Part of the reason may be that following the introduction of nuclear weapons, major interstate war has all but disappeared. In the absence of a state of war, international human rights law [8] much like civilian criminal law applies to the conduct of state and non-state actors. What is required for a law of war regime to apply? However, a non-international armed conflict i. For one, a government might use limited force against an armed rebel group to restore domestic stability without becoming party to an ongoing armed conflict or creating a state of civil war.
This may be one the reason why a U. S, sailors were captured in January of by Iranian forces. This position remained unchanged even though a subsequent U.
Navy investigation showed that the capture was effectuated by the threat of force, and was in violation of international law. That is surely so with respect to non-international armed conflicts, and likely so with respect to classic international armed conflicts.
In other words, by automatically establishing a state of war, perhaps in circumstances where the level of violence would not otherwise create it, a declaration of war could control the timing of the application of the laws of war and influence other aspects of international law, including neutrality law. Depending on the circumstances, this ability could be quite significant from a strategic and tactical perspective. As for domestic law, the CRS report noted above lists scores of legal authorities that are activated by a declaration of war.
In the modern era authorizations have sometimes been quite broad; and some have, arguably, been equivalent in scope to a declaration of war. But the domestic legal consequences that flow from such authorizations still are substantially more limited than those that would flow from a declaration of war.
A declaration, for instance, activates statutes that empower the President to interdict all trade with the enemy, order manufacturing plants to produce armaments and seize them if they refuse, control transportation systems in order to give the military priority use, and command communications systems to give priority to the military.
A declaration triggers the Alien Enemy Act, which gives the President substantial discretionary authority over nationals of an enemy state who are in the United States.
It activates special authorities to use electronic surveillance for purposes of gathering foreign intelligence information without a court order under the Foreign Intelligence Surveillance Act. It automatically extends enlistments in the armed forces until the end of the war, can make the Coast Guard part of the Navy, gives the President substantial discretion over the appointment and reappointment of commanders, and allows the military priority use of the natural resources on the public lands and the continental shelf.
An authorization for the use of force does not automatically trigger any of these standby statutory authorities. Some of them can come into effect if a state of war in fact comes into being after an authorization for the use of force is enacted; and the great majority of them, including many of the most sweeping ones, can be activated if the President chooses to issue a proclamation of a national emergency.
But an authorization for the use of force, in itself and in contrast to a declaration of war, does not trigger any of these standby authorities. On the other hand, the authorization to use force in response to the terrorist attacks of has been asserted as legal authority for executive actions in the domestic context, the validity of which remains unresolved. The executive branch asserted that the authorization permits detention without trial of persons arrested in the United States on suspicion of Al Qaeda related terrorism, which it regarded as bolstered by the Supreme Court's Hamdi decision finding the detention of enemy combatants captured in Afghanistan to be authorized as "a fundamental incident of waging war.
The following subsections give an overview of some of the more salient domestic legal consequences of a declaration of war or authorization for the use of force. Both a declaration of war and an authorization for the use of force have significant implications with respect to the War Powers Resolution WPR.
To that end the WPR mandates that the President consult with the Congress "in every possible instance" prior to introducing U. Section 4 a of the WPR further requires the President, "in the absence of a declaration of war," to report to Congress within 48 hours in any case in which United States Armed Forces are introduced—.
Section 5 b of the Resolution, in turn, requires that if a report has been submitted or was required to be submitted under Section 4 a 1 above, the President shall terminate the involvement of U.
Thus, congressional enactment of either a declaration of war or an authorization for the use of force pursuant to Section 5 b has the effect of tolling the day withdrawal mandate of the WPR. Each of the last three authorizations for the use of force enacted—the Gulf War authorization, the September 18, , authorization with respect to terrorist attacks, and the October 16, , authorization with respect to Iraq—have explicitly stated that they constitute the authorization required by Section 5 b of the WPR.
Each, in other words, has tolled the day limitation that the WPR otherwise would impose on the use of military force by the President. All three authorizations have further specified that "[n]othing in this resolution supersedes any requirement of the War Powers Resolution.
TWEA comes into effect upon a declaration of war or the existence of a state of war, while IEEPA is triggered solely by a presidential declaration of national emergency. Neither statute is triggered by an authorization for the use of force unless, in the case of TWEA, the authorization eventually leads to the existence of a state of war.
IEEPA is the authority most commonly invoked to freeze or block the assets of foreign states, companies, or individuals located within the jurisdiction of the United States. Until the broad range of economic authorities granted by TWEA could be exercised both in times of war and in times of national emergency. However, in Congress limited the prospective application of TWEA to times of declared or undeclared war only and enacted IEEPA to apply during times of a national emergency declared by the President.
