Should we Declare War?

Against the Islamic State.

And no, I'm not kidding.

And no, I don't mean authorize the use of force.  I mean declare war, as in Congress acting under Article I, Section 8 of the United States Constitution.

Woodrow Wilson addressing Congress to ask for a Declaration of War against Germany.

The United States Constitution provides, at Article I, Section 8:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare 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;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Congress does pretty much all that stuff, save for its power "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water".  Its forgotten how to do that.  Indeed, at least arguably, the United States has fought at least one war illegally since World War Two, but fighting a true, in the legal sense, war without a declaration of war, that war being the first Gulf War.

The United States hasn't declared war since World War Two.  In part that's because the conflicts we've been involved in since that time didn't really call for a Declaration of War, as not every conflict is a war.  In part it's because it's just flat out easier not to do it, and Congress has taken advantage of that.  And that should really end.  Or, perhaps more bluntly, somebody should have taken the first US lead invasion or perhaps the second one on as an illegal act, which would have forced Congress to actually recall  this part of the Constitution. And an illegal act it was, at least in the context of the second war against Iraq.

 But in order to understand that, we have to understand what a war is.

I've written on this before.  Congress has seemingly forgotten what a war is, and how to declare one, and why.  So, perhaps a refresher is in order, before we explore the reason why Congress should declare war on the Islamic State.

A war, basically, is armed litigation between nations.

Sounds weird, but that's what it is.  Indeed, in the English legal system, civil litigation itself is actually a substitute for private warfare, which was once used to settle disputes, and as a result, litigation bears many close resemblances to warfare.  As I earlier noted on this blog:

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.

 Medieval jousting wasn't just a sport, it was also part of trial by combat, in which the contestants frequently hired champions to serve in their stead, just as modern litigants will hire lawyers to do the same.

Congress has pretty much either forgotten that it can declare war, or perhaps it lives in fear of doing so. To my surprise, at least the press doesn't, as during the last week reporters have asked the Presidential candidates this very question, which they've dodged, should we declare war on the Islamic State?  The President has sort of been queried on this as well. The answer always is that "we are at war with ISIL" and then they move quickly on.  Not wanting to address the real question, should we, or even must we, declare war on the Islamic State?

So, why declare war on the Islamic State?  Put another way, must we declare war on the Islamic State if we intend to fight it?  And, what arguments are there against declaring war against the Islamic State. 

What would the effect of a declaration of war against the Islamic State do?

To start with, we must note again that wars can only occur between sovereigns.  

That's why no declaration of war would have made sense during the Vietnam War.  The National Liberation Front, the correct name of the Viet Cong, wasn't a sovereign entity. It was a guerrilla army. And it was backed by a sovereign, North Vietnam, but it wasn't a sovereign itself.  Soldiers of the Viet Cong were rebels, and hence involved in an illegality.

Viet Cong prisoner of war, with soldiers of the Army of the Republic of Vietnam in the background (note the tiger stripe combat uniforms).  Technically a solder of the National Liberation Front, so called as it had the pretext of being a nationalist rather than a communist movement, the communist guerrillas were rebels, and therefore did not fight in a legal war.

So too was the case for Confederates in the American Civil War.  The Confederate States was never recognized by any nation as a sovereign, and therefore the Confederates legally were American citizens in rebellion against their government, technically traitors.  Only the wise and good graces of the North kept them from being treated that way, and later the United States Supreme Court recognized what many of such wars tend to be, that it was an insurrection with characteristics of a belligerency.  In other words, it was darned near a war, but not quite.

Confederate infantryman during the Civil War.  Legally, he wasn't a soldier of a legitimate sovereign nation, but a rebel against his own nation.  But the United States chose to treat Confederates differently, an act very rare for the legitimate and victorious sovereign.

What about, it should be asked, Continental forces during the Revolution? Well, the Continental Congress had a theory of sovereignty from the very onset, and we came to be recognized by two European nations during the war, but the fact that we are basically regarded as a sovereign in that war is, frankly, because we won, and because we won with a theory.

Anyhow, if we declared war against the Islamic State, we'd be according them sovereign status.  That doesn't mean, however, that we'd be granting them state status.  The United States has a long history of dealing with stateless sovereigns, as Indian tribes were accorded that status, and are still sovereigns today. But we have to be frank, we'd be according them  the status of a legitimate sovereign.

Which frankly might just be recognizing reality.  It basically is a state right now, occupying huge chunks of Iraq and Syria.

Now, that also would mean that it's fighting me would be regarded as legitimate soldiers of a sovereign, when in true combat, rather than in terrorist activities. Terrorism is illegal under any definition.  But as an act of war, it's a war crime.

And the Islamic State is perpetrating a lot of activities that, if committed by a sovereign, are war crimes.  The list is too disgusting to set out, but is well known.  So, when (if?) it is defeated, its leaders would legitimately be subject to international war crimes trials.

What would be the advantage, if any, of declaring war on the Islamic State?

Well, for one thing, it makes it clear what we're really doing.

And right now we seemingly lack that clarity.  We claim we're at war with ISIL but we don't really seem to know what that means. Maybe it means helping France, which also claims its at war with ISIL but doesn't quite seem to know what that means.  Maybe that means contributing air assets only, at least if President Obama's views hold.  Maybe it means muddling along for years until somebody else hopefully takes care of the problem.  Indeed, that seems to be a fairly likely scenario.

