World War II was the last sustained military engagement from which the United States emerged undeniably victorious. And that was in September of 1945. Subsequent military actions — in Korea, Vietnam, Iraq and Afghanistan ended in either stalemate or defeat. Think about it. The projection of force by the world's strongest military power has a 76-year record of failure. Some minor forays, such as Panama and Grenada, yielded positive results. But they were, in historical terms, inconsequential. What was not inconsequential was the humiliating failure in 1961 of the Bay of Pigs in Cuba. The Bay of Pigs forever cast a shadow on the brief presidency of John F. Kennedy and led, a year later, to the Cuban Missile Crisis, which itself brought the U.S. and Russia to the brink of nuclear war.
Why has the United States been so unsuccessful in its post-World War II efforts to wage war? This question becomes front-and-center in the wake of the mortifying scramble that is unfolding before the eyes of the world as President Joe Biden proceeds to withdraw U.S. forces, as well as many Afghans who had assisted our nation, from Afghanistan.
When we take a step back to ask ourselves why and how the United States got into a war with such a disastrous ending, surely, we should look at Article I, section 8 of the Constitution — assigning Congress the power to declare war. Such a declaration would have signaled the importance of the conflict. If any one of the various presidents who prosecuted this war had sought a formal congressional declaration, it would have triggered the profound focus that a formal declaration engenders.
All of the commentary — from presidential news conferences to newspaper reporting to internet chatter — focuses on what we did wrong from a military strategic point of view. There seems to be no commentary, or at least none that I have been able to find, about the ways in which this massive failure can be laid at least partially at the doorstep of the failure of a number of presidents to seek a formal congressional declaration of war.
I remember that when I was a young lawyer, students rebelled against the (undeclared) Vietnam War. That war became profoundly unpopular. I represented many young people who were indicted for failure to report for duty when they received a draft notice from the Selective Service System. Many students rioted on their respective college campuses: Columbia, Berkeley, Harvard and elsewhere. Without a formal declaration of war, the students’ opposition to the war seemed to have a certain legitimacy that the war effort did not. True, there were various indications that the Congress supported the president’s war effort in Vietnam — one recalls the Gulf of Tonkin Resolution that very few members of Congress opposed. But resolutions are not substitutes for a formal declaration of war — not only because of the constitutional requirement, but because a formal declaration psychologically, if not in other ways as well, is symbolic of the nation’s resolve.
During the Vietnam War, my law partner at the time (Norman Zalkind) and I represented some 200 student rioters who took over University Hall at Harvard in a demonstration that caused Harvard’s then-president, Nathan Pusey, to call in the police to violently rout the students. Zalkind and I represented the students in court, where a jury of randomly selected members of the community acquitted them of trespass charges, despite the clear evidence of their having trespassed. The acquittal indicated just how unpopular that undeclared war had become.
The lessons of history seem quite clear. If a war is sufficiently important, and the reasons for going to war sufficiently compelling, the President should be prepared to ask the Congress for a formal declaration. A declaration would mobilize the kind of national effort needed to prevail. And if the Congress refuses to enact a formal declaration, then the nation could be spared the kind of disaster currently unfolding in Afghanistan.
Harvey Silverglate, a regular GBH News contributor, is a criminal defense and civil liberties lawyer and writer. He thanks his research assistant, Emily Nayyer, for her assistance with this commentary.
