From the Shores of Tripoli to the Deserts of Iraq: Congress and the President in Offensive and Defensive Wars (Winner of American Constitution Society's National Student Writing Competition)

1363

WINNER OF AMERICAN CONSTITUTION SOCIETY’S

NATIONAL STUDENT WRITING COMPETITION

ROM THE SHORES OF TRIPOLI TO THE DESERTS OF IRAQ:

ONGRESS AND THE PRESIDENT IN OFFENSIVE AND

DEFENSIVE WARS

Alex J. Whitman

NTRODUCTION

One of the most important powers the Constitution granted to

Congress was the power to “declare war.”

In over two centuries since

the Constitution was enacted, this monumental power has only been

exercised in five conflicts: the War of 1812, the Mexican War, the

Spanish-American War, World War I, and World War II.

On all five

of these occasions, the President sought a declaration of war from

Congress, and Congress proceeded to grant the President’s request.

However, the concept of “undeclared war” has been in existence

since before the founding of the nation;

even in the early 19th cen-

tury, American servicemen found themselves in combat against for-

eign powers without being authorized by a congressional declaration

of war.

Nonetheless, questions remain to this day as to when a decla-

Judicial Clerk to the Honorable W. Royal Furgeson, Jr., United States Senior District

Judge for the Northern District of Texas; J.D., with honors, Emory University School of

Law (2010); B.A., cum laude, University of Florida (2007). My great thanks to Professor

Hanah Volokh, Professor Charles Shanor, and Professor David Bederman for their inva-

luable guidance in writing this article. Thanks as well to the American Constitution So-

ciety for Law and Policy for giving me this opportunity, and to the staff of the University of

Pennsylvania Journal of Constitutional Law for their diligence work and comments.

U.S. CONST. art. I, § 8, cl. 11 (“The Congress shall have Power To . . . declare War, grant

Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Wa-

ter.”).

Lori Fisler Damrosch, Comment, War and Uncertainty, 114 YALE L.J. 1405, 1408 (2005)

(discussing the instances where Congress has formally declared war).

See CHARLES A. STEVENSON, CONGRESS AT WAR: THE POLITICS OF CONFLICT SINCE 1789

12–15 (2007).

See Jeffrey A. Botelho, Congressional Responsibility in Controlling the War Machine, 21 ST.

THOMAS L. REV. 305, 316 (2009) (noting that “[t]he Framers were no strangers to undec-

lared wars,” and referring to George Washington’s service with the British military during

the undeclared French and Indian War against France).

See infra Part II (discussing the American military expeditions in North Africa fighting the

Barbary States in the early 19th century).

1364 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

ration of war by Congress is required, when the President may act

without the approval of Congress, or when some form of congres-

sional approval less than a declaration of war is sufficient.

This article proposes a framework distinguishing between offen-

sive war, in which the decision should be made by Congress, and de-

fensive war, where the President can act without congressional ap-

proval. This article ultimately determines that when the United

States initiates a conflict, Congress should follow the Constitution’s

instructions and issue a declaration of war, but when a defensive war

shifts to an offensive character, the President must seek congressional

authorization that can be short of an actual declaration of war. This

framework is based on the early views and practices of the Framers

for the appropriate role of the President and Congress regarding the

war-making power, drawing particularly from two of the United

States’ earliest undeclared wars known as the Barbary Wars. While

these intermittent American conflicts with the Barbary States of

North Africa in the early part of the 19th century are among the less-

er-known conflicts in the history of the United States, the actions of

the executive and legislative branches in these conflicts can help in-

terpret the Framers’ original understanding of the proper role for

both Congress and the President in undeclared war.

Determining

those proper roles is especially relevant because wars conducted

without a formal declaration from Congress have become increasing-

ly common over the last sixty years; all five of the major conflicts in

the post-World War II era

were not accompanied by a congressional

declaration of war.

Regarding the 2003 invasion of Iraq, this article

argues that the policy of preemptive war promoted by the Bush ad-

ministration is inherently offensive because the United States is the

nation initiating the conflict. The adoption of this policy calls for a

revival of the declaration of war in the limited circumstance of initiat-

Many of the Framers and early thinkers of the Republic determined or criticized the na-

tion’s course of action during the Barbary Wars, including, as we shall see, Thomas Jeffer-

son, Alexander Hamilton, James Madison, and many others.

Major wars fought by the United States since World War II include the Korean War

(1950–53), the Vietnam War (1964–1973), the First Gulf War (1991), the War in Afgha-

nistan (2001–present), and the Second Gulf War (2003–present). S

TEVENSON, supra note

3, at 12, 31. All five of these conflicts are discussed infra in Part IV.

Smaller-scale American uses of military force since World War II include combat deploy-

ments in Lebanon, Grenada, Panama, Haiti, and elsewhere; these conflicts were also not

accompanied by a declaration of war. Id. at 30–31. Most recently, in March of 2011, the

United States launched a bombing campaign using air and sea power against government

forces as part of an international effort in Libya without a declaration of war. See Libya De-

fiant Under Fire; Waves of Missile, Jet Attacks Batter Gadhafi Sites in Bid to Aid Rebels, C

HI. TRIB.,

Mar. 20, 2011, at C19.

June 2011] FROM THE SHORES OF TRIPOLI 1365

ing an offensive war to restore Congress to its properly intended role.

This way, Congress takes the strongest possible action in its arsenal,

provides an effective check on the President in the crucial decision to

go to war, and places the policy-making role in terms of the war pow-

er in the hands of Congress, where the early practices of the Framers

indicated it should be.

THE WAR-MAKING POWER OF CONGRESS AND THE PRESIDENT

The Constitution meant to create a system where there was a sepa-

ration of powers between Congress, the President, and the judiciary,

rather than the significant amount of power concentrated in the ex-

ecutive that governed Great Britain and the colonies before the

American Revolution. Establishing checks on the war power was es-

pecially important to the Framers.

Under the British system, the

king had near-total control of the deployment and use of the armed

forces.

Mindful of that power concentrated in the Crown, many

delegates to the Constitutional Convention of 1787 were wary of plac-

ing the full extent of war powers in the executive branch.

As Louis

Fisher wrote, “Legislative control over the deployment of military

forces was widely supported by the framers.”

The wariness of the delegates to the Constitutional Convention to

vest the war-making power in the executive showed in their debates

and discussions over the war power on August 17, 1787.

When

Pierce Butler of South Carolina advocated vesting the “war making

power” in the President, Massachusetts delegate Elbridge Gerry re-

sponded that he “never expected to hear in a Republic a motion to

empower the Executive alone to declare war.”

The Constitution

See Alexander M. Bickel, Congress, the President and the Power to Wage War, 48 CHI.-KENT L.

REV. 131, 131–32 (1971) (arguing that the Framers’ intent in granting the war power to

Congress was to make it harder to start wars).

See LOUIS FISHER, PRESIDENTIAL WAR POWER 1 (2d. ed. 2004) (“The power to initiate war

[in Great Britain] . . . remained a monarchical prerogative.”).

See EDWARD KEYNES, UNDECLARED WAR: TWILIGHT ZONE OF CONSTITUTIONAL POWER 19

(1982) (“If the Framers suspected legislative power, they distrusted executive power. Mo-

tivated by their recent colonial history and Whig criticism of the Stuart kings, they denied

the President most of the prerogatives that the Stuarts had exercised.”); see also F

ISHER,

supra note 10, at 3–6 (noting the many proposals during the Constitutional Convention

to limit powers expressly belonging to the King under the British model).

Louis Fisher, Historical Survey of the War Powers and the Use of Force, in THE U.S.

CONSTITUTION AND THE POWER TO GO TO WAR: HISTORICAL AND CURRENT PERSPECTIVES

11, 13 (Gary M. Stern & Morton H. Halperin eds., 1994).

CHARLES WARREN, THE MAKING OF THE CONSTITUTION 479–81 (1928).

Id. at 480–81 (internal quotation marks omitted).

1366 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

therefore vested the war power in Congress,

but a subtle change al-

lowed for some flexibility. After a delegate suggested that Congress

acted too slowly, James Madison, in a motion joined by Gerry, pro-

posed that the language be changed from giving Congress the power

to "make" war to giving Congress the power to "declare" war.

As the

eminent constitutional scholar Charles Warren observed, the purpose

of this change was to give the President the ability “to repel sudden

attacks.”

Roger Sherman of Connecticut elaborated by asserting

that “the Executive should be able to repel and not commence,

war.”

The decision to place the power to declare war with Congress re-

flected the Framers’ desire to curb executive power; by entrusting this

decision to the legislature, the Constitution took a traditionally ex-

ecutive function away from the President.

Nonetheless, the Presi-

dent was still given extensive powers related to the military and na-

tional security. The President was declared to be “the 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.”

This role gave the President some undefined power over

the day-to-day control of the armed forces, but his ability to use them

faced significant and well-enumerated congressional checks. Con-

U.S. CONST. art. I, § 8, cl. 11 (“The Congress shall have Power to . . . declare War, grant

Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Wa-

ter.”).

WARREN, supra note 13, at 480.

Id. at 480 n.2; see also STEVENSON, supra note 3, at 8 (stating that the change “would give

the executive the power to repel sudden attacks” (internal quotation marks omitted)). At

that time, of course, the Framers had to take into consideration that Congress would only

be in session for limited periods each term and that it could take weeks or even months

to bring Congress together to declare war. Those concerns have since been abated due

to modern technological advances, but the Framers’ concerns about the proper role of

Congress in actually commencing war, rather than repelling an attack, remain essential.

See generally W

ILLIAM R. CASTO, FOREIGN AFFAIRS AND THE CONSTITUTION IN THE AGE OF

THE

FIGHTING SAIL 174–75 (2006) (noting that, compared to the state of Congress during

the Neutrality Crisis of 1793, in which Congress was not in session and unable to swiftly

debate and act on legislation, today’s legislators are swiftly able to communicate, travel,

and spur action, and that “the immense logistical problems confronting the founders no

longer exist”).

STEVENSON, supra note 3, at 8.

See JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 409

(Carolina Academic Press 1987) (1833) (“In Great Britain [the power to go to war] is the

exclusive prerogative of the crown; and in other countries, it is usually, if not universally,

confided in the executive department.”); John C. Yoo, War and the Constitutional Text, 69

CHI. L. REV. 1639, 1678 (2002) (“There can be little doubt that the decision to deploy

military force is ‘executive’ in nature and was traditionally regarded as such.”).

U.S. CONST. art. II, § 2, cl. 1.

June 2011] FROM THE SHORES OF TRIPOLI 1367

gress was given the power to “raise and support Armies,”

to “provide

and maintain a Navy,”

to “make Rules for the Government and Reg-

ulation of the land and naval Forces,”

and to call forth the militia of

the states to “execute the Laws of the Union, suppress Insurrections,

and repel Invasions.”

The Constitution also gave Congress certain

powers related to limited actions of war, such as the power to “grant

Letters of Marque and Reprisal,” and to set rules on “Captures on

Land and Water.”

This showed that the Framers intended for Con-

gress to play a key role in authorizing and laying the legal ground-

work for limited wars.

The original understanding of the Constitution’s role for the Pres-

ident and Congress appeared to be that the President had the power

to respond when war was imposed on the nation by attack or declara-

tion of war, but that the power to initiate offensive military action be-

longed to Congress.

While the President commanded and directed

operations of military forces,

he could not make the decision to in-

Id. at art. I, § 8, cl. 12.

Id. at art. I, § 8, cl. 13.

Id. at art. I, § 8, cl. 14.

Id. at art. I, § 8, cl. 15. Notably, Congress’s ability to summon the militia of the states was

limited to these three specific situations. Neither Congress nor the President was given

the ability to call forth the militia to initiate offensive action. This omission may be due to

the widespread disapproval of undertaking offensive war in the early conversations about

the Constitution; the state militia was only made available for internal security and repel-

ling attacks and presumably could not be utilized for offensive warfare beyond American

borders. How the Framers would react to the National Guard being used overseas in an

unprovoked offensive war, such as in the Iraq War, is an interesting question.

Id. at art. I, § 8, cl. 11.

In his concurring opinion in Bas v. Tingy, a decision regarding the salvaging of an Ameri-

can vessel recaptured from a French privateer during the United States’s undeclared war

with France, Justice Samuel Chase noted Congress's power to wage limited war, writing:

Congress is empowered to declare a general war, or congress may wage a limited

war; limited in place, in objects, and in time. If a general war is declared, its ex-

tent and operations are only restricted and regulated by the jus belli, forming a

part of the law of nations; but if a partial war is waged, its extent and operation

depend on our municipal laws.

Bas v. Tingy, 4 U.S. 37, 43 (1800) (Chase, J., concurring).

See Joseph R. Biden & John B. Ritch, Commentary, The War Power at a Constitutional Im-

passe: A “Joint Decision” Solution, 77 G

EO. L.J. 367, 374 (1988) (noting that “there appears

little doubt that the Framers’ aim was to empower the President to respond when war was

imposed on the nation, but not to empower him to undertake war on his own”); Francis

D. Wormuth, The Nixon Theory of the War Power: A Critique, 60 C

ALIF. L. REV. 623, 628

(1972) (“The framers knew that an attack upon the United States imperiled national se-

curity. They left to Congress the right to decide when other events imperil national secu-

rity.”).

This power was granted to the President through the Commander in Chief Clause. U.S.

CONST. art. II, § 2, cl. 1 (“The President shall be Commander in Chief of the Army and

Navy of the United States, and of the Militia of the several States.”).

1368 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

itiate war on his own; the power to “engage the country in war” re-

mained in the hands of Congress.

The Constitution, however, was silent on the scope of the Presi-

dent’s power in responding to attack. It was well established that the

President could repel attacks and use defensive force,

but under

what circumstances the President could respond offensively after the

nation had been attacked or after another nation had declared war

was contested.

On several occasions in the decades after the Consti-

tution went into effect, the United States faced attacks from foreign

powers, spurring debate on how the President could respond. One

of the earliest examples involved the nation’s conflicts with Native

American tribes during the presidency of George Washington. In the

early 1790s, elements of the Creek Nation launched attacks against

American settlements on the frontier.

President Washington wrote

to South Carolina Governor William Moultrie that he hoped to

launch an “offensive expedition” against the Creek Nation

whenever Congress should decide that measure to be proper and neces-

sary. The Constitution vests the power of declaring war with Congress;

therefore no offensive expedition of importance can be undertaken

[against the refractory part of the Creek Nation] until after [Congress]

shall have deliberated upon the subject, and authorized such a meas-

ure.

