It's War! Or maybe not. . . .

This is a post that I started quite awhile back and then let sit. That's actually pretty common for posts that appear here.  Frequently they're started and then sit.  Surprisingly little time actually is taken up by this blog, and so big posts, when they appear, have sometimes come about in a very slow motion fashion.

I'm finishing this one up as I just posted one that relates directly to it, that being the one on the apparently forgotten provision of the U.S. Constitution giving Congress, but only Congress, the power to declare war.  That's a pretty important power, and as I note there, I don't think that the framers of the Constitution would have felt that wars, which of course involve death, should be entered into lightly, without the consent of the people.  Seemingly both the Presidents and Congress have been content to ignore that since World War Two, although at least two of the wars fought since World War Two would not have, in my view, required a declaration of war.

So let's look at US wars and see how things play out, historically.

As noted in the other post, the Constitution, at Art 1, Sec. 8, provides:

The Congress shall have power To 

  * * *

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

It also provides:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States . . .

So what does all that mean?

Pretty easy right?  The Congress, and only the Congress, can declare war.  The President is top dog of the military.

Well, maybe not as easy as may seem  Or if it is, it sure has been ignored an awful lot.

What is a war, anyway?

Wars have been called "duels between nations."  And in the era in which duels were quasi legal,that made some sense, in that those contests were subject to a certain code of conduct, and had certain defined rules.  A better definition, however, is that wars are a type of international lawsuit, subject to fairly well defined and strict rules of procedure and conduct, much like lawsuits are. For that matter, duels were also, but that's because lawsuits and duels have a common origin, as odd as that may seem.  Trial by combat was widely accepted as a legal means of settling private disputes in the Middle Ages, and was really only outlawed when it became to expensive for society, replaced by civil litigation.  Even at that, for "affairs of honor" duels were tolerated, if illegal, for centuries, albeit governed by a strict code of conduct.

Wars are like lawsuits. The Combatants have a species of legal relationship between each other, and the law governs the State of War between them.  War can, moreover, only be engaged in between sovereign states, who are the only entities which can legitimately wage war.  Wars begin with a Declaration of War, and when one country has had enough, that country "sues for peace" and a treaty of peace, or a complete surrender, ensues, returning a State of Peace.

Well, that's nice, but what does it mean really, and hasn't that been pretty much what's happened all along?

The United States has fought in a lot of armed conflicts, if an armed conflict is defined as the committment of our military forces against some other armed, organized, body.  It's interesitng to see how many were declared wars, and how many were something else.  Here's the list I can think of, off hand:

1. The Revolution.  No Declaration of War, really, but the Continental Congress did declare that a state of war existed between the United States and the United Kingdom, so we can regard that as a declared war.  The British were somewhat slow to regard it in that fashion, but by the end they did somewhat, if never formally.

2.  The Whiskey Rebellion.  Rebellions aren't wars, because if you recognize the legitimacy of the rebels, you recognize their sovereignty.  This was the country's first insurrection, but it wasn't really much of one at that.

3.  The Barbary Wars.  Here's an odd one, it's our first foreign armed conflict, and while our opponent is sometimes regarded as having a been a stateless entity, Congress did declare war..  Thomas Jefferson committed the Navy to the principal of Freedom of the Seas, which we've been proponents of ever since. That required him to take on the Barbary Pirates, which were less pirates than quasi sovereign Moslem principalities.   Given the distance involved, the Navy pretty much had to act on the spot, which it did, engaging on both the land and the sea.

In some ways, this conflict is amongst the most analogous to our current war in Afghanistan, except that a declaration of war was made, which is a significant legal difference.  This is amazing to think of.  Congress took the duty to declare war so seriously, at this point in our history, that it actually issued a declaration of war against a quasi sovereign in what would now be regarded as sort of a semi minor police action.

4. The Naval War on Revolutionary France.  Almost completely forgotten, before we took on the British in the War of 1812, we took on Britain's opponent, Revolutionary France.  No war was declared, but that's because Jefferson was winking at the Constitution, making this the first of our questionable conflicts.  It's iffy if our actions were legal or not, but neither nation saw fit to declare war, and Congress didn't press it, even though there were those who were eager for such a declaration.  Jefferson correctly, if not legally, realized that this would throw us into a full scale war as an ally of Britain, which would have been a bit strange at the time, so he skillfully avoided that.  The war had to be ended with a peace treaty, pretty much showing that it was a real war.  Additionally, given that this war came in the same time frame, in which Congress did see fit to declare war on the Barbary states, it's clear that the concept of declaring war was a strong one.

