Vital Interests: Brien, thanks very much for joining us today on the Vital Interests Forum. You've been working for a number of years on the significant constitutional problem of the power to declare war. I know you specifically for your book Declaring War: Congress, the President and What the Constitution Does Not Say. In the book you provide an in depth historical analysis of how war powers were written into the constitution. Can you describe how the Founders' ideas on the power to declare war were articulated in theory and actualized in practice? 

Brien Hallett: Before I answer your question John, I think we should address the very vexing problem of evidence.  Where must one look for evidence that the Congress has or has not actually exercised its theoretical power "to declare war?"  An analogy is helpful here.  In addition to declaring war, the Constitution also says that the Congress shall "raise and support armies" and "provide and maintain a navy."

OK, but maybe the Congress is incapable of exercising this power.  Has the Congress actually funded the military and the navy?  Where must one go to find the evidence one way or another?  The answer is one must go to the Statutes at Large.  The Congress is a Legislative Assembly.  It drafts, debates, and votes on bills, which, when approved by the President, become laws.  Thus, to find evidence that the Congress has or has not actually funded the military and the navy, one must turn to the pages of the Statutes at Large.  If one finds two hundred years of appropriation and authorization laws, then one has the evidence that the Congress has actually funded the military and the navy.  If, however, one finds only appropriation laws, but no authorization laws, then one has the evidence that the Congress has not actually funded the military and the navy.  A Congress that appropriates, but does not authorize, has exercised the shadow of its constitutional power, and not the substance.

As the analogy indicates, the evidence whether the Congress has actualized in practice its theoretical power "to declare war" is not located in what Hamilton and Madison said in 1793.  Instead, the evidence is located in an historical analysis of how nations have declared war for the past 5,000 years.  After all, the 1789 Constitution did not invent the power "to declare war."  So the background for all of my answers is the 5,000 year history of procedurally proper and improper ways of declaring war.  Needless to say, because of this historical analysis, I have concluded that the Congress is incapable of declaring war.

But, to answer your original question directly, the constitution was supposed to take the power of decision to go to war out of the hands of the executive, the president, and put it in other hands. The Founders decided the Supreme Court was not the right place to do it so they put the power to declare war in the hands of the Legislative Assembly, the Congress.

I argue very strongly that this was a mistake because the Legislative Assembly cannot declare war. It's just incapable. There are two reasons for that. The first is the political science reason, which is the collective action problem that five hundred and thirty five people, all with different interests, are never going to be able to come together to decide anything of significance. We see every day in our Congress unless there is very strong leadership that's pushing people toward a decision on an issue of broad interest and impact.

In domestic policy, which is the realm of the legislature, there can be that leadership. Members of Congress have an interest to make some decisions, a budget, sending some money back into their district, and so forth. But in foreign affairs, the members of Congress are understandably reluctant because foreign affairs is not their primary concern or expertise.

Foreigners simply do not vote, and the members of Congress are focused on doing things for the people who vote for them. The collective action problem in Congress with respect to foreign affairs is very much more difficult than it is with respect to domestic affairs. 

The second theoretical reason is that the constitution says that there are three main powers. There is an executive, judicial, and legislative power. The legislative power is the power to make domestic policy through lawmaking. The legislative power is not the power to make foreign policy. Consequently, the executive branch, the president, has captured foreign affairs.

It says explicitly in Article II of the Constitution that the president is the representative of the United States with regards to foreign affairs. Even going beyond that, the president is really the only one who's looking overseas as his election depends in part on relations with foreign countries. Thus, what is the theoretical reason that the Congress can't declare a war - it is not their business. Their business is domestic policy, not foreign policy.

Let me add some historical context. The very first declaration of war in recorded history is Gilgamesh and Aga, the Babylonian epic poem. In the epic, it tells the story of Aga sending his heralds to Gilgamesh, declaring war conditionally against Gilgamesh. Gilgamesh goes to his Council of Elders and says, "Aga has declared war against us. I think we should go to war. We should respond by accepting this."

