If I had to choose, though, I'd have to say declaring war is a damn good idea. In a fistfight, there's a huge difference between saying, "OK, meet me outside, I wanna punch your face in," and, on the other hand, just sucker-punchin some guy or tellin him, "I'm gonna punch your face in, but I'm not gonna tell ya when or where or how. Better sleep with the lights on."
In the first case everyone says, "Uh-oh, that guy's mad and he wants to settle it." In the second case, everyone says, "What a jerk."
The only honorable way to have a fistfight -- or a lawsuit, for that matter -- is to announce to the whole world that you're gonna whale on this person at a particular time and a particular place, so GET READY. As of tomorrow, your only name to me is "enemy."
But the last time we declared war was 1941. I've been listening to that great speech by President Roosevelt -- "a day which will live in infamy" -- but I had always thought it was just a radio address. It wasn't. It was a speech to Congress asking them to declare war. FDR assumed he needed their permission, because, among other things, Article 1, Section 8, of the Constitution says he does.
Pearl Harbor was attacked on Dec. 7, the speech was made on Dec. 8; it lasted seven minutes. And the declaration of war was passed the same day. The declaration is a simple paragraph, 134 words long. Business done. Japan on notice -- not just from the president, who is, after all, just one guy, but from the people.
So why didn't we declare war in this case? Are the Congressmen wimps? Maybe so. I read about two dozen interviews with various senators and representatives on the day after the attacks, and they all said they wanted to give the president "whatever he needs," but on the big question -- should we declare war? -- they all said, "Well, uh, gee whiz, I don't know, it's kind of, we'll take a look at that."
What is so SCARY about declaring war? We declare war on drugs. We declare war on disease. If you run an Internet search on the words "declare war," you get declarations of war on junk e-mail, diabetes, copyright law, pessimism, telemarketers, climate change, cellular phones, net music, satellite dishes, and that menace to all mankind, teenage tanning. So people obviously know what it means to declare war. They just don't want to declare it on actual PEOPLE.
In this case, you had three choices. You could declare war on al Qaida, declare war on the Taliban, or declare war on Afghanistan. Or you could declare war on all three. The advantage of it would be that everyone would know exactly who the bombs were directed against.
But now it's all messed up. Look at the situation of Johnny Walker, or, as the New York Post calls him every day in 96-point Bodoni type, "The Rat." He started fighting for the Taliban back in May, when our biggest beefs with the Taliban involved the destruction of Buddhist statues and the abuse of women -- an issue that Mavis Leno and her organization forced the United States to care about. We were already demanding they hand over bin Laden, but it wasn't an actual war. The actual war was between the Taliban and Ahmad Shah Masud's Northern Alliance.
Now, we have American mercenaries, idealists, and just plain wackos who fight in wars all over the globe. That's what Soldier of Fortune magazine is all about. They fight in Africa. They fight in Latin America. They just like to fight. If they get captured or killed, we say, "What an idiot." So Johnny Walker was one of these guys, and he was fighting against the Northern Alliance on the 11th, and then, three weeks later, when American bombs started dropping on his position, he was . . . still fighting against the Northern Alliance! If you watched the Pentagon news conferences, the generals were saying, "Well, we would prefer the Northern Alliance not advance too quickly toward Kabul" -- and then, WHAMMO, they were in Kabul lickety-split.
So, obviously, the war was being waged by the Northern Alliance, with massive air support by America. There was no declaration of war, so the legal situation is murky.
If there had been a declaration of war on Sept. 12, and Johnny Walker knew about it, he would have been required to lay down his arms and skedaddle out of there at the earliest opportunity. But first of all, how is he supposed to know anything in a country that bans TV and radio? And second, when he finally DOES get captured and is interrogated, it's not a uniformed soldier of ANY army but an agent of the CIA.
If Johnny Walker says a) he never knowingly fired at Americans, and b) he was fighting for the Taliban to rid the country of counter-revolutionary Afghans, I say he should go free. At the most he should receive the same punishment as every other captured Taliban foot soldier. (In most wars, that would mean surrendering your weapons, swearing an oath to cease hostilities, and eventually being sent home.)
The United States probably did Johnny Walker a favor by lifting him out of there, or else he could have turned up as one of those Northern Alliance prisoners who end up shot in the back of the head with their hands tied.
In other words, he got sucker-punched. He started fighting one war. It became another war. But nobody stated the rules of the new war. It's like joining the Crips so you can fight the Bloods, but in the middle of the battle, a bunch of spooky guys from another neighborhood show up to help the Bloods -- and they turn out to be your family. The most likely reaction to that is to say, "Uh, what are YOU GUYS doing here?" Look at those grainy video images of him, with the Charles Manson haircut, bobbing and weaving like a punch-drunk welterweight on rubbery legs. He's going, "What the hell just happened to me?"
But the larger issue is why we don't seem to want to go through the whole "declaring war" thing anymore. Up until 1941 we were doing just fine. We declared war in the War of 1812, the Spanish-American War, and both World Wars. We didn't declare war in the Mexican War, but President Polk consulted Congress and got funding and a resolution of support. Of course, even that one turned out badly. Two years later, the Congress beat him up for fighting the war at all -- which shows just how important it is to get everyone on board at the beginning.