In noting that “no offensive expedition of importance” could be

waged without congressional authorization, it was clear that Washing-

ton believed that any major decision about the scope and objectives

of an offensive military action must be determined by Congress.

President Washington’s Secretary of War, Henry Knox, echoed this

view in the context of a conflict with a different tribe, writing that the

See Note, Congress, the President, and the Power to Commit Forces to Combat, 81 HARV. L. REV.

1771, 1773 (1968) (“When the proposal to substitute ‘declare’ for ‘make’ was introduced,

the debates over the issue indicate that the new wording was not intended to shift from

the legislature to the Executive this general power to engage the country in war.”).

WARREN, supra note 13, at 480 n.2 (discussing the President’s power to “repel sudden at-

tacks”).

See Botelho, supra note 4, at 316 (“On the surface, the intention of the Framers seems

clear—Congress has the power to initiate offensive hostilities, while the President has the

power to repel sudden attacks; however, the scope of the President’s power to make de-

fensive war was never defined.”).

See Randolph C. Downes, Creek-American Relations, 1790–1795, 8 J. S. HIST. 350, 356–57

(1942) (discussing guerilla attacks by groups of Creeks on Americans in the early 1790s).

Saikrishna Bangalore Prakash, The Separation and Overlap of War and Military Powers, 87

EX. L. REV. 299, 314–15 (2008) (quoting Letter from George Washington to William

Moultrie (Aug. 28, 1793), in 33 T

HE WRITINGS OF GEORGE WASHINGTON FROM THE

ORIGINAL MANUSCRIPT SOURCES, 1745–1799, at 73 (John C. Fitzpatrick ed., 1940)).

See infra note 124.

June 2011] FROM THE SHORES OF TRIPOLI 1369

President “does not conceive himself authorized to direct offensive

operations against the Chickamaggas. If such measures are to be

pursued they must result from the decisions of Congress who solely

are vested with the powers of War.”

As the political institutions of

the United States developed, it was commonly accepted that it was

appropriate for Congress to play a central role in regulating the mili-

tary and setting the scope, conditions, and objectives of military op-

erations.

Perhaps the most prominent debate of the time over the war pow-

er involved the dueling views of Alexander Hamilton and James Mad-

ison, writing as “Pacificus” and “Helvidius” respectively, which took

place before any of the major undeclared wars that involved the

United States during the early years of the Republic. These commen-

taries did not arise out of a presidential act of responding to foreign

attack; to the contrary, the debate was spurred by President Washing-

ton’s declaration of neutrality in response to the expanding conflict

on the European continent arising out of the French Revolution.

Nonetheless, President Washington’s declaration spurred controversy

over the roles of the President and Congress in foreign affairs, which

inevitably led to commentary on the war powers of each branch.

Alexander Hamilton, writing under the pseudonym “Pacificus,”

argued that the President had the power to use the full force of the

American military in any way when war was forced upon the nation.

Hamilton believed that if a foreign power declared war upon the

United States, Congress did not need to play a direct role by invoking

the power to “declare war” because war had already been declared.

Hamilton did, however, acknowledge that the actual decision to

transfer from a state of peace to a state of war belonged to the legisla-

tive branch, not the President, writing that “the Legislature can alone

declare war, can alone actually transfer the nation from a state of

Letter from Henry Knox to William Blount (Nov. 26, 1792), in 4 THE TERRITORIAL PAPERS

OF THE

UNITED STATES 220, 221 (Clarence Edwin Carter ed., 1936).

See Louis Fisher, The Barbary Wars: Legal Precedent for Invading Haiti?, in THE

CONSTITUTION AND THE CONDUCT OF AMERICAN FOREIGN POLICY 313, 313–17 (David Gray

Adler & Larry N. George eds., 1996) (discussing a “pattern” established by Presidents

Washington and Adams, and followed by their successors during the Barbary Wars, that

“Congress had to authorize offensive military actions in advance”); Prakash, supra note

33, at 303 (“Contrary to the modern view that the Commander in Chief enjoys exclusive

operational authority, early legislators systematically regulated military operations.”).

See generally ABRAHAM D. SOFAER, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER:

THE ORIGINS 103–16 (1976) (discussing Washington’s proclamation of neutrality).

Cf. FRANK LAMBERT, THE BARBARY WARS: AMERICAN INDEPENDENCE IN THE ATLANTIC

WORLD 131 (2005) (discussing Hamilton’s criticism of President Jefferson’s belief that

there was a limitation on the President’s war power when the nation had been attacked).

1370 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

peace to a state of hostility” and thus “[i]t is the province and duty of

the executive to preserve to the nation the blessings of peace. The

Legislature alone can interrupt them by placing the nation in a state

of war.”

Later, in the context of the Barbary Wars, Hamilton criti-

cized President Thomas Jefferson for expressing any deference to

Congress when the nation’s shipping had been raided without provo-

cation.

At this point, he argued that the President possessed inhe-

rent power to respond to attack.

In response to Hamilton’s assertions during the neutrality contro-

versy, James Madison, writing as “Helvidius,” supported a strong con-

gressional role in the war power and distinct limitations on the Presi-

dent despite the powers granted to him. As recounted by Robert J.

Morgan, Madison argued that the President’s power as Commander

in Chief of the army, navy, and militia when called into service “is in

no way analogous to that of declaring war.”

Instead, Madison be-

lieved that the powers to actually enter into a war and conduct the

operations of war had to be placed in separate branches; in fact, the

Commander-in-Chief power was “a striking demonstration of the in-

compatibility of vesting the powers of making war and directing its

operations in the same branch of government.”

The reason for this,

according to Madison, was that those who had responsibility for con-

ducting the operations of war inherently could not safely determine

when a war should be started, stopped, or continued; this power had

to rest with a party less connected to the actual implementation of

the conflict.

The very functioning of this “great principle of free

government” was grounded in the bedrock constitutional principle

Michael D. Ramsey, Textualism and War Powers, 69 U. CHI. L. REV. 1543, 1549 (2002)

(quoting Letter of Pacificus No. 1 (June 29, 1793), in 4 T

HE WORKS OF ALEXANDER

HAMILTON 432, 443 (Henry Cabot Lodge ed., 1904)). Writing earlier under the pseu-

donym “Publius” in the Federalist Papers, Hamilton also noted the limited nature of the

President’s war powers:

[The President’s authority] would amount to nothing more than the supreme

command and direction of the military and naval forces, as first General and Ad-

miral of the Confederacy: while that of the British King extends to the declaring of

war and to the raising and regulating of fleets and armies; all which by the Constitu-

tion under consideration, would appertain to the Legislature.

HE FEDERALIST NO. 69 (Alexander Hamilton).

See infra text accompanying notes 95–96.

Id.

ROBERT J. MORGAN, JAMES MADISON ON THE CONSTITUTION AND THE BILL OF RIGHTS 100

(1988).

Id.

See id. (“The reason is that those who are to conduct the operations of war cannot ‘in the

nature of things’ be safe judges of whether a war ought to be started, continued, or

stopped.”).

June 2011] FROM THE SHORES OF TRIPOLI 1371

that “the power of enacting laws is separated from that of executing

them.”

For Madison, then, the war power was merely an extension

of this basic foundational principle underlying the Constitution.

Even before the undeclared Barbary Wars, Congress demonstrat-

ed both its concern with extensive presidential war powers and its wil-

lingness to play a major role in an undeclared or limited war. Most

prominently, Congress forcefully showed its concern with extensive

executive power over the military during the so-called Quasi-War with

France of 1798–1800. During the presidencies of George Washing-

ton and John Adams, tensions with France, which was engulfed in

revolution and war on the European continent, had risen dramatical-

ly.

During this crisis, the Adams administration sought broad au-

thority over military matters, including, most controversially, the

power to raise an army at the President’s discretion.

Due to wide-

spread concern in Congress (largely amongst the opposition Repub-

licans) that such an authorization would put far too much power into

the hands of the executive, or could even be considered unconstitu-

tional, the final amended bill passed by Congress placed temporal

and situational restrictions on the President’s power to raise an army.

The finished bill “authorize[d] the President, ‘till the next meeting of

Congress,’ to raise troops ‘in the event of a declaration of war against

the United States, or of an actual invasion . . . or of imminent danger

to such invasion, discovered, in his opinion, to exist.’”

This conce-

dedly granted much discretion to the President, as the language indi-

cated the ability to determine whether there was a threat of “immi-

nent invasion,” which would trigger the President’s ability to raise an

army, rested within the judgment of the President himself.

Howev-

er, the views expressed in the bill accurately reflected the concerns

expressed during the Constitutional Convention, particularly that the

President should be able to act in response to an immediate threat or

Id. (internal quotation marks omitted).

See James Morton Smith, Background for Repression: America’s Half-War with France and the

Internal Security Legislation of 1798, 18 H

UNTINGTON LIBR. Q. 37, 39 (1954) (describing the

belligerent military and diplomatic actions of France toward the United States in the

1790s that led to the Quasi-War of 1798–1800).

See SOFAER, supra note 37, at 144 (“By far the most heated delegation debate . . . was over

the proposal to authorize the President to raise a substantial army when he deemed it ne-

cessary.”).

Id. at 145 (quoting Act of May 28, 1798, ch. 47, 1 Stat. 558) (alteration in original).

See William J. Murphy, John Adams: The Politics of the Additional Army, 1798–1800, 52 NEW

ENG. Q. 234, 237 (1979) (“A careful reading of this act indicates that the provisional army

was an emergency force to be organized only in case of an immediate crisis between the

second and third sessions of the Fifth Congress.”).

1372 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

attack, but should not be able to act aggressively without the consent

of Congress.

Hamilton and Madison did not settle the debate; scholars have in-

terpreted the balance of power between the branches in various ways

since the Constitution’s inception. Louis Fisher, for example, argued

that the power of the President was very limited indeed, asserting that

the President was given a “carefully limited” power to “repel sudden

attacks in an emergency when Congress was not in session.”

This

power was seen as restricted to situations when the United States was

attacked on the mainland or on the seas.

In an article condemning

President Harry Truman’s use of force in Korea without the approval

of Congress, Fisher wrote, “[t]he decision to place U.S. troops in

combat and to take the nation from a condition of peace to a state of

war requires approval by Congress in advance. That was the constitu-

tional principle in 1787. It has not changed today.”

Michael D.

Ramsey demonstrated that the meaning of a “declaration of war” at

the time the Constitution was written was considered both armed at-

tack and formal declaration.

He therefore concluded, “[b]ecause

war can be declared by commencing hostilities as well as by formal

announcement, it should be clear from the text that Congress has

power over both sorts of declarations, and the President does not.”

Congress thus had the main authority regarding the power to make

war. Francis Wormuth and Edwin Firmage emphasized that the de-

bates during the Constitutional Convention stressed “that Congress

was to have the policy-making role of ‘judging . . . the causes of

war’ . . . .”

In terms of war, therefore, Congress was to have the “pol-

icy-making” role.

Wormuth and Firmage believed that Congress

needed to play a crucial role in the United States’ involvement in a

war no matter how it started, asserting that “the President’s war pow-

er was to be limited both by the exigencies of the ‘sudden attack’ giv-

ing rise to its use and by the responsibility to defer to the policy-making

Fisher, supra note 12, at 13.

Id.

Louis Fisher, The Korean War: On What Legal Basis Did Truman Act?, 89 AM. J. INT’L L. 21,

37 (1995).

See Ramsey, supra note 39, at 1545 (observing that, at the time the Constitution was

drafted, “‘declaring war’ meant initiating a state of war by a public act, and it was unders-

tood that this could be done either by a formal declaration or by commencing armed hos-

tilities”).

Id. at 1546. Ramsey also acknowledged that, under the understanding of war at that time,

the President did have the power to respond to attack. Id.

FRANCIS D. WORMUTH & EDWIN B. FIRMAGE, TO CHAIN THE DOG OF WAR: THE WAR POWER

OF CONGRESS IN HISTORY AND LAW 70 (2d. ed. 1989) (alteration in original).

Id.

June 2011] FROM THE SHORES OF TRIPOLI 1373

branch of the government at the earliest possible moment.”

Other scholars,

most prominently John C. Yoo, argued that the President has the abil-

ity to initiate hostilities without consent of Congress.

Yoo asserted

that the language of the text did not create a “Congress-first” metho-

dology for who decides to initiate war,

and that the Constitution

creates a more flexible system in which the President has greater

powers than many pro-Congress advocates argue.

Overall, it seems clear that the original interpretation of the Con-

stitution meant for Congress to be the key actor in initiating or dec-

laring war, while the President was meant to have the authority to act

defensively when the nation was attacked. However, the Constitution

was silent on a type of conflict that has now become predominant:

undeclared war. The Framers were certainly familiar with the con-

cept of undeclared war,

and the United States fought in several such

conflicts in the early 19th century. The response of the United States

to the aggression of the Barbary States of North Africa toward Ameri-

can vessels during the presidencies of Thomas Jefferson and James

Madison show how many of these early thinkers believed undeclared

war should be handled.

II.

EARLY WARS WITHOUT CONGRESSIONAL DECLARATIONS:

INTERACTIONS OF CONGRESS AND THE PRESIDENT DURING

THE

BARBARY WARS

The unique situation of undeclared war provides an effective way

to look at the early views on the proper roles of the President and

Congress. Congress did declare war on Britain in 1812, marking the

first declared war in the nation’s history.

However, Presidents Tho-

mas Jefferson and James Madison both faced situations of undeclared

war against foreign powers. Their actions demonstrate the common

Id. (emphasis added).

See Yoo, supra note 19, at 1641–42 (constructing a theory of presidential war power “that

provides presidents with authority to initiate hostilities”).

See John C. Yoo, Kosovo, War Powers, and the Multilateral Future, 148 U. PA. L. REV. 1673,

1691 (2000) (comparing the Declare War Clause to other sections of the Constitution

and arguing that “if the Framers had intended to impose a strict, Congress-first, warmak-

ing process, they would have used different language”).

See Yoo, supra note 19, at 1662 (emphasizing the “flexib[ility]” of the constitutional system

of war powers).

See Botelho, supra note 4, at 316.

DAVID LOCKE HALL, THE REAGAN WARS: A CONSTITUTIONAL PERSPECTIVE ON WAR POWERS

AND THE

PRESIDENCY 35 n.146 (1991) (stating that President James Madison’s acts as

Commander in Chief during the War of 1812 were not unilateral since the war had been

declared by Congress).

1374 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

early idea that it was within the province of Congress to decide

whether to go to war and what its scope should be and that the Presi-

dent should defer to Congress in such broad decisions of policy re-

lated to war.

