Profiling, Internment, Dissent and a Declaration of War

“Congress shall have the power to…declare war…”
-- US Constitution, Article I, Section 8

In her book, In Defense of Internment, Michelle Malkin makes a case for the interning of American citizens of Japanese descent during World War II on grounds of national security, i.e. among those interned were many genuine Japanese spies. Ms. Malkin’s intent is to explore the possibility of racial and religious profiling during America’s war with the Islamunists. The purpose of this essay is not to enter the fray on either side as to the appropriateness of what happened during World War II, but to explore the circumstances under which profiling, internment and the curbing of dissent become legal.

Ms. Malkin points out that the earliest attempt to counter internal subversion dates from tensions with France in 1798. The ill-fated Alien and Sedition Acts were written into law with the proviso that they go into effect when the United States was at war. By this, the laws referred to a state of declared war between the US and another sovereign nation, as authorized by the Constitution.

The US had its last constitutional declaration of war removed from the books when Japan surrendered in 1945. Since then, there has been a tendency to go around the Constitution, using congressional declarations authorizing the use of force or presidential findings as a legal justification for military action. While this has become a matter of policy since 1950, it is constitutionally sloppy.

There had traditionally been a clear-cut policy as to when the US would officially declare war.

The naval action against the Barbary pirates was directed against an entity that was not a sovereign nation, so no official declaration of war was considered. No declarations preceded military actions against Indian tribes, because these were considered local rebellions, not wars against a sovereign, even though treaties with the tribes had created a degree of sovereignty.

Abraham Lincoln did not use a declaration of war against the Confederacy because that would have granted diplomatic recognition to the South and opened the door under international law to other nations, such as Britain and France, to grant belligerent status to the Confederacy. Lincoln never permitted the word “Confederacy” to be uttered in his presence, always referring to “states in rebellion against the lawful authority of the federal government.” Lincoln engaged in political profiling and jailed perceived enemies, all of which he facilitated with the suspension of habeus corpus in accordance with Article I, Section 9 of the Constitution.

Military actions against Mexico, Nicaragua and Haiti in the early Twentieth Century were not authorized by declarations of war and existed in a sort of gray area before Franklin Roosevelt’s Good Neighbor Policy went into effect in 1940.

But when the US went to war with Britain (1812), Mexico (1848), Spain (1898), the Central Powers (1917) and the Axis (1941), it used a constitutionally sanctioned declaration of war. “In time of war,” the saying goes, “the laws are silent.”

To see what happens when war is declared, a look at World War II would be instructive.

With the declaration of war against the sovereign nations of the Axis in 1941, the goal of war became the unconditional surrender of the enemy. American society and industry underwent full mobilization. Industrial plants manufacturing consumer goods were converted to war plants under full socialist industrial planning.

Gasoline was rationed, and a national speed limit of 35 mph was enforced. Billboards with the message, “Is this trip really necessary?” were ubiquitous. Posters reminded people that when they drove alone, they were “riding with Hitler.”

Silk, nylon, rubber and copper were among many materials that were reserved for military use, and those who dabbled in the black market were imprisoned. Foodstuffs were rationed, people were warned not to hoard food and told to report those who did. Catholics had always had meatless Fridays, but now the entire nation had meatless Tuesdays.

American women planted “victory gardens”, Boy Scouts scavenged metal and rubber “for the war plants,” and people were encouraged to buy war bonds because, “It's bonds or bondage!” (Try using that motto in San Francisco today.) On the radio, when American women heard, “Ladies, bring your fat cans down to the corner butcher,” they knew it referred to cans of rendered fat, not oversize buttocks.

All news coverage was propaganda. No matter how bad the news from the front, the reassuring voices of Edward R. Murrow, Ed Herlihy and Lowell Thomas explained how this latest setback was merely a bump in the road on “our way to total victory!”

All war news was censored. Reporters censored themselves, editors censored reporters, and publishers censored editors. If a publisher printed something that undermined morale or the war effort, the head of the local FBI field office paid the publisher a visit and emphasized how important it was not to make that mistake again. If a radio outlet did the same thing, the chairman of the FCC made a call explaining how licenses could be lost. But these visits and phone calls were rare during World War II because everybody knew the rules.

