When Is an Act of War an Act of War?

by Charles C. W. Cooke

Response To...

Rand Paul Is Right; Don't ...

David writes:

If Article I, Section 8, Clause 11 of the United States Constitution means anything, it means that the president must obtain congressional approval before taking us to war against a sovereign nation that has not attacked the U.S. or its allies and is not threatening to attack the U.S. or its allies. Senator Rand Paul said as much in an interview today, and I agree with him. As Senator Paul said, “The first thing we ought to do is probably obey the Constitution.”

This has been a hobby horse of mine since I started writing about politics. I was vocal about it during the intervention in Libya. I was vocal about it when President Obama said from the Rose Garden that he didn’t need congressional permission to take action in Syria. And I shall be vocal about it now that Trump has taken the same line. Process matters, and for far too long it has been ignored. 

As far as I can see, the argument against David’s position is that this isn’t an “act of war,” it’s a “minor military action” or “merely a bombing raid,” or ”only a targeted strike.” I find this rejoinder laughably unconvincing — as, I think, would Americans were the roles reversed. If a country were to lob 59 missiles at an U.S. military installation in the middle of the California desert, we would rightly regard that as an “act of war.” We certainly wouldn’t say, “don’t worry, it’s just a minor military strike.”

Does the fact the Syria’s government is gassing its own people change that? No, it does not. Why not? Because the question here isn’t whether America is morally justified in hitting Assad’s air bases (it is), or whether doing so is a good idea (it may be), or whether America is a more virtuous country than Syria (it is). Rather, the question is of constitutional legality. If the United States had been gassing Americans in Hawaii at the time Japan hit Pearl Harbor, that strike would still have been an act of war — yes, even if Japan had used it as its casus belli – and Americans would have rightly seen it as such. We should not set a double standard when the roles are reversed. If we need to hit Assad, I’m open to the argument. But Congress must be asked for permission.

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