A. President Jefferson and the First Barbary War: Establishing Congress’s

Role

One of the first situations that tested how the President should act

without a congressional declaration of war was President Jefferson’s

handling of attacks on American shipping by several North African

nations known as the “Barbary States.” These conflicts consisted of

acts of unprovoked aggression against the United States. The Bar-

bary States of Tunis, Tripoli, Algiers, and Morocco threatened Euro-

pean powers’ Mediterranean commerce essentially as a matter of pol-

icy; from threats or actual violence, these states collected hefty sums

in bounties, bribes, and tributes.

Upon the establishment of the

United States, the Barbary States extended those actions to American

shipping.

For the first two decades of America’s independence, the

Washington and Adams administrations attempted to maintain the

security of American ships by paying off the North African warlords

through congressional appropriation of funds.

Despite the Ameri-

can attempts to appease the Barbary States, there were intermittent

incidents of ships and pirates backed by the North African states at-

tacking and capturing American commercial vessels, and even enslav-

ing American sailors.

Upon his ascension to the presidency in 1801,

Thomas Jefferson was determined to respond to these attacks with

military force rather than continuing to pay tributes, which to this

point had been ineffective and, in his opinion, wasteful.

He con-

See generally JOSHUA E. LONDON, VICTORY IN TRIPOLI: HOW AMERICA’S WAR WITH THE

BARBARY PIRATES ESTABLISHED THE U.S. NAVY AND BUILT A NATION 17–26 (2005) (discuss-

ing the threat of the Barbary piracy in the Mediterranean).

MICHAEL B. OREN, POWER, FAITH, AND FANTASY: AMERICA IN THE MIDDLE EAST, 1776 TO

THE

PRESENT 20 (2007).

See KENNETH B. MOSS, UNDECLARED WAR AND THE FUTURE OF U.S. FOREIGN POLICY 50–51

(2008) (discussing the difficulties that the Barbary States posed to the Washington and

Adams administrations). In the earliest days of the Republic, when the United States was

at its weakest on the world stage, Congress was not above essentially appropriating bribe

money to the Barbary States to prevent attacks on American shipping. See O

REN, supra

note 64, at 28, 33.

MOSS, supra note 65, at 51.

LAMBERT, supra note 38, at 124.

June 2011] FROM THE SHORES OF TRIPOLI 1375

vened his Cabinet in March of 1801 to discuss how to respond to the

Barbary acts of aggression.

Jefferson had already written approvingly of the Constitution’s

placing of the power to declare war with Congress; he wrote to James

Madison in 1789, “[w]e have already given in example one effectual

check to the Dog of war by transferring the power of letting him

loose from the Executive to the Legislative body.”

The power to

react defensively, however, remained unclear. Jefferson’s advisors

urged that the President authorize the use of military force to reta-

liate against the Barbary States rather than seek an actual declaration

of war.

Only one member of the Cabinet, Attorney General Levi

Lincoln, was skeptical of the President’s power to respond unilateral-

ly.

The Cabinet reconvened in May to again discuss the issue; at this

point, the Cabinet was unanimous that some action should and could

be taken. There was still debate over whether the President could au-

thorize the use of offensive force; Attorney General Lincoln main-

tained that American naval vessels should be limited to the ability to

“repel an attack on individual vessels, but after the repulse, may not

proceed to destroy the enemy’s vessels generally.”

President Jefferson’s initial response was unilateral executive ac-

tion: he authorized sending an American fleet to the Mediterranean

without consulting Congress. Historians such as Joseph Wheelan

have argued that this action by President Jefferson “established the

president’s authority to unilaterally send armed forces abroad.”

However, Jefferson’s actual instructions reflected concerns about

overstepping the authority of the executive under the Constitution.

Accordingly, Jefferson sided with Attorney General Lincoln’s view,

which historian Frank Lambert described as “close adherence to the

letter of the Constitution.”

Jefferson gave detailed instructions to

See LONDON, supra note 63, at 92 (discussing Attorney General Levi Lincoln’s expressed

disapproval during the Cabinet meeting about going to war against the Barbary pirates).

Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 15 THE PAPERS OF

THOMAS JEFFERSON, 27 MARCH 1789 TO 30 NOVEMBER 1789, at 392, 397 (Julian P. Boyd,

ed., 1958).

LONDON, supra note 63, at 94.

Id. at 92.

LAMBERT, supra note 38, at 126 (internal quotation marks omitted).

JOSEPH WHEELAN, JEFFERSON’S WAR: AMERICA’S FIRST WAR ON TERROR 1801–1805, at 105

(2003). However, Wheelan concedes that Jefferson’s actions were taken with contempo-

rary practical considerations in mind regarding the time it would take for members of

Congress to travel to Washington. Id.

See LAMBERT, supra note 38, at 126 (“[A]s strict constructionists, Jefferson and his Repub-

lican colleagues wanted to ensure the constitutionality of their action.”).

Id.

1376 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

Commodore Dale, the commander of the flotilla, to act in defense of

American ships and not initiate hostilities unless a declaration of war

had been issued by Tripoli or another of the Barbary States.

Specif-

ically, Dale was given instructions to “sink, burn, capture, or destroy

vessels attacking those of the United States.”

Jefferson therefore condi-

tioned the use of offensive force on fending off attacks against Amer-

ican ships and sailors.

His approach suggests some important limi-

tations on the President’s power to respond to attacks. First, he

authorized the use of naval force to combat Tripoli’s use of naval

force; the action was equal to Tripoli’s action. He did not send ma-

rines or ground troops to subdue Tripoli as his initial response to the

Tripolitan aggression. Only later, after Congress passed a statute

supporting “warlike operations against the regency of Tripoli, or any

other of the Barbary powers,”

did American marines participate on

land in the Barbary conflict.

Second, by only instructing the flotilla

commander to attack ships already attacking those of the United

States, he emphasized that, if he acted unilaterally, he only had the

authority to act defensively.

The implications of the President’s deployment of the naval force

without congressional consent or guidance were demonstrated in one

of the first battles between American and Tripolitan forces. In Au-

gust of 1801, the American schooner Enterprise encountered the Tripo-

li, a Tripolitan pirate vessel, and proceeded to overwhelm the enemy

ship with superior firepower, killing many of the crew and disabling

the enemy ship without a single casualty.

However, the commander

of the Enterprise, aware that Congress had not declared war on Tripoli

and had only authorized defensive action, actually released the cap-

tured Tripolitan survivors and the ship itself.

The lack of a declara-

HALL, supra note 62, at 31–32.

ANN VAN WYNEN THOMAS & A.J. THOMAS, JR., THE WAR-MAKING POWERS OF THE

PRESIDENT 53 (1982) (emphasis added).

As Frank Lambert recounted, Jefferson “instructed the navy to engage any enemy vessel

that attacked American shipping, but not to pursue corsairs in offensive engagements nor to

take them as prizes.” L

AMBERT, supra note 38, at 126 (emphasis added).

Act of Mar. 26, 1804, ch. 46, 2 Stat. 291.

See generally LOUIS B. WRIGHT & JULIA H. MACLEOD, THE FIRST AMERICANS IN NORTH

AFRICA: WILLIAM EATON’S STRUGGLE FOR A VIGOROUS POLICY AGAINST THE BARBARY

PIRATES 1799–1805, at 158, 172–74 (Greenwood Press 1969) (1945) (describing the par-

ticipation of a small number of American marines and sailors in a ground campaign

against Tripoli); W

HEELAN, supra note 73, at 111–12 (discussing the composition and dy-

namic of the American military personnel involved in the Barbary conflict).

LAMBERT, supra note 38, at 128–30.

Id. at 130. As Michael B. Oren recounted, the Tripoli “was allowed to limp home” after

defeat, where her commander was “publicly flogged and pelted with tripe” for his failure.

REN, supra note 64, at 56.

June 2011] FROM THE SHORES OF TRIPOLI 1377

tion of war, or guidance from Congress to act in an offensive matter,

heavily constrained the power of the President and the military.

Based on the understanding of the Constitution at the time, the cap-

tain of the Enterprise declined to go beyond a defensive posture with-

out guidance or approval from Congress.

Upon seeing the practical effects of not having congressional ap-

proval to act offensively, Jefferson went to Congress in December 1801

to describe the American victory over the Tripoli and ask for congres-

sional sanction of more aggressive measures. In his message to Con-

gress, President Jefferson wrote:

Unauthorized by the Constitution, without the sanction of Congress, to

go beyond the line of defense, the [defeated Tripolitan] vessel, being

disabled from committing further hostilities, was liberated with its crew.

The Legislature will doubtless consider whether, by authorizing measures

of offence also, they will place our force on an equal footing with that of

its adversaries. I communicate all material information on this subject,

that, in the exercise of this important function confided by the Constitu-

tion to the Legislature exclusively, their judgment may form itself on a

knowledge and consideration of every circumstance of weight.

Jefferson’s assertion that he was “unauthorized by the Constitution,

without the sanction of Congress, to go beyond the line of defense”

reflected the deference that the Framers meant for the President to

have to Congress in matters of offensive war.

Jefferson also appro-

priately noted that “[i]t was up to Congress to authorize ‘measures of

offense also.’”

Jefferson wanted more authority to act offensively

against the Barbary pirates but recognized that he was effectively con-

strained by how the legislature authorized and defined war.

In Feb-

ruary of 1802, the Congress granted the President the ability to act

offensively by passing an “Act for the Protection of Commerce and

Seamen of the United States, against the Tripolitan Cruisers.”

Con-

gress did not officially declare war; however, as historian Frank Lam-

bert observed, “[Congress] eliminated constitutional reservations”

and authorized the President to use full offensive force.

LAMBERT, supra note 38, at 130. Lambert wrote that this action “revealed a flaw in the

Constitution’s allocation of war-making powers.” Id.

Sofaer, supra note 37, at 212 (quoting 11 ANNALS OF CONG. 12 (1801)).

See supra text accompanying notes 13–18 (discussing the debate over the war power dur-

ing the Constitutional Convention of 1787).

Fisher, supra note 10, at 34; see supra text accompanying note 84.

See LAMBERT, supra note 38, at 130 (“While respecting the constitutional requirement that

the legislature declare and define war, Jefferson sought greater authority to defeat the

Barbary States.”).

Act for the Protection of Commerce and Seamen of the United States, Against the Tripo-

litan Cruisers, ch. 4, 2 Stat. 129 (1802).

LAMBERT, supra note 38, at 132–33.

1378 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

Jefferson’s actual view on the war power of the President is still

debated by legal scholars. Louis Fisher argued that President Jeffer-

son’s decision was indicative of his view that deference to Congress in

matters of offensive war was proper under the Constitution.

Others,

including Ann Van Wynan Thomas and A.J. Thomas, Jr., argued that

Jefferson’s view of presidential war power was actually quite broad, “at

least when confronted with a declaration of war from another state.”

Jefferson’s approach to Congress to obtain authority for offensive ac-

tion, they argue, was in fact a political maneuver to persuade Con-

gress to explicitly provide authority to act offensively.

David Locke

Hall, basing his argument on Jefferson’s instructions to Commodore

Dale,

asserted that Jefferson believed in the President’s ability to un-

ilaterally make war.

Even Hall, however, tempered that assertion by

noting that while the behavior of the first three presidents indicated

that “the idea of presidential war-making was acceptable to the

Founding Fathers,” such unilateral executive action was appropriate

only “under some circumstances,” seemingly limited to when the

United States had not instigated the conflict.

A major question still remains: while President Jefferson’s actions

were appropriate, were they necessary? At the time, Alexander Ham-

ilton argued that Jefferson’s deference to Congress was not a consti-

tutional requirement. Hamilton wrote that the President’s ability to

respond to a foreign nation’s attack or declaration of war meant that

Congress needed not play a role at all; at that point, “any declaration

on the part of Congress is nugatory; it is at least unnecessary.”

Al-

though Hamilton was critical of any executive deference to Congress

See FISHER, supra note 10, at 36.

THOMAS & THOMAS, supra note 77, at 53.

See id. (“The limited tenor of [Jefferson’s] language to the Congress was tactical to help

persuade Congress to provide expressly for offensive action, which was indeed forthcom-

ing. It did not indicate a belief that power to act offensively by the President was not con-

stitutional.”).

Hall called Jefferson’s instructions “so belligerent that it cannot be read in any way which

denies President Jefferson’s clear intention to wage war unilaterally at any provocation.”

ALL, supra note 62, at 32.

See id. (“For the purpose of legal analysis, it is enough to suggest that the operating order

to Commodore Dale establishes that in practice Jefferson believed in unilateral presiden-

tial war-making.”). John Yoo also expressed this opinion of Jefferson handling of the sit-

uation, writing that his message to Congress “presents an example of a President’s rhetor-

ic not matching his actions.” See J

OHN YOO, CRISIS AND COMMAND: THE HISTORY OF

EXECUTIVE POWER FROM GEORGE WASHINGTON TO GEORGE W. BUSH 113 (2009).

HALL, supra note 62, at 32.

Alexander Hamilton, Examination of Jefferson’s Message to Congress of December 7, 1801, in 7

HE WORKS OF ALEXANDER HAMILTON 744, 747 (John C. Hamilton ed., New York, John F.

Trow 1851).

June 2011] FROM THE SHORES OF TRIPOLI 1379

when the United States was reacting to a declaration of war or hostile

conduct, he acknowledged that the power to actually “go to war,” that

is, to initiate war, was entirely within the power of Congress.

Whether Jefferson’s deference to Congress was actually necessary

is still unclear. Michael Ramsey argued that, according to the ideas of

war around the time of the founding, Jefferson’s request for congres-

sional authorization was not necessary.

Ramsey argued that war it-

self could be declared in three ways: declaration by Congress, delega-

tion of the authority to declare war to the President, or declaration of

war by the foreign state.

Once a state of war existed via any of these

three methods, the President’s conduct of the war, whether defensive

or offensive, was authorized.

100

Because Tripoli had declared war on

the United States, under Ramsey’s approach, Jefferson already had

the authority to act offensively, and did not need to seek approval of

such actions from Congress.

101

While Ramsey’s view has a solid

grounding in the historical understanding of war at the time of the

Founding, it inadequately takes into account the decision-making

role of Congress in war. Acting in defense of an attack is a presiden-

tial prerogative, but the actual decision to expand or change the ob-

jectives of a war was meant to be entrusted to Congress. Ramsey

therefore ignores the crucial decision- and policy-making authority of

Congress by declaring that the President has unlimited power over

war-making when another nation attacks the United States. In fact, as

Louis Fisher observes, Jefferson’s actions were appropriately deferen-

tial to the decision-making branch.