Before Pearl Harbor, there was a strong and vibrant anti-war movement, mostly centered on the America First organization, with some participation from the German-American Bund. During the brief period of the Molotov-von Ribbentrop Pact, before Hitler launched Operation Barbarossa, the American Communist Party even reversed its usual anti-Hitler position and demonstrated against war. (After Hitler invaded the Soviet Union, the party reversed itself again.) After Pearl Harbor, no anti-war demonstrators ever took to the streets. Had the German-American Bund marched to protest a “fratricidal war against poor, peace-loving Germany”, an angry crowd would have lynched the demonstrators before the police could have arrested them for sedition.

Aliens from Axis nations were interned, as were American citizens of Japanese ancestry, because of a documented fear of espionage.

In its present era of decay, it is difficult to imagine the enthusiasm that greeted the establishment of the United Nations as the replacement for the dead and ineffectual League of Nations. Unlike the old League, the UN had police powers and the teeth to enforce them, and it faced its first great test in Korea.

In theory, the Korean War was a “police action” controlled by the United Nations and involving a multi-lateral force; as such, a declaration of war was not issued by the US. The UN was the belligerent power, and a congressional authorization of our participation was considered sufficient.

When the Korean adventure went sour after China’s intervention, there were no anti-war demonstrations, although the country was angry enough to change parties in 1952. What kept the lid on dissent was the Cold War.

“Congress shall have the power to…raise and support armies, but no appropriation of money to that use shall be for a longer term than two years…”
-- US Constitution, Article I, Section 8

“No money shall be drawn from the Treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.”
-- US Constitution, Article I, Section 9

When Stalin made it clear he was not going to honor his promises, George Kennan, the American ambassador to Moscow, wrote a document known to history as the “Long Telegram,” that was published in Foreign Affairs under the pseudonym “X.” Kennan argued that the best way to handle the Soviets was a policy of Containment. Once Soviet expansionist tendencies were contained, Kennan argued, the country’s internal contradictions would tear it apart. But Containment ran afoul of the traditional policy of disarmament after war. Now there would be the need for a full-time mobilization, to include a military draft and a large standing army. We were at war, yet we were not at war.

Nuclear weapons and their increasingly rapid means of delivery only complicated the situation. A nuclear Pearl Harbor would not permit the usual deliberative custom of an official congressional declaration of war. American war policy became linked to the determination of when the use of nuclear weapons would be countenanced and under what circumstances. The world had become more complicated.

Upon entering office in 1953, Dwight Eisenhower faced the challenge of fighting the Cold War and honoring the Constitution at the same time. Like the Framers, Eisenhower knew his Roman history and understood the risk of maintaining a large standing army. Facing a war-like situation with the Soviet Union and China, Eisenhower decided to use the congressional budget process to get around the Constitution’s two-year requirement for the authorization of a standing army.

The creation of the Central Intelligence Agency opened up another can of constitutional worms. In addition to intelligence gathering, the CIA’s covert operations directorate had the job of destabilizing and even overthrowing governments with which we were not at war. In some cases, the agency even destabilized governments of friendly nations. There were no declarations of war or congressional authorizations involved in these exercises. Instead, the instrument of choice was the presidential finding, a document that was usually classified.

The CIA’s budget was classified and buried in the budgets of other agencies, a violation of the Constitution. Only a few key people in Congress, whose names were never divulged, were the keepers of the CIA’s “black budget”, and a small group in Congress possessed oversight power over CIA activities. “Black ops” were designed to give deniability to the president and others responsible for the agency. Thus, the CIA was able to overthrow the governments of Iran (1953) and Guatemala (1954) without detection at the time.

War had now gone underground, and even the appearance of preparation for a shooting war could lead to the commencement of nuclear hostilities. At a cabinet meeting in 1961, Attorney General Robert Kennedy argued that Communist gains around the world required President Kennedy to declare a state of emergency and launch a full mobilization. Secretary of State Dean Rusk pointed out how a similar mobilization in 1914 had created a hair-trigger situation where one poorly considered, precipitous move had led to general war. An American mobilization would inevitably lead to a Soviet mobilization, a hair-trigger situation, and then someone would make a foolish mistake. In the nuclear age, full mobilization was now an act of war. Robert Kennedy withdrew his suggestion.

