When do the war powers expire? (LA Times)

December 23, 2001 7:37 PM

When do the war powers expire? (LA Times) With a state of War being used to justify increased security measures, spending bills, unlimited detention and international military action is anybody else uncomfortable with the vagueness of the 'current situation'? How and when can we say we have won and declare it peacetime again?
posted by srboisvert (10 comments total)

I don't know what you're talking about. We have always been at war with Eurasia.
posted by jjg at 8:38 PM on December 23, 2001

(No, jjg, it's Eastasia! We've always been at war with Eastasia :-))
I think presidential emergency powers last as long as the President decrees. If it ever came to a showdown between the legislative and executive branches, I guess the judicial branch--the Supreme Court--would have the final word (like in the last Presidential election?)
posted by StOne at 8:54 PM on December 23, 2001

Did anyone on this side of the Atlantic ever officially declare war? I thought we were just claiming an offensive defense strategy. The Taliban declared war on us with the whole Jihad thing (wasn't that an unsuccessful card collecting game?) and our attacks on Afghanistan were just police actions trying to flush out John Walsh's Most Wanted. Or did I miss a memo?

I thought an official declaration of war had to go through congress. They've been too busy pretending to be bipartisan to actually officially declare war.
posted by ZachsMind at 9:21 PM on December 23, 2001

Somehow I doubt that we will be told that the war is over before the 2004 Presidential Campaign, no matter what the situation. We will probably be hearing the old saying about not changing horses while crossing a river an awful lot though.
posted by homunculus at 9:58 PM on December 23, 2001

I believe ZachsMind is correct; I don't think an official declration of war was made. Our current situation more closley resembles Vietnam in legal status. The word 'war' gets thrown around a lot, but is rarely used correctly.

All I know is MATA scares me as there are many key elements left 'indefinetly'.
posted by sarosh at 11:24 PM on December 23, 2001

Haven't there been several threads about the informal declaration of war already? The President does not want to ask congress to declare war, because a) in theory they could say no, and b) it would set a precedent that would reduce the President's power. Therefore, he personally declares war, which in theory doesn't mean that the country is officially at war, and congress endorses his declaration, also to avoid forcing the issue. Or something like that. I'm just repeating it, I'm not saying it makes sense. Anyway, as yet another recent thread stipulated, you can't wage a war on a concept. There is no way to win such a war, and future generations will look back and see Bush as a buffoon.
posted by bingo at 11:47 PM on December 23, 2001

you can't wage a war on a concept. There is no way to win such a war. And thus the many successes of the wars on: poverty, crime, drugs, crustaceans...no, forget that one, that was a Red Lobster thinger.
posted by Mack Twain at 12:21 AM on December 24, 2001

While the Constitution says that only Congress may declare war, it also made the President the commander-in-chief of the armed forces. This uneasy balance has been a source of constitutional issues for most of our history. In 1973 Congress passed the War Powers Act over President Nixon's veto. Most presidents since then have acknowledged the reporting provisions of the act in a nominal sense while not specifically challenging its authority, and have managed to get popular support for Congressional resolutions that authorize military action. Congress covers its bets by saying this authorization does not undercut their supervisory authority under War Powers, and everybody goes home happy. Since the sections of the law concerning the authority of Congress to exercise this oversight have (deliberately) never been challenged, the law acts as a fig leaf in both directions. The President pretends that he has full authority as CinC; Congress pretends that they are supervising him. For all intents and purposes it has replaced a formal declaration of war, and will probably continue to do so.

No, bingo, the President does not "personally declare war". Self-defense needs of the nation, however, have always meant that the President can act militarily without a formal declaration. Congress could be in recess, or short of a quorum, or in the modern age, sleeping.

On September 17, Congress passed what is now Public Law 107-40. The authorization is broad, but it is also specific: That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. That's not exactly as simple as carry on war against the Imperial Government of Japan; and, to bring the conflict to a successful termination, but it's not completely open-ended, either. By comparison, it's actually better defined than the sole clause in the 1941 declaration concerning how we'll know when it's over: "a successful termination".

Under the 1973 law, the President is required to report to Congress on the progress of military action authorized under the act "no less than every six months", which gives an excuse for those in Congress who may be questioning the continued need for the authorization to force a vote on withdrawing it.

As far as things such as the USA-PATRIOT act are concerned, Congress cleverly made sure to insert a "severability" clause, meaning that while specific aspects of the law may well be overturned by the Supreme Court in the future, the rest of the law will remain in force (except for the provisions which are set to expire anyway).

Thus, the war powers here do remain under the purview of the democratic political process. As the threat recedes legislation will be reviewed; some of it will be weakened or altered by case law; and the Supreme Court will always get to rule. I'm not urging complacency, of course. I'm merely trying to get away from the oversimplified descriptions of this as an open-ended war with no end and no definition.
posted by dhartung at 3:36 AM on December 24, 2001

I believe part of what congress passed to give power and funding to Bush also had an extension on the time limit of the war powers act. Congress since, oh WWII, has been unwilling to declare war because of how it would look if a war was lost. There's a lot a face to be lost if OBL is never found. Better for them to call it a "policing action" like they did in Vietnam. When re-election rolls around the blame can be put on the executive branch.
posted by skallas at 4:56 AM on December 24, 2001

They may never find OBL, but they are keeping us safe from Druids.

posted by colt45 at 12:55 PM on December 24, 2001