102

The interaction of President Jefferson and Congress in response

to the Barbary threat helps to establish a framework of the early views

of how the President could respond to a foreign attack and when he

needed to obtain congressional sanction for his actions. President

Jefferson had the ability to dispatch naval forces to the Mediterra-

nean to protect American shipping. As American civilian vessels were

being attacked by a belligerent power, it was well within Jefferson’s

power as expressed during the Constitutional Convention to repel

Id. at 746; MOSS, supra note 65, at 51–52.

Ramsey, supra note 39, at 1629–30.

Id. at 1631.

100

See id. at 1630 (“In short, the power to wage a defensive war included both the tactical

defensive and the tactical offensive: The key question was how it was begun, not how it

was fought.”).

101

See id. at 1631 (asserting that “[o]nce the state of war is created in any of these three ways,

the President has full power to pursue it to the end”).

102

See FISHER, supra note 10, at 35–36.

1380 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

such a “sudden attack.”

103

However, Jefferson was rightly concerned

that his options were limited to responding to Tripoli’s aggressive ac-

tions by defending the American ships. This belief was reflected by the

actions of the Enterprise in merely disabling the Tripolitan ship that

was preying on American commerce.

104

Jefferson thus went to Con-

gress, which he staunchly believed had the power to authorize offen-

sive war; in fact, Jefferson turned to Congress ten times for various

authorizations to use force against the Barbary pirates.

105

Jefferson’s

actions reflected his view that the proper time for the President to act

unilaterally, without the consent of Congress, was when the very sur-

vival and safety of the nation, or its citizens, was at risk.

106

When the

military operation was to take an offensive character, Jefferson ap-

propriately believed that congressional consent was required.

107

B. President Madison and the Second Barbary War: Ensuring Congressional

Authorization

In the weeks and months following the end of hostilities with

Great Britain in 1815, the American government finally turned its at-

tention back toward the Barbary States. Encouraged by the British,

108

the Dey of Algiers refused to accept American offers of tribute begin-

ning in 1812, and proceeded to capture and impress American ships

and sailors.

109

After the Treaty of Ghent ending the war with Great

Britain was ratified in February 1815, President Madison was infu-

riated by the Dey of Algiers’s continued preying on American ship-

ping and refusal to release American sailors whom his forces had en-

slaved.

110

However, unlike his predecessor, Thomas Jefferson,

Madison did not immediately order American naval forces to the

Mediterranean. Instead, he formally asked Congress to declare “the

existence of a state of war between the United States and the Dey and

Regency of Algiers.”

111

103

See supra text accompanying notes 13–18.

104

See supra text accompanying notes 81–83.

105

MOSS, supra note 65, at 51.

106

See Fisher, supra note 12, at 36 (arguing that Jefferson “was not opening the door to any

and all presidential initiatives” but advocating “presidential actions in response to emer-

gencies that threatened the survival of the nation”).

107

Id.

108

The British had offered their support and protection to Algiers if they would interrupt

the shipping of their American enemies as the War of 1812 started. L

AMBERT, supra note

38, at 183–84.

109

Id. at 188.

110

Id. at 189.

111

Id. (internal quotation marks omitted).

June 2011] FROM THE SHORES OF TRIPOLI 1381

Congress debated the issue in late February and early March of

1815.

112

On March 3, Congress declined President James Madison’s

request for a formal declaration of war against Algiers,

113

but did in-

stead issue an authorization for the President to use military force

similar to the congressional authorization issued in 1802.

114

Congress

specifically laid out its grant of power, giving American vessels the au-

thority “to subdue, seize, and make prize of all vessels, goods and ef-

fects of or belonging to the Dey of Algiers.”

115

President Madison thus

had the authority to conduct naval operations against Algiers, without

any of the constraints President Jefferson or Commodore Dale saw

themselves as having due to a lack of congressional guidance in

1801.

116

President Madison built upon the opinion of President Jefferson

that deferring to Congress was essential to undertaking offensive op-

erations. At the time Madison went to Congress, he had the ability

under the Constitution to send a fleet to the Mediterranean once

again to defend American ships and sailors under attack. However,

perhaps with the limitations Jefferson had in 1801 in mind, he went

to Congress first to ensure he had authority for both defensive and

offensive military action. By obtaining such authority, Madison con-

tinued the standard practice of the time of deferring to Congress as

the policy-making body in matters of war.

C. Implications of the Barbary Wars

Both Barbary Wars demonstrate two essential facts about what is

required for the United States to fight in a war. First, an official dec-

laration of war is not necessary to undertake military action against

another nation. The President can order the armed forces to re-

spond to a direct attack on the United States, even if it is beyond its

borders, without consulting Congress. The first Barbary War demon-

strates this example: shortly after being inaugurated, President Jef-

ferson responded to the aggression of Tripoli by sending an Ameri-

can naval force with instructions to defend American commercial

112

Id.

113

This was one of only two times in American history that Congress has voted on a declara-

tion of war that failed to pass. The other was in 1999, when there was a 213–213 tie vote

on the decision to declare war on Serbia prior to the NATO air campaign aimed at stop-

ping the genocide taking place in Kosovo. Michael Hahn, Note, The Conflict in Kosovo: A

Constitutional War?, 89 G

EO. L.J. 2351, 2377 (2001).

114

STEVENSON, supra note 3, at 17.

115

Act of Mar. 3, 1815, ch. 90, 3 Stat. 230.

116

See supra text accompanying notes 81–89.

1382 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

ships. Second, the nation can engage in offensive warfare through a

congressional authorization short of a declaration of war. This took

place during both of the major Barbary conflicts. These observations

lead to the important question of what the intended role for each

branch is when the United States is faced with a foreign conflict. The

answer, as the next Part discusses, may be determined by how the

conflict begins and whether the United States is initiating or reacting

to the use of force.

III. THE BARBARY FRAMEWORK: THE ROLES OF CONGRESS AND

THE PRESIDENT IN WAR

The Barbary Wars lay the groundwork for the key distinction be-

tween legislative and executive war-making power. Defensive warfare

lies within the power of the President, while the decision to under-

take offensive warfare is the responsibility of Congress. This Part first

discusses the constitutional, historical, and scholarly views that sup-

port this distinction and then defines what scenarios fall within the

meaning of “offensive war” and “defensive war.”

A. Congress and the President in “Offensive” and “Defensive” War

The original perspectives regarding undeclared war and their im-

plementation during the Barbary Wars present an opportunity to

forge a framework reflecting the original meaning of the Constitu-

tion for the proper roles of Congress and the President in war.

Where a foreign nation had actually attacked the United States or de-

clared war on the United States, the President would have the power

to respond immediately.

117

The scope of the President’s power to re-

spond to attack, however, was limited. As Peter Raven-Hansen ob-

served, “the history of the framing and ratification supports an im-

plied constitutional authority of the President to repel a sudden

attack. But nothing in that history suggests that this authority ex-

tends beyond literally repelling the attack.”

118

It was generally ac-

117

In 1863, the Supreme Court, in approving President Lincoln’s authority to institute a

blockade on the rebelling southern states, supported the view that the President could

react to foreign attack or rebellion without congressional approval. See The Brig Amy

Warwick (The Prize Cases), 67 U.S. 635, 668 (1863) (“If a war be made by invasion of a

foreign nation, the President is not only authorized but bound to resist force by force.

He does not initiate war, but is bound to accept the challenge without waiting for any

special legislative authority.”).

118

Peter Raven-Hansen, Constitutional Constraints: The War Clause, in THE U.S. CONSTITUTION

AND THE

POWER TO GO TO WAR 29, 35 (Gary M. Stern & Morton H. Haperin eds., 1994).

June 2011] FROM THE SHORES OF TRIPOLI 1383

knowledged in the early years of the United States’ existence that the

president had to go to Congress if he wanted to go beyond self-

defense and undertake offensive action.

119

Therefore, in an undec-

lared war started by a foreign power, the President should be autho-

rized by Congress to use of offensive force. By contrast, if the United

States is to initiate or “declare” war, the Constitution explicitly places

that power with Congress.

120

Based on the early views surrounding the war power, the most

plausible approach is that the need for congressional approval is trig-

gered when the conflict takes an offensive character. Congress, after

all, was intended by the Framers to be the “policy-making branch” in

the context of war;

121

the question of extending a war from defending

the United States to offensive measures against the attackers is cer-

tainly a question of policy, not just a question of strategy. Further-

more, as Francis Wormuth and Edwin Firmage recognized, the Fra-

mers intended for the President’s war power “to be

limited . . . by . . . the responsibility to defer to the policy-making

branch of the government at the earliest possible moment.”

122

Sai-

krishna Prakash effectively summarized early presidential views: “No

early President felt free to wage war merely because another nation

had declared war on the United States. Each understood that to

wage war was to declare it, a power the Constitution granted Congress

and not the President.”

123

Having the President turn to Congress for

authority to conduct offensive operations places that important poli-

cy-making responsibility in the hands of the branch that the Framers

intended for it to be.

124

This reflects the Jeffersonian view of warfare;

as Louis Fisher observed, “Jefferson . . . distinguished between defen-

119

See id. (noting that early customary law showed that “presidents conceded the need for

congressional authority to go beyond immediate self-defense”).

120

U.S. CONST. art. I, § 8, cl. 11.

121

WORMUTH & FIRMAGE, supra note 55, at 70.

122

Id.

123

Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by “Declare

War,” 93 C

ORNELL L. REV. 45, 51 (2007).

124

President Washington’s actions seem to accord with this view. As recounted by Saikrishna

Prakash, in the context of Creek and Chickasaw offensive actions against the United

States in 1792 and 1793,

Various governors wrote to the President seeking authority for offensive opera-

tions against the tribes. Washington and his Cabinet agreed that only Congress

could authorize offensive measures because only Congress could declare war. At

the same time, Washington and his Cabinet concluded that defensive measures

designed to repel attacks were permissible because such measures did not usurp

Congress’s Declare War power . . . . Because defensive uses of force were not dec-

larations of war, the Executive could order defensive measures without running

afoul of the congressional monopoly on declaring war.

Prakash, supra note 33, at 359 (citations omitted).

1384 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

sive and offensive military operations, permitting presidential initia-

tives for the former but not the latter.”

125

The extent of Congress’s involvement, however, need not always

be a declaration of war. An actual declaration is the strongest action

that Congress could take; therefore, it is appropriate that Congress be

required to declare war if the United States is to initiate hostilities

without provocation. When the United States itself is attacked, how-

ever, the President should have the authority to defend the nation,

but must seek congressional approval to begin offensive operations.

Because war has been initiated by another country, a declaration

should be unnecessary; nonetheless, congressional approval should

be sought in a lesser form, such as simple authorization to use offen-

sive force.

Both Barbary Wars reflect this proposed framework. In the first

Barbary War, President Jefferson sent ships to the Mediterranean in

response to Tripolitan attacks on American shipping, which eventual-

ly culminated in a declaration of war on the United States by Tripo-

li.

126

American ships proceeded to act only in a defensive nature.

American naval forces only took an offensive posture when Congress

granted full authority to do so to the President in 1802.

127

President

Madison immediately went to Congress upon the conclusion of the

War of 1812 and received the authority to act offensively before he

sent American naval forces to confront the Dey of Algiers’s pirate ves-

sels.

128

However, a declaration of war from Congress was unnecessary

in both situations; war had already been declared by Tripoli and Al-

giers, respectively. Instead, congressional authorization to act offen-

sively was sufficient, fulfilling its role as the policy-making branch in

decisions of war.

This approach reflects upon the original preference for Congress

to be the key decision-maker in matters of war, and also balances the

necessity of the President’s responsibility to act as Commander in

Chief. Under this framework, the President’s ability to defend the

nation is preserved. If the President acts defensively, the decision to

go to war was made by another power, and the President’s use of mili-

tary force would not be acting outside of his constitutional authority.

However, by seeking authorization from Congress to undertake of-

fensive action, the Framers’ desire for the legislative branch to play a

central role in the question of war powers is preserved. This reflects

125

FISHER, supra note 10, at 36.

126

LONDON, supra note 63, at 95.

127

See supra text accompanying note 89.

128

See supra text accompanying notes 108–15.

June 2011] FROM THE SHORES OF TRIPOLI 1385

on Saikrishna Prakash’s proposal of a “[u]nitary [w]ar [p]ower” in

Congress, in which Congress would have the authority to determine

the parameters of war.

129

Furthermore, it preserves Congress as the

true decision-making body when it comes to war. Defending the na-

tion from attack does not so much involve a decision to use force; na-

tions are essentially obligated to do so to defend their sovereignty and

existence.

130

The President would have no decision to make; as

Commander in Chief, he has the authority to direct the military to

defend the nation, and the decision to use this force was made by the

attacking nation. However, the ability to change the objectives of the

war from defending the nation to an offensive posture, possibly in-

volving attack and occupation, is a policy decision to be made, and

that crucial decision must rest with Congress.

The fact that the Constitution vests the power to declare war in

Congress indicates that the Framers wanted Congress to play at least

some role in the decision to undertake offensive warfare, even if it

stems from a defensive war that the President could unilaterally en-

gage in. In his seminal book War and Responsibility, John Hart Ely laid

out the reasons that such a momentous decision was placed in the

hands of Congress:

It was Congress’s job not simply to insist on getting the facts straight before

giving the president a functional declaration of war, but also to decide

for itself just how great an emergency there was. That’s why we have sep-

arate branches. That’s why the war power is vested in Congress.

131

For these same reasons, Congress must have a say in a decision the

Framers recognized was so important.

Importantly, under this framework, a declaration of war would not

be necessary in all situations where the United States uses force; if war

were to be thrust upon the United States by a foreign power, the Pres-

ident could act defensively. He would merely need congressional au-

thorization to take the war to an offensive footing.

132

This factor em-

phasizes that Congress is the ultimate possessor of the war power. If

Congress were to decide not to authorize offensive war after the

United States had been attacked, it would be its prerogative to do

129

See Prakash, supra note 123, at 60.

130

See U.N. Charter art. 51 (“Nothing in the present Charter shall impair the inherent right

of individual or collective self-defense if an armed attack occurs against a Member of the

United Nations . . . .”).

131

JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS

AFTERMATH 20 (1993).

132

See KEYNES, supra note 11, at 38 (“The decision to engage the nation in offensive hostili-

ties or limited war is a congressional decision.”).

1386 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

so.

133

If the power to change the status between the United States and

another nation from peace to war rests with Congress, then Congress

should also have some input in the decision to expand a war from in-

herently defensive to actually offensive. President Jefferson adhered

to this requirement, explicitly telling Congress that it was within its

authority to authorize offensive measures.

134

One could plausibly argue that such a system would restrict the

President’s ability to effectively prosecute a war initiated by another

nation.

