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
Jumping ahead. Not always a good plan.
It comes back to the idea of property rights. Alqaida has staked out its territory, but they are claim jumpers, without the sponsorship of Taliban any longer; America no longer recognizes their property rights. They claim they can destroy America. America is denying them that right. America is going further and claiming Alqaida shall cease to exist. Say goodbye to the nation of Alqaida. They named the game, we shall play it out by our rules. It's the law.
the infowarrior
LOL, those flight 587 threads are classics in the fine art of conspiracy building.
That is interesting. I am just thinking that the founding fathers were totally into using specific words with specific meanings, something that we are not so careful about. So when they said "nation" I am wondering what exactly they meant. We confuse country and nation and state so thoroughly that they might as well mean exactly the same thing. The same for republic and democracy, practically interchangeable now.
I think you have hit on a key distinction. Nations are indeed different than states, the terms Cherokee nation, Sioux nation and the Nation of Islam come to mind. Words ,and their definition, are not only crucial in the diplomatic realm but in the every day language of discourse. We have lost the ability to understand that common usage does NOT negate the original meaning of words that were coined. I remember when “gay” meant happy.
EXACTLY.
It was interesting, and in some ways very disappointing to watch.
By the time people are old enough to post on FR, you would think they would understand logical thought process, critical thinking and scientific method.
It was amazing to watch a comment from one person be extended into a completely false statement within 30 minutes. Being very conservative myself, and a self-confessed "gun nut," I had always taken the term "right-wing whacko" with a grain of salt.
But in reading the posts re: 587, it was incredible to watch it unfold on the computer screen. People would get things absolutely, factually wrong, others would expand them, and then someone else would use the misstatement as the base of their next argument!
At one point I was considering posting a story, sort of an April Fools piece, about Hillary and the SwissAir crash off Newfoundland. It would begin with the basic facts, then embellish on them, taking it to the moderately absurd. Finally, with that as a (false) base, I would take it over the top. The idea would be to show how far from reality some people would go. Now, I think posting something would like that would be akin to shouting "fire" in a crowded theater.
I love and respect JR for what he has done here, but with some of the whackos here, I hope no one ever does something seriously criminal and blames it on FR!.
There, I have had my morning rant! Thank you for listening. The coffee is beginning to kick in, soon I will go have a good poo, and all will be right with the world!
Have a great holiday. (PS: Spent a few years in Amarillo!)
the infowarrior
I know. When cramming some language and culture courses preparatory to studying abroad in Germany, I found discussion of the government system of Germany would induce immediate total chaos to the class, and we hadn't even begun to discuss the various political parties.
The actions taken against the Bey of Tripoli and the Barbary Pirates was confused and maudlin.
When Jefferson took office In early 1801, the United States had a large merchant fleet taking full advantage of Europe's maritime incapacity stemming from the Napoleonic conflict. In the Mediterranean, the pirate navies of the southern Mediterranean coast, the so-called Barbary pirates, had sorely afflicted this commerce. The United States had signed treaties with the sponsors of the piracy, but their terms were demeaning, and the territorial chieftans were ever alert to use transient advantages to extract further concessions. Moreover, they violated the treaties frequently and casually. By 1801, Tripoli had become the most insistent in the clamor for higher tribute and the most flagrantly insulting of the petty states. Jefferson had earlier concluded that the application of naval force was a cheaper and far more honorable way to solve the problem. Accordingly, he dispatched the bulk of the fledgling navy on a show of force and diplomatic mission to the area. Before it arrived, Tripoli had declared war and altered the character of the task.There were four experienced United States consuls operating in the territorial states along the North African coast. Armed with the requisite diplomatic authority, they were well suited to lead the naval/ diplomatic foray. However, James Madison, the Secretary of State, elected to confer primary authority for the undertaking upon the leaders of the naval squadron, the commodores. Not only did they prove inadequate for the diplomatic work, their heart for naval combat was also wanting. To further compound these difficulties, the interaction between the consuls and the commodores was abrasive and divisive.
The consequences of inaction, blundering, and uncoordinated effort were catastrophic for American policy. After dedicating the greatest portion of its available seapower to suppressing the Barbary pirates, the United States, after two years, could show no evidence of progress.
Here is a clear example of a Letter of Marque, issued in 1543 and showing the priviledges and procedures such instruments provide:
English Letters of Marque
Henry VIII
1543
The King's most royal Majesty being credibly informed that divers and many of his most loving faithful and obedient subjects inhabiting upon the sea coasts, using trafic by sea, and divers others, be very desirous to prepare and equip sundry ships and vessels at their own costs and charges to the sea for the annoyance of his Majesty's enemies, the Frenchmen and the Scots, so as they might obtain his most gracious licence in that behalf, Hath, of his clemency, tender love, and zeal, which he beareth to his subjects, by the advice of his most honorable counsel resolved and determined as hereafter followeth:
First his Majesty is pleased, and by the authority hereof giveth full power and licence to all and singular, his subjects of all sorts, degrees, and conditions, that they and every of them, may, at their liberties, without incuring any loss, danger, forfeiture, or penalty, and without putting in of any bonds or recognizance before the Counsel, or in the Court of the Admiralty, and without suing forth of any other licence, vidimus, or other writing, from any counsel, court, or place, within this realm, or any other his Majesty's realms and dominions, prepare and equip to the seas such and so many ships and vessels furnished for the war, to be used and employed against his Grace's said enemies, the Scots and Frenchmen, as they shall be able to think convenient for their advantage and the annoyance of his Majesty's said enemies. And his Majesty is further pleased, and by this presents granteth to every of his said subjects that they, and every of them, shall enjoy to his and their own proper use, profit, and commodity, all and singular such ships, vessels, munition, merchandise, wares, victuals, and goods of what nature and quality soever it be, which they shall take of any of his Majesty's said enemies, without making account in any court or place of this realm or any other of the King's realms or dominions for the same, and without paying any part or share to the Lord Admiral of England, the Lord Warden of the Five Ports, or any other officer or minister of the King's Majesty, any use, custom, prescription, or order to the contrary hereof used heretofore in any wise notwithstanding. And his Majesty is further pleased that all and every his said subjects which upon the publication of this proclamation will sue for a duplicate of the same under the great seal of England, shall have the same, paying only the petty fees to the officers for writing the same.
