“IS OUR COUNTRY AT WAR” by Judge Jim Gray

“IS OUR COUNTRY AT WAR” by Judge Jim Gray 01/13/08

Is our country at war? That is a question that must be asked, because there are many important consequences for being at war. So are we? Well, the answer is no, we are not at war.  


The reason for that answer is actually quite simple and straightforward: Congress has not declared war. Article I Section 8 of the United States Constitution decrees that only Congress can declare war, and it has indisputably not done so. Passing resolutions is not the same thing as declaring war. So in the first place, our country is not at war in Iraq, and secondly, since one simply cannot effectively be at “war” against a thing, an idea or a group of people that is not a nation, we are also not involved in a so-called “War on Terrorism” either.


Some have argued that this is a naïve approach to today’s life, and that as a practical matter Congress has not declared war since the Japanese attacked Pearl Harbor in 1941. So, they argue, the declaration requirement in the Constitution is just an unnecessary formality. While it is true that there were no declarations of war before we fought in Korea, Vietnam, Panama, Serbia, the Persian Gulf or anywhere else since 1941, this is not at all a naïve distinction.  


The Drafters of the Constitution not only were not naïve, they were brilliant. They knew that the decision about whether to go to war or not is one of the most critical decisions that a country can make. That is why they required the protections of a specific procedure to be followed before that event could occur.  


Of course, every war will always have its dissenters, and that certainly included World War II. But regardless of where each person may stand on the issue of our military intervention in Iraq, had we followed the mandates of the Constitution and placed the issue of whether or not actually to declare war upon the regime of Saddam Hussein directly before Congress, our country and the world would clearly be in a better position today. And that would be true no matter what Congress’ decision had been.


A request to Congress from the President for a Declaration of War would certainly have been followed by a fuller debate than the ones we had both in Congress and around the country. Questions would have been asked, and reasons and alternatives explored. For example, is the regime of Saddam Hussein a serious threat to the security and well being of the United States? If so, is actual war the best way to combat that threat, or are there other viable alternatives? If we go to war, what are our goals, and how will we know when those goals have been achieved? Once we have succeeded militarily, what should we do to keep the peace? What are the important areas to protect right after the fall of the Hussein regime, such as ammunition depots, museum artifacts, electric power generating facilities, etc. Also, is it more important as well as less costly to put the people of Iraq back to work building and rebuilding their country themselves, instead of awarding those contracts to large American companies?


Another clear benefit had we followed the dictates of the Constitution would be that the people of our country would quite likely have been much more united behind the effort had Congress decided to declare war after a full debate. This reality cannot be understated.


Now it is certainly true that Congress has passed some resolutions since World War II allowing military force to be used in different places at the discretion of the president. One of the most famous was the Gulf of Tonkin Resolution that allowed President Johnson directly to commit troops to fight in Vietnam without a Declaration of War. Others were when Congress affirmed the 1991 War Resolution passed by the United Nations and thereby allowed the first President Bush to commit troops in the liberation of Kuwait; the Iraq Liberation Act of 1998 under President Clinton that stated it was the policy of the United States to seek a regime change in Iraq and to promote a democratic government in its place; and the Iraq Resolution in 2002 that allowed the second President Bush to send military troops to fight in Iraq. And it is also true that these were preceded by some debates.


But we cannot and must not go to war on the sly. Passing resolutions does not take nearly the courage that passing a Declaration of War does. In fact, today a post office bill seems to get more congressional deliberation than passing a resolution to send American troops into armed conflict.  


And make no mistake about it, this situation is not the fault of a president. The pressure for our nation’s presidents to keep us safe is overwhelming. No, it is the members of Congress that have failed in their constitutional duty. Basically Congress wants to have the power without the responsibility for their actions. Shame on them all!  


In a similar fashion, we must understand that neither our country nor anyone else can effectively be at “war” against a thing, an idea or a group of people that are not a nation. For example, just as there can not be and is not a “War on Drugs” or a “War on Poverty,” there is no such thing as a “War on Terrorism.” Such a concept is a great thing for politicians to rally against, but otherwise it serves no practical or positive purpose except to scare people and to concentrate more power in the hands of the politicians. And, of course, to serve as a vehicle to get politicians elected and re-elected.  


As an example, how possibly can the “color-coding” of our degree of fear for the moment possibly be productive? Are you aware that since it was initiated, we have never been below a “stage yellow,” which is an elevated state of preparedness? Can you imagine that our politicians will ever declare that our alert stage has reverted to green? Accordingly, this so-called “war” will never be over. The dangers that we face are certainly real, but they are better thought of in a different fashion.