135

Indeed, certain scholars have rejected the necessity of con-

gressional involvement of any sort when war is imposed upon the na-

tion. John C. Yoo, in the context of the Barbary Wars, argued that

“Presidents should not have to wait to seek authorization from Con-

gress when another nation has already attacked or declared war upon

the United States.”

136

This criticism of a deferential approach to

Congress reflects Alexander Hamilton’s concern that the President

would need to exercise the full might of the nation’s military to re-

spond to attack without restriction.

137

This can be countered in two

ways. First, the nature and importance of the substantive policy im-

plications of extending a war to an offensive posture is the reason

that the power was placed in the hands of Congress in the first

place.

138

Second, throughout the history of the nation, Congress has

consistently acquiesced to a presidential request for authorization to

use force when the nation has been attacked.

139

Even dubious asser-

tions of foreign attacks on American troops abroad, such as the sup-

posed North Vietnamese attacks on American patrol boats in the Gulf

of Tonkin in August of 1964, have led to congressional acquiescence

for the use of force.

140

If the President can effectively make a case

that a foreign attack on the United States requires an offensive reac-

tion, he still has the ability to convince Congress of the legitimacy of

133

As Saikrishna Prakash observed, “Whether Congress ultimately makes wise decisions or

not, at least there is no obscure division of authority that might confuse the people.”

Prakash, supra note 123, at 61.

134

See supra text accompanying note 84.

135

See Yoo, supra note 19, at 1683 (arguing that a strict structure requiring presidents to re-

ceive authorizations to use force would “seriously hamper” the nation’s efforts in combat-

ing enemies determined to attack the United States).

136

YOO, supra note 94, at 114.

137

See supra text accompanying note 39.

138

See STORY, supra note 19, at 409–11 (discussing the Framers’ desire to place the decision

of going to war with the legislature rather than the executive).

139

E.g., FISHER, supra note 10.

140

See ELY, supra note 131, at 20–21 (discussing circumstances surrounding the Tonkin Gulf

Resolution).

June 2011] FROM THE SHORES OF TRIPOLI 1387

that position.

141

Further, the symbolic power of congressional ap-

proval of war can be essential to public confidence and approval.

142

Even Alexander Hamilton, who was among the foremost proponents

of executive power in the years after the Constitutional Convention,

recognized the symbolic importance of a congressional role in the

decision to use force; as Kenneth B. Moss observed, “[a] congression-

al decision to use force or declare war was a check on executive pow-

er that Hamilton realized needed to be in place to ensure public con-

fidence and trust in the decision itself.”

143

The question of whether

war is desirable, as John Hart Ely observed, “is precisely what Con-

gress is supposed to decide.”

144

B. Defining “Offensive” and “Defensive” War

While the preceding analysis indicates that the President and

Congress were meant to have varying authority in different types of

war, one must attempt to clearly define offensive and defensive war.

To categorize a war, one should look at the overall purpose and ob-

jectives of the military action. Of course, all military campaigns re-

gardless of the goal require offensive and defensive actions; troops

attacking a nation, for example, will still have to defend themselves

from enemy counterattacks, and troops defending their nation

against attack will ultimately undertake counteroffensives to drive the

enemy from their territory and attempt to exploit the enemy’s weak-

ness at any opportunity. These decisions belong with the executive

branch because the President, as Commander in Chief, or his subor-

dinates in the military structure, must direct the day-to-day operation

of the military.

145

The point at which Congress should be required to

step in should turn on the objective of the war itself. This avoids the

confusion that could result in involving Congress in minor aspects of

141

See Prakash, supra note 123, at 60–61 (noting that a unitary war power in Congress “con-

centrates responsibility on Congress and thus does not permit confusion about who is re-

sponsible for going to war and who is accountable for the overall level of force being em-

ployed against the enemy”).

142

LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 321 (2d ed.

1996) (noting that “in foreign relations as elsewhere . . . the Congress is in several senses

the more representative branch and brings to bear the influences of public opinion, di-

versity, concern for local and individual rights”).

143

MOSS, supra note 65, at 26.

144

ELY, supra note 131, at 100.

145

U.S. CONST. art. II, § 2, cl. 1; see also Prakash, supra note 33, at 305 (noting that congres-

sional micromanagement of a war is implausible by observing that “a bill ordering a pla-

toon to capture a hill often will be rendered irrelevant by intervening events long before

the bill becomes law and is conveyed to the platoon”).

1388 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

a conflict, but preserves the policy-making role that the Framers orig-

inally meant for Congress to have in the realm of war.

146

The two extremes of offensive and defensive war are fairly easy to

define. A purely defensive war would include situations such as repel-

ling a direct invasion or responding to an attack on American soil;

here, the President would have significant power to respond without

congressional approval. Thomas Jefferson expressed this view

throughout his presidency; as Louis Fisher observed, “[f]or purely de-

fensive operations, Jefferson retained the right to act first and seek

congressional approval later.”

147

For example, when a British vessel

fired on the American ship Chesapeake off the American coast in June

1807, war between the United States and Britain appeared immi-

nent.

148

President Jefferson approved a number of military expendi-

tures to strengthen military installations in coastal cities, claiming his

orders were justified by “the emergencies threatening us.”

149

This re-

sponse was an appropriate unilateral presidential response in the

context of defensive war, reflected by the overwhelming support Jef-

ferson received for his actions in Congress; when the House of Rep-

resentatives voted to retroactively fund Jefferson’s defensive measures

after it reconvened in November 1807, the measure passed by an

overwhelming vote of 124-2.

150

At the other end of the spectrum, a purely offensive war would in-

clude an initiation of hostilities against a nation without provocation.

This is the only scenario where the Constitution gives explicit instruc-

tions: it is Congress who should declare war.

151

Further reflecting the

limited power of the President to “repel sudden attack,” the “decision

to engage the nation in offensive hostilities” lies with Congress.

152

The most difficult task is determining which branch must act in

situations that fall between these two concrete examples.

153

The first

scenario is when a war that started defensively takes on an offensive

character. This could take place, for example, when the United

States or an ally is attacked and the President defensively responds to

the attack. However, defeating the enemy often does not mean just

repulsing him from friendly territory and can often include attacks

146

WORMUTH & FIRMAGE, supra note 55, at 70.

147

FISHER, supra note 10, at 36.

148

SOFAER, supra note 37, at 172.

149

Id. (internal quotation marks omitted).

150

Id. at 173.

151

U.S. CONST. art. I, § 8, cl. 11 (“The Congress shall have Power . . . to declare War . . . .”).

152

KEYNES, supra note 11, at 38.

153

See id. at 40 (noting that “there is no clear-cut distinction between defensive and offensive

warfare”).

June 2011] FROM THE SHORES OF TRIPOLI 1389

on his territory to help disable the enemy’s military capabilities. In

this scenario, congressional approval should be required when the

war’s objectives change from inherently defensive to inherently of-

fensive. In many recent American wars, the involvement of the Unit-

ed States was not defending itself but acting as an ally, such as in Ko-

rea or Vietnam.

154

In these situations, Congress should have a role in

deciding whether to change the objective from defending the ally to

attacking the enemy, largely because of the policy implications of this

move.

155

As mentioned earlier, the Framers meant for Congress to be

the policy-making branch in terms of war.

156

Historical experience

shows that unilateral presidential actions in the context of wars being

fought defensively have had massive policy implications; congression-

al consideration and approval therefore must be sought for these ac-

tions. Two fairly recent examples are instructive. In 1950, without

congressional approval, President Truman decided to occupy the en-

tire Korean peninsula rather than simply defend the territorial inte-

grity of South Korea after an invasion by North Korea.

157

This action

led to intervention by China and resulted in several years of stale-

mated war and thousands of American casualties.

158

In 1969 and

1970, President Nixon secretly decided to undertake a massive bomb-

ing campaign and later ground invasion of Cambodia, which was ar-

guably beyond the scope of the war in Vietnam, whose objective was

to defend South Vietnam.

159

While a small number of members of

Congress were notified, Congress as a whole was not consulted, even

though this was an escalation of combat operations to an entirely dif-

ferent country.

160

The fact that these unilateral presidential decisions

154

These are situations that the Framers may not have contemplated, as their conceptions of

national defense shortly after independence were most likely geographically limited to

territorial integrity and would not extend to the vast network of allies and national securi-

ty interests possessed by the United States around the globe today. Id. at 39.

155

Id. at 38.

156

See supra text accompanying note 122.

157

See infra text accompanying notes 194–201.

158

See infra Part IV.A (discussing the implications of President Truman’s decision to go on

the offensive into North Korea during the Korean War).

159

ELY, supra note 131, at 98; see also infra Part IV.B.

160

See ELY, supra note 131, at 98 (“Although a small handful of cooperative members of

Congress—I make it eight—apparently were told, those the administration subsequently

identified understandably tended to belittle the extent of their notification, and in any

event they did not pass the word along to their colleagues or the American people.” (ci-

tations omitted)). Although the circumstances of the conflicts are quite different, the in-

teraction of the executive and legislative branches regarding the military action in Cam-

bodia has some parallels to the Obama administration’s recent decision to intervene

militarily in Libya. In the latter situation, President Obama notified certain members of

Congress about his decision to order a bombing campaign against government forces in

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1390 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

produced serious complications exemplify why this power was placed

with Congress. Decisions of such magnitude were not meant for the

President to make alone; their importance was the reason that the

Framers meant for Congress to make, or at least approve of, these de-

cisions.

161

Under these circumstances, the President must seek at least

a congressional authorization for inherently offensive actions.

An examination of two modern examples can help clarify the dif-

ference between offensive and defensive war in more ambiguous situ-

ations. In the wake of the Iraqi invasion and occupation of Kuwait in

August 1990, President George H.W. Bush, acting in the wake of a

number of United Nations resolutions,

162

prompted a build-up of

American and allied military forces in Saudi Arabia in preparation to

expel the Iraqi Army from Kuwait.

163

Congress voted on and autho-

rized the use of force against Iraq in January of 1991.

164

American

forces and their allies later attacked the Iraqi forces, but did not go

beyond the established objective of expelling the Iraqis from Ku-

wait.

165

While this scenario is complicated because it involves Ameri-

can forces acting in defense of another nation,

166

President Bush

acted properly in this scenario. Because he wisely gained congres-

sional approval for this action,

167

President Bush did not have any

Libya several days in advance of the beginning of military operations, but did not bring

the matter to Congress as a whole for authorization. See Press Gaggle, Jay Carney, Press

Sec’y, The White House (Mar. 24, 2011) available at http://www.whitehouse.gov/the-

press-office/2011/03/24/press-gaggle-press-secretary-jay-carney-3242011 (discussing

meetings between Obama administration officials and members of Congress and actions

by Congress prior to military intervention in Libya).

161

See ELY, supra note 131, at 100 (“A fear that Congress might overturn (or complain about)

executive policy is not a constitutional excuse for not telling it what’s going on.”)

162

JOHN LEHMAN, MAKING WAR: THE 200-YEAR-OLD BATTLE BETWEEN THE PRESIDENT AND

CONGRESS OVER HOW AMERICA GOES TO WAR 21–22 (1992).

163

Id. at 33–34; SEAN WILENTZ, THE AGE OF REAGAN: A HISTORY, 1974–2008 at 296–99.

164

Authorization for Use of Military Force against Iraq Resolution, Pub. L. No. 102–1, 105

Stat. 3 (1991). Notably, the votes in the House and Senate that ultimately authorized the

action were fairly close: 250 to 183 in the House, and 52 to 47 in the Senate. W

ILENTZ,

supra note 163, at 300.

165

See WILENTZ, supra note 163, at 301–02 (noting that “the removal of Saddam [Hussein]

had simply never been a stated goal for Bush or the United Nations”).

166

As discussed later in this article, although the broader objective was inherently defensive,

because there was no attack on the United States, the decision to use military force

against Iraq was a decision that implicated Congress’s decision and policy-making powers.

Indeed, because Iraq’s offensive action was not against the United States but another na-

tion that the United States had no obligation to defend, a declaration of war would have

been appropriate. See infra Part IV.C. However, for the purposes of this Part, the factual

scenario demonstrates an inherently defensive war in which the President did not go

beyond its authorized defensive objective.

167

See WILENTZ, supra note 163, at 300 (discussing members of the Bush administration’s

concerns about congressional involvement in the decision to go to war against Iraq in



June 2011] FROM THE SHORES OF TRIPOLI 1391

constitutional problem. However, if President Bush actually changed

the objective from liberating Kuwait, which would be inherently de-

fensive as it would be expelling an offensive invasion, to invading Iraq

and toppling the offending government or occupying the country,

the nature of the war would have shifted from defensive in nature to

offensive in nature. Under this framework, President Bush would

have required congressional approval for his actions, as it implicates

the policy-making authority of Congress. A situation similar to this

hypothetical scenario took place in 1950, when President Truman

began by acting in defense of South Korea when it was invaded by

North Korea.

168

The defensive objective of defending South Korea,

under this framework, is within the President’s power. However, af-

ter American forces expelled the North Korean army from South Ko-

rean soil, Truman went beyond his rightful authority by changing the

objective from defensive (defending South Korea) to offensive (oc-

cupying North Korea).

169

Here, President Truman overstepped his

bounds and should have sought congressional authorization for his

actions.

170

The President may have more extensive authority to react offen-

sively if the attack is on the United States itself, rather than an ally.

171

This has become more relevant in the past decade, as American in-

terests were attacked by the foreign terrorist organization al Qaeda in

1998 and 2000,

172

followed by a major terrorist attack on American

soil on September 11, 2001.

173

President George W. Bush responded

to this attack with an attack on al Qaeda and Afghanistan, which har-

bored the organization. The invasion of Afghanistan fell within the

bounds of the President’s authority to respond, as its purpose was to

destroy al Qaeda’s capability to strike the United States once again.

174

Importantly, President Bush did not act unconstitutionally under this

Article’s framework because Congress authorized the use of military

1991, but that President Bush had decided that “political prudence had demanded that

he watch Congress go through with a vote anyway”).

168

See infra Part IV.A.

169

Id.

170

Id. The constitutional questions regarding President Truman’s actions are more fully

discussed in Part IV.A.

171

See KEYNES, supra note 11, at 39 (noting the Framers’ original ideas of defense were li-

mited to expectations of attacks on American soil).

172

See WILENTZ, supra note 163, at 393–94, 406 (discussing al Qaeda attacks on American

embassies in Africa in 1998 and the USS Cole in 2000).

173

Id. at 432–33 (discussing the after-effects of the September 11 attacks on the World Trade

Center).

174

The constitutional questions surrounding the invasion of Afghanistan are more fully dis-

cussed in Part IV.D.

