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Impearls: War declared

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Earthdate 2002-12-22

War declared

Now that Saddam Hussein has replied to the UN Security Council's demand for complete disclosure of his weapons of mass destruction programs with stonewalling and obfuscation (and not very subtly at that), it's clear the march to war against the Iraqi regime has moved a step further along the way.

Outgoing chairman of the Senate Foreign Relations Committee Joseph Biden, a Democrat, and committee member Chuck Hagel, Republican, authored an opinion piece appearing last Friday in the Washington Post called “Iraq: the Decade After.”  Mostly sensibly written, I'd judge, their opinion is that we need to hang on for the long haul in Iraq after toppling Saddam Hussein.

As we ramp up to this war against Saddam's regime, no doubt the chorus of complaint from the antiwar left will become ever more shrill and strident, and we will hear, once again (as we did last year in the war against the Taliban), that this war is “illegal,” because “the U.S. hasn't declared war,” as stipulated by the U.S. Constitution.

Before that moment arrives, and while Joe Biden is still chairman of the Senate Foreign Relations Committee — representing the liberal wing of the Congressional viewpoint as to the constitutional need for and requisite accomplishment of a declaration of war — it's worth recalling what his position and that of other members (e.g., Representative Gephardt) of the Democratic Party leadership has been. 

Consider this emphatic statement by Senator Biden with regard to the Use of Force resolution passed nearly unanimously by Congress after 2001-09-11.  In response to a question from the floor following a speech (given 2001-10-22, shown on CSPAN), the interchange went as follows:

Question:  “My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom?”

Senator Biden:  “The answer is yes, and we did it.  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 …  Louis Fisher(?) and others can tell you, there is 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.”

Constitutional scholar Eugene Volokh, writing in the Volokh Conspiracy, summarizes Senator Biden's constitutional position as:  “Congressional authorization of the use of force is legally tantamount to a declaration of war.”  That's how I (not a constitutional expert) interpret Biden's words too.  (Note also discussion in Volokh's piece of why a war declaration is not required by the U.S. Constitution.  As Eugene points out, however, that's a separate issue.)

Thus, the chairman of the Senate Foreign Relations Committee, a Democrat, and author of the Use of Force resolution passed last year by Congress — roles which would appear to give him considerable credibility in this regard — categorically states that, for all practical constitutional purposes, the U.S. has declared war in this worldwide war (a real war, not a “metaphorical war” as some on the left allege) against terror round the globe.

Due to the recent resolution passed by Congress with regard to Iraq, via identical reasoning the United States has also now (legally, constitutionally) declared war against Saddam's Iraqi regime.  The antiwar left ought to be aware that the supposed lack of a declaration of war in this situation is not a valid argument for its panoply.  That will not keep many from falsely shouting it from the rooftops, but the rest of us can keep cognizant of the reality of the situation.

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