Does this distinction matter? Yes it does, it actually makes a critical difference. Why? Once again the Drafters of our Constitution were brilliant. Today many people, even citizens of our country, are being imprisoned for indefinite periods of time without charges being filed against them and without them having access to attorneys or our courts. We have also seen the interception of telephone calls of our citizens from here to other countries, and we have all heard allegations of kidnappings and torture at the hands of some agents of our government. And all of these actions have been justified because “we are at war.”  


Of course some of the people in our custody are dangerous. But our response should take into consideration a saying we used back in the days that I was a federal prosecutor in the United States Attorney’s Office in Los Angeles: “If you lie down in the gutter with dogs, you will get up with fleas.” If we lower ourselves to the level of those radical people who would do us ill, we will get up in the morning with the same fleas that have infested them.


In addition, by pursuing these actions we are actually accomplishing some of Osama bin Laden’s goals for him. Because by our government engaging in these acts, we are abandoning what is America. The soul of the United States of America is in our freedoms and constitutional protections. If we do not uphold these safeguards to liberty, we will no longer be a beacon for a better world. And this will result in our country of Jefferson, Washington and Ben Franklin being just like every other country, which is exactly what bin Laden wants people to believe.  


Is there a threat by Al-Queda and other similar organizations to our country and to our safety and well being? Undeniably, the answer is yes. But as a fact of life, we simply cannot protect ourselves from every threat that the zealots and cowards of this world might be able to concoct. Yes, we can attempt to control bombings on our commercial airliners, and we should try to do so, but what about in every train station? Does anyone really think that even if we give up all of our constitutional protections that we can possibly protect every highway bridge or tunnel in our country from a terrorist act, or every theater, stadium, school or shopping mall? The Soviet Union tried to do this in Afghanistan and Chechnya, and failed.  


The answer is to treat these threats and even attacks as the critically important police matters that they are. The primary protection against them is good intelligence, and we have been derelict in reducing the capabilities of our nation’s intelligence-gathering community. Additional protections come from all of us being vigilant, and training and equipping our law enforcement officers in the best manner possible. But otherwise, we must be mature and sophisticated in understanding that there are some threats in life from which there are no protections, and we should go on about our normal lives.


Furthermore, by saying this is a matter for the police does not at all mean that we are minimizing the potential threats. Even though criminal gangs like those of Al Capone, the Crips and the Bloods have presented definite and even severe threats to public safety, Congress did not declare war on them. It is a police matter. The same is true for groups of people like Al Queda that are basically non-nation states. Of course, if Al Queda had the protection of the government of a country like Afghanistan on September 11, 2001 when it committed an act of war upon the people of our country on our soil, in my opinion we had every right to respond as we did. But Congress should first have declared war before we did so.


In addition, just because these are matters for the police does not mean they will only be handled by the local sheriff. The FBI and CIA are police and law enforcement agencies, just as I am as a judge, and we will all be called upon to enforce our nation’s laws and hold people accountable for their actions. So the matters will still be taken seriously, but without all of the clammer for reducing our liberties because “we are at war.” 


So what can each of us do to protect our values, our laws and our Constitution from the attack it is under today? We can refuse to use the term or even the concept of a “War on Terrorism,” with the understanding that there is no such thing. And we can refuse to abandon our cherished liberties under the Bill of Rights.


Don’t give in to politics. Understand that if politicians really wanted to reduce the ability of those radical people to harm us, they would do the one thing that would most cripple them: repeal Drug Prohibition. The primary funding for terrorists all around the world is the money received from the sale of illegal drugs. In fact, Drug Prohibition is literally the “Golden Goose” of terrorism. There will always be radical people in the world who want for whatever reason to harm us and others, but they will be a great deal less dangerous if we take away their funding. But politicians still refuse even to discuss this fact of life.  


So we must follow the procedures brilliantly and forthrightly set forth by our Founding Fathers. Demand full disclosure, full debate and then a vote from Congress before we go to war. Then we will be justly committed as a country to the result, and God help those who stand in our way.


So no, for the reasons discussed above we are not at war. But without a constitutional Declaration of War, we will also never be at peace, because these undeclared conflicts will politically never be allowed to end.

James P. Gray is a Judge of the Superior Court in California, the author of Why Our Drug Laws Have Failed and What We Can Do About It - A Judicial Indictment of the War on Drugs (Temple University Press, 2001) and Wearing The Robe - The Art And Responsibilities of Judging In Today's Courts, has a blog at http://judgejamesgray.blogspot.com/. http://www.judgejimgray.com, and can be contacted at www.judgejimgray.com.