A investigate, regulate, or prohibit, any transactions in foreign exchange, transfers of credit or payments or payments between, by, through, or to any banking institution, and the importing, exporting, hoarding, melting, or earmarking of gold or silver coin or bullion, currency or securities, and.
B investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest, by any person, or with respect to any property, subject to the jurisdiction of the United States; and any property or interest of any foreign country or national thereof shall vest, when, as, and upon the terms, directed by the President, in such agency or person as may be designated from time to time by the President, and upon such terms and conditions as the President may prescribe such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States Thus, TWEA is not dependent upon a declaration of war, but it can be triggered by such a declaration.
Neither appears to be triggered by an authorization for the use of force, unless and until, in the case of TWEA, a state of war actually develops. As noted, a declaration of war gives the President full authority over trade relations with the enemy.
Other statutes triggered by a declaration give the President the authority to order plants to convert to the production of armaments and to seize those that refuse to do so, 93 to take control of the Tennessee Valley Authority in order to manufacture explosives or for other military purposes, 94 to assume control of transportation systems for military purposes, 95 to condemn land for military uses, 96 to have the right of first refusal over natural resources, 97 and to take control of communications facilities.
First enacted in , the Alien Enemy Act broadly authorizes the President to deport, detain, or otherwise condition the stay of alien enemies in the U. Given this premise, the Supreme Court has observed that "[e]xecutive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security.
The President must publicly proclaim the event that gives rise to activation of the act and make regulations regarding the treatment of those aliens. But once he does so, his power to "apprehend, restrain, secure, and remove" enemy aliens extends to all "natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be in the United States and not actually naturalized.
Roosevelt authorized similar restrictions during World War II and, additionally, set up over community hearing boards to make internment recommendations to the Attorney General. The procedural rights of aliens who are subject to the Alien Enemy Act are drastically restricted compared with those that aliens otherwise enjoy, including hearing rights under the removal provisions of the Immigration and Nationality Act. Generally, however, the power of the President to control alien enemies under the act is extraordinary.
As noted, the act does not appear to be triggered solely by an authorization for the use of force. There are a number of civilian federal criminal law provisions that apply explicitly to specified conduct in time of war. They do not appear to distinguish between circumstances involving a declaration of war and other situations in which a state of war may exist absent a declaration of war, although courts and Congress have in some cases construed "time of war" or "at war" to require a formal declaration by Congress.
Thus, these statutes may be triggered by a declaration of war, but they also may apply in circumstances where a state of war is deemed to exist.
Consequently, these criminal prohibitions do not appear to be triggered by an authorization for the use of force, unless and until a state of war develops. These statutes include, for example: Section willful secreting, mutilating, obliterating or destroying records of a war contractor, that is, a holder of a prime or subcontract connected with or related to the prosecution of a war ;.
Section procuring the escape of a prisoner of war held by the United States or any of its allies or the escape of an apprehended or interned enemy alien held by the United States or its allies; aiding or assisting such escape or assisting the prisoner of war or enemy alien after his escape; or attempting or conspiring to do any of the above ;.
Section harboring or concealing persons known or believed to have committed or to be about to commit an offense under 18 U. Section gathering, transmitting or losing information related to the national defense with the intent or reason to believe that it is to be used to the injury of the United States or to the benefit of a foreign nation. Includes, among other things, such actions with respect to information on any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war are being prepared, repaired, stored, or are the subject of research or development; or with respect to any prohibited place so designated by the President by proclamation in time or war or in case of national emergency in which anything for the use of the Army, Navy, or Air Force is being prepared, constructed, or stored ;.
Section gathering or delivering information relating to the national defense with the intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation. Subsection b deals with recording, publishing, or communicating or attempting to elicit information regarding movements, numbers, condition or disposition of Armed Forces, ships, aircraft or war materials, with the intent that the information be communicated to the enemy in time of war.
It also covers communicating to the enemy in time of war information on plans or conduct of naval or military operations or defense measures. Section making a false statement, with intent to convey false or misleading information, about the death, injury, capture, or disappearance of a member of the Armed Forces of the United States during a war or armed conflict in which the United States is engaged ;. Section aliens who are found and taken on the sea making war against the United States or engaging in piracy against U.
Section when the United States is at war or when a national emergency has been declared, willful destruction of war material, war premises, or war utilities, with intent or reason to believe that such actions may injure, interfere with, or obstruct the United States or associate nations in their war or defense activities; and conspiracy to do so ;. Section in times of war or national emergency, willfully producing defective war material, war premises, or war utilities with intent to injure, interfere with, or obstruct the war or defense activities of the United States or associate nations ;.
