The United States (Government) hasn’t been legally at war since September 12, 1945, when the Japanese forces in Southeast Asia surrendered to Allied Commander Louis Mountbatten in Singapore, ending World War II.
That’s right, the Korean “War,” the Vietnam “War,” the first Iraq “War,” the second Iraq “War” (euphemistically named Operation Iraqi Freedom), Libya and the Afghanistan “War” aren’t wars. At least not according to the U.S. Constitution — which document explains how wars are supposed to happen. This way:
ARTICLE. I. All legislative Powers herein granted shall be vested in a Congress of the United States… Section. 8. The Congress shall have Power… Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water –The United States Constitution
The U.S. President doesn’t do it alone. In fact, as founding father James Madison explained, “...the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.”
So, how do they get us into these non-wars? Maybe this explains it – - -
“I think it is a fact of modern history that declarations of war are gone. I think they are anachronistic. Clearly the Constitution assigns the declarations of war function to Congress and only to Congress. But declaring war has consequences in a technologically advanced world that nobody wants to face. Instead what you do is you call it a police action, as we did in Korea, or you call it something else, but you do not formally take that giant leap of declaring war.” –Rep. Henry Hyde (R-IL), June 7, 1995
The first “war” after WWII, the Korean “War,” was executed without any explicit Congressional authorization what-so-ever, declared and carried out under the auspices of Mr. Harry S. Truman, mostly on his own recognizance. Similarly, in an early iteration of Rep. Hyde’s dictum — which has become Standard Operating Procedure — even though North Vietnam officially declared war on the U.S., the U.S. never officially declared war on North Vietnam.
Congress wanted to avoid that “giant leap” of declaring war. As per Rep. Hyde above, they wanted to do it by any other name. But, paradoxically, they wanted to do it in a way so they wouldn’t lose their Constitutionally mandated prerogative — so Congress passed The War Powers Act of 1973. Over President Richard M. Nixon’s veto.
In this act, there are three excuses for the President to send U.S. forces into “harm’s way.” It gives three ways and three ways only to a war — or a non-war as the case may be. Specifically (text directly from the document itself):
Section (c), clause 1. a declaration of war, [the Constitutional way --l.r.white]
Section (c), clause 2. specific statutory authorization [Congress passes a specific law --l.r.white]
Section (c), clause 3. a national emergency created by attack upon the United States, its territories or possessions, or its armed forces
Clearly clause 1. won’t apply since even Mr. Obama and those who are apparently pressuring him behind the scenes, haven’t even hinted at declaring war.
clause 3. is handy for war mongering because by invoking “national emergency,” whomever currently inhabits the Oval Office has 60 days to get clause 2. blessings from Congress and then keep going or, theoretically, get out.
Unfortunately for Mr. Obama, clearly, clause 3. doesn’t apply to Syria either. No one — not even someone grossly over-indulging in Colorado’s newly legalized crops — could claim the Assad Administration is attacking U.S. territories or possessions. Or U.S. armed forces.
That leaves clause 2.
So, if the law matters this time, as Jerrold Nadler, ranking member of the House Judiciary Subcommittee on the Constitution and Civil Justice recently pointed out – Mr. Obama has to go to Congress and convince the members to give him statutory authorization to attack the men, women and children in Syria — who, some might say, are already being attacked by plenty of people already.
And then there’s this: Lacking an official U.N. Resolution, even with Congressional approval such an attack on the Syrians would be a violation of international law. Since Russia and China, not to mention most of the rest of the real “International Community,” don’t support such action, the U.N. won’t pass such a resolution.
Not even U.S. dominated NATO will get behind this turkey.
If the Nobel Peace Prize winning President somehow goes ahead anyway, that’s by definition another U.S. war crime.
And given that only 29% of Americans — voters among them — favor attacking the Syrians, I’m tempted to bet against Mr. Obama and the War Party getting even that War Powers clause 2. fig leaf for cover. What do you think?
Given the circumstances, I’d say the odds of Mr. Obama successfully instigating a U.S. military “message” to Syria are about 50/50.
On the other hand, the Administration has been telegraphing they’ll attack Syria with or without Congressional approval.
So, does the law matter this time? Or doesn’t it? Can the next U.S. President, following in the footsteps of Hitler, Harry S. Truman, Mussolini, Saddam, and Barack Obama in Libya, etc. go to “war” whenever he or she pleases?
What do you think?