Declaration of war by the United States

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A declaration of war is a formal declaration issued by a national government indicating that a state of war exists between that nation and another. For the United States, Article One, Section Eight of the Constitution says "Congress shall have power to ... declare War;" however, that passage provides no specific format for what form legislation text must have to be considered a "Declaration of War" nor does the Constitution itself use this term. Many have postulated "Declaration(s) of War" must contain that phrase as or within the title. Many oppose that reasoning. The postulate has not been tested in court; however, this article will use the term "formal Declaration of War" to mean Congressional legislation that uses the phrase "Declaration of War" in the title.

Despite the constitutional requirement that Congress declare war, in practice, formal Declarations of War have occurred only upon prior request by the President. And contrary to the popular opinion that the framers of the Constitution intended that the President cannot engage in war without an act of Congress, in fact the framers chose the final wording with the intent of "leaving to the Executive the power to repel sudden attacks" without the explicit approval of Congress.[1] However, debate continues as to the legal extent of the President's authority in this regard. The War Powers Resolution of 1973 (Pub.L. 93-148) limits the power of the President to wage war without the approval of the Congress. The United States of America has formally declared war against foreign nations five separate times.

Contents

[edit] Formal declarations of war

The table below gives the only five wars in which the United States has formally declared war against foreign nations. The only country against which the United States has declared war more than once is Germany, against which the United States has declared war twice (though a case could be made for Hungary as a successor state to Austria-Hungary).

In World War II, the Japanese had attacked Pearl Harbor on the previous day, Hitler and Mussolini declared war on America and the U.S. Congress responded in kind.[2][3]

War or conflict Opponent(s) Initial authorization Votes President Conclusion
Senate House
War of 1812 British Empire June 18, 1812 19-13 79-49 Madison Treaty of Ghent (December 24, 1814)
Mexican-American War Mexico May 11, 1846 40-2 173-14 Polk Treaty of Guadalupe Hidalgo (February 2, 1848)
Spanish-American War Spain April 24, 1898 42-35 310-6 McKinley Treaty of Paris (December 10, 1898)
World War I Germany April 6, 1917 82-6 373-50 Wilson Treaty of Berlin (August 25, 1921)
Austria-Hungary December 7, 1917 74-0 365-1 Treaty of Trianon (in part)
World War II Japan December 8, 1941 82-0 388-1 F. Roosevelt, Truman Treaty of San Francisco (September 8, 1951)
Germany December 11, 1941 88-0 393-0 Treaty on the Final Settlement with Respect to Germany (September 12, 1990), Treaty of Vienna with Austria (May 15, 1955)
Italy 90-0 399-0 Paris Peace Treaty (February 10, 1947)
Bulgaria June 5, 1942 73-0 357-0
Hungary 360-0
Romania 361-0

[edit] Military engagements authorized by Congress

In twelve instances, the United States has engaged in extended military engagements that were explicitly authorized by Congress, short of a formal declaration of war.

War or conflict Opponent(s) Initial authorization Votes President Conclusion
Senate House
Quasi-War France Act Further to Protect the Commerce of the United States
July 9, 1798		 J. Adams Convention of 1800 (Treaty of Mortefontaine)
First Barbary War Barbary States 1801 Jefferson
Second Barbary War Barbary States 1815[citation needed] Madison
Raid of slave traffic Africa 1820[citation needed]
Redress for attack on U.S. Navy vessel Paraguay 1859[citation needed] Buchanan
Intervention during the Russian Civil War Bolshevist Russia 1918[citation needed] Wilson
Lebanon crisis of 1958 Rebels 1958[citation needed] Eisenhower
Vietnam War National Liberation Front, later Democratic Republic of Vietnam Gulf of Tonkin Resolution, August 7, 1964 88-2 416-0 Kennedy, Johnson, Nixon American Force withdrew.
Multinational Force in Lebanon Shia and Druze miltias; Syria S.J.R. 159
September 29, 1983		 54-46 253-156 Reagan Force withdrew in 1984
Persian Gulf War, also known as Operation Desert Storm Iraq H.R.J. Res. 77
January 12, 1991		 52-47 250-183 George H. W. Bush The United Nations Security Council drew up terms for the cease-fire, April 3, 1991
2001 war in Afghanistan, also known as Operation Enduring Freedom Taliban government of Afghanistan and al-Qaeda S.J. Res. 23
September 14, 2001		 98-0 420-1 George W. Bush, Barack Obama Ongoing
Iraq War, also known as Operation Iraqi Freedom Iraq H.J. Res. 114,
October 16, 2002		 77-23 296-133 Ongoing

[edit] United Nations resolutions

The Korean War was not a war authorized by the U.S. Congress. President Harry S. Truman cited authority under United Nations resolutions. Major US Military involvement began with Task Force Smith on July 5, 1950. A cease fire agreement was signed on July 27, 1953; however no formal treaty has been signed to this date.

