The Declaration Of War: One For The History Books? AUTHOR Major John L. Bacon, USMC CSC 1991 SUBJECT AREA - National Security EXECUTIVE SUMMARY TITLE: THE DECLARATION OF WAR: ONE FOR THE HISTORY BOOKS? I. THEME: To discuss the background of the declaration of war and to determine its relevance in light of current war powers legislation and trends in modern warfare. II. THESIS : The declaration of war, while originally thought of as the preferred option in justifying the use of U.S. forces, is, in reality, a seldom-used concept that will become increasingly difficult to enact with the passage of the War Powers Resolution (WPR) and our recent success in Southwest Asia. III. DISCUSSION: While orginally conceived as a desired method of manifesting public support for American entry into war, the declaration of war has seldom been enacted prior to U.S. involvement in hostilities, The five declared wars, while different in terms of their causes and effects, have all been "popular" wars that enjoyed the support of the people and were preceded by a strong incident that rallied the public desire for armed intervention. The majority of the declared wars resulted from Congress blindly following Presidential leadership in an attempt to echo their constituent's desire for war. The passage of the War Powers Resolution (WPR) in 1973 formalized the dialogue between the President and Congress on how to commit troops without a declaration of war. The declaration of war may be reserved for the type of war represented by its history -- long, protracted, global affairs -- and may not be aligned with current models of warfare. The modern concept of rapid, limited wars leans heavily toward the WPR as the preferred method of quickly committing iorces to action, whereas the debate on a formal declaration of war would tie up necessary manpower and equipment for an extended period. Our recent success in the Persian Gulf bears out the reality of the "come as you are" war and how the President can achieve public backing without a declaration of war ever being raised as an issue. IV. SUMMARY: The declaration of war is a troubled concept that faces an uncertain future. V. CONCLUSION: There are signs that we may be approaching a period in our history when the changing nature of warfare, the existence of the WPR, and our lack of resolve to approve a declaration of war may limit the future usage of this concept. OUTLINE THE DECLARATION OF WAR: ONE FOR THE HISTORY BOOKS? THESIS STATEMENT: The declaration of war, while originally thought of as the preferred option in justifying the use of U.S. forces, is, in reality, a seldom-used concept that will become increasingly difficult to enact with the passage of the War Powers Resolution (WPR) and our recent success in Southwest Asia. I. Declaration of War Rarely Used in American History A. Disparity between declared and undeclared wars B. War of 1812 C. The Mexican War D. The Spanish-American War E. World War I F. World War 11 II. Similarities of All Five Declared Wars A. All declared wars were "popular" wars B. All involved a strong incident to declare war C. 80% involved blind Congressional support III. The War Powers Resolution (WPR) of 1973 A. Basis for debate on war powers B. Key elements of the WPR C. Opinions on the WPR IV. Role of Declaration of War in Modern Warfare A. Declaration supports rare, unlikely type of war B. Description of the modern war C. Need for public support THE DECLARATION OF WAR: ONE FOR THE HISTORY BOOKS? MAJOR J. L. BACON USMC CONFERENCE GROUP SEVEN The concept of the declaration of war has been a part of the American system of government since the Constitution was adopted in 1787. Its justification revolves around the requirement to manifest, via the legislative process, the backing of the American people regarding any involvement of U.S. combat forces. With such reasonable justification, one would expect to see the Congress approve a declaration of war in every application of U.S. military force. However, its history presents an inverse reality. Since 1798, the United States has involved its military forces in over 200 conflicts. (11:126) Upon closer examination of these numerous conflicts, it is important to note that a formal declaration of war was issued on only five occasions. In 1973, a major step was taken to finally prescribe how this country would send its troops to war. The passage of the War Powers Resolution (WPR) was seen by many as an attempt to reign-in the authority of the Commander-in-Chief to commit U.S. military forces. In reality, the WPR solidified the often tenuous relationship between the executive and legislative branches regarding an accepted method of introducing American troops into a crisis. Our latest success in the Persian Gulf, initiated solely within the guidelines of the WPR, raises further questions about the role of the formal declaration of war in future conflicts theorized as being rapid, limited affairs. Accordingly,the declaration of war, while originally thought of as the preferred option in justifying the use of U.S. forces, is, in reality, a seldom-used concept that will become increasingly difficult to enact with the passage of the War Powers Resolution (WPR) and