In 1959 Dr. Henry Kissinger of Harvard wrote an article in Foreign Affairs, “The Twilight Struggle”, which revolutionized American foreign policy. Kissinger argued that the stakes of nuclear war had become so unacceptably high that the conflict between America and the Soviet Union would be fought in the Third World in the form of “wars of liberation.” To compete in this arena would require Americans to fight long-term limited wars in obscure parts of the globe. Kissinger did not suggest using American ground forces but favored supporting pro-American governments in this effort.

The initial American involvement in Vietnam was a congressionally authorized deployment of American forces as military advisors to the government of South Vietnam, and the deployment was multinational, supported by such nations as Australia and South Korea. US Army Col. John Paul Vann arrived and saw a nation of Vietnamese-speaking Buddhists governed by an elite group of French-speaking Catholics. He saw a president of South Vietnam who was ascetic to the point of being a holy man, but who was not strong enough to prevent his family from stealing everything that wasn’t nailed down. What disturbed Vann most was the unwillingness of South Vietnam’s army to fight and the unwillingness of the country’s president to make it fight.

Success in the military does not come from delivering bad news to one’s superiors. Vann met with Lyndon Johnson in 1964, gave him the bad news, but offered him a way out – sending American ground forces to take over the fighting.

Following a questionable incident at the Gulf on Tonkin, Johnson procured a congressional authorization to send ground troops to Vietnam. A constitutional declaration of war was rejected because of the multinational nature of the initial effort and the fear of Soviet and Chinese reaction to such a declaration on one of their client states.

But there was another – unstated – reason directly tied to Kissinger’s theory. As experienced in World War II, a declaration of war would lead to strong passions on the part of the American people. Should a crisis erupt in Vietnam that escalated tensions with the Soviet Union or China, political passions might make it impossible for an American president to back down. Great powers do not like to lose face. The loss of room for maneuver could easily turn a limited war into a nuclear war; thus Vietnam had to be a passionless war.

Without a declaration of war, there was nothing to get Americans to agree to march in step “to total victory!” and the door was opened to public dissent. In 1965, when Johnson spoke in El Paso, he witnessed his first antiwar demonstration: police roughed up the demonstrators and then arrested them for disorderly conduct. This was what one would have expected under conditions of declared war, but it was not to last.

As the quagmire deepened, public resistance to the war stiffened. Some felt that Vietnam – without our interference – would eventually evolve to look something like Sweden, a point espoused by Frances Fitzgerald in her book, Fire in the Lake. Others who were pro-Communist rooted for an American defeat. Still others felt this latest chapter in the Cold War was a policy mistake. But most simply did not want to be drafted to fight a no-win war when the American homeland was not threatened.

September 11, 2001 changed everything. American popular passions had been aroused, and George Walker Bush issued an ultimatum to the world: “You are either with us or against us.” But there was no declaration of war.

Some would argue that al-Qaida was not a sovereign. But intelligence had long shown that many sovereign nations had been involved, directly or peripherally. Afghanistan had provided al-Qaida with a base of operations, Pakistan’s intelligence forces had provided tactical support, and Saudi Arabia had provided financial support as a way of paying al-Qaida to leave it alone. The fingerprints of many Islamic nations were all over 9/11.

However, a declaration of war would have galvanized opposition throughout the Islamic world, and the US would not been able to take on all enemies at once with conventional forces. A nuclear response and a massive mobilization via a military draft would have been the only way to end the Islamunist threat quickly. But the first use of nuclear weapons would have galvanized opposition from the entire world.

The chosen approach was to fight one limited war after another in a controlled fashion under the umbrella of the UN, as Desert Storm had been fought. The idea was not to escalate piecemeal as in Vietnam, but to go in quickly with overwhelming force, crush the enemy’s military, conquer him – and then rebuild him as we had rebuilt Germany and Japan after World War II. But nation building turned out to be difficult when the enemy government did not officially surrender, and the enemy population did not know it had been defeated.