5.  The War of 1812. The US did declare war on the United Kingdom, and we pretty much got our heads handed to us.  For many years, we denied this, if we thought about it at all, but basically the UK, which had a better position at law than we'd like to admit, worked on defeating Napoleon and ignored us, loosing one significant naval battle, until it had the time to put us in our place.  In the meantime, Canadian militias pretty much pounded us ever time they got the chance.  The war ended when the British told us to agree to a peace or it would really hurt us bad, and we agreed with them.  A real peculiarity of this war is that its supposed cause wasn't that much different than the cause of the undeclared war with France, but if we had won it, we would have stood to gain a lot more.

6. The Mexican War.  After the war of 1812, we took a break in wars (almost, see below) and didn't fight with any sovereign governments for awhile.  It's of interest to note, however, that the gap between the War of 1812 and the Mexican War, a period of a little less than 30 years, was actually an exception to the rule at the time.

The Mexican War, for those with a long historical memory, is the US's most controversial war.  American historians commonly agree with Mexican historians that it was a US land grab, but the real history of the war isn't quite so clear.  It was probably the most inevitable war the US ever fought, and it was the most unpopular war in some regions of the country we've ever fought.  It had the highest desertion rate of any war we've fought, and it's the only war we've ever fought were our opponent was able to form a unit in its own army made up of our deserters.

It's also a freakishly American war, in that the war, fought from 1846 to 1848, so the US desperately trying to get out and refusing to completely take over a completely defeated opponent.  Save for Britain, most European powers would have simply annexed Mexico if they were in our shoes. . . completely.  Britain would have probably departed but left a controlling entity.  We took a huge landmass that had belonged to Mexico, as Mexico likes to remember, but most of it wasn't actually in Mexican control, so the grab, if that's what it was, grabbed stuff that the Mexicans weren't controlling, for the most part.

 Stereocard of monument to U.S. troops who died in the Valley of Mexico during the Mexican War, one of the most controversial and most publicly disliked of U.S. wars.  It was also the first U.S. War that was photographed in any fashion.

7.  The Mormon War. The Mormon War? What? Yes, this was, from the US's point of view, the second time that the US committed troops against a rebellion.  Now nearly completely forgotten, the war broke out when conflict arose between the US and the Mormons regarding Mormon practices and Mormon control of Utah politically.  The cause and origin of the war remains in debate, but it was a real war that saw the US commit very significant forces to a distant region in order to put the rebellion down. The rebellion itself sort of dribbled out and peace was restored after significant US forces arrived in the region.

Termed a war, it isn't, legally, as Utah wasn't sovereign.  It was a domestic insurrection.

8. The Civil War.  The Civil War wasn't a war either, although it is certainly the most war like non war we've ever fought.  Legally, the South was never a sovereign nation as the U.S. Supreme Court determined, post war, that the Southern states had no legal basis to effect a succession from the United States, and therefore they were simply rebellions states.  As no foreign nation ever recognized the Confederacy, a necessary event for sovereignty to exist, the South was never sovereign anyhow.  None the less, even the Union recognized that the rebellion was so close to a state of war, that it took on the character of a war, and treated the Confederate forces as legitimate armed combatants, which the North had no legal obligation to do.  Indeed, under the law of the period, the North could have treated every Southern soldier as a traitor, which would have been a bad move, but which also would have been bad for them.

 Pennsylvania cavalrymen during the Civil War. The bloodiest war the US has ever fought, technically, it wasn't a war at all.

9.  Okay, before moving on to the next war with a foreign power, I'm going to mention the Indian Wars. Were they wars?  Interesting question.  They lasted, however, basically from 1776 to about 1906.  Longer, actually, as Indian wars were a feature of colonial life long before the US severed its ties with the United Kingdom.

Those who follow such things will be quick to point out that there was never a declaration of war against an Indian nation. That's true, but what's missed there is that their sovereignty was in fact recognized by the US. That's right.  Indian Tribes were sovereign nations, in the eyes of the US. They still are too.

Under a complicated set of legal theories, they were a species of strangely lessor sovereignty, and the US Constitution reserved dealing with Tribes to Congress.  For that reason, no declaration of war was never necessary, legally, to engage in combat with them, as odd as that may sound now.  So the Indian Wars can be regarded as not only wars in fact, but wars legally.