Declaring war, however, leaves that declaration hanging over the nation's head, and that means something has to get done.  Frankly, that probably would mean the commitment of ground troops, and that is probably the only way that this is going to get done in any sort of short order.

It also means that we would have to have real war aims, as during war the nation always seeks to define them.  Indeed, simply asking for a declaration of war defines those aims in a way approving the use of the armed forces does not.  We don't declare war in a mushy fashion.

A declaration of war would also likely invoke Article 5 of the North Atlantic Treaty, which would require all the signatories to the treaty (you too, Justin Trudeau) to contribute to the war effort. This is only proper as so far at least seven signatories to that treaty have seen Islamic extremist violence in their nations and they're all bearing the brunt of the humanitarian crisis the war in Syria and Iraq is causing.  At least three of those nations have already stated that they are at war with ISIL, and a collection of them are already engaged in combat, mostly in the air, but a little on the ground there.  Declaring war, and invoking Article 5, brings this matter to a head, and rapidly.  And it also would require the participation of reluctant NATO partners that need to be focused, including a nervous Turkey that is at least somewhat pursing its own goals.

And all that, that is boots on the ground, leaves a European influence, accepting that we are a European culture, in place when the war is over.  Only a western influence is going to prevent this from reoccurring, particularly if we consider that what we're seeing is in some way the most recent flare up of something that's been occurring for 1400 years and for which their a sovereign incubator in the form of Saudi Arabia.

And, and perhaps most importantly, it gives the United States a legal vehicle to deal with ISIL sympathizers on out own soil, which right now we really lack.  That may be the single biggest reason to declare war.

It isn't illegal, in any form, to wish ISIL on to global victory.  We currently have a lot of focus on how the killers in San Bernadino became "radicalized" (as if that's all that difficult to figure out).  But what seems to be missing is that it's no crime to be a radical Islamist.  Indeed, a legal resident of the US may go along ways towards equipping themselves for a terrorist act perfectly legally. 

Another reason to declare war would be so that the US could deal more easily with terrorists on our won shores.  That may constitute the single biggest reason to issue a declaration of war.

With all the discussion about various groups who might be inclined to strike us, right here at home, next to no discussion has centered on the fact that it isn't illegal to hold bad feelings against the United States.  Indeed, frankly, any person with unbridled patriotism ought to be suspect as "my country right or wrong" is not a morally defensible position.  That isn't to defend Islamic extremist terrorist, but we must note that merely being an Islamic extremist isn't a crime.  Being a Nazi isn't a crime.  Being a Communist isn't a crime.  Nor do we want any of these things to be criminal.

But committing an act of violence against your fellows is a crime, and it also isn't a legitimate act of war.  So, by declaring war, we don't create a cover for domestic terrorist.  We would, however, create a legal means to be more ably arrest potential terrorist prior to their striking.

Right now, we practically have to wait until they attack, unless they commit other crimes on their route to a strike.  If they stockpile illegal arms or make bombs, yes, we can arrest them. But we really can't detain them simply for advocating armed aggression against the United States.  Oh, I know, it's a crime to advocate that, but its one that's difficult to prove.  War powers would allow greater leeway to the government to detain, with due process, those who seem to be strongly advocating armed action against the country.

Now, clearly a person has to careful about this, and note that I used the words "due process".  We can't treat every Muslim as an enemy alien.  But we might be able to better do something about those advocating bringing the Caliphate to the US by violence if we were armed with war powers.  Or, on the other hand, that  might just be a power that would get abused.

Before leaving that thought, however, here's also where the topic of firearms and terrorists is better addressed, perhaps.  Even if we would arrest very few anticipated enemies, we would have broader powers to put certain people on a "no arms" list.  Again, due process would be required, or more likely "some kind of process", but this would be a better approach than simply relying on the "no fly list".  Advocate armed incursion on behalf of the Islamic State, no arms for you.

What would be the disadvantage of declaring war on the Islamic State?

The big disadvantage of declaring war on the Islamic State is that it accords it state status, and that goes a long ways towards legitimizing its position.

The Islamic State claims the right to exclusively speak for all Muslims, and it also holds that all Muslims owe it allegiance.  If claims to be a restored caliphate.  If we recognize it as a state, it's claim sounds a lot more credible.

And at that point, perhaps a nightmare turns into a bigger nightmare.

Right now, most Muslims everywhere don't recognize the Islamic State as anything, and no Shiia recognizes it.  If it were granted state status, those on the fence in the Sunni worlds, where it has a fair amount of appeal with some, might leap.  I.e., if the Western World is at war with the Caliphate, well which way must they go? 

Indeed, a person can spin that out in some pretty scary directions.  Say we declare war and that results in a flood of new recruits and an increase in terrorism in the Western World.  That might tip the balance temporarily in the Middle East, and if they gained enough strength to push out the Shiia government in Baghdad and the Baathist regime in Damascus, they might have to spread the fight.  Who wold be next ?  Jordan, which would probably result in a war with Israel, or perhaps Saudi Arabia, with the US then having the nightmare scenario spread to a fight to keep the Islamic State out of Mecca.  Imagine that. 

Indeed, it's for that reason that declaring war is a bad idea, in spite of my long winded analysis of it, and my seeming advocacy for what otherwise looks like that dramatic step.  At the end of the day, declaring war on the Islamic State is a bad idea, as it makes it into an Islamic state.  And we don't want that.

But, it might become one, all on its own. Which is why we need to get our act together, in this "conflict" (not a war), right now.  And that involves no easy steps.