Section and U. Constitution, Art. Constitution requires confession in open court or testimony of two witnesses to the same overt act to convict for treason ;.
Section seditious conspiracy to overthrow or destroy by force the Government of the United States or to levy war against the United States ;. Section willfully engaging in certain activities in time of war with intent to adversely affect armed forces of the United States or to obstruct enlistment or recruitment; conspiracy to do so; harboring a person knowing or having reason to believe that the person has engaged in such conduct ;.
Section recruiting soldiers or sailors within U. It should also be noted that other federal and state criminal law provisions, which do not draw distinctions between conduct in time of war and at other times, also apply during wartime. Section prohibits knowing development, stockpiling, acquisition, possession or retention of any biological agent, toxin, or delivery system for use as a weapon, or knowing assistance to a foreign state to do so. Section , with certain exceptions, prohibits similar conduct with respect to chemical weapons.
Section prohibits specific transactions or actions involving nuclear materials, while 42 U. Section deals with sabotage of nuclear facilities or fuel.
Section a prohibits certain uses of weapons of mass destruction. Other explosives offenses are covered in 18 U. Section Hostage-taking is addressed in 18 U. Section , while kidnapping is covered by 18 U. Section deals with murder or manslaughter of foreign officials, official guests, or internationally protected persons. Section addresses the murder or attempted murder of federal officers and employees, including members of the uniformed services, while they are engaged in or on account of the performance of official duties.
It also covers murder or attempted murder of any person assisting an officer or employee of the United States in the performance of those duties or on account of that assistance. Statutes of limitations, which preclude prosecutions after a specific amount of time has lapsed typically five years , may also be affected during wartime.
Section , extends the statute of limitations for the prosecution of certain crimes against the United States for five years beyond the termination of hostilities. Originally enacted during World War II, the Suspension Act previously extended the statute of limitations in relevant cases until three years after the end of hostilities only "when the United States is at war.
It continues to suspend the applicable statute of limitations for three years beyond the end of hostilities, and applies "when the United States is at war. There are other criminal law provisions applicable to the military in the Uniform Code of Military Justice, 10 U. Sections et seq. Some of these provisions apply specifically in times of war. These will be treated separately in the subsequent section of this report on " Military Personnel. The Foreign Intelligence Surveillance Act FISA , as amended, in pertinent part, authorizes electronic surveillance, physical searches, and the use of pen registers and trap and trace devices to gather foreign intelligence information and sets out the procedures and circumstances under which each of these investigative tools may be used.
Section , that:. Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress. In the context of physical searches, 50 U. Section includes language similar to that in Section Notwithstanding any other provision of law, the President, through the Attorney General, may authorize physical searches without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by the Congress.
Notwithstanding any other provision of law, the President, through the Attorney General, may authorize the use of a pen register or trap and trace device without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by Congress.
None of these provisions appears to be triggered by an authorization for the use of force or the existence of a state of war under any authority other than a congressional declaration of war. In addition to the foregoing provisions, FISA has been amended to authorize the use of these investigative tools without a court order for foreign intelligence purposes in "emergency" circumstances as determined by the Attorney General.
To do so the Attorney General must 1 find that an emergency exists, 2 determine that the factual basis for the issuance of an order to approve such surveillance, physical search, or pen register or trap and trace device also exists, 3 advise a judge of the U.
Foreign Intelligence Surveillance Court FISC that a decision to use the emergency authority has been made, and 4 apply to the FISC judge so notified for a court order as soon as practicable but no later than within 72 hours in the case of an electronic surveillance or physical search or 48 hours in the case of a pen register or trap and trace device.
However, depending upon the circumstances involved, these emergency powers, or other provisions within FISA, might be utilized. As noted in the foregoing discussion of criminal law, 18 U.
Section makes it a crime to kill or attempt to kill a "foreign official, official guest, or internationally protected person.
This criminal provision does not apply to the killing or attempted killing of an internationally protected person in his or her own country. The United States courts may exercise jurisdiction over the killing or attempted killing of internationally protected persons in violation of 18 U. Section committed outside the United States where the victim is a representative, officer, employee or agent of the United States; where a perpetrator is a U.
In addition, Part 2. Part 2. The executive order does not define "assassination," nor does either the criminal statute or the executive order specifically address the applicability of the prohibition to an armed conflict in which the U.