If looked at this way, the United States was in pretty much a continual state of war from 1776 up until about 1890, more or less.  There were gaps in there, but not all that many.  Oddly, the worst of these wars all came before the Mexican War, contrary to the popular imagination, as the US Army was very weak prior to  that period, and most of the fighting was between Tribes and Civilians or Tribes and Militias, there being at the time next to no difference between the two (civilians and militias) on the American side.  Prior the Army policing the Frontier, almost all Indian Wars were fought on a no quarter basis by both sides.  The introduction of regular forces to these wars tended to actually introduce a controlling element into them.

An interesting fact about the Indian Wars is that the US recognized them as real wars to the extent that it recognized the Indian right to bear arms against the U.S. in them.  As late as Wounded Knee, generally regarded as the last big Indian Wars event, this came into play in that one Carlisle Indian School educated Indian combatant was tried for murder for having participated in the event and having killed a soldier in it.  He admitted that he had, and that his action was intentional, but the court acquitted him of wrongdoing on the basis that he was an armed combatant fighting in a state of war.

Geronimo and fellows, legal combatants.

10.  The Johnson County War.  Okay, this isn't in here fairly, but just to note that things like this occasionally occurred.   This war was one of many private wars fought in the American west, but it's unusual in that the Governor of Wyoming, Governor Barber, who was really fairly complicit in the Invasion of Johnson County, declared as state of insurrection to exist when it got out of hand and his buddies starting getting pounded.  Relying on the Governor's statement, President Harrison committed Federal troops to the matter to restore order, who did so by arresting the Invaders, which wouldn't have been what Barber had in mind, but it did keep them from getting killed.  Not a war, but an suppression of a domestic rebellion, basically.

Federal troops also became involved in the Lincoln County War, in New Mexico, which was similiar, in a way, in that it involved private combatants.

11.  The Spanish American War.  This war, started in 1898, provides the best example of a war fever war in American history.  The theoretical causes of the war, the sinking of the USS Maine and Spanish brutality in Cuba, turned out, retrospectively, to be largely in error.  The Spanish didn't sink the Maine, and they weren't really uber nasties in Cuba.  In a lot of ways, this war happened simply because Americans suddenly took offense to a colonial power still hanging around in the hemisphere, and we wanted them gone.

 The USS Maine in Havana Harbor.

This war also turns out to be freakishly American in some ways, as we didn't take over Cuba, and we did engage in some serious efforts to aid it, after booting the Spanish out.  Cuban public health massively improved under our tutelage, which is something we hadn't started out to do,  and which shows, perhaps, that we were more attentive than the Spanish.

12.  The Philippine Insurrection.  An accidental byproduct of our war with Spain, we ended up with Peurto Rico, Guam and the Philippines.  An insurrection against the Spanish was already going on when we showed up in the Philippines and it soon turned into one against us.

This war is not a war, as we regarded ourselves a legitimate occupying power. After all, Spain gave this area up to us, and we didn't intend to stay.  We didn't regard the islands as self rule worthy at the time, but intened to get them up to shape.  We sort of did, which took us all the way to the 1940s, but even after that the country had 40 years of rocky leadership.

This war was the first American non war in a foreign jungle, and it just wouldn't end.  To some degree, it never really did end, although we declared it over in 1907. The fighting didn't really end, however, it just slowed way down.  A true end to it sort of came in some areas when the Japanese invaded, and then they inherited it.

This war was also oddly similar to some ones we have been in recently.  After the initial stages of it, in which Phillippine Catholic democrats were put down, the war became one against Moslem insurgents.  They proved tough to conquer, and we basically never fully did.  We did enough to leave the country, 40 years later, as one single country, but even now it smoulders a bit.  The entire episode became very nasty, and very unpopular in the US.  The war probably would have resembled the Vietnam War in lack of popularity, had press coverage been at an equivalent level at the time.

13  The Boxer Rebellion.  The Boxer Rebellions was the first instance in which the US participated in a multi-nation mission.  In this instance, it was a military mission in China which the major European powers were bigger participants in, directed against Chinese forces seeking to expel foreign influence.  This would not be classified as a war as there would have been no sovereign entity to declare war against.  It's the first US military action that bears a strong resemblance to modern multi national actions, although the colonial element of this one was pronounced.

14.  Intervention in Mexico.  This series of events strikes me as the most analogous in US history to the current conflict in Afghanistan, other than that Mexico is next door.

This isn't a war, but a series of armed interventions that commenced in 1913 when Mexico descended into revolution. The first intervention, at Vera Cruz, was undertaken to protect American lives and property, but it also saw the U.S. Navy prevent a German commercial ship from landing arms in Vera Cruz, which was technically an act of war against whoever the legitimate Mexican government was.  As there wasn't one, it probably wasn't such an act, as Mexico was in full blown rebellion at the time.