our recent success in Southwest Asia. At the time of the Constitutional Convention in 1787, a formal declaration of war was neither required by conventional international law nor practiced as customary international law. John Jay stated in The Federalist, "The founders were fully aware of the lack of power actually contained in the war declaration clause because hostilities were rarely preceded by formal declarations of war." (10:16, 434-435) The record shows that since 1798, there have been 211 instances of U.S. military hostilities without a declaration of war, 91 instances of hostilities with actual combat or ultimatums, 102 military actions lasting more than 30 days, and 116 U.S. military actions outside the Western Hemisphere. (10:47-91 and 11:126-155) In our history, a declaration of solemn war, fully invoking the international law of war, has been issued on only five occasions: The War of 1812 (18 June 1812), The Mexican War (13 May 1846), The Spanish-American War (25 April 1898), World War 1 (6 April 1917), and World War II (8 Dec 1941 against Japan and 11 Dec 1941 against Germany and Italy). Additionally, there have been four conditional declarations of war: against Paraguay in 1853, against Venezuela in 1871, and against Spain in 1886 and 1898. Of these, only the last resulted in an actual declared war with the U.S. (3:53, 56) A short review of the events leading up to each of the five declared wars is presented here as an aid in understanding what caused our national leadership to declare war against another country. WAR OF 1812. For years following the American Revolution, Britain sought opportunities to disrupt American trade and foment unrest among the Indians. Chief among their methods of intimidation was the impressment of U.S. sailors into service for the British. Since 1803, 917 American ships were seized and approximately 7,000 American seamen were impressed into British service.(7:106) The British also issued orders to blockade American ports and to prohibit all U.S. trade with foreign nations that didn't enter through British seaports. The British, sensing the Indian hatred of the white man, sold them weapons and planned to use the Indians as their war proxies in America. (7:102-106) President Madison sent a war resolution to Congress on 1 June 1812, citing the points mentioned above as reason for the U.S. to declare war against Great Britain. Congress went into secret session after receiving the war resolution and entered into an intense debate on the issue of declaring war. In a close vote, Congress forinally declared war against Britain on 18 June 1812. THE MEXICAN WAR. Since the fall of the Alamo on 6 March 1836 and the subsequent rout of Santa Anna's army by Sam Houston the following month, the dispute between Texas and Mexico regarding an accepted agreement over their border continued with no end in sight. Mexico stated that the Nueces River was the southern border of Texas; however, Texas, and later the U.S. Government, indicated that the Rio Grande River, farther to the south than the Nueces River, was the true southern border with Mexico. A joint resolution was passed in 1844 to annex Texas and on 4 July 1845, Texas voted to reliquish her independence and accept annexation into the U.S. When Texas entered the Union on 29 December 1845, Mexico responded by declaring war against the U.S. on 23 April 1846. On 25 April 1846, Mexican calvary ambushed General Zachory Taylor's forces on the Texas side of the Rio Grande River, killing 16 Americans. Up to this point the Congress was unaware of the Mexican declaration of war and was hesitant to approve funding for Taylor's army at the request of President Polk. With the news of the Mexican attack into Texas, President Polk delivered a war message to Congress on 11 May 1846, asking for a declaration of war: . . . after reiterated menaces, Mexico has passed the boundry of the United States, has invaded our territory and shed American blood upon American soil. She has proclaimed that hostilities have commenced, and that the two nations are now at war...by act of the Republic of Mexico, a state of war exists between that Government and the United States." (3:55) Congress passed a declaration of war against Mexico on 13 May 1846. The Senate vote was 40 to 2 in favor. (5:18) SPANISH-AMERICAN WAR. In the years leading up to the end of the 19th Century, Spanish rule on the Caribbean Islands grew increasingly hostile toward the inhabitants. Native-born islanders had no right of citizenship with Spain, even though their birthplace had been under Spanish rule since the days of Christopher Columbus. The inhabitants were heavily taxed to support a government in which they had no voice and saw little in return for their taxes. The government was impotent in dealing with Yellow Fever and Malaria, which spread throughout the islands to North and South America and eventually back to Spain. Beginning in 1895, a-provisional government was constituted in Cuba and proclaimed their independence from Spain. Insurgents began attacking Spanish rule in Cuba. In return, the Cuban government imposed martial law and conducted a roundup of all guerrillas, forcing them into concentration camps. In an attempt to starve out the guerrillas, the Cuban government's plan backfired, resulting in widespread starvation among the general population.