1392 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

force shortly after the attacks.

175

Hypothetically, had President Bush

not obtained this authority, he may have been able to respond under

his defensive authority as President by disabling al Qaeda’s ability to

attack the United States again, and this would involve attacking al

Qaeda training camps and strongholds in Afghanistan. However, if it

was clear that the objective of the war was to oust the Taliban gov-

ernment of Afghanistan and occupy the nation, this would have acti-

vated Congress’s policy-making authority, and would have required

congressional approval. Because Congress passed the Authorization

to Use Military Force,

176

however, this potential difficulty did not arise.

Recently, the United States has adopted a policy where the United

States initiates hostilities but asserts a defensive reason for doing so.

This policy, known as preemptive war, was adopted by President

George W. Bush in advance of the American invasion of Iraq in

2003.

177

Its goal was to attack enemies of the United States before

they have the capability to strike the United States.

178

However, the

key feature of this policy for constitutional purposes is that, regardless

of the justification, the United States initiates hostilities. Therefore,

the use of preemptive war should be considered offensive war. The

decision to engage in preemptive war should rest with Congress for

two reasons. First, initiating hostilities is the only kind of warfare

where the Constitution gives explicit instructions on who shall make

that decision; Article I, Section 8 specifically instructs that Congress

shall issue a declaration of war in this situation.

179

Congress must ful-

fill its specifically defined role when the nation is to initiate hostilities

and declare war. Second, because the ultimate policy-making author-

ity for war was meant to rest with Congress, this decision to initiate

war is exactly the kind of authority that Congress must exercise.

180

The power of the President and Congress in war, based on early

experience, seems to be a sliding scale. At one end would be purely

offensive warfare; in this area, Congress has the most control. At the

other end is purely defensive warfare; here, the President has the

ability to respond without the consent or authorization of Congress.

In the vast middle of these two extremes, however, the most effective

way to determine who has the proper authority is to look at the over-

all objectives of the campaign. Congress was meant to have a broad

175

See infra text accompanying note 241.

176

Authorization for Use of Military Force, Pub. L. No. 107–40, 115 Stat. 224 (2001).

177

See infra Part IV.E.

178

Id.

179

U.S. CONST. art. I, § 8, cl. 11.

180

See supra text accompanying notes 121–29.

June 2011] FROM THE SHORES OF TRIPOLI 1393

say in the war power, and this should specifically be invoked whenev-

er a campaign becomes offensive in nature. No matter what the ini-

tial nature of a conflict is, however, the President would be wise to

gain congressional authorization at the earliest opportunity to avoid

constitutional problems under this framework. However, as a policy

of initiating preemptive war has emerged in the United States, the

need has emerged for Congress to take its strongest possible action,

as instructed by the Constitution.

IV. THE BARBARY FRAMEWORK AND MODERN UNDECLARED WARS

The power of the President in matters of war dramatically ex-

panded throughout the 19th and 20th centuries. During the Ameri-

can Civil War, perhaps the most perilous time for the security and

survival of the United States, President Lincoln undertook perhaps

the greatest assertion of executive power to that point in the nation’s

history. Without the consent of Congress, President Lincoln sus-

pended habeas corpus, raised armies, and imposed a blockade on the

rebellious southern states.

181

While he was ultimately justified in most

of his actions, either by the Supreme Court

182

or retroactively by Con-

gress,

183

his actions marked a dramatic expansion of executive pow-

er.

184

By 1929, Charles Warren, commenting on the decision of the

Constitutional Convention to place the power to declare war with

Congress, wrote, “[i]n recent years, Congress has acquiesced in the

assumption by the President” of the power given to Congress to dec-

lare war.

185

However, the key period for the expansion of presidential

power over matters of war was the presidency of Franklin Roosevelt.

In the wake of the Supreme Court’s recognition of sweeping execu-

tive authority in the realm of foreign affairs in United States v. Curtiss-

Wright Export Corp.,

186

President Roosevelt frequently acted unilaterally

181

DANIEL FARBER, LINCOLN’S CONSTITUTION 17–18 (2003).

182

See, e.g., The Brig Amy Warwick (The Prize Cases), 67 U.S. 635 (1863) (approving Presi-

dent Lincoln’s decision to impose a blockade on the rebelling southern states without

congressional approval).

183

See Act of Aug. 6, 1861, ch. 63, 12 Stat. 326.

184

See J.G. RANDALL, LINCOLN 123 (1947) (“No president has carried the power of presiden-

tial edict and executive order (independently of Congress) so far as . . . [Lincoln] did.”),

cited in Frank J. Williams, Nicole J. Dulude & Kimberly A. Tracey, Still a Frightening Un-

known: Achieving a Constitutional Balance Between Civil Liberties and National Security During

the War on Terror, 12 R

OGER WILLIAMS U. L. REV. 675, 746 n.470 (2007).

185

WARREN, supra note 13, at 481.

186

299 U.S. 304, 319–20 (1936) (noting the role of the President as the “constitutional rep-

resentative of the United States with regard to foreign nations” and recognizing the im-

portant and perhaps predominant role of the President in foreign affairs); see also Roy E.

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1394 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

in the years leading up to World War II, including ordering ex-

panded U.S. naval patrols in the war-ravaged Pacific and transferring

American military equipment to Great Britain without the consent of

Congress.

187

At the time President Harry Truman assumed office in

1945, the President had become the predominant actor in terms of

the war power.

188

This brief sketch of the changing nature of the balance of war

powers between the President and Congress is helpful in discussing

the United States’ wars since 1945, in which the role of the President

expanded significantly.

189

At the time of this writing, the congres-

sional declaration of war seems to have faded into irrelevance. The

wars of the latter half of the 20th century and the first decade of the

21st century have all been conducted without a formal congressional

declaration of war. The framework discussed in Part III can be used

to determine whether actions of the President and Congress regard-

ing these undeclared wars would be acceptable under the original

views of the war-making power. This Part applies the aforementioned

framework to the most prominent undeclared wars of the last sixty

years: the Korean War, the Vietnam War, the Persian Gulf War, the

invasion of Afghanistan, and the invasion of Iraq in 2003. Each of

these conflicts presents a different factual scenario with different le-

vels of congressional involvement and presidential acquiescence to

congressional guidance. Ultimately, the recent undeclared war in

Iraq presented a scenario where a declaration of war was called for

under the Barbary framework’s interpretation of the original under-

standing of the war powers of Congress and the President.

A. The Korean War: Defensive War to Offensive War Without Authorization

With the expansion of the role of the United States in interna-

tional affairs after World War II, and with the recognition that the

United States was one of the only world powers with the ability and

strength to defend other nations and keep the peace, the war-making

Brownell II, The Coexistence of United States v. Curtiss-Wright and Youngstown Sheet &

Tube v. Sawyer in National Security Jurisprudence, 16 J.L.

& POL. 1, 8 (2000) (noting that

Curtiss Wright “has become the lodestar for advocates of Executive preeminence in na-

tional security affairs”).

187

FISHER, supra note 10, at 76–77, 79.

188

Cf. id. at 80 (observing that many of the war powers that the President had obtained dur-

ing World War II were not relinquished after the war’s conclusion).

189

For a more in depth analysis of the historical trends surrounding the expansion of execu-

tive war power from the nation’s early conflicts, including the Barbary Wars, to the be-

ginning of the Cold War, see H

AROLD HONGJU KOH, THE NATIONAL SECURITY

CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR 74–100 (1990).

June 2011] FROM THE SHORES OF TRIPOLI 1395

power continued to heavily shift away from Congress and towards the

President.

190

American national security concerns were no longer li-

mited to American territory; after 1945, the United States found its

national security interests heavily expanded to include a vast global

network of allies and national security interests.

191

Centralized presi-

dential control of this network, and the intertwining of military issues

with the foreign affairs power (traditionally within the realm of the

President),

192

helped shift the war power heavily towards the executive

branch.

The undeclared Korean War further emphasized this trend. After

World War II, the United States backed the non-communist govern-

ment of South Korea with diplomatic and economic support, but

withdrew its military forces from South Korea in 1949.

193

On June 25,

1950, the communist forces of North Korea invaded South Korea,

and American troops swiftly became involved in the conflict.

194

With-

in two days, President Truman, without the consent of Congress,

committed American troops to South Korea’s defense.

195

In the first

few months of the war, North Korean troops drove American, South

Korean, and other international forces to the tip of the South Korean

peninsula around Pusan.

196

In September 1950, the United States

launched a successful counteroffensive, backed by an amphibious

landing in occupied South Korean territory.

197

The counteroffensive

eventually crossed the 38th parallel, which demarcated the border

between South and North Korea, and eventually came close to occu-

pying the entire peninsula.

198

As the American-led offensive ap-

proached the border with China, Chinese forces intervened on be-

half of their North Korean allies and swarmed across the border,

190

See MOSS, supra note 65, at 73 (“The constitutional balance between Congress and presi-

dent in war was irrevocably changed after the peace ending World War II in 1945.”).

191

See KEYNES, supra note 11, at 39 (“By the mid-1960s, the United States had entered into

bilateral and multilateral agreements with forty-two other nations, which represented a

minimum commitment to consult with these nations in the event of an attack or threat to

their security.”).

192

See generally United States. v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) (asserting

the dominant role of the President in foreign relations).

193

Russell D. Buhite, “Major Interests”: American Policy Toward China, Taiwan, and Korea,

1945–1950, 47 P

AC. HIST. REV. 425, 449 (1978).

194

PHILIP BOBBITT, THE SHIELD OF ACHILLES: WAR, PEACE, AND THE COURSE OF HISTORY 52

(2002).

195

Fisher, supra note 52, at 33.

196

BOBBITT, supra note 194, at 52.

197

Howard S. Levie, How It All Started–And How It Ended: A Legal Study of the Korean War, 35

KRON L. REV. 205, 221 (2002).

198

BOBBITT, supra note 194, at 52.

1396 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

catching American forces off guard and overstretched.

199

The result

was a rout of American troops and a retreat closer to the original

border between the two Korean nations at the 38th parallel.

200

A sta-

lemate ensued until a cease-fire was signed in 1953, with Korea still

divided at close to its original border.

201

To analyze the Korean War under the framework laid out earlier

in this article, the conflict must be considered in two stages. The first

stage involved the President’s immediate reaction to the North Ko-

rean invasion by sending troops and conducting military operations

without congressional approval. Whether this action was justifiable

under the Barbary framework depends on whether President Truman

was in fact reacting to a sudden attack on the United States. There

were no American military units stationed in South Korea, the United

States having withdrawn its forces from the nation in 1949.

202

Howev-

er, the United States was backing the South Korean government as

part of the new global role of the United States of supporting many

non-communist nations early in the Cold War.

203

The President’s de-

cision to commit troops without consulting Congress was controver-

sial; after all, only American interests were attacked, not American

territory, civilians, or troops. Some argue that President Truman’s

actions were justified by a broad presidential authority to act in a time

of crisis or emergency, including coming to the defense of American

allies or interests.

204

Other scholars, most prominently Louis Fisher,

argue that the initial commitment of troops in defense of South Ko-

rea itself was unconstitutional because Congress did not authorize

this action.

205

John Norton Moore argues that, while President Tru-

man should have had the authority to act in response to the North

Korean attack, he should have immediately sought congressional au-

199

Id.

200

Id.

201

Id.

202

See supra text accompanying note 193.

203

See supra note 191 (noting expanded American military commitments in the years after

World War II).

204

See, e.g., John Norton Moore, Emergency War Powers, in THE U.S. CONSTITUTION AND THE

POWER TO GO TO WAR 158, 165 (Gary M. Stern & Morton H. Halperin eds., 1994)

(“Whatever the competing approaches to the underlying general war powers, there is

broad support, although not unanimous in all settings, for presidential authority in

emergency settings to respond to aggressive attacks against the United States, its interests,

allies, forces, or citizens, whether at home or abroad, and whether low-level or high-level

force is required to repel the attack.”)

205

See generally Fisher, supra note 52, at 37 (concluding that President Truman’s unilateral

action against Korea violated the Constitution and is “not valid precedent for what Presi-

dent Bush planned” in his attacks against Iraq).

June 2011] FROM THE SHORES OF TRIPOLI 1397

thorization.

206

Whether President Truman’s initial reaction to this

situation, which was an emergency of a sudden attack facing an

American ally and which he defended as acting in defense of South

Korea, without the consent of Congress, is indeed debatable.

207

Even

Fisher conceded that President Truman’s use of force may have been

justifiable based on his formulation on when unilateral presidential

action in an emergency may be acceptable: “a President may act

without congressional authority (and without express legal or consti-

tutional authority), trusting that the circumstances are so urgent and

compelling that Congress will endorse his actions and confer a legi-

timacy that only Congress . . . can provide.”

208

Despite Truman’s fail-

ure to seek either immediate or retroactive congressional authoriza-

tion (a decision Fisher focused his criticism upon),

209

it seems that

President Truman’s commitment of forces was at least partially con-

sistent with Fisher’s idea of acceptable constitutional unilateral presi-

dential action. As John C. Yoo notes, there was substantial support

for Truman’s actions in Congress at the time of the North Korean at-

tack, but Truman simply did not seek explicit congressional approv-

al.

210

Nonetheless, Fisher’s analysis does not adequately take into ac-

count the President’s authority to repel a sudden attack. As

established above, the President can act defensively in the face of at-

tack. Undertaking an analysis of whether Congress would approve of

his action would be both speculative of Congress’s intent and difficult

for the President to determine if his actions would be Constitutionally

sound. Instead, a divide between pure presidential authority to act

defensively, without congressional consent, and a need for congres-

sional authority for offensive operations would allow the President to

206

John N. Moore, The National Executive and the Use of Armed Forces Abroad, 21 NAVAL WAR C.

REV. 28, 32 (1969).

207

John Hart Ely, for example, wrote that the Truman administration’s justification for in-

tervening in Korea of acting in defense of South Korea was “at least initially true, but con-

stitutionally irrelevant.” E

LY, supra note 131, at 11.

208

FISHER, supra note 10, at 100.

209

Id.

210

See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of

War Powers, 84 C

ALIF. L. REV. 167, 178 (1996) (“President Truman immediately commit-

ted American military forces without seeking Congressional approval, even though sub-

stantial support existed in Congress for the President’s unilateral decision. Secretary of

State Dean Acheson and Senate Majority Leader Scott Lucas both convinced Truman to

rely on his Commander-in-Chief powers to support his actions, which led the President to

refrain from seeking the congressional authorization he could have obtained easily.”).

