JOINT RESOLUTION Resolved by the Senate and the House of Representatives of the United States of America in Congress assembled:
Declaring that a state of war exists between the armed militant groups of Jundallah, Tehrik-i-Taliban, Lashkar-e-Islam, TNSM, al-Qaeda, ISIL and their successor and fraternal organizations within Waziristan and neighboring provinces and the Government and people of the United States, and making provision to prosecute the same.
Whereas, the recent acts of by the militant groups are acts of war against the Government and the people of the United States:
Resolved by the Senate and the House of Representatives of the United States of America in Congress assembled, That the state of War between the United States and the militant groups of Waziristan which has been thrust upon the United States is hereby formally declared; and
That the President be, and is hereby, authorized and directed to take immediate steps not only to put the country in a thorough state of defense but also to exert all of its power and employ all of its resources to carry on war against the militant groups and to bring the conflict to a successful termination.
-------------------
And then they vote on it and it passes. And the Supreme Court finds that there is nothing unconstitutional about it.
Armed militant groups are first and foremost the problem of the countries bordering and including the territory these militants operate in.
Any action against them by foreigners not otherwise involved in the region is an act of war in and of itself.
Imagine - I know this is a tricky one - Russia intervening in North Dakota between two rival bike gangs. The United States would see this as an act of war against the USA, and rightly so.
The only way this could happen is if there was a direct invitation from one of the governments of the affected countries and this would then still be limited to the territory of that country.
Declarations of war identify an enemy, they don't (inherently, though they could also do this) limit the geographic area in which forces of that enemy will be attacked.
> Imagine - I know this is a tricky one - Russia intervening in North Dakota between two rival bike gangs. The United States would see this as an act of war against the USA, and rightly so.
Yes, but that doesn't make declaring (or prosecuting) war against non-state actors impossible, it just means that prosecuting such a war will either require cooperation of or conflict with other states.
That's often true with regard to third-party states in interstate war, too, whose territory is often violated (or, in some cases, the entire country occupied, as the British did to Iceland in WWII) without declaration of war as part of prosecuting a declared war against some other state.
So the American Civil War wasn't a war, since the south wasn't another country? The Chinese civil war wasn't a war? The Iruqois Wars weren't wars? The Seljuk-Crusader War wasn't a real war? The War of the Sicilian Vespers wasn't a real war? The War of the Succession of Champange wasn't a real war?
It seems like there's about 4,000+ years of natural language clearly establishing that a war is NOT just about fights between two nation states.
But, hey, I could be wrong. It wouldn't be the first time Congress has passed a resolution that ended up being found unconstitutional and it won't be the last.
No, it was a Civil War. As you already wrote.
> The Chinese civil war wasn't a war?
No.
> The Iruqois Wars weren't wars?
You are really reaching now.
It seems to me that you are trying very hard to hold on to the idea that there is such a thing as a 'war on terrorism' but the whole thing is nonsense, just as much as the 'war on drugs' or any other mis-use of the term.
> But, hey, I could be wrong.
Yes you are.
> It wouldn't be the first time Congress has passed a resolution that ended up being found unconstitutional and it won't be the last.
It's not the constitution of the United States that matters here but international law.
If you want an example of an actual exercise of Congressional power to declare war that applies (conditioned on Presidential determination) to both state and non-state actors, see the 9/11 AUMF.
IOW, been there, done that, and that's what got us where we are.
(OTOH, this is a discussion specifically about American action, anyway.)
If you are of the opinion that this is not the case then maybe America should withdraw from the Geneva convention and various other useful treaties as well because after all, what's the point in having rules of engagement if you're going to ignore them anyway...
Yeah, but declarations of war (whether with or without magic words) aren't really important in a legal sense in that domain. Alexander Hamilton observed that they were falling out of use internstionally before the US Constitution was ratified, and the post-WWII international order has essentially made them moot with the recognition of aggressive war as a crime against peace. Fighting a defensive war once hostility was initiated (or, perhaps, clearly imminent) has long been accepted as valid with or without declaration, so with aggressive war itself a crime, there is no war legitimized by a formal declaration.
The international laws governing armed conflict are operative based on the fact of such conflict and the identity of the parties to it, not declarations of war.
That's the whole reason the Geneva convention was created to begin with, to differentiate between combatants and non-combatants. Now, it absolutely sucks that the other party doesn't play by the rules but that is no reason to stop playing by those rules ourselves. The moment we do so we stoop to that same level.
Anyway, that's a past station by this point and I'll probably have a hard time convincing you that on the evening of 9/11/2001 America had the keys to a new world order in its hands and squandered the opportunity by seeking petty revenge and economic advantage. The lesson learned that evening is that by doing what your enemy wants you to do you lose, big time. You can't wage war on ideas or on reactions.
Both the US and each of the groups it had targeted under the 9/11 AUMF has an identity.
Some of the targets are parts of diffuse groups with little central command structure, which makes it very hard to end a war against them (and harder still to draw and end to an open ended war where targets are added by loose association), which is a problem of the crafting of the AUMF, it's continuation in effect, and the Congressional oversight of the war effort.
In an international law sense, there's a host of valid questions about the adequacy and appropriateness of the rules governing conflicts involving non-state actors (such as Common Article 3 of the Geneva Conventions.)
> Now, it absolutely sucks that the other party doesn't play by the rules but that is no reason to stop playing by those rules ourselves.
I don't disagree, but drone strikes per se aren't a violation of the rules.
> I'll probably have a hard time convincing you that on the evening of 9/11/2001 America had the keys to a new world order in its hands
Well, yeah, that's a claim that would take some support.
> and squandered the opportunity by seeking petty revenge and economic advantage.
While I doubt the existence of the opportunity you suggest was squandered, I do think the US government did a grave disservice to both itself and the world community with it's conduct in the years immediately following 9/11, most especially, but not exclusively, in the naked war of aggression it leveraged domestic outrage at 9/11 to justify in Iraq.
And I think there are deep problems with the broader “War on Terror”, I just seem to disagree with you on the degree to which those problems are due to violations of clear proscriptions in international law or failure to observe ceremonial requirements.
If they're combatants, it's not political assassination. It's a combat operation.
If they're suspected combatants, it's still not political assassination. It may not be morally justified, but it's not political assassination. (And it still may be morally justified. You almost never have total certainty in discriminating between civilian and combatant, even in a formally declared war against a formal military.)
As the article lays out the assassinations are made based on death lists compiled by US intelligence agencies. They can put whoever they like on these lists, in this case they put a US citizen on it, for example. That's the paradigmatic example of political assassinations, and e.g. on a par with what the US did when they supported death squads in Chile, except that in Chile the death squads were mostly comprised of non-US citizens whereas drone strikes are conducted by US citizens.
Leaving aside the question of whether war was declared, and while war without declaration may be its own problem, both US and international law recognize that war exists (and the laws of war apply) when armed conflict is initiated, whether or not a declaration was made previously.
[1] https://www.thebureauinvestigates.com/projects/drone-war