However, in times of war, the targeting of an enemy's command and control structures may be regarded as strategically important, is lawful under international law, likely is not intended to be barred by E. Hence, a declaration of war, because it creates a state of war regardless of whether actual hostilities have occurred, arguably creates a situation where such an act is not prohibited by domestic law.
Less clear is the effect of an authorization for the use of force. Once a state of war comes into existence following such an authorization, then the legal situation appears to be the same as with a declaration.
But prior to that development, the legal effect of an authorization for the use of force on the assassination ban appears somewhat ambiguous.
An executive order may be revoked by the President through another executive order. To the extent that an executive order is issued pursuant to authority granted by statute, Congress may repeal it or terminate the underlying statutory authority upon which it rests.
The assassination ban is part of an executive order issued by President Reagan in under both statutory and constitutional authority. The order does not indicate the nature of the authority underlying the assassination ban in particular. If one were to argue that a statutory basis for the ban exists, then one might contend that an authorization for a use of force would, by implication, modify the ban or repeal it with respect to the context in which the use of force was authorized.
Conversely, declarations of war or authorizations for the use of force do not appear to have any particular consequences for the broad authorities conferred by the Defense Production Act of DPA , as amended. The original act contained seven titles, four of which were rescinded in This title provides the President with the authority to require the priority performance of defense contracts and to allocate scarce critical and strategic materials essential to the national defense.
This authority may also be extended to support the military requirements of allied nations when such extension is in the U. Priority contract performance, especially as implemented with respect to industrial resources, is intended to ensure sources of supply and timely delivery of required items for defense purposes.
During this operation, such items as computer and communications equipment, Global Positioning System receivers, chemical warfare protective clothing, and medical supplies were urgently required by both U. More recently, DPA authority has been used to ensure timely delivery of critically needed items to support the deployment of U.
Title I contains a section that prohibits the President from exercising his priorities and allocations authority unless he makes certain findings supporting the need for such action. Additional sections provide the President with authority relating to the hoarding of designated materials, penalties for the violation of any provision of Title I, small business preferences, etc.
This title is used only in cases where domestic sources are required and domestic firms cannot, or will not, act on their own to meet a national defense production need. Because private firms may be reluctant to invest in production capabilities for a new material unless a near-term demand for the material is relatively certain, Title III authorizes the use of financial incentives to expand defense-related productive capacity of critical components, critical technology items, and industrial resources "essential to the national defense.
The authorities conferred in this title become broader in times of a national emergency declared by the President or Congress. This title includes various provisions with relevance to defense industrial preparedness. Examples include a Section , which authorizes the President to provide antitrust defenses to private firms participating in voluntary agreements aimed at solving production and distribution problems involving national defense preparedness; b Section , which establishes a National Defense Executive Reserve NDER composed of recognized experts from various segments of the private sector and government except full-time federal employees for training for possible employment in the federal government in the event of an emergency; and c Section , a provision popularly known as the "Exon-Florio Amendment," which authorizes the President to suspend or prohibit the acquisition, merger, or takeover of a domestic firm by a foreign firm if such action would threaten to impair national security.
Another domestic legal issue implicated by declarations of war and authorizations for the use of force is their effect, if any, on insurance contracts, particularly with respect to clauses that exclude coverage for "acts of war.
However, even a declaration of war by Congress does not appear to have an authoritative effect upon the construction of material terms contained in private contracts. Aetna Casualty and Surety Company, a jet was hijacked and destroyed by political dissidents in the Middle East. According to the Pan Am decision, when a court interprets an insurance policy excluding from coverage any injuries "caused by" a certain class of conditions, "the causation inquiry stops at the efficient physical cause of the loss; it does not trace events back to their metaphysical beginnings.
This issue will not likely arise with respect to any future acts of terrorism on U. In the aftermath of September 11, , Congress enacted the Terrorism Risk Insurance Act to ensure the availability of commercial insurance coverage for losses due to acts of terrorism. A number of provisions of the U. Code concern crimes under the Uniform Code of Military Justice, the activation of the reserves, the role of the Coast Guard, tax benefits for military personnel, and disability and death as the result of combat duty.
None appear necessarily to require a declaration of war to be applicable, but a declaration can trigger their application. Several of these crimes either only occur or occur in aggravated form "in time of war. Rule 19 defines the expression "time of war," as follows:. For purpose [ sic ] of Parts IV and V of this manual. Thus, a congressional declaration is not indispensable to prosecutions of these crimes but can trigger their application.