[edit] Other undeclared wars

On at least 125 occasions, the President has acted without prior express military authorization from Congress.[4] These include instances in which the United States fought in Korea in 1950, the Philippine-American War from 1898-1903, and in Nicaragua in 1927.

The United States' longest war was fought between approximately 1840 and 1886 against the Apache Nation. During that entire 46-year period, there were never more than 90 days of "peace."

At least 28 conflicts and campaigns comprise the Indian Wars. These conflicts began with Europeans immigrating to North America long before the establishment of the United States. For the purpose of this discussion, the Indian Wars are defined as conflicts with the United States of America. They begin as one front in the American Revolutionary War in 1775 and are generally agreed upon as concluding with the surrender of the Apache chief Geronimo in 1886.

The American Civil War was not a true war in the sense that the Union Government held the position that secession from the Union was illegal and military force was used to restore the union by defeating in battle the military forces of the illegally rebelling states. No Southern ambassador or diplomat was accorded any status by the Union so an armistice or peace treaty was never an option because that would legitimize the Confederacy as an actual Nation. The legal right for armed force lay with the Constitution of the United States, which the Union interpreted as unbreakable. The actions of the Southern states were therefore illegal (according to the Union) because they were attempting to drop the Union as their form of Government, which is considered rebellion or insurrection.

[edit] The War Powers Resolution

In 1973, following the withdrawal of most American troops from the Vietnam War, a debate emerged about the extent of presidential power in deploying troops without a declaration of war. A compromise in the debate was reached with the War Powers Resolution. This act clearly defined how many soldiers could be deployed by the President of the United States and for how long. It also required formal reports by the President to Congress regarding the status of such deployments, and limited the total amount of time that American forces could be employed without a formal declaration of war.

Although the constitutionality of the act has never been tested, it is usually followed, most notably during the Grenada Conflict, the Panamanian Conflict, the Somalia Conflict, the Gulf War, and the Iraq War. The only exception was President Clinton's use of U.S. troops in the 78-day NATO air campaign against Serbia during the Kosovo War.[citation needed] In all other cases, the President asserted the constitutional authority to commit troops without the necessity of Congressional approval, but in each case the President received Congressional authorization that satisfied the provisions of the War Powers Act.

[edit] Current status of the U.S. debate

Extremely heated debate developed in the United States beginning after the September 11 attacks in 2001. Opponents of the uses of military force since began to argue, chiefly, that the Iraq War was unconstitutional, because it lacked a clear declaration of war, and was waged over the objection of a significantly sized demographic in the United States.

Instead of formal war declarations, the United States Congress has begun issuing authorizations of force. Such authorizations have included the Gulf of Tonkin Resolution that greatly increased American participation in the Vietnam War, and the recent "Authorization of the Use of Military Force" (AUMF) resolution that started the War in Iraq. Some question the legality of these authorizations of force. Many who support declarations of war argue that they keep administrations honest by forcing them to lay out their case to the American people while, at the same time, honoring the constitutional role of the United States Congress.

Those who oppose requiring formal declarations of war argue that AUMFs satisfy constitutional requirements and have an established historical precedent (see Quasi-War). Furthermore, some have argued that the constitutional powers of the president as commander-in-chief invest him with broad powers specific to "waging" and "commencing" war.

The February 6, 2006, testimony of Alberto Gonzales to the U.S. Senate Judiciary Committee Hearing on Wartime Executive Power and the National Security Agency's Surveillance Authority, however indicates otherwise:

GONZALES: There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force. I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you're possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice. And we're not talking about a war declaration. This is an authorization only to use military force.

The courts have consistently refused to intervene in this matter -- examples being Holmes v. United States and United States v. O'Brien -- and in practice presidents have the power to commit forces with congressional approval but without a declaration of war.

[edit] See also

[edit] References

  1. ^ The Debates in the Federal Convention of 1787 reported by James Madison : August 17,The Avalon Project, Yale Law School, retrieved 13 Feb 2008
  2. ^ BBC News, On This Day
  3. ^ Whereas the Government of Germany has formally declared war against the government and the people of the United States of America... the state of war between the United States and the Government of Germany which has thus been thrust upon the United States is hereby formally declared.The War Resolution
  4. ^ THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM

[edit] External links

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