And, seeing now that it hath pleased the King's Majesty, of his most gracious goodness, to grant unto all his subjects this great liberty, his Highness desireth all mayors, sheriffs, bailiffs, aldermen, and all other his Grace's faithful officers, ministers, and subjects of this realm, and other his Highness' realms and dominions, and especially those which do inhabit in the port towns and other places near the seaside, to shew themselves worthy of such liberty, and one to bear with an other, and to help an other, in such sort as their doing hereupon may be substantial, and bring forth that effect that shall redound to his Majesty's honor, their own suerties, and the annoyance of the enemies.
Provided always that no man which shall go to the sea by virtue hereof presume to take any thing from any his Majesty's subjects, or from any man having his Grace's safeconduct, upon the pains by his Majesty's laws provided for the same. And his Grace is further pleased that no manner of officer, or other person, shall take any mariners, munition, or tackle from any man thus equipping himself to the sea, but by his own consent, unless his Majesty, for the furniture of his own ships, do send for any of them by special commissions, and where need shall require. His Majesty will also grant commission to such as will sue for the same for their better furnitures in this behalf.
R.G. Marsden, Documents Relating to the Law and Custom of the Sea. (London: 1916), I:155-158.
As you may guess, it is doubtful that this government would permit anyone to pursue and acquire plunder without retaining the right to confiscate the greater part for itself.
Madison did have some strong, and I believe valid, beliefs in the manner in which the awful power of waging war should be constrained:
Every just view that can be taken of this subject, admonishes the public of the necessity of a rigid adherence to the simple, the received, and the fundamental doctrine of the constitution, that the power to declare war, is fully and exclusively vested in the legislature; that the executive has no right, in any case, to decide the question, whether there is or is not the cause for declaring war; that the right of convening and informing congress, whenever such a question seems to call for a decision, is all the right which the constitution has deemed requisite or proper.
--6 The Writings of James Madison 174 (G. Hunt ed. 1906). [1793--Glennon 82]
The Constitution supposes what the History of all Gov[ernmen]ts demonstrates, that the Ex[ecutive] is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl[ature].--6 The Writings of James Madison 313 (G. Hunt ed. 1906). [1793--Glennon 82]
Those who are to conduct a war cannot in the nature of things, be the proper or safe judges, whether a war ought to be commenced, continued or concluded.--6 The Writings of James Madison 148 (G. Hunt ed. 1906). [Glennon 83]
[The decision to go to war is a ] solemn question which the Constitution wisely confides to the legislative department of the Government.--Quoted in Raoul Berger, "War-Making by the President," University of Pennsylvania Law Review 121 (November 1972): 62.
The only case in which the Executive can enter a war, undeclared by Congress is when a state of war has ‘been actually’ produced by the conduct of another power, and then it ought to be made known as soon as possible to the Department charged with the war power.--Quoted in Peter Raven-Hansen, "Constitutional Constraints: The War Clause, The U.S. Constitution and the Power to Go to War: Historical and Current Perspectives, ed. Gary M. Stern and Morton H. Halperin (Westport, Conn.: Greenwood Press, 1994), p. 36. [2 James Madison Letters and Writings 600 (1984)]
I have no quarrel with the manner or methods that President Bush has responded to date; I do believe that it is in both our Nations and our Societies best interests that a firm resolution be voted upon by both Houses of Congress. We need to know who, besides the members of the DSA stand against us in this battle for Western Civilization.
"Contrary to a popular misconception, United States Marines cannot trace their lineage unbroken back to the year 1775 and the beginning of the American Revolution. The last Continental Marines were discharged in September 1783, and their place was not filled for nearly another 15 years. The U.S. Marine Corps was called in to being in 1798, when the North American republic was embroiled in an undeclared war with France.
...Congress passed "An Act for Establishing a Marine Corps" on July 11, 1798.
...The Quasi-War provided the U.S. Marines with few opportunities fro glory, but whenever they came, Burrow's men performed well. The marine guard of the USS CONSTELLATION distinguished itself in that frigate's victories over the L'INSURGENTE and the VENGEANCE. Other marine detachments participated in the successful amphibious operations at Puerta Plata on Santo Domingo and St. Christopher on Dutch Caracao."
United States Military Operations (fas)
Boy, there's a load of undelared wars at this link.
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