They do not appear to be triggered by an authorization for the use of force unless a state of war develops. In the absence of a presidential or congressional declaration, military courts have applied a variety of pragmatic tests to determine whether a "time of war" existed in connection with specific offenses. For some offenses, the statutes of limitations may be tolled in "time of war. Section f. The jurisdiction of the military expands during time of war. Prior to , the UCMJ permitted trial by court-martial of "persons serving with or accompanying an armed force in the field" in time of war 10 U.
When faced with the court-martial of civilians, courts interpreted the phrase "in time of war" to mean only during wars declared by Congress. Section a 10 to extend military jurisdiction in "time of declared war or a contingency operation. In time of war or conditions of martial law, military commissions may provide a special venue for trying persons not otherwise subject to the UCMJ.
Code , permits the trial by military commission of "alien unprivileged enemy belligerents" suspected of committing violations against the law of war or "other offenses triable by military commission. The definition of "unprivileged enemy belligerent" is restricted to those who engaged in or substantially supported hostilities against the United States or its coalition partners, except that those who were members of Al Qaeda at the time of the offense need not have such a connection to hostilities.
Chapter of title 10 of the United States Code 10 U. The authority conferred under Sections through can be exercised without a congressional declaration of war or national emergency; but those sections only allow reserve forces to be called to active duty for fixed statutory periods i. In , Hamilton made this argument regarding the Tripoli conflict.
While generally agreeing that the President could not initiate hostilities, Hamilton said that the Declare War Clause did not prevent the President from responding including with offensive force once Tripoli began the war. In sum, the best textual and historical account of the Declare War Clause is that it gives Congress exclusive power over both declaring war formally in an official declaration of war and declaring war informally by authorizing hostile attacks.
That is why there is little contemporary controversy over the scope of the Declare War Clause — or its role in the separation of war powers between Congress and the Executive Branch.
Instead, most contemporary disputes between Congress and the Executive Branch over the war powers have reduced to debates over the scope of statutory authorizations that Congress has provided. And although Congress enacted the War Powers Resolution WPR in in an attempt to mitigate such disputes, it has thus far only served to exacerbate them, raising the question of whether there are better ways to protect the original understanding going forward.
The War Powers Resolution was a direct response to U. But the scale and scope of the Vietnam conflict expanded dramatically beyond what Congress could have anticipated — with the only subsequent legislative support for the conflict coming through appropriations bills. To stem the perceived rising tide of unilateral presidential warmaking, the WPR created a framework that requires the President to report to Congress within 48 hours in any case in which U.
That report, in turn, triggers a day clock which can be extended by the President to 90 days, but no further , at the end of which the President must terminate such use of U. In practice, Congress has been reluctant to decide for itself when the clock starts, which has left the Executive Branch with at least some discretion to slow-walk the report or not file one at all in order to buy more time for unilateral uses of force. Third , although the WPR was meant to limit presidential warmaking, its framework all-but appears to embrace it in the short term, at least until its clock runs out.
After all, by providing for the termination of military force at the end of the statutory time-period, the WPR implicitly appears to authorize such force until the termination provisions kick in, creating to days of authority that Congress might not otherwise have provided.
Fourth , and perhaps most significantly, the WPR says nothing about how to interpret the specific statutory authorizations that satisfy it, such as the Authorization for the Use of Military Force AUMF Congress enacted shortly after the September 11 attacks. The lack of specificity in the AUMF became especially apparent when the Obama administration argued that it authorized hostilities against the Islamic State in Iraq and the Levant ISIL , a group that did not even exist on September 11 — and that was quite publicly at odds with al Qaeda, the principal perpetrators of those attacks.
As a result, it seems unlikely that the War Powers Resolution will serve any salutary purpose in separating the war powers between Congress and the President going forward or in vindicating the original understanding of the Declare War Clause.
And, as the AUMF debate underscores, not only will Presidents interpret statutory authorizations broadly, but Congress will be reluctant to seek their repeal. It was on this day in that a joint session of Congress approved the Gulf of Tonkin Resolution, an act that led to the Vietnam…. Declare War Clause by Michael D. Lawrence, Kan. Congressional Abdication on War and Spending. College Station, Tex. Thurber, pages — Lanham, Md. Fowler, Linda L. Lee, pages — Oxford University Press, Howell, William G.
Princeton: Princeton University Press, Katzmann, Robert A. Kriner, Douglas L. Chicago: University of Chicago Press, Torreon, Barbara Salazar. Weed, Matthew C. Zeisberg, Mariah. Herndon, 15 Feb. Knopf, : Kurland and Ralph Lerner, eds. Indianapolis: Liberty Fund, Inc.
See also, Fisher, Presidential War Power : 6.
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