The war in Afghanistan followed the pattern of Desert Storm, as a coalition of nations worked with the US under UN approval to remove the Taliban from power. But the war in Iraq proved to be more problematic, as EU nations opposed the effort. Some EU nations wanted to preserve the lucrative business arrangements they had with Iraq, and others wanted an Iraq with weapons of mass destruction to function as a counterweight to keep a nuclear Israel under control. The same nations today oppose American action against Iran because Iran has now assumed the counterweight function.

Had a constitutional declaration of war been on the books after 9/11, a number of things would have been different.

Gasoline rationing would likely have gone into effect. Money paid to the Saudis for their oil had long trickled into al-Qaida’s coffers, and the US would have become quite choosy as to the sources of its oil. Alaska would have been drilled deeply and thoroughly. Posters would have appeared telling people that when they drove alone, they were “riding with Osama”. Money devoted to highway building would have been diverted to public transportation on a massive scale.

War is based on credit, and rather than pass tax cuts the government would have raised taxes through the roof to cover the cost of war. Once again, war bond campaigns would have flooded the media.

Establishment Media outlets issuing news coverage slanted against the war, even slightly, would have found military officers replacing their editors. The TV networks would have had the licenses of their owned-and-operated TV stations revoked.

Anti-war demonstrators in Oakland who blocked stevedores from loading a naval ammunition ship would have been greeted by lead instead of rubber. The shooters would not have been the Oakland police department, but the Army. The survivors would have been arrested for treason.

People who put "No Iraq War" signs in the windows of their homes would have been burned out by their irate neighbors. Those who did not receive that fate would have had their houses confiscated under the asset forfeiture laws, and the owners would have been arrested for sedition.

Congressman James McDermott of Washington would have been expelled by the House and then arrested for sedition.

Racial and religious profiling would have become official policy. Mosques would have been closed down by federal authorities, and Muslims would have been interned; this would have included both foreign nationals and American citizens from the Nation of Islam (Black Muslims).

The critical legal step to permit practices such as profiling and interning – and to curb domestic dissent – is the existence of a constitutional declaration of war between the United States and another sovereign nation. This precedent goes all the way back to the verbiage of the Alien and Sedition Acts of 1798 and is supported by further precedents from both World Wars I and II.

The current American approach to war is a remnant of the Cold War, when the enemy had nuclear weapons and the means to deliver them. There is no longer a need to fight a war with one hand to avoid angering the Soviets and Chinese, nor is there a need to avoid offending the Third World nations that dominate the UN, a toothless institution in an advanced state of decay. The world since 1991 is a very different place.

The War Against Islamunism – a more accurate term than the “War Against Terror” – will require the US to fight enemies both foreign and domestic. To fight with one hand will not produce victory on either battlefield. The next phase of this war may well require a return to old practices and long-abandoned constitutional principles. It’s time to take a hard look at what may be required for victory.

War is the condition that exists when the law is insufficient to contain a conflict. When a conflict has moved beyond law, you are at war.

A declaration of war is necessary, not to notify our enemy that we are coming for him, but as an explicit recognition by our elected leadership of the fact that we are beyond law for the duration of the crisis. Many countries have what is called a "state of exception" or a "state of emergency" which is essentially the same thing, the government declares that, for the time being, the present crisis requires exceptional measures that go beyond law.

That is the problem with the present understanding of war. We, somehow, have come to see war as something that can be managed within the normal judicial structure. But if you can carry on with normal peacetime laws, you aren't at war. If you are at war, for real, you are in a state of emergency, beyond peacetime law, and a declaration is necessary to put the people on notice.

In such a case, morality adheres, but law does not. You are not going to serve papers on your enemy. He does not get to call his lawyer. He is not going to be read his rights. You are going to kill him, and anyone standing near him, innocent or not. You are going to round up people who might be his supporters. You are going to arrest anyone who is in agreement with him, even if they are your own citizens. This isn't a game, it is war.

That is why we need a declaration by Congress.

