Professor Turner argues that Congress’s power to “declare war” and issue letters of marque and reprisal is an irrelevant “anachronism” in today’s world, and was virtually irrelevant even in 1787. According to Turner, the Declare War Clause only prevents the President from launching “a major aggressive war.” In his view, the President has the power to launch “minor” aggressive wars and even initiate “major” warfare (“major” is not defined) when such warfare can broadly be termed “defensive,” a vague term also not defined by Turner. Of course, no sane President would openly claim to launch an “aggressive” (or in eighteenth century parlance, an unjust war).
For example, President George W. Bush asserted that the 2003 invasion of Iraq was “defensive” although Iraq had neither attacked us nor was imminently threatening to do so, and the invasion was widely viewed by the world community as violative of the U.N. Charter. Turner’s interpretation of the Declare War Clause, of which James Madison wrote, “in no part of the Constitution is more wisdom to be found,” reduces this important provision to a virtual nullity, easily evaded by the executive’s claim that a war is either “defensive,” or not “major.”
By Jules Lobel
Jules Lobel is Professor of Law at the University of Pittsburgh School of Law. Through the U.S. Center for