Yoo also noted that Congress seemed to implicitly authorize President Truman’s actions

by passing appropriations bills and draft extensions in support of the war effort. Id.

1398 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

act more freely when necessary but defer to Congress for the decision

of expanding the war.

Therefore, more important for the purposes of the original con-

stitutional framework was the second unique factor about the Ameri-

can involvement in Korea: President Truman authorized the military

to go from defensive to offensive war without congressional approval.

It is at this point that an analysis of whether the President has the

proper authority to take action is of the greatest importance under

this framework; not necessarily at the immediate inception of war,

but when the inherent character of the war changes from defensive

to offensive. Thus, President Truman’s decision to order forces

across the 38th parallel with the intent of unifying the Korean penin-

sula did not comply with this article’s framework reflecting the origi-

nal understanding of the Constitution’s conception of presidential

use of defensive force. Assuming that President Truman was acting

in a genuine emergency that triggered his power to react defensively

to sudden attack,

211

he only had the authority under the Barbary

framework to fulfill the defensive nature of his actions. This would

include driving North Korean forces from South Korean territory,

which is analogous to American naval ships defending their country-

men’s vessels during the conflict with Tripoli in 1801 but declining to

act offensively against the Tripolitan fleet, ports, and mainland with-

out congressional consent.

212

The moment American forces crossed

the 38th parallel with the intention of occupying North Korea, the

war changed from defensive to offensive. Congressional authoriza-

tion was therefore needed at this point. President Truman’s decision

to shift the war from a defensive to an offensive nature was not his to

make; that decision rightfully belonged to Congress.

The consequences of the American invasion of North Korea dem-

onstrated the importance of congressional involvement in decisions

regarding offensive warfare. While it is impossible to determine what

would have happened had the United States maintained its defensive

posture and stopped at the border between the two Korean states, the

American invasion of North Korea resulted in the serious conse-

quences of a military defeat in North Korea, Chinese intervention on

the side of the North Koreans, and two more years of warfare and

mounting casualties.

213

The unfortunate consequences of President

211

See supra text accompanying notes 204–08.

212

See supra text accompanying notes 73–89.

213

See BOBBITT, supra note 194, at 52 (discussing the implications of the American counte-

rinvasion of North Korea, including Chinese intervention and a lengthy, bloody stale-

mate).

June 2011] FROM THE SHORES OF TRIPOLI 1399

Truman’s unilateral exertion of offensive war reflect James Madison’s

concerns as “Helvidius” that the power to conduct war and the power

to decide its scope in terms of when it should begin, continue, or end

must reside in separate branches.

214

Indeed, President Truman’s de-

cision to cross into North Korea had major substantive implications

beyond merely directing the conduct of the war; it triggered a host of

new concerns, including potentially occupying and defending North

Korea and risking expanding the war to involve China and the Soviet

Union.

215

Such a momentous decision was meant by the Framers to

rest with Congress, not the President.

B. The Vietnam War: Authorizing a Defensive Objective

The United States’ role in the Vietnam War, as authorized by

Congress, was ostensibly defensive in nature; however, the presiden-

tial interpretation of Congress’s authorization involved more contro-

versial initiatives. The United States’ military presence in Vietnam

was initially advisory, logistically supporting and training the South

Vietnamese military in their efforts to stamp out a communist insur-

gency.

216

Although thousands of American troops were already

present in Vietnam, the turning point of American involvement in

the conflict took place in August of 1964, when North Vietnamese

torpedo boats attacked American ships in the Tonkin Gulf.

217

Presi-

dent Lyndon Johnson subsequently sought congressional authoriza-

tion to escalate American involvement in the conflict.

218

On August 7,

1964, Congress passed the Tonkin Gulf Resolution, which read in

part “[t]hat the Congress approves and supports the determination

of the President, as Commander in Chief, to take all necessary meas-

ures to repel any armed attack against the forces of the United States

and to prevent further aggression.”

219

This authorization appears va-

guely worded, but the message appears clear that Congress autho-

rized the use of force “to repel any armed attack” or “to prevent fur-

214

MORGAN, supra note 42, at 100; see also text accompanying notes 43–45.

215

Supra note 213.

216

See JAMES E. WESTHEIDER, THE VIETNAM WAR 10–11 (2007) (discussing the increase in the

number of American troops in Vietnam from 1961 to 1963); see also E

LY, supra note 131,

at 13 (same).

217

KOH, supra note 189, at 38 (describing the attack on American ships by North Vietnamese

torpedo boats in the Tonkin Gulf and America’s response).

218

Id. at 38–39 (“President Johnson . . . asked Congress for the Tonkin Gulf Resolution, a

joint resolution of support that he subsequently construed as broad congressional autho-

rization to escalate the Vietnam War.”).

219

Tonkin Gulf Resolution of 1964, Pub. L. No. 88–408, 78 Stat. 384.

1400 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

ther aggression.”

220

Therefore, it appears that Congress did not au-

thorize any military action beyond defending American forces in

South Vietnam and countering North Vietnamese aggression.

221

Ac-

cordingly, despite the controversies surrounding American involve-

ment in Vietnam, the use of military force for the defense of South

Vietnam did not deviate from the Barbary framework of constitution-

al requirements.

222

However, during this conflict, Presidents Johnson

and Nixon expanded the war beyond the borders of both North and

South Vietnam, largely through bombing campaigns. Most noto-

riously, President Nixon ordered an incursion into Cambodia in 1970

aimed at disrupting the flow of supplies and manpower to communist

forces in South Vietnam.

223

It can certainly be argued that the goal of

these actions was consistent with the broad congressionally autho-

rized objective of defending South Vietnam.

224

However, the ultimate

result of these actions was the expansion of the war from a national

conflict aimed at North Vietnam to a regional one involving opera-

tions in multiple nations, which certainly implicates the policy-

making authority of Congress.

225

At the very least, prior to expanding

the scope of the war, Congress should have been consulted and con-

vinced to authorize the expansion, which would have more appro-

220

Id.

221

See MOSS, supra note 65, at 87 (“Strategically, the war’s objective was not so much to de-

feat North Vietnam and absorb it into South Vietnam, but to coerce North Vietnam to

accept South Vietnam . . . .”).

222

Even John Hart Ely, who harshly criticized Congress’s failure to fulfill its constitutional

obligations in authorizing the use of force, noted that Congress did act appropriately in

giving its authorization to the President. E

LY, supra note 131, at 12. Kenneth B. Moss,

reaching the same conclusion, noted that “[j]ust because legislation is poorly considered

and approved does not invalidate it.” M

OSS, supra note 65, at 86.

223

See John Norton Moore, Legal Dimensions of the Decision to Intercede in Cambodia, 65 AM. J.

INT’L L. 38, 44 (1971) (noting the “repeated United States protests against North Viet-

namese and Viet Cong use of neutral Cambodian territory” in the period leading up to

the American offensive into Cambodia); R.B. Smith, The International Setting of the Cambo-

dia Crisis, 1969–70, 18 I

NT’L HIST. REV. 303, 315, 318–19 (1996) (describing American

concerns about supplies directed toward Communist forces through Cambodia in 1969

and 1970).

224

See ELY, supra note 131, at 32 (arguing that the terms of the Tonkin Gulf Resolution au-

thorized the President to conduct military operations in Cambodia as part of its defense

of South Vietnam).

225

See Jules Lobel, Conflicts Between the Commander in Chief and Congress: Concurrent Power over

the Conduct of War, 69 O

HIO ST. L.J. 391, 404 (2008) (countering arguments that the ex-

pansion of the war into Cambodia was solely within the power of the President by noting

that “such a use of American military power clearly reflected a major policy decision that

escalated the conflict into other sovereign states and had important effects and conse-

quences for U.S. foreign policy”).

June 2011] FROM THE SHORES OF TRIPOLI 1401

priately deferred to Congress’s intended policy-making role.

226

Per-

haps most importantly, however, the American experience in Viet-

nam reinforces the need for clear guidance from Congress. As Ha-

rold Hongju Koh noted, President Johnson construed the Tonkin

Gulf Resolution as “broad congressional authorization to escalate the

Vietnam War.”

227

A more specific authorization from Congress, clear-

ly laying out the defensive objectives and permissible scope of the

war, may have allowed the legislative branch to better implement its

policy-making authority in terms of the war powers, and could have

impacted the scope of the American military effort.

228

C. The Persian Gulf War: Offensive War with a Defensive Objective

The Persian Gulf War saw the United States involved in a broader

conflict that was not initiated by the United States; rather, an aggres-

sor attacked another nation and the United States intervened to libe-

rate that nation. In August 1990, Iraq invaded and occupied Kuwait,

which prompted international condemnation and a build-up of in-

ternational forces, led by the United States, in neighboring Saudi

Arabia.

229

In January 1991, Congress authorized the President to use

military force against Iraq to expel its forces from Kuwait.

230

Impor-

tantly, the congressional authorization was tailored as a response to

Iraq’s offensive operations against Kuwait and specifically noted that

force was authorized “to achieve implementation” of United Nations

Security Council resolutions, all of which condemned the Iraqi inva-

226

See Wormuth, supra note 27, at 651–52 (criticizing the Cambodian incursion as beyond

the President’s authority to repel sudden attacks). Congress only addressed the Cambo-

dian incursion after it took place, passing legislation in 1971 forbidding the introduction

of U.S. ground combat troops or advisers in Cambodia. Act of Jan. 12, 1971, Pub. L. No.

91–672, § 12, 84 Stat. 2053, 2055. Notably, this resolution did not mention aerial bomb-

ing, which was undertaken in theaters beyond South Vietnam until the end of the war.

227

KOH, supra note 189, at 39.

228

The Vietnam War is distinguishable from the other conflicts discussed in this Part be-

cause, rather than responding to a foreign power’s sudden action against the United

States, an ally, or another nation, the United States gradually committed military forces to

an ally that was already facing an internal and external military threat. Harold Hongju

Koh tellingly characterized Vietnam as an “undeclared creeping war[]” that started and

built “before Congress . . . [and] the public . . . [were] fully aware.” Id. It is therefore dif-

ficult to analyze this conflict under the Barbary framework, which contemplates direct at-

tacks on the United States, or an ally in some cases. This Part’s analysis therefore only

discusses the broader policy and inherent defensive nature of the Vietnam War and

comments upon its expansion to other nations without Congress’s explicit authorization.

229

OREN, supra note 64, at 563–65 (discussing the Iraqi invasion of Kuwait); see also LEHMAN,

supra note 162, at 52–53 (describing the U.S. attacks against Iraq).

230

Authorization for Use of Military Force against Iraq Resolution, Pub. L. No. 102–1, § 2,

105 Stat. 3 (1991).

1402 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

sion and demanded Iraqi withdrawal from Kuwait.

231

Following Con-

gress’s authorization, President George H.W. Bush ordered a lengthy

air campaign, which was followed with an American-led attack on Iraq

that liberated Kuwait from the Iraqi military within a matter of days.

232

Although the operation reached southern Iraqi territory as part of its

rout of the Iraqi military, President Bush ceased military operations

upon the accomplishment of the objective of defeating the Iraqi mili-

tary and liberating Kuwait, and did not go beyond the inherently de-

fensive objective of repulsing an attack on another nation.

233

The Persian Gulf War presents an important distinction from pre-

vious (at least initially) inherently defensive wars such as Korea and

Vietnam. Kuwait, unlike South Korea and South Vietnam, was not an

American ally with an American military presence when it was at-

tacked by Iraq. Therefore, because there was no attack on the United

States or American interests, there remains a question of whether a

congressional declaration of war was necessary. Michael Ramsey ar-

gued that the Persian Gulf War was not inherently defensive because

no state of war existed between the United States and Iraq before the

beginning of Operation Desert Storm.

234

Indeed, in this situation, the

United States initiated a conflict against another nation that had not

attacked the United States, and, therefore, a declaration of war would

have been appropriate in this situation.

235

However, although the method used to authorize the military ac-

tion against Iraq may not have been proper in this situation, the Per-

sian Gulf War is an effective example of the President conducting a

war with a defensive objective within the bounds set by Congress. In

this scenario, the actions of Congress and the President in the Persian

Gulf War were consistent with the proper placement of policy-making

authority under the Barbary framework. The President sought au-

thorization for military action limited to a specific, defensive objec-

231

Id. (referencing twelve United Nations Security Council Resolutions passed between Au-

gust and November of 1990 condemning the Iraqi invasion of Kuwait).

232

OREN, supra note 64, at 566–67.

233

See id. at 567–68 (discussing President Bush’s decision to halt military operations before

toppling Saddam Hussein’s regime and occupying Iraq). Unlike in the Korean War, in

which the United States sought to occupy and unify the entire Korean peninsula, the

United States did not advance into Iraqi territory with the intent of occupying that na-

tion; instead, American motives were limited to defeating the Iraqi military and expelling

it from Kuwait. See supra text accompanying note 212.

234

Ramsey, supra note 39, at 1628.

235

See J. Gregory Sidak, To Declare War, 41 DUKE L.J. 27, 31–33 (1991) (describing the events

surrounding and leading up to the Persian Gulf War, and concluding that due to the

failure of Congress to declare war against Iraq, the war “lacked constitutional legitimacy

despite its overwhelming support among the American electorate”).

June 2011] FROM THE SHORES OF TRIPOLI 1403

tive: liberating a nation who had been attacked. Congress approved

of this proposed use of force, which did not expand beyond a defen-

sive objective. Because the war was not expanded to an offensive ob-

jective, no further congressional authorization was needed.

Additionally, it is important to distinguish the objectives of the

United States in its conflict with Iraq in 1991 as opposed to its conflict

with the same nation in 2003. In the Persian Gulf War, the United

States did not initiate the broader conflict, and went to war with the

inherently defensive motive of expelling an aggressor from an occu-

pied nation. By contrast, the 2003 invasion of Iraq, which was based

upon the premise of preemptive war, was conducted with an inhe-

rently offensive objective.

236

Therefore, although a declaration of war

may have been an appropriate method of authorizing military force

during the Persian Gulf War, the circumstances of the American inva-

sion of Iraq in 2003 highlight the necessity for Congress to undertake

its strongest possible action of declaring war when the nature of the

American objectives is inherently offensive.

237

D. The Invasion of Afghanistan: Authorizing an Offensive Response

The events leading up to the invasion of Afghanistan provide per-

haps the clearest example of following the Barbary framework for the

President and Congress’s roles in war. On September 11, 2001, the

United States was directly attacked by terrorists in New York, Wash-

ington, D.C., and Pennsylvania.

238

Individuals affiliated with an inter-

national terrorist group known as al Qaeda hijacked planes and

crashed them into civilian targets, the Twin Towers in New York, and

a military target, the Pentagon, in Washington; a fourth plane

crashed in rural Pennsylvania.