The Council of Elders says, "No, no, no, we don't want to go to war. We just want to be at peace with everybody." Gilgamesh is not happy about that. He goes to the council of young men, which means warriors in this case, and he says, "Aga, has declared war against us, what do you think?" The young men said, "Yes, yes, let's go to war."

Gilgamesh goes to war. He is victorious. It's a glorious epic. What's critical there is to see the pattern. The king makes the decision. He goes to his council or to a legislature. The legislature votes his decision up and down. If it's down, he venue-shops and goes to another legislature or another council until he gets the right answer. Then he goes to war.

This is what Harry Truman did in 1950 in seeking authorization for the Korean War. He was told explicitly by the Democratic leadership in Congress not to come to Congress. So Truman went to the UN Security Council and got authorization for the war, and American troops went to South Korea and fought.

The pattern is that the president or the king makes the decision for or against war. Then he consults with his council, with his barons and bishops, with his legislature, and they approve his going to war. Finally, he goes to war. That's the pattern that we also see in United States' history. There have been four declarations of war in U.S history - the War of 1812, the Spanish-American war 1898, and the First and Second World Wars.  In each case Presidents James Monroe, McKinley, Woodrow Wilson, and Franklin Roosevelt made the decision to go to war. Then they went to the Congress and said, "We have this critical situation with the British, with Spain, and Cuba. What's going on in Europe in 1917 and after Pearl Harbor, do you think we should go to war?"

The Congress always says, "Yes." Then the president goes to war. The key, of course, is that the president has to have a certain political acumen. He has to create this situation where the Congress cannot refuse his request. The key example is World War II. Hitler invaded Poland in September of 1939. Why did the United States not enter the war officially until December 8, 1941?

The answer, of course, is the America First isolationism sentiment in the United States was totally against going to war again, but all Roosevelt had to do was wait for the situation to develop and he could stampede the Congress to approve a declaration of war. It was the December 7,1941 attack on Pearl Harbor that provided the stampede Roosevelt needed. 

You see that every time. Why did the Bush administration invade Afghanistan and Iraq after 2001? After the 9/11 attack Congress was in no position to refuse the Afghan and the Iraqi invasions.

You also see this same pattern in the 1973 War Powers Act. The purpose of the War Powers Resolution is to ensure that “the collective judgment of both the Congress and the president will apply to the introduction of United States Armed Forces into hostilities or in situations of imminent involvement in hostilities.” The point of the Resolution is to have the collective judgment of the Congress and the president.

However, the power to declare war is a Congressional power. If the Congress were going to declare war, if they were to exercise its power to declare war, it should then issue a detailed declaration. The model is the Second Continental Congress. In June of 1776, resolutions were introduced in the Second Continental Congress calling for independence. They established a committee of five, including Thomas Jefferson, to write the first draft. The resolution for independence was tabled in June of 1776 but it was taken up from the table on July 3rd.

It was debated extensively on July 3rd, before it was approved. On July 4th, they brought up the text of the declaration that Jefferson had written. They amended it extensively and then they voted on the text and the vote was favorable so we had the Declaration of Independence. Right away the war switched from an insurgency to an official, declared war. Prior to that nobody was quite sure what Washington and the Continental Army were doing, what were they fighting for. On July 5th, everybody knew what the fighting was about. 

It was an official, procedurally perfect declaration. The contrast between Gilgamesh and the Second Continental Congress is that the Second Continental Congress decided the question of war and peace on its own authority when it voted on the Resolution for Independence. It drafted a text, it debated the text extensively, amended the text, and then it voted on the amended text. The vote was the decision and the declaration. Simultaneously, the Second Continental Congress decided to go to war and declared war with a text that explained in great detail why we were going to go to war.

VI: They clearly stated the grievances they felt justified declaring war on England.

Brien Hallett: Yes. Does anybody know why we went to war in Iraq?

VI: There were a number of scenarios, none of which turned out to be true. The Bush administration issued statements to justify taking military action against the Saddam Hussein regime but certainly no detailed declaration or war.

Brien Hallett: If you want to know why we went to war in 1776, I'll show you the document. Now you can disagree with what they said, but it's very clear what their motivation was, what their purposes were.