What disturbed Vann most was the unwillingness of South Vietnam’s army to fight and the unwillingness of the country’s president to make it fight.

This is a fact I knew 7 years before I was drafted in '67 for Vietnam. My father is the youngest of his family, I am the youngest of mine. Therefore, my older cousins were being drafted or joining the Marines in the late 50's and early 60's, while I was just a kid. To a man, they all told me, when they visited my dad, their Uncle Jim, that; "Vietnam was not worth getting killed over". My cousins "seared" it into my brain, that if I was sent, to keep my head down. I am forever grateful for their advice. I did my duty to my country, but I always kept my head wayyyyyy down.

You are not going to serve papers on your enemy...... You are going to kill him, and anyone standing near him, innocent or not.

This isn't a game, it is war.

Exactly. I agree with your entire post. I don't think the American public, ergo Congress, understands that a condition of war, or "national emergency does, in fact, exists. Unfortunately, it will take another tragedy. Alas, perhaps even then, Congress won't get it.

I question whether Congress is the problem. Had Mr. Bush asked for a declaration of war, I believe Congress would have given it to him after 9/11.

Colin Powell, I'm sure, functioned as the voice of moderation. "Mr. President, you can't just go to war! You have to bring in the UN and build a coalition!" It's Powell's job to say that, but it's the president's job to turn that advice aside if he thinks it's the wrong way to go.

Presidential decision-making is often like making sausage -- you don't want to know how it's done. I question whether all the people around the president know we're in completely new (and yet very old) territory.

Good afternoon, my friend,

I view this essay as promoting two major constitutional wrongs. First, on the declaration of war:

Since a number of the Founders, who wrote and/or ratified the Constitution were serving in Congress at the time, it is a logical conclusion that such an authorization fulfills the constitutional requirement for a declaration of war.

On the imprisonment of 110,000 Japanese-Americans, I was appalled to see Michelle Malkin, whom I generally admire, supporting that activity. (One of my books, Manzanar, is on this subject, and I've followed the Supreme Court cases on point.) All the Americans who had at least one Japanese grandparent and were west of the Mississippi, but not on Hawaii, were imprisoned solely because of their racial background.

The Supreme Court upheld Roosevelt's Executive Order to round up the Japanese-Americans in 1944 in Korematsu v. US, by a vote of 6-3. Forty years later, Fred Korematsu went back to federal court and asked that his criminal conviction for not obeying the Order be expunged as unconstitutional. The trial court agreed. So did the Circuit Court of Appeals. And the Supreme Court, to its shame, did not take the case but simply left standing the lower court decision that the Supreme Court had been wrong in 1944.

Note that the internment in 1943 was quite different from the foreign and domestic arrests today. Every one of the people detained today is held on specific reasons and/or specific charges. A round up of all Muslims found within the US today, for their religion and nothing else, would be equally unconstitutional. (Note that the US has the right in wartime to summarily throw out of the US any aliens, for any reason. This power is not at issue, here.)

Congressman Billybob

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The "authorization to use military force" which was passed by Congress twice with regard to Iraq and other nations which "harbor terrorists" is nearly identical to the authorization for Thomas Jefferson to pursue the Barbary Pirates across national boundaries until they were defeated...Since a number of the Founders, who wrote and/or ratified the Constitution were serving in Congress at the time, it is a logical conclusion that such an authorization fulfills the constitutional requirement for a declaration of war.

The military action against the Barbary pirates was not an all-out war, but something closer to a “police action.” Our shipping had been attacked, but there had been no attack on the homeland or in American national waters. It would appear that we have two instrumentalities for war, one for an all-out war and one for a limited war. The questions are: Which one are we involved in now, and what are the rules?

(Note that the US has the right in wartime to summarily throw out of the US any aliens, for any reason. This power is not at issue, here.)

The expulsion of enemy aliens makes good sense, and I’m not proposing a mass interning of all Muslims. But if we have American citizens working for the enemy, what are the rules for handling them? Do we use the standard rules of criminal due process, or do we go further? And how do we handle the divided loyalties of naturalized Muslim citizens who choose the side of their religion against their adopted country?

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