51 of the U.N. charter provides for the “inherent right … of self-defense if an armed attack occurs.” NATO also took steps toward approving military action yesterday, by invoking Article 5 of the NATO charter, authorizing the use of force if it’s determined that this was attack from abroad against the United States.
Explainer thanks Professor Harold Koh ofYaleLawSchool.
Photograph of George W. Bush by Kevin Lamarque/Reuters.