VI: You've written about two motivations for going to war. One is anger and vengeance and the objective is absolute victory. The intent is to defeat an enemy that attacked the nation, that harmed citizens. Pearl Harbor and 9/11 are examples. The second motivation is an initial step at resolving a conflict, to address grievances. The Declaration of Independence would be a case where the American colonists sought to resolve a conflict with King George and England about violations of their rights. Is the articulation of motivations for war now lost since no one addresses actual reasons for military action? 

Brien Hallett: Yes, because no one declares war anymore. Let me back that up, no one declares war in a procedurally perfect, reasoned declaration, like the Declaration of Independence. We declare war in functionally equivalent ways but we don't declare war in a fully reasoned manner that explains what we're doing. This is conflict resolution 101, to state your reasons first off. 

Anger is a very strong motivation for doing something. This is what the Bush administration did after September 11, 2001. They played up the anger. Shouldn't we be angry at these people flying airplanes into buildings? Well, yes, we should be but should the response come from anger? Or should the response be articulated with 27 specific grievances as it was in the Declaration of Independence? The Americans were upset about all these things the British government was doing in 1776 and they had a viable solution. As soon as we're independent, these problems go away. 

VI: After the victory in World War Two, the United States became involved in the Cold War. This was an ideological struggle with a perceived enemy where the U.S. used military forces in numerous conflicts around the world, the Korean and Vietnam Wars being the most substantial. When you're fighting an existential enemy like worldwide communism, should that have necessitated a formal Congressional approval every time American military forces were deployed?

Brien Hallett: Looking at this conceptually, what should be done is to engage in very serious conflict resolution. There are two types of declarations of war There are absolute declarations and there are conditional declarations. The conditional declaration of war has an indictment based on the grievances and then a declaration of peace: "These are the problems we have and this is what we think is the solution." It doesn't authorize armed activities at all. The first step in conflict resolution is to say, "This is why I'm upset." That's what a conditional declaration does. It says, "These are the grievances that upset me and here's my preferred solutions." The conditional declaration is basically a negotiating document.

If we were going to do this in a procedurally perfect official manner, President Truman should have declared war conditionally against the Soviet Union stating what the grievances were. International law perhaps comes in at this point. In 1907, the United States ratified the Third Hague Conference Conventions, one of which was concerning the opening of hostilities. The United States ratified this treaty. We now have an obligation under international law to initiate hostilities in a certain way. That certain way is to issue a fully reasoned, conditional declaration before declaring war absolutely.

If you were going to do international affairs in a serious conflict resolution manner, the United States, and all the countries, would issue conditional decorations of war, which would be initial negotiating documents. Then depending on how the negotiations go, you can say that we've arrived at the last resort and that now we have to declare war absolutely and use military force. The case in point is the 1990-91 first Gulf War. Saddam Hussein invaded Kuwait and everybody was upset about that. There were intensive diplomatic negotiations in Geneva and elsewhere between Saddam Hussein and the United States and some of the European powers.

What was needed to shape and give purpose to those negotiations was a conditional declaration of war. Now, there were all kinds of statements that were made by the first President Bush and James Baker, the Secretary of State. The conditions were quite clear that Saddam Hussein had to leave Kuwait. But if the Congress were going to do that they would have had to declare war conditionally in an official text, which listed the grievances and then stated the peace terms, which would be the Iraqis leaving Kuwait. There's an international way to declare war.

VI: Using the example of the first Gulf War, Desert Storm, wasn’t there a UN resolution that was used by the United States and other countries, the so-call Coalition of the Willing, to say "Well, there is a UN resolution that states Saddam Hussein has violated international standards and norms, and therefore we have the right to use force against him." Did that become a justification for doing an end-run around any Congressional declaration?

Brien Hallett: I would argue, yes, it's an end-run around the Congress, but it's even more serious than that. It's an end-run around declaring war. It's an end-around against taking responsibility for a use of force. You see the key theoretical and moral question here is that the United Nations Security Council cannot declare war. It can pass resolutions encouraging the Member States to give assistance to South Korea or to give assistance to Kuwait. That's the wording of the resolution, but the Security Council is not a sovereign. It has no army. It can't declare war.

