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
The fact the Roosevelt asked for recognition that a “state of war has existed” (for some period without a formal declaration of such) and Congress, by so doing, gives precedence and Congressional acknowledgement for the legal points we discussed.
Commercial law also gives full acknowledgement that there are two kinds of war, declared and non-declared. The Act-of-War exclusion contained in many property damage policies contains the phrase that …….coverage is not extended to damages as a result of “war, declared or undeclared.”
This again puts “undeclared” war on equal footing with “declared” war.
I would argue that no such astion is necessary, or even proper, as the Constitution gives the power (and responsibility) of Commander in Chief to the President at all times, war or no war.
Unfortunately, those posts are totally incorrect. There was no declaration of war against the Barbary Pirates. Like the resolution passed after 9/11, Congress asked President Jefferson to take action against those who would harm America and Americans, but there was never a formal declaration of war, or anything close to it.
The U.S. has formally declared war only four times, 1812, Spanish-American, WW1 and WW2.
Yes, I know posts on FR say we did declare war, but they are wrong. For backup, check Congressional Archives, Heritage Foundation, CATO. All agree, no formal declaration of war with Barbary Pirates.
Don't feel bad. Wait till you see some of the tin hat posts...
They talk about nations, not states. They aren't the same thing. If a nation attacks the United States, the United States is at war. An entity such as a recognized state or country is not required, a nation will do: The stateless nation of terrorists.
I think it goes deeper than that. A certain segment of people that would blast any Republican administration have latched on to the "absence of declared war" to condemn anything Bush does. They don't really believe the argument but it "sounds right" and gives a thin veneer of respectability to hide their actual agenda.
That I don't know.
So, now, did your research show whether Congress granted any Letters of Marque and Reprisal against the Barbary Pirates?
A Letter of Marque and Reprisal probably wouldn't be needed to get bin Laden dead or alive.
A Letter of Marque and Reprisal, according to my dictionary, is a license granted by a state, such as the United States, to a private citizen to capture the merchant ships of another nation.
So, it probably would not apply, unless bin Laden or the Taliban had some merchant ships, but if they did, the U.S. Navy could handle these without needing the assistance of private citizens. On the other hand, the camel is the "ship of the desert," right? If we stretched the definition of "merchant ship" to include any bactrian camels that bin Laden or the Taliban ride around on, then why not issue some Letters of Marque and Reprisal to some private citizens to go after bin Laden???!!!
Anyway, since you've already delved into this historical research, let us know if the Congress did grant any Letters of Marque and Reprisal against the Barbary Pirates, if you don't mind.
I have seen absolutely nothing on Letters Of Marque so I would only be guessing. However, the 25 million dollar reward on Bin Laden’s head dead or alive seems to be similar wouldn't you say?
But I supported and still do the proposal that Congress Declare War, and here's why:
There would be no doubt, no uncertainty, on the part of anyone whether we were at war or not. Yes, we are at war, I know. But as we all know, a helluva lot of people, mostly brain dead liberals, don't know, or pretend not to know. A Delcaration would leave no doubt.
Also, a lot of people are concerned about the gradual erosion of civil rights. Well, in a Declared War there would also be no uncertainty about removing the right of habeas corpus, if necessary. There would be no dispute, no confusion, and no debate about it. (Or, if there were, the opponents of the war could be shut up pretty damn quickly.) The right of habeas corpus is the one upon which all other rights stand. It can be suspended, legally, under the Constitution when there's an invasion, a rebellion, or if the public safety requires it.
There's been a lot of discussion about the public safety of late, especially about airport security, the anthrax issue, and so on. If war were Declared, then there would be far less controversy about suspending habeas corpus, and it would be viewed as justified, end of story. There would be no dispute about rounding up anyone who presented a threat to public safety.
But, for Bush to do what he's doing, he doesn't need a declaration of war, and frankly, really doesn't need Congress' approval. He's the Commander in Chief of our Armed Forces. Presidents have always had that awesome power to order our military forces into harm's way.
Sort of similar, except that Letters of Marque and Reprisal are for the purpose of seizing the merchant ships of enemy nations.
To put out a reward for bin Laden would not require a Letter of Marque or Reprisal, and I don't think such a Letter would truly apply in this case, since bin Laden's not a merchant ship or a nation.
On the other hand, 25 mil is tempting, and if I were younger and in a "Soldier of Fortune" frame of mind, hells bells, 25 mil could come in handy. ;-)
I wonder if 25 FReepers would want to go in for 1 mil apiece and go over there and bring back that terrorist bastard's head on a pike. Fantasies....
I don't pretend why there have only been 4 "declared wars" in this nation's history I only have intuitive opinions since no one in Congress or the administration has stated their reasons. I will take a shot and give you a few of my opinions:
In the 4 wars that were formally declared we were at war with not only the nation's governments but the people of those nations that provided the governments with popular support.
If we formally declared war would the members of the coalition be required to do the same? I don't have the answer to that.
A formal declaration of war would place certain international treaties in play that may hinder the tactics that we must use in this situation.
Like I said, I can only rely on intuitive reasoning at this point.
First, your history research on this is excellent and to be commended.
Second, didn't William Shatner star in a short-lived TV series about the Barbary Pirates?.... Or am I thinking of some other short-lived show in the 70s? ;-)
Sorry I don't remember it. I believe there was either a tv program or a movie called the "Barbary Coast".
Barbary Coast
Welcome to the Barbary Coast guide at TV Tome.
Show Information
First Aired September 1975
Last Aired January 1976
Running Time 60 min
Country United States
Currently Appears Monday 8:00 PM
Network ABC
Show Stars
Richard Kiel - Moose Moran
Doug McClure - Cash Conover
William Shatner - Jeff Cable
Dave Turner - Thumbs
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.