What is missing, however, is any serious consideration of the declaration of war as a mechanism for affirming in the most explicit way Congress's approval, and as a statement to the international community of America's intentions and expectations. This is a mistake.
The Anglo-American constitutional tradition is an evolved system of practices the effect of which has been to limit arbitrary government and prevent the state from overwhelming society. As war always tends to promote the further encroachment of state on society, mechanisms for controlling the use of military power, while permitting an effective defense, have been one of the core issues of Anglosphere constitutional politics.
This tradition includes centuries-old mechanisms used to prevent executive abuse of the warmaking power. These have served to prevent the inevitable small-scale, limited-purpose uses of military force overseas from escalating into major wars without obtaining the consensus of the populace as to the necessity and desirability of that conflict.
Measured by the numbers of ground troops committed to battle, or allied casualties, the war in Afghanistan can be viewed as essentially the former type of intervention. With luck, an action against Iraq may also be a cakewalk that will quickly overthrow Saddam Hussein with a minimum of hard combat. I suspect it is more likely that it will, than that it will not.
However, given the uncertainties of war, we need to consider the possibility that it will not. In that event, we must ask how the American administration, and Tony Blair's British government, can assure that the forces on the ground, facing a longer and harder struggle, will not have to suffer a divided and ineffective nation at their backs.
Anglo-American tradition had always held that the executive branch, whether Crown or White House, could not engage the country in large-scale war without presenting to the populace the reasons for the war and obtaining approval. These checks and balances came in several forms: the need for legislative votes for taxes to fund war, calls for enlistment to provide troops, and the other various electoral and non-electoral means by which civil societies withhold or grant assent.
Today, the maintenance of larger standing forces and the routine approval of substantial defense appropriations has eroded the effectiveness of such safeguards. In the Vietnam era, peacetime conscription and a substantial acceptance of the government's power to inflate the currency further vitiated them. This resulted in the gradual enmeshment of the United States in a Vietnamese war without the traditional and expected justification and approval. A generation of officers such as Colin Powell became bitterly aware of the costs of such a course of action, and have been seeking ever since a way to insure that war would not come by stealth and without a general commitment on the part of the nation.
The two principal routes are currently considered for achieving such a commitment. One is a United Nations Security Council resolution; the other is a congressional resolution approving force. There are several problems with each of these options.
Advocates of working through the United Nations underestimate the contempt in which that organization is held among a very substantial percentage of the American people. The United States is in a rather Jacksonian mood these days. It is a long time since America has fought a war with Jacksonians in command, rather than merely in a supporting role.
The 1990s may have been for the United Nations what the 1930s were for the League of Nations: a decade of ineffective hand-wringing that turns out to have carried a very high opportunity cost.
Another terrorist attack against the United States as costly as the Sept. 11th attacks, or worse, could see, among many other fallouts, an effective dismissal of, if not outright withdrawal from that organization, by America. Thus it is worth seeking some further endorsement from the U.N., but it would be primarily for international effect. In itself, it would not count for much with the people of the United States.
A congressional resolution would have somewhat more resonance with the American people. However, current maneuverings in Congress demonstrate how problematic such a course can be. For example, the congressional process may end up imposing conditions upon its approval, conditions that could be difficult to interpret if events took an unexpected course. Furthermore, it is unclear to what extent such limitations could be enforced after the fact, since the executive branch's emergency powers are extremely broad.
A declaration of war, in contrast, is a well-defined and well-understood action. The war powers of the presidency have been defined and tested in a long series of historical actions. Likewise, the oversight powers of Congress in wartime have been well-established by precedent. Many of the actions against domestic terror suspects, now somewhat problematic under law, would then be placed in the context of well-established precedents for dealing with such issues.
Above all, a declaration of war would signal to the American people and to the armed forces that the republic was fully in earnest, and would not stop until the job had been done. The administration may shrink from seeking a declaration from concern that, if it were to fail, it would prevent any effective action thereafter. However, seeking a declaration would elevate the issue to a level of seriousness that would in fact increase its chances of passage. Rather than seek to set conditions upon a resolution, as at present, Congress would be better occupied creating a resolution regarding war aims, which would be useful to the struggle.
War-without-war has proven disastrous for the United States whenever the duration and scale of combat has exceeded the category of small intervention. Unless we can be sure an invasion of Iraq would not exceed such, a declaration of war would better serve as a decision point for the nation than either a congressional resolution or an action of the Security Council.
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