There has to be a declaration of war in order for there to be war. It's the coalition of countries that come together to fight in South Korea or to fight in Kuwait who have the power to declare war. This is venue shopping. This is shirking responsibility.

VI: What about the building of the global weapons industry, the international arms race, nuclear proliferation, the huge military-industrial complex in the United States, the threatening military capabilities of Russia and now China? Doesn't this reality incline leaders of nations which have invested in sophisticated weaponry to readily resort to the use of military force? As the old adage goes “if you have a hammer and you see a nail, you want to hit it?”

Brien Hallett: Well, yes, absolutely. That's what people think. However, if people would step back one or two paces and look at the situation, the question you would have to ask is why would you want to have an arms race? Why would you want to have these nuclear capabilities? Why would you want to go out looking for trouble? Perhaps this is the best way to approach this question. Carl Von Clausewitz in Chapter 1 of his classic book On War defines war and says that you have to have two definitions of war. The first definition is that “war is an act of force to compel our enemy to do our will.”

He then goes on to say that this defines an absolute ideal war. Next, he spends 20 pages saying that well, absolute ideal war is not possible because of friction and fog of war and all kinds of things. Finally, he concludes that war is “policy by other means.” We've got two definitions. All the things you're talking about, arms races, building up nuclear bombs, just going out and looking for trouble, what the Chinese are doing in the South China Sea. Those are all “acts of force to compel our enemy to do our will.” It's a “do what I say” approach to international relations. On the other hand “policy by other means” requires that you first think what your policy is. What are the grievances? What is the solution to the grievances? Then you pull back and you consider the means that you can use to achieve this solution. The first thing of course you should think of is diplomacy and the last thing you should think of is the use of force. Can I introduce a wild card here?

VI: Yes, absolutely.

Brien Hallett: This is what Gandhi and Martin Luther King were all about. Gandhi and Martin Luther King, Nelson Mandela, Vaclav Havel, the list goes on and on. They are confronting a serious injustice. The British are ruling India, does that make any sense? There's segregation in the south. We live in a country where all men are created equal except at lunch counters, except on buses. Gandhi and Martin Luther King could have engaged in “acts of forces to compel their enemy to do their will.” They could have organized an armed resistance. But they stepped back and they said, "What are our grievances? What is the solution? What means do we have?"

They explored with great creativity and insight how to resolve the injustices they confronted. They saw that there were other means besides armed force. This is an attitude that too few leaders have. The Declaration of Independence is key for me. It took them a year to finally come to the decision that independence was required. They thought about the alternatives, they tried the alternative. They were clear about the means that they had, they were clear about their objective and you just don't see that anymore. 

I would hold up Vietnam as a prime example, I would hold up Iraq as another prime example. Grenada, Dominica Republic - this list is long where proper deliberations about true grievances and alternatives were not even considered. The president in each instance identified a foreign problem and used the hammer of military forces as the solution.

VI: Aren't we now in a situation where we no longer have official declarations of war but rather blanket Authorization for Use of Military Force - the so called AUMF - giving the executive branch the ability to fight the “Global War On Terror” where and how it sees fit?

Brien Hallett: That is indeed the reality - we have no more procedurally perfect reasoned declarations of war, like the Declaration of Independence. We have procedurally imperfect, unreasoned declarations of war all the time.

VI: There have been congressional efforts to try to withdraw or limit the AUMFs but recent presidents have argued that they still need this power because of the ongoing war in Afghanistan and continued global terrorist threats. In fact, the use of force has expanded under Bush, Obama, and then Trump primarily with the use of drone warfare. Are we now in a situation described by John Yoo in his statement "With respect to war, we want executive initiative, congressional acquiescence, and judicial tolerance?" Is this where we are now and what we will see in the future?