After that, the interventions really got rolling in 1915 when revolutionary general Pancho Villa crossed the US border and raided Columbus New Mexico in retaliation for the US allowing Carranza to transport troops across Texas by rail.  What President Wilson was thinking in allowing Carranza to do that remains a question, but it was a bad move on his part which ultimately lead the US to a protracted campaign in Mexico.

From there, things got really weird as the US never did catch Villa, although it fought troops of his Army Del Norte from time to time.  It also, however, ended up fighting the Carranzaistas, who the US regarded as the legitimate government.  The whole thing was a mess.

The popular version of this story is that the whole thing wrapped up priro to World War One, but it didn't.  The US continued to commit troops across the border in to the early 1920s, in retaliation to cross border raids from "bandits." The whole episode was later basically forgotten, but it's a supremely interesting one in a lot of ways, from its tactics, implements, firsts and analogies to the present.

 John J. Pershing, commander of the Punitive Expedition, and later commander of U.S. forces in Europe during World War One.

15.  World War One.  World War One was our first declared war in twenty years, but in that twenty years there hadn't been a day of peace .  Anyhow, World War One is well known, of course, and all of the major belligerents had issued declarations of war.

 African American doughboys, World War One.

16. The Banana Wars.  The Banana Wars were not one single event, but an entire series of interventions throughout Central America and The Caribbean.  Starting with the end of the Spanish American War and running up to 1934, these wars saw some intense fighting but were generally limited to actions that the Navy could undertake.  It's amazing to think of in a modern context, as these actions occurred on a very frequent basis over a 30 year period, something the American public would not tolerate now, or at least would not tolerate through the deployment of ground forces the way that they did.

17. World War Two.  Like World War One, this was a declared war and needs no explanation.

 Marines on Okinawa, World War Two.

18.  The Korean War.  The Korean War wasn't a declared war, but a conflict, and President Truman didn't ask Congress's permission to commit forces to stop North Korean aggression against South Korea, although Congress shortly became involved in various manners, and therefore did approve of the action.  For a non war, this was a big one, with 50,000 American causalities.

This is also the first war in which the United Nations took an interest.  With the USSR boycotting the Security Council over the UN's declination to admit Red China to the UN, the UN acted to condemn North Korean aggression and the US mission became part of  UN effort.  This was the first post WWII coalition war.

The Korean War virtually became a template for all American post World War Two wars.  President Truman opted to commit troops to Korea and did. Congress followed behind and approved the funding.  Truman was careful never to seek a declaration of war, but perhaps he legally should have.  The North Korean government was a legitimate, if nasty, one and therefore a real declaration may have been a legal necessity.  Congress seems to have never seriously questioned the action of sending in troops, what with the results of Czechoslovakia just prior to WWII still fresh in mind, and of course the original intent was simply to stop the North Koreans, rather than occupy the country. Still, limited intent though it may be, Congress' failing to act is questionable.

 U.S. soldier in Korea, Korean War.

19.  The Vietnam War.  Like the Korean War, this wasn't a war, but a conflict. Technically, the United States was aiding a sovereign power, the Republic of Vietnam, against a domestic insurrection supported by a foreign set of sovereigns.  

The Vietnam War has a very odd early history that's often forgotten.  The US had declined to become involved in the French effort in Vietnam, which left lasting resentment with the French, who would pull out of the military portions of NATO in the 1950s partially out of resentment built up here, and over Algeria. The US sort of crept into involvement in the late 1950s, and by the early 1960s it was actually Australia, not the US, that was clamoring for a commitment of Western troops, something the Australians have sort of forgotten as blaming the US for their experience in Vietnam became common.  Australia actually informed the US at one point that if the US did not begin to become more involved, it would.  About that time, the US tried to make the war in Southeast Asia a South East Asian Treaty Organization project, but that failed to occur, so the US ultimately became the leading foreign power in the effort to keep South Vietnam from falling to the Communists.  Because of the nature of this war, which was principally a domestic insurrection supported on both sides by outside powers, it's difficult to image a declaration of war even being possible, although later day critics of the war have suggested that one would have been more legally proper.

Late in this war, the US entered the territory of Cambodia, which some people will tend to treat as a separate event, but which really isn't properly considered so.  Often termed an "invasion,", which is perhaps technically correct, the same era saw deep divisions in the Cambodian government with that country's military supporting US action against communists on its soil, but with the head of state, a prince, opposing it.  The action was really an incursion into a neutral party's soil, which could be regarded as an act of war, but which was not treated that way. The same thing happened in regards to Laos during the war on more than one occasion.  All of this reflected the regional nature of the contest, which saw the communist forces make use of neighboring territories.  In this fashion, this war bears an odd resemblance to the Indian Wars in which the US and Mexico recognized a right to cross each others borders in pursuit of warring Indian tribes.