239

One week after the attacks, on September 18, 2001, Congress

passed the Authorization for Use of Military Force Against Terrorists

[hereinafter AUMF].

240

Section 2 of the AUMF declared:

(a) IN GENERAL—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 at-

tacks that occurred on September 11, 2001, or harbored such organiza-

236

See infra Part IV.E.

237

See infra text accompanying notes 257–58.

238

Michael Grunwald, Terrorists Hijack 4 Airliners, 2 Destroy World Trade Center, Hit Pentagon;

Hundreds Dead; Bush Promises Retribution; Military Put on Highest Alert, W

ASH. POST, Sept. 12,

2001, at A1.

239

Id.

240

Authorization for Use of Military Force, Pub. L. No. 107–40, 115 Stat. 224 (2001).

1404 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

tions or persons, in order to prevent any future acts of international ter-

rorism against the United States by such nations, organizations or per-

sons.

241

In October 2001, the United States, in conjunction with its allies in

the North Atlantic Treaty Organization, began its attack on Afghanis-

tan, where the al Qaeda leadership was headquartered with the pro-

tection of the Taliban government.

242

This scenario is one in which the United States was attacked by a

foreign power (if not a foreign nation); therefore, according to the

Barbary framework, because the President has the power to “repel

sudden attacks,”

243

President George W. Bush had the constitutional

authority to respond to this sudden attack and immediate threat to

the nation. Solely on the basis of this power being triggered, howev-

er, the President would only have the capacity to act defensively. In

the context of this attack, the President could have ordered opera-

tions against al Qaeda that would have protected American territory,

interests, or civilians from further attacks without the approval of

Congress. Nonetheless, the President’s decision to attack Afghanis-

tan was entirely appropriate based on the Barbary framework because

he obtained congressional consent to act offensively via the statutory

language granting him the power to “use all necessary and appropri-

ate force” against the perpetrators of the attacks and the nations that

harbored them.

244

While President Bush had the ability to act defen-

sively because of the “sudden attack” on the nation, any significant

limitation on his ability to act unilaterally disappeared when Congress

granted him the authority to act offensively against al Qaeda.

E. The 2003 Invasion of Iraq: Initiating Purely Offensive War

The second of the Bush administration’s wars is more difficult to

justify under the Barbary framework than the invasion of Afghanis-

tan. The characteristics of the 2003 invasion of Iraq are distinguisha-

ble from every previous conflict that the United States entered with

congressional authorization short of a declaration of war because the

United States actually fired the first shot in the broader conflict with-

out a declaration of war.

245

In September of 2002, members of the

241

Id. at § 2(a).

242

WILENTZ, supra note 163, at 434.

243

See supra Part I.

244

Authorization for Use of Military Force Pub. L. No. 107–40, 115 Stat. 224 § 2(a) (2001).

245

As noted in Part IV.C, this situation is distinguishable from the Persian Gulf War because

the United States did not initiate the broader conflict; rather, Iraq was the initial aggres-

sor with its August 1990 invasion of Kuwait.

June 2011] FROM THE SHORES OF TRIPOLI 1405

Bush administration began announcing to the American public and

the United Nations that Iraq had aided terrorist groups that had tar-

geted the United States and was developing weapons of mass destruc-

tion that could be used against the United States or provided to ter-

rorist groups.

246

Congress passed the Authorization for Use of

Military Force Against Iraq Resolution of 2002, authorizing the Presi-

dent “to use the Armed Forces of the United States as he determines

to be necessary and appropriate” against Iraq.

247

In March of 2003, an

American-led force invaded Iraq, occupying the country by the be-

ginning of May.

248

No weapons of mass destruction were ever

found,

249

and American troops remain in Iraq as of this writing.

Unlike the Barbary Wars, or other undeclared wars discussed ear-

lier, the invasion of Iraq was not defensive in nature. The attack was

premised on the Bush administration’s policy of preemptive war, as

laid out under the National Security Strategy of the United States,

published in 2002.

250

The policy of preemptive war asserts to be de-

fensive in nature, attempting to stop threats to the United States from

other nations before they are able to attack.

251

However, in a preemp-

tive war, the United States would still initiate the conflict because

there would yet to be an attack on the United States by a foreign na-

tion. The Constitution gives the power to “declare” war to Congress,

and, as discussed previously, a crucial decision like beginning a war is

an actual policy decision and was meant to be in the hands of the leg-

islative branch, not the executive.

252

In other situations, where the

United States or an ally is attacked, there is no policy decision to be

made other than the means by which the President should use the

military to defend the nation. However, determining that the United

States should attack another nation that has not attacked the United

246

National Security Advisor Condoleezza Rice, for example, stated about Iraq’s intention to

build and deploy weapons of mass destruction against the United States that “[w]e don’t

want the smoking gun to be a mushroom cloud.” W

ILENTZ, supra note 163, at 443.

247

Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107–

243, § 3, 116 Stat. 1498, 1501.

248

See generally BOB WOODWARD, PLAN OF ATTACK (2004) (describing the American invasion

of Iraq).

249

WILENTZ, supra note 163, at 445 (“[T]he invasion force had found no trace

of . . . [weapons of mass destruction] in Iraq—the declared reason for the invasion.”).

250

See generally THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA (2002),

available at http://georgewbush-whitehouse.archives.gov/nsc/nss/2002/nssintro.html

(announcing a new American policy of preemptive war).

251

See id. at 14 (“We must be prepared to stop rogue states and their terrorist clients before

they are able to threaten or use weapons of mass destruction against the United States

and our allies and friends.”) (emphasis added).

252

See supra text accompanying notes 129–31.

1406 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

States requires important weighing of facts, intelligence, and policy

considerations. Therefore, this decision belongs to Congress. Both

this article’s analytical framework and the explicit language of the

Constitution support this conclusion. Even if the President proclaims

that the United States is acting in preemptive defense, the reality is

that the United States is initiating the conflict, and Congress must

make that decision. This is especially apparent in light of the many

unexpected difficulties in the occupation of Iraq and the violence

that flared in the years after the invasion;

253

these policy consequences

were for Congress to consider, not the President, in the decision to

invade Iraq.

Arguably, Congress did make this decision; after all, it authorized

the President to act offensively. Some scholars would consider this

sufficient for the President to subsequently begin an offensive war.

254

However, unlike such prior undeclared wars as the Barbary Wars, the

Korean War, the Persian Gulf War, or the invasion of Afghanistan,

the United States was not repelling any sort of attack on itself, its in-

terests, an ally, or even another nation. Under this Article’s proposed

framework, the United States initiating the use of offensive force

must trigger the strongest possible action from Congress. The Fra-

mers meant for the power to initiate war to be with Congress and laid

out the action Congress must take in the Declare War Clause.

255

Where the decision is for the United States to initiate war, and espe-

cially when that war has an inherently offensive objective, Congress

must be called upon to follow the instructions of the Constitution

and issue a formal declaration of war. Congress failed to live up to its

responsibilities regarding the invasion of Iraq; therefore, the war in

Iraq was not properly authorized by the Constitution.

256

The Iraq experience calls for Congress to more strongly assert its

power under the Declare War Clause. If the United States is to in-

itiate a war without provocation by an attack or a declaration of war

253

WILENTZ, supra note 163, at 448–49 (describing the consequences of the invasion of

Iraq).

254

See Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terror-

ism, 118 H

ARV. L. REV. 2047, 2128 (2005) (“[A] declaration of war is not required in order

for Congress to authorize the President to fully prosecute a war; a broadly worded autho-

rization of force is sufficient.”).

255

U.S. CONST. art. I, § 8, cl. 11 (“The Congress shall have Power to . . . declare War, grant

Letters of Marque and Reprisal, and make rules concerning Captures on Land and Wa-

ter.”).

256

See Gary Minda, Congressional Authorization and Deauthorization of War: Lessons from the Viet-

nam War, 53 W

AYNE L. REV. 943, 960 (2007) (“The 2002 AUMF was drafted by a Congress

that was unwilling to make what the Constitution demands: a straight out decision that

the nation is at war.”).

June 2011] FROM THE SHORES OF TRIPOLI 1407

by the other foreign power, such an offensive action must be accom-

panied by a declaration of war. While a lesser authorization of offen-

sive action is acceptable when the President is acting inherently de-

fensively or in response to attack, undertaking purely offensive war

should be accompanied by the strongest possible sanction by Con-

gress in the form of declaring war, a power specifically placed with

Congress by the Constitution.

257

As one early commentator noted,

“every possible precaution should be used before a nation is plunged

into [war].”

258

If the United States is to initiate a conflict, such pre-

cautions should naturally include the Constitution’s directions for

Congress to make the decision to commence the conflict. Because of

the importance of the decision itself, it is essential for Congress to ful-

ly debate and consider the strongest possible action.

259

Taking this

route would put Congress back in the role intended for it in initiating

war. If the President wishes to pursue a policy of initiating war, he

must adhere to the Constitution and follow its guidelines by deferring

to Congress and requesting a formal declaration of war.

ONCLUSION

Both the rhetoric and the actions of the Framers, exemplified

during the Barbary Wars, reflect a distinct desire for Congress to play

a central role in the decision to go to war. This original understand-

ing of Congress’s role under the Constitution manifests itself by plac-

ing the power to initiate offensive war with Congress, not the Presi-

dent. However, as undeclared war, whether offensive or defensive in

nature, has become the norm, Congress has played less and less of a

role in a decision in which it was supposed to be entrusted. The most

recent American experience in Iraq calls for Congress to reassert it-

self to the intended decision-making role in terms of the war power.

260

257

Id.

258

WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 109

(Philadelphia, Philip H. Nicklin, Law Bookseller, 2d ed. 1829).

259

Louis Fisher supported this idea of the need for a full debate before authorizing the

commencement of war, writing, “Only after Congress authorizes military action, reaching

that decision through parliamentary deliberations, may the President as Commander in

Chief order troops into combat.” F

ISHER, supra note 10, at 267.

260

At the time of this writing, there is a significant debate over whether President Obama

acted in accordance with the Constitution in ordering the recent military intervention in

Libya. See Paul Richter & Christie Parsons, U.S. Role in Libya Brings Criticism for Obama,

ALT. SUN, Mar. 22, 2011, at 1A (discussing the concerns of several members of Congress

about the constitutionality of the bombing campaign in Libya); Charlie Savage, Attack Re-

news Debate Over Congressional Consent, N.Y.

TIMES, Mar. 22, 2011, at A14 (summarizing the

debate over the constitutionality of President Obama’s decision to intervene militarily in



1408 JOURNAL OF CONSTITUTIONAL LAW [Vol. 13:5

The crucial decision to initiate war, especially when the United States

is unprovoked and commences a conflict itself, must be accompanied

by the strongest congressional approval; namely, a declaration of war.

Whenever a war takes an offensive character, the original understand-

ing of the Constitution has Congress as the key decision-making au-

thority. Congress, as the branch empowered with policy-making au-

thority in terms of war powers, must therefore fulfill its responsibility

to declare war if the United States wishes to initiate conflict, and give

its approval if the President wishes to shift from defensive to offensive

war.

261

Libya). This article discusses many of the arguments currently being made regarding the

constitutionality of the Libyan intervention, but a full analysis of its constitutionality

would involve a review of not only the conflicts primarily discussed in this article but oth-

er limited military interventions short of full-scale ground invasions. The Barbary Wars

may provide useful background, but, unlike the Barbary Wars, the United States’s inter-

vention in Libya was not prompted by a Libyan attack on the United States or American

commercial interests; instead, the United States allegedly intervened for the humanita-

rian purpose of protecting civilians. See Scott Wilson, Obama: U.S. Had Responsibility to

Act, W

ASH. POST, Mar. 29, 2011, at A1 (discussing President Obama’s stated justifications

for ordering the use of military force in Libya). Accordingly, the most instructive histori-

cal precedent to review for an analysis of this most recent conflict may be the American

participation in the North Atlantic Treaty Organization’s air campaign against Yugoslavia

in 1999, which sought to halt human rights abuses against civilians in Kosovo. Other apt

sources of comparison may be American military involvement in Lebanon in the early

1980s or in Somalia in the early 1990s. Such an analysis is outside of the scope of this ar-

ticle, but the military action in Libya presents a new scenario that will likely require fur-

ther legal and historical analysis.

261

While not raising as much constitutional controversy as the decision to intervene in Libya,

President Obama recently authorized a military operation in Pakistan that resulted in the

death of al Qaeda’s leader, Osama bin Laden. Bob Drogin, Ken Dilanian, & David Cloud,



June 2011] FROM THE SHORES OF TRIPOLI 1409



U.S. Kills Bin Laden; Al Qaeda Leader Dies in a Firefight Near Pakistan Capital, L.A. TIMES, May

2, 2011, at A1. The proper role of Congress in approving overt or covert operations

against non-state actors may ultimately become a more important constitutional issue

than Congress’s role in authorizing conventional war between the United States and oth-

er nations, as the United States continues to undertake substantial operations around the

globe in other countries against terrorist groups without the explicit approval of Con-

gress. The United States undertook such operations long before the 2011 military opera-

tion targeting Osama bin Laden’s compound in Pakistan, including numerous drone

strikes in Yemen and Pakistan, air strikes on terrorist targets in Somalia, and missile

strikes against terrorist targets in Afghanistan and Sudan in response to al Qaeda attacks

before September 11, 2001. See Jeb Boone & Greg Miller, U.S. Conducts First Drone Strike in

Yemen since ’02, W

ASH. POST., May 6, 2011, at A13 (discussing American drone strike

against al Qaeda operatives in Yemen); David E. Sanger & Peter Baker, Obama Reorients

Approach of National Security Strategy, N.Y.

TIMES, May 28, 2010, at A8 (noting the Obama

administration’s authorization of “increased C.I.A. drone strikes against militants in Pa-

kistan”); Jeffrey Gettleman, U.S. Strikes Inside Somalia, Bombing Suspected Militant Hide-Out,

N.Y.

TIMES, June 3, 2007 (late ed.), at 20; John Barry & Mark Dennis, The Best Laid Plans,

EWSWEEK, Sep. 7, 1998, at 43 (discussing American strikes in Sudan and Afghanistan in

response to bombings of American embassies in Kenya and Tanzania). Congress did not

provide authorization for these military operations, and, unlike in most conventional

conflicts, would not have the opportunity to disapprove of or halt such operations

through legislation or withdrawal of funding because of their limited nature and dura-

tion. Legal scholars must assess the proper constitutional role of the legislative branch

authorizing such actions as these types of military operations become more common and

more important to effectively combating terrorism.