Instead, we've got "police actions," "surgical strikes," "limited engagements," "tactical support operations," and a dozen other terms that presidents use when they wanna blow somebody up but they don't want the war actually declared by the people.
Presidents Reagan, Bush pere and Clinton all went to war numerous times, but didn't bother getting permission because -- well, because they probably couldn't have gotten permission. But Bush fils, it seems to me, could have rammed through a declaration of war on darn near anybody on Sept. 12. Where was the seven-minute speech? Where was the 134-word declaration?
Some people said, "Well, it's because this is a new kind of war." But that was shot down right away. The Congress had declared war in 1801 on the Barbary Coast pirates, who were plundering American ships and keeping Americans hostage. And Osama bin Laden had declared war on the United States back in 1996. Apparently he understands this stuff. He wrote a speech that is a formal declaration of war! So this is, in fact, not a new kind of war at all but a very old kind of war, more similar to our engagements with Indian tribes that massacred settlers than with anything in the 20th century.
It's almost like we don't want the Congress having this power. But the Constitution gives the power to Congress because the writers didn't trust executives. The executive was supposed to have just barely enough power to be efficient, but not so much that he could go off on tangents of his own. Presidents never really liked that. In 1801, Chief Justice John Marshall had to rule that Congress has "the whole power of war." In 1973, Justice Thurgood Marshall was dealing with the same issue, but he dealt with it briefly: "Nothing in the 172 years since those words [of John Marshall] were written alters that fundamental constitutional postulate."
Whenever anyone writes about this, they always quote the Constitution as saying, "Congress shall have the power to make war." Which is simple enough. But there are actually several other clauses in Article 1, Section 8, making it clear that ALL aspects of war are to be directed by the Congress. They don't just declare war and send the president off with a lance and a shield. They're empowered to tell him where to go, when to go there, and how to fight.
One of the weirder resolutions introduced in Congress after Sept. 11 came from Rep. Ron Paul of Texas, who authored the "Air Piracy Reprisal and Capture Act" and the "Marque and Reprisal Act." Both of those referred to the COMPLETE Constitutional passage about Congress' war-making powers, which goes as follows:
"[Congress shall have the power] to define and punish piracies and felonies committed on the high seas, and offenses against the laws of nations;
"To make war, grant letters of Marque and Reprisal, and make rules concerning captures on Land and Water;
"To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
"To provide and maintain a navy;
"To make rules for the government and regulation of the land and naval forces; . . ."
And then a bunch more stuff about the militia.
The Constitution also says the President is only allowed to act alone for a brief period, when he needs to "repel sudden attacks."
So Paul's idea was to add to the "high seas" part a piracy law that includes the airways, and then to authorize the president to grant letters of Marque and Reprisal.
If you haven't read any Joseph Conrad lately, then you may not remember what letters of Marque and Reprisal are. Letters of Marque and Reprisal were documents given to private ship's captains authorizing them to fight for America against the ships of the enemy. The last time they were used was in the Civil War, but I guess Paul wants to enlist an Air Force of private corporate jets or something and empower them to fly off and attack planes carrying al Qaida leaders.
This is what's so oddball about the modern Congress. They seem to know EVERYTHING about these obscure parts of the Constitution. They knew exactly what "high crimes and misdemeanors" meant -- lying about oral sex -- and will insist on their rights vis-à-vis the executive branch even when the whole country thinks they've gone a little dotty. But they're totally inept at reading the document as a whole, which says simply that, when war breaks out, THEY'RE IN CHARGE.
We did have one president who understood this. He was the first one. When he stood on the right bank of the Delaware with a battered freezing army, knowing that the British fleet was on its way to occupy Philadelphia, aware that his top general had just been captured in New Jersey, knowing that thousands of highly trained Hessian troops could pour across the river as soon as it froze and destroy the revolution forever, he was torn between the choices of going into winter quarters and essentially hiding from the enemy, retreating to Philadelphia to protect the capital, or taking a chance with a surprise attack on Trenton, N.J.
What did he do?
He consulted the Congress.
He not only consulted it during THAT most crucial of moments, but when he couldn't get in touch with it, he consulted whatever available Congressmen happened to be in the area. He consulted the Congress so often, and was disappointed so frequently by their failure to send him money or troops or food, that he sometimes became almost despairing. But he never went over the Congress' head. He believed, even to the end of his life, that if you beg, plead, argue and try to convince, and you repeatedly don't get what you want from the Congress, then you must acquiesce, because the people MUST be given what THEY want.
The Congress told him, by the way, to do whatever he thought necessary. He crossed the Delaware, surprised the Hessians, and turned the war around. And when it came time to write the Constitution, he was most vocal about limiting the power of the executive in war making, even though HE was the executive. With him it was a matter of honor.
Joe Bob Briggs writes a number of columns for UPI and may be contacted at firstname.lastname@example.org or through his website at joebob-briggs.com. Snail mail: P.O. Box 2002, Dallas, Texas 75221.