(7:278-280) Over 400,000 people were imprisoned and over 210,000 died from squalor and disease. (1:2-3) President McKinley attempted to resolve the plight of the Cubans through diplomacy while U.S. citizens smuggled weapons and ammunition to the insurgent groups in Cuba. Concern was growing regarding the safety of U.S. citizens living in Cuba and surrounding islands. To provide a symbol of American concern, President McKinley ordered the battleship U.S.S. Maine to Havanna harbor. The Maine arrived and dropped anchor on 25 January 1898. On 15 February 1898, the U.S.S. Maine exploded, killing 266 of her crew of 354. Investigators concluded that the Maine was sunk by a submarine mine. Americans, upon hearing of the sinking, were adamant for revenge against the Spanish government. President McKinley demanded indemnity for the Maine and independence for Cuba. On 9 April 1898, Spain denied independence for Cuba and President McKinley received appproval from Congress to intervene on behalf of the Cuban rebels. On 21 April 1898, the Navy established a blockade of Cuba. Cuba responded by declaring war on the U.S. on 24 April 1898. The following day, 25 April 1898, Congress formally declared war on Spain, drawing strong public support. (5:280) WORLD WAR I. President Wilson set a policy of U.S. neutrality concerning the European war that erupted in August 1914. He assisted Britain and France by sales of war materials and loans. Despite the sinking of the Lusitanla in May 1915, costing 120 American lives, President Wilson held on to the neutrality concept. After Wilson's reelection in 1916, American concerns began to mount regarding Germany's role if she won the war. Germany would have the ruling fleet and have open access to European colonies, including the Caribbean. (7:307-313) On 31 January 1917, the German High Command informed the U.S. that all ships would be sunk on sight after 1 February 1917. President Wilson responded on 3 February by breaking U.S. diplomatic relations with Germany. On 25 February 1917, the Cunard liner Laconia was sunk without warning by a submarine off the Irish coast, with the loss of American lives. In addition, President Wilson learned the contents of a telegram from German Foreign Secretary Arthur Zimmerman to the German minister in Mexico City. The contents of the "Zimmerman Telegram" were released on 1 March 1917: If we are unable to keep the U.S. a neutral party after submarine warfare begins on 1 February, approach President Carranza of Mexico on the subject of a triple alliance to include Germany, Mexico, and Japan. Assuming a victorious outcome of the war, Mexico will get back from the United States its lost territory in Texas, New Mexico, and Arizona. (8:58) On 12 March 1917, the American steamer Algonquin was sunk, followed 4 days later by the sinkings of U.S. freighters Vigilancia, City of Memphis, and Illinois with loss of American lives. President Wilson advanced by two weeks the date for convening Congress, and, on 6 April 1917, Congress declared that a state of war existed between the United States and Germany. (8:4-5) WORLD WAR II. With Franklin D. Roosevelt's inauguration on 4 March 1933, the U.S. entered into a protracted period of isolationism. FDR believed in the policy of the "Good Neighbor" regarding U.S. involvement in foreign affairs, stating that he "would dedicate this Nation to the policy of the good neighbor - the neighbor who resolutely respects himself and, because he does so, respects the rights of others." (2:2) However, the Good Neighbor Policy failed to fit into the world picture in 1941: the Nazi's were advancing on Leningrad and Moscow and the Japanese, while gaining territory in China, were still hungering for Maylaysia, the Dutch East Indies, and the Philippines. Despite these signs, FDR was more concerned with his domestic "New Deal" program. (2:1-2) The European nations were concerned with the U.S. stance of neutrality. After the Atlantic Conference in August 1941, Winston Churchill said of Roosevelt: The President had said that he would wage war but not declare it and that he would become more and more provocative...he would look for an incident which would justify him in opening hostilities. If the U.S. continues to cling to its neutrality, the emergence of a New Order in Europe and Asia seemed assured." (2:141-142) Attacks on the U.S.S. Greer and U.S.S. Kearny by German U-boats pushed President Roosevelt to arm merchant ships, establish a shoot-on-sight policy, and amend the 1939 Neutrality Act. America was dropping its neutrality legislation as the country edged closer to war. In Asia, a stalemate arose between the Americans and Japanese about the pullout of Japanese troops from China and the relinquishing of all holdings in S.E. Asia. Tojo came to power on 16 October 1941, pledging to fulfill Japan's destiny to expand into Asia. Relations with Japan soured and diplomacy failed to make any progress in settling the Japanese thirst for dominance. Japan set a deadline of 29 November 1941 for a U.S.