- The Washington Times - Monday, September 24, 2001

President Bush has said that the United States is at war, and he is right. On Sept. 11, America was attacked by an organized, determined and ruthless enemy. Although this foe can generally be described as international terrorism, the direct perpetrator appears to have been Osama bin Laden's al-Qaeda organization which operates with the assistance and blessing of the Taliban government in Afghanistan. This being the case, the president should seek from Congress in addition to the recent joint resolution authorizing the use of force against those responsible for the attacks a formal declaration of war against that state. There are excellent legal and policy reasons for this course of action.

Under international law, a declaration of war is a formal legal recognition that a state of armed conflict exists, and carries with it a body of settled rules regarding the rights and responsibilities of both belligerent and neutral powers. By contrast, the norms governing an undeclared war, particularly with respect to neutrals, are far more ambiguous. The U.S. campaign against terrorist organizations and their state sponsors is likely to be long and dangerous, and the clearer the applicable legal rules are, the easier it will be for the United States to isolate those responsible, to foster a global coalition against them and to achieve a complete and lasting victory.

In this regard, one of the key consequences of a declaration of war would be that the United States could unlike the case during the 1999 Kosovo campaign lawfully interdict and confiscate, without compensation, any contraband assistance or supplies being provided by neutral states, or their citizens, to other belligerents, or their clients. This would include forms of assistance such as arms and munitions, as well as financial support. Once a state of war is declared, any such assistance to the Taliban government from other states would, in fact, constitute an act of war against the United States, which would be entitled to treat such state(s) also as belligerent powers. This, in and of itself, will create a very powerful deterrent effect against those states who may be tempted to impede our efforts by assisting the Taliban or bin Laden's organization.

Moreover, a formal declaration of war, anchored in traditional international legal norms, would make clear that the United States forcefully and definitively rejects the increasing claims made by some members of the international community even including a few European government officials that it must obtain U.N. Security Council approval before responding with military force to the Sept. 11 attacks. In effect, a U.S. declaration of war would reaffirm the proposition that the use of force in self-defense remains an inalienable attribute of sovereignty. It would also avoid a Security Council debate about how this war should be fought, and what its ultimate goals should be. In 1991, the Security Council approved the liberation of Kuwait, but not the destruction of Saddam Hussein's regime itself. A declaration of war by the United States would, by contrast, legitimate the broadest possible set of war aims, including the Taliban's ouster from power action that, otherwise, would arguably be inconsistent with international legal norms, including the U.N. Charter.

As a domestic law matter, a declaration of war also has many benefits. It would vest the federal government generally, and the president specifically, with the maximum authority available under our constitutional system. It is highly likely that such authority will be needed in order to destroy the organizations and governments that threaten our peace and security, and a declaration would also fully and permanently associate the Congress with the president in this effort, avoiding the divisions and disputes that so hampered U.S. efforts in the Vietnam War.

In addition, a declaration of war would mark a definitive move away from treating the Sept. 11 attacks as a law-enforcement problem and towards a full-fledged military response. Among other things, this would permit the United States to treat bin Laden and his terrorists as "unlawful combatants," who would be entitled to much less due process than ordinary criminal defendants. During time of war, such individuals who also are not entitled to be treated as prisoners of war under international norms can be tried in special tribunals or military courts, as opposed to the normal civilian courts. The administration is reported to be considering the use of such special tribunals, an extraordinary process last used during World War II. However, the only constitutional support for such action in accordance with Supreme Court precedents is a formal declaration of war by Congress.

Finally, a formal declaration of war will make clear to the whole world the seriousness of our purpose that the United States is in this effort for the long haul, and that it will prosecute this war to a successful conclusion. This will reassure those states (particularly in the Middle East) that may be willing to offer the United States assistance but which may fear that we will simply punish, rather than destroy, the terrorists, leaving them ultimately to reap the whirlwind. Thus, taking the public and irrevocable step of declaring war would assist in building an international coalition against terror. All in all, if we are at war as the president has stated then it should properly be so declared.

David Rivkin Jr. and Lee A. Casey are partners in the law firm of Baker & Hostetler LLP.

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