Brien Hallett: Actually, the quote is John Yoo quoting Harold Koh.  But, yes, it has always been that way. Let me go back to Gilgamesh. Authorization of military force consists of the king making a decision to use armed force. He consults with his advisors, with his bishops and barons, with his legislature, the Congress. Instead of getting an official declaration of war, he requests a functionally equivalent document, an authorization to use military force. Then he goes off and engages in an armed attack. It's the same pattern. In the present situation, President Biden may very well allow the Congress to revoke some of these authorizations because he doesn't need them. Moreover, the last thing Biden wants to do is go bomb someplace. He's got other problems to confront.

VI: You point out that Congress does have the ability to limit the use of force with its power of the budget, to cut off funding for a military operation. When is the last time Congress actually reduced the defense authorization budget or cut off funding?

Brien Hallett: As far as I can figure out, there's only one case in world history in which a legislative assembly has refused to supply the leader with money for his war. That was in 1640 when the English parliament refused to supply the funds Charles I needed for his Scottish Wars. Because of parliament’s refusal, Charles I declared war against the parliament that led to the English Civil War and Charles lost his head. That's the only case in world history that I know of where a legislature has refused supply.

Now, the U.S. Congress, in 1973, did insert a clause in the Defense Appropriations Bill saying that no more funds could be used for military operations in Indochina. Well, that's good. The problem, of course, is that this stoppage of funds for the war in Vietnam occurred three months after President Nixon had made a public statement that all ground troops had left Vietnam. The legislation itself says that it was made with the concurrence of the president. If the president agrees to stop funding only after the troops are no longer there to use the funding, that is a pretty weak exercise of the power of the purse.

VI: Do we need a public recognition that this is in fact how the use of force is deployed by the United States in the world today? We need to acknowledge that Congress may be involved in discussions to use military force but it is by necessity the executive branch that makes final decisions. Presidents know best the complexities of international affairs, they have many informed advisors, the Secretary of State, and senior military people in the Pentagon, all working for the president on situations that might necessitate the use of military power.

Brien Hallett: Yes. When you have a problem, the decisive first step is to publicly recognize that you have a problem. The first thing you do when you go to Alcoholics Anonymous is that they ask you, what's your problem. You say, "I'm an alcoholic." The first step is to recognize that this is the way it's always been. I want to stress it's been this way for 5,000 years. There's nothing special about the President making the decision to go to war. If we think that the president should not be declaring war, should not be making the decision to use military power, then we need to do something different.

VI: Are the efforts of people like Senator Tim Kaine to gather support for the withdrawal of the current AUMFs misplaced? Should he not be undertaking a broader public campaign raising awareness of the inability of Congress to fulfill the constitutional mandate to declare war and focus more on presidential decisions to use force?

Brien Hallett: Right. Exactly.

VI: Do you see anyone within the government, any force within the government, any groups that are trying to articulate this reality?

Brien Hallett: Perhaps we have potential in the future, but as we speak, nobody. I go to the American Political Science conferences and deliver papers on this and I don't get any questions afterwards. The constitution says that the Congress has the power to declare war, therefore, that's the end of the discussion. The fact is that the Congress doesn't declare war, "Well, gee whiz, that's deplorable, but there's an Imperial presidency. These poor Congressmen are busy raising funds for the next election campaign." The first step is to acknowledge that we have a problem and it's a 200-year-old problem.

VI: Brien - we are coming to the end of our time. We like to conclude our conversations on an optimistic note which is a challenge here. I imagine that with people thinking about the consequences of broad AUMF powers - the costs of American “forever wars” and the expanding use of drone warfare without oversight or transparency - it will lead the conversation to consider your arguments. We need to abandon the myths of congressional powers and create a new vision of how America uses deadly force as a component of foreign policy.

Brien Hallett: Absolutely.  Thank you very much for having me and talking through these problems.

Brien Hallett is a Professor at the Matsunaga Institute for Peace at the University of Hawai'i.  He graduated with a BA from Coe College and took his PhD in Political Science from the University of Hawai'i.  His primary research interest is the declaring of war, in general, and the neglected constitutional power of the United States Congress to declare war, in particular.  The initial results of his research were published in The Lost Art of Declaring War (University of Illinois Press, 1998) and in Declaring War (Cambridge University Press, 2012).  His latest book is, Nurturing the Imperial Presidency (Brill, 2021).