-Japan agreement, which passed with no results. On 1 December 1941, Tojo said: . . . It is now utterly impossible for Japan to permit the present situation to continue any longer. In such circumstances, Japan now has no other way than to wage war against the United States, Britain, and the Netherlands in order to achieve a solution of the present critical situation and secure its existence and self-defense. (2:158) The Japanese bombed the U.S. base at Pearl Harbor, Hawaii on 7 December 1941 and Congress passed a resolution declaring war on Japan the next day. On 11 December, Germany and Italy, part of the Tripartite Pact with Japan, declared war on the U.S., who responded with a declaration of war against Germany and Japan that same day. In a comparison of all five American declared wars, three common issues stand out. First, all of these wars could be termed "popular wars." For this discussion, a popular war would be a war in which the majority of the American-public supported and felt the reasons for each were worth a fight. These reasons included our national honor and right to free trade (War of 1812); protecting U.S. territory from foreign incursion (Mexican War); supporting humanity and the expansion of the American Empire overseas (Spanish-American War); defending the rights of a neutral country (WW I); and protecting our national security (WW II). The popular support of the people was present before the actual declaration was passed by Congress, reflecting the public's high fever to get the U.S. involved militarily. The second common factor in these declared wars is the fact that the Presidents in power at the time the declaration of war was approved saw such a declaration as the last step in a long chain of events. They were reluctant to proceed with a formal declaration of war against an agressor nation until a specific incident or incidents pushed them to ask Congress for the formal declaration of war. These incidents included the impressment of American sailors and the British arming of Indians (War of 1812); repeated incursions by Mexican General SantaAnna, resulting in American blood spilled on American soil (Mexican War); protection of U.S. citizens and the sinking of the U.S.S. Maine (Spanish-American War); the sinking of American vessels without warning while a neutral party to a European war and the interception of the Zimmerman Telegram (WW I); and the bombing of Pearl Harbor (WW II). Finally, in only one of the five wars was the declaration of war approved by the Congress after a considerable congressional debate. (War of 1812: Senate voted 19 For, 13 Against; House voted 79 For, 49 Against) (6:9) In all other wars, the declaration of war reflected a Congress following Presidental leadership in urging for a formal declaration of war. The declarations of war in these cases were the result of an assessment by Congress that war was what the public and the President desired to settle the serious nature of the problems facing the country at the time. The Congress merely instituted what had already been settled in the court of American public opinion and was eager to appear supportive of the President's desire to settle the issue by force. The last declared war fought by the U.S. ended in 1945. Since that time, questions have arisen concerning the authority of the President to involve U.S. forces in armed conflict. The Vietnam War was the true watershed of this issue as Congress intensely debated the issue of who can enter this country into hostilities with another nation. Their goal was to do what the Founding Fathers felt they could not do - to lay out the dividing line between the Constitutional power of Congress to declare war and of the President as Commander-in-Chief to commit U.S. troops. The result was passage of the War Powers Resolution (WPR) (Public Law 93-148) on 7 November 1973. By their vote, Congress agreed with a statement made on this issue by Abraham Lincoln in 1846: The provision of the Constitution giving war-making powers to Congress was dictated, as I understand it, by the following reasons: Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our [Constitutional] Convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing oppression upon us. (3:56) There are several key elements of the WPR that merit examination. First, before U.S. troops are introduced "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances," the President is to consult with Congress "in every possible instance." (4:3) Second, after troops are introduced, in the absence of a declaration of war, the President is to submit a report to Congress within 48 hours. Third, after 60 days (in special cases - 90 days), the involvement of the troops is to be terminated, unless Congress has taken affirmative action in the meantime to either approve it beyond 60 days or has issued a declaration of war. Finally, Congress can terminate the involvement of troops prior to 60 days by concurrent resolution (Presidential approval is not required). (7:3) The debate still continues on the accepted responsibilities of the President as Commander-in-Chief to involve U.S. forces in hostilities. The fact that the WPR was passed over the veto of President Nixon led him to make the following statement: The