Posted on 11/20/2001 6:05:04 PM PST by Texasforever
One of the more frustrating debates about this “war on terrorism” being discussed on the forum has been the legitimacy of Bush’s recent actions in light of the fact that Congress has not formally issued a “Declaration of War”. It is argued by a large contingent of libertarians and paleo-conservatives that all military actions and presidential powers exercised as the Commander in Chief in war time require this formal declaration by Congress to meet Constitutional muster. The other side, the “Bushies” for lack of a better term, argue that this is a different circumstance from any we have ever faced and that we are at “war” with a virtually faceless enemy and we have no idea from one day to the next where and in what country he will rear his ugly head and in which country we will be forced to assert military power in order to stop future terrorist activity.
The pro-formal DOW side and many media reports point to the “War on the Barbary Pirates” as the precedent we should be using. That has become the conventional wisdom and has been used to point out the model that Bush and Congress should be using. It does appear to be a very strong and compelling case and has had many of us, even some of us “Bushies” scratching our heads and wondering. It started me wondering about how the wording of the formal “declaration of war” on the Barbary Pirates read and so I started doing a search. The results were that the conventional wisdom appears incorrect.
From my research I have found that indeed war was declared on the Barbary Pirates, it was declared by President Jefferson, just as President Bush has declared war on terrorism. However; the Congress never formally declared war on the BP, in fact no lesser person than Alexander Hamilton stated outright that a formal declaration of war was NOT required when the nation was attacked by a foreign enemy and it was that interpretation that Congress embraced at the time. The Congress passed a joint resolution authorizing Jefferson to act much in the same way as the Terrorism Joint Resolution authorized President Bush to assume war footing as Commander In Chief.
I am attaching several references to this research. I think honest debate requires accuracy in the references we use to make our cases. I also know that this could be wrong on my part and if there is information to the contrary I am sure that many on the forum will correct the error. I hope this helps to do that.
Declaration of War
In the early draft of the Constitution presented to the Convention by its Committee of Detail, Congress was empowered ''to make war.''1412 Although there were solitary suggestions that the power should better be vested in the President alone,1413 in the Senate alone,1414 or in the President and the Senate,1415 the sentiment of the Convention, as best we can determine from the limited notes of the proceedings, was that the potentially momentous consequences of initiating armed hostilities should be called up only by the concurrence of the President and both Houses of Congress.1416 In contrast to the English system, the Framers did not want the wealth and blood of the Nation committed by the decision of a single individual;1417 in contrast to the Articles of Confederation, they did not wish to forego entirely the advantages of executive efficiency nor to entrust the matter solely to a branch so close to popular passions.1418
The result of these conflicting considerations was that the Convention amended the clause so as to give Congress the power to ''declare war.''1419 Although this change could be read to give Congress the mere formal function of recognizing a state of hostilities, in the context of the Convention proceedings it appears more likely the change was intended to insure that the President was empowered to repel sudden attacks1420 without awaiting congressional action and to make clear that the conduct of war was vested exclusively in the President.1421
An early controversy revolved about the issue of the President's powers and the necessity of congressional action when hostilities are initiated against us rather than the Nation instituting armed conflict. The Bey of Tripoli, in the course of attempting to extort payment for not molesting United States shipping, declared war upon the United States, and a debate began whether Congress had to enact a formal declaration of war to create a legal status of war. President Jefferson sent a squadron of frigates to the Mediterranean to protect our ships but limited its mission to defense in the narrowest sense of the term. Attacked by a Tripolitan cruiser, one of the frigates subdued it, disarmed it, and, pursuant to instructions, released it. Jefferson in a message to Congress announced his actions as in compliance with constitutional limitations on his authority in the absence of a declaration of war.1422 Hamilton espoused a different interpretation, contending that the Constitution vested in Congress the power to initiate war but that when another nation made war upon the United States we were already in a state of war and no declaration by Congress was needed.1423 Congress thereafter enacted a statute authorizing the President to instruct the commanders of armed vessels of the United States to seize all vessels and goods of the Bey of Tripoli ''and also to cause to be done all such other acts of precaution or hostility as the state of war will justify . . .''1424 But no formal declaration of war was passed, Congress apparently accepting Hamilton's view.1425
I think that is exactly right and the fact is that that is what Jefferson and Congress thought also. The point of this post was to try to clear up the argument that Congress "declared war" on the Barbary Pirates and that this congress should follow that precedent otherwise Bush is not exercising his war powers as CIC in a time of war unconstitutionally. The fact seems to be that he AND congress are following the exact model that Jefferson and his congress used.
First of all it is difficult to imagine Thomas Jefferson ignoring the constitution. That was not the point. The point is that there are many assertions that congress formally declared war on the Barbary Pirates. That does not appear to be the case.
It is an exceptionally clear piece of writing. I have been avoiding use of the term --war--, but now I see there is no reason to continue doing so.
Looks like the Bush team knows history a lot better than their detractors. After all, that was GWB's area of study as an undergrad, lol...
-penny
Ahh, good point.
I think Saudi Arabia, Iran and Egypt also know this history. It explains why when their respective Mullahs, declared Jihad against us for Afghanistan, the governments immediately and publicly made statements that they did not agree with the Jihad/war declaration.
Well not quite, they still have to authorise and appropriate the necessary funds, if any are required beyond those already appropriated and authorised that is. Congress has done so in this case. We ARE at war.
As I read what seems to be the prevalent interpretation, if we are attacked we are at war. It's only if some nations acts against us in a non violent manner that none the less is a cause belli, a blockade perhaps, that Congress needs to Declare War.
Interesting how we've all been brainwashed since the Korean War at least into thinking we could not be at war unless Congress declared us to be. Kinda changes the notion that Treason is only a crime if Congress has declared war, now doesn't it? Hanoi Jane, et. al., are you reading this?
Very impressive researching!
Thus, would it not be appropriate for the president to ask Congress to declare that a state of war has existed between the United States and Al Qaeda since September 11, similar to Roosevelt?
The Barbary Pirate war has come to light as the "gold standard" for how we handle an enemy without borders and Bush has failed to use that precedent to justify his actions. That however does not appear to be the case. He has used exactly that precedent. Bush AND congress appear to be on firm historical constitutional grounds so far.
It's not so much a question of ignoring the Constitution, as understanding what it means, how it was understood by those who wrote and ratified it. In this case the notion that Congress must declare War or there is no legal state of war existing seems to be a Vietnam or maybe post Korea, invention. Bush-I got Congressional authorization for the use of force, as did Bush-II, as did Jefferson. The same Jefferson who wrote:
"On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed." --Thomas Jefferson to William Johnson, 1823. ME 15:449
No, Tripoli, now Libya, was extorting protection money to keep the pirates at bay. Tripoli declared war on us when we refused. There was a nation, much like Afghanistan declared war on us, in that mix.
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