 Two members of the U.S. Army's Special Forces in Vietnam, with members of the Army of the Republic of Vietnam.

20. The First Gulf War.  Our first war against Iraq was also not a declared war, but rather a commitment of troops by the President in aid to a foreign power, that power being Kuwait.

The problem here is that it isn't so much like the Vietnam War as it is like World War Two, or perhaps the Korean War, in its basic nature.  We committed troops against a foreign sovereign and had to occupy its territory.  Its hard not to view that as a real war, in which case a declaration of war should have been necessary.

21. The Balkans. President Clinton committed the Air Force to action over the Balkans in the 1990s, in the one and only example of a war ever being won through air power. Again, it wasn't a declared war, and for that matter was hardly even noticed.  This ones a closer call.  Our actions would legally have been a causi belli justifying a declaration of war against us, but it wouldn't seem that our actions were so extensive that we would have been required to declare war ourselves.

22.  The Second Gulf War.  The second war against Iraq was also undeclared, although in its case it more strongly resembled a nation v nation contest than any war the US had been in since World War Two.  Congress came close to voting on it in a fashion that resembled a declaration of war, and likely would have declared war if asked, but they were never asked.  This war is arguably two wars, as the first war against Baathist Iraq concluded and then, shortly thereafter, a second one against insurgent forces commenced.

 US troops in the guerrilla phase of the second Gulf War.

23. The Afghan War.  The current war in Afghanistan commenced as an invasion of what was essentially a stateless nation, as the country lacked a real government.  Indeed, its lacking a real government is what made it a haven for Al Queda.  This war also lacks a declaration, but there would have been nobody to declare war against, although in some ways this isn't too different from what occurred with the Barbary Wars.

 U.S. Army soldier in Afghanistan, photo by U.S. Army National Guard photo by Sgt. Margaret Taylor.

This list is arguably not complete, as various military missions could be added and would be by some people. The US, for example, invaded Grenada during President Regan's terms.  Was that a war?  Well, maybe. But maybe it was more of a localized military action of the type which generally hasn't been regarded as a war. For example, the US engaged in a punitive expedition in South Korea in the 19th Century which is regarded as a war, and in fact which is barely even remembered.  And we engaged in a naval battle with Japan during the Civil War, but that doesn't rise to the level of a war.

Others, it would be noted, would omit some of the conflicts on this list.  Was the Punitive Expedition a war?  Well, not a war like World War One, anyhow.

A remarkable item about this list is how many conflicts there are listed on it.  Indeed, if we include everything on it, the US would not really have had a year of peace from 1776 until 1935, really.  A lot of those years didn't see a lot of armed conflict, but they saw a little in most of them. 

But, the most remarkable thing on the list is that of the 23 conflicts listed, only seven featured declarations of war.  If we include the Indian Wars, and arguably we should, eight of the conflicts were "legal" wars.  Three were incidents of suppression of rebellions, and those cannot feature a declaration of war. That would still leave us with 13 conflicts that did not feature a declaration of war, and which do not come under an exception that would preclude a declaration of war from being necessary.

Does that make those wars illegal?  That is, without a declaration of war, were the wars invalid? That's a closer question.

It's clear that Congress can declare war, but must it, under certain circumstances? That is, if the President commits troops into action against a foreign sovereign, is a declaration of war necessary?

Well, the Constitution does not say that the United States may only engage in warfare if Congress declares war.  And it also says the President in the Commander in Chief of the Armed forces.  That would seem to suggest, as Presidents have argued, that the President can commit troops anywhere, anytime. But if that were the case, why would the Constitution provide that Congress, and not the President, declares war, and issues letters of marque and reprisal?

What would seem to be clear is the framers, living when they did, and doing what they did outside of Congress, were pretty familiar with the legal definition of war.  They were also, however, with the limitations of 18th Century communications.   Congress, in the late 18th Century, saw it as a very real possibility that a war could erupt via foreign, probably British, invasion, which would require state governors to meet the foreign army with mustered militia, and which would require some time prior to Congress being able to declare war.  It also, however, contemplated that Congress would, or at least might, need to declare war.  It needed the ability to allow the President to act in crisis. And, frankly, the Constitution was drafted in an era when the memory of monarchs taking the field of battle still existed, even though it had largely passed, so the idea of a President actually commanding troops in the field didn't seem that odd.