restrictions which this resolution would impose upon the authority of the President are both unconstitutional and dangerous to the best interests of the nation...the resolution will strike from the President's hand a wide range of important peacekeeping tools by eliminating his ability to exercise quiet diplomacy backed by subtle shifts in our military deployments. It would give every future Congress the ability to handcuff every future President merely by doing nothing and sitting still. (4:7-8) Since the passage of the WPR in 1973, both Congress and the President have violated its provisions in committing forces for the evacuation of Saigon, the Mayaguez recovery, and the Iranian hostage rescue mission. (10:35-96) Some see the WPR as an avenue of using troops to quell a problem quickly without the delay of Congressional debate over a formal declaration of war. Others, such as President Nixon, see the requirement to consult with Congress as a reduction of their authority as Commander-In-Chief. However, most observers see the WPR as an accepted and expedient method of introducing forces into hostilities without a declaration of war. The truly infrequent use of the declaration of war contradicts the idea that it is appropriate for every use of American force. The great majority of military involvements were neither popular enough to win the strong support of the public and Congress nor involved a strong enough incident to lead to a declared war as the ultimate manifestation of American anger and desire for retribution. Given the lessons from our increasingly unpopular involvement in Vietnam, it is reasonable to expect Congress to subject any notion of a declared war to lengthy debate and to not side with the historic record of blind support for Presidential leadership. Indeed, the declaration of war seems reserved for a type of conflict that may be passing from the scene - the long, protracted, and widespread war that modern theorists feel is the opposite of the limited conflict indicative of the "modern war." As our involvement of troops since the end of the Vietnam War indicates, the limited war is becoming the modern war of highest probability. Limited wars can be conducted quickly with great success at solving problems abroad, as Desert Storm so clearly demonstrated. In reflecting on the U.S. involvement in such conflicts as Grenada, Panama, and Southwest Asia, it appears that the declaration of war may remain a seldomn used concept since the WPR provides a legal recourse to rapidly employ forces without the requirement for a declaration of war. The hard lesson taught to us by our involvement in Vietnam was that this nation cannot place U.S. troops in harms way without the support of the American people. Colonel Harry Summers, Jr., in attempting to describe the value of the declaration of war, states: The Constitutional requirement for a Congressional declaration of war served a dual purpose. It insured public support at the outset, and through the legal sanctions against dealing with the enemy, it created impediments to public dissent. Legalistic arguments that the form of the declaration of war was out of date may have been technically correct, but they obscurred the fact that this form was designed to be an outward manifestation of a critical substance - the support and commitment of the American people...The failure to involve the national will was one of the major strategic failures of the Vietnam War. (9:16-17) As recent events in Southwest Asia have shown, the support of the people can be obtained without a declaration of war. President Bush's superb handling of the buildup and actual commitment of U.S. forces to fighting in Iraq proved that the President can have both Congressional and public approval for war without a formal declaration of war. This fact shakes the very justification for the design of the declaration of war to unite the country for war. The low percentage of declared wars fought by this country casts further doubt on its applicability as the vast number of conflicts were settled through American troop deployments abroad without a declaration of war. The ability to rapidly introduce forces into combat through the provisions of the WPR greatly diminish the opportunities to use the declaration of war again. A strong message was sent by our latest American war about the future use of the declaration of war. This conflict, executed under the mantle of the WPR, may have been the final coffin nail for a concept terminally ill from under use and poorly suited to deal with the current trend in modern warfare. Based on its history and the future of warfare, the declaration of war may indeed be one more concept for the history books. BIBLIOGRAPHY 1. Budinger, Nicholas J. Events and Influences of The Spanish-American War. 1898-1902. Illinois: Spanish- American War Memorial Commission, 1948. 2. Divine, Robert A. 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The War Powers Resolution: Its Implementation in Theory and Practice. Philadelphia: Foreign Policy Research Institute, 1983. 11. United States Senate Foreign Relations Committee. War Powers Legislation. 1973. Washington, D.C.: U.S. Government Printing Office, 1973.
