Is the United States at war? The answer seems obvious: Of course we are. George W. Bush has repeatedly referred to himself as a "war president." When questioned about anything from military tribunals to domestic surveillance to huge budget deficits, his administration has a stock response: "We're at war." And the National Security Strategy—the preeminent statement of American military doctrine—states bluntly, "America is at war." The official position is crystal clear. Isn't it?
Well, maybe not. Appearing before the Senate Judiciary Committee in February, Attorney General Alberto Gonzales was quick to correct Senator Sam Brownback (R-Kan.) when he said Congress had officially declared war on its enemies. "There was not a war declaration, either in connection with Al Qaeda or in Iraq," Gonzales explained. "It was an authorization to use military force...an authorization only to use military force." He reiterated this distinction when he went before the committee again in July, reminding the senators, "There's been no declaration of war."
Does this mean we're not really at war? Why was Gonzales so eager to point out the difference between declaring war outright and authorizing the use of military force? The answers to these questions reveal the Bush administration at its most nakedly, hilariously duplicitous—inventing an entirely new and logic-defying state of being for America, something no one has opposed because no one realized it could exist in the first place.
The framers of the Constitution said over and over that they were giving Congress, not the president, the power to start wars. James Madison wrote that "the Executive is the branch of power most interested in war, & most prone to it." Since 1789, Congress has declared war 11 times in five wars, from the War of 1812 to World War II. (There have been more declarations of war than actual wars because Congress has issued separate declarations when fighting against alliances. Its last official declaration of war was against Axis-allied Romania in June 1942.)
However, Congress has often passed authorizations to use military force, or AUMFs (onomatopoetically pronounced "oomphs"), giving the executive branch permission to send troops to battle without a full declaration of war. The most infamous AUMF was the 1964 Gulf of Tonkin resolution, but the first, against the French navy, was passed in 1798. The most recent was the authorization regarding Iraq in October 2002.
While an AUMF falls somewhere short of an official declaration of war, it's generally agreed it's not much short. But congressional declarations of war do trigger additional presidential powers. Normally—and presumably under an AUMF—the National Security Agency (NSA) must obtain a warrant within 72 hours of conducting surveillance of Americans speaking with overseas targets. But in wartime, the Foreign Intelligence Surveillance Act (FISA) allows the NSA to eavesdrop on such Americans for 15 days, with no warrant required. (The framers of FISA assumed the president would then revert to standard practice or ask for an extension.)
Which brings us back to Gonzales' odd insistence that Congress has not really declared war. When the attorney general went before Congress in February, the recently exposed NSA warrantless spying program was on about its 1,500th day. If there had been a declaration of war, then the administration would have violated the FISA spying limit by a factor of 100. So why then insist that the war on terror was authorized by an AUMF, which would mean that the administration had violated the three-day spying limit 500 times over?
This is where the administration's fancy, frenzied legal footwork kicked in. In the past, the argument over AUMFs had two sides: those who believed the authorizations gave the executive branch significantly less power than a declaration of war, and those who claimed they gave the executive branch almost the same power. Until the disclosure of the NSA program, everyone assumed the Bush administration was part of the latter group, and it had suggested as much itself. But following the NSA revelations, the Justice Department changed its tack, issuing a white paper that claimed that the September 2001 AUMF actually gave the president more power than a formal declaration of war. In other words, Congress had granted Bush superpowers without having any idea it had done so.
If you suspect this was a clumsy post hoc rationale concocted only when the NSA stories forced the White House to come up with something, you're not alone. In February, Senator Patrick Leahy (D-Vt.) closely questioned Gonzales on when precisely the Justice Department had made this legal determination. Gonzales maintained that Justice believed "from the very outset" the AUMF justified the NSA program. Later, the attorney general sent the judiciary committee a demure admission that "the Department's legal analysis has evolved over time."
The famous "Schrödinger's Cat" thought experiment posits a situation in which, according to quantum theory, a cat could be both alive and dead. Today, America is in much the same situation. We're not at war, since the attorney general insists Congress has not declared it. Yet at the same time, we are at war, because the entire Bush administration says so as often as possible. But in fact Bush has gone Schrödinger one better: We also apparently exist in yet a third state, one the Bush administration has invented—call it "extreme war" or "war-plus." Like most physicists, Erwin Schrödinger was a smart guy, but he never imagined a world in which a cat could be alive and dead and really, really dead all at the same time. But George W. Bush has dragged us down this legal wormhole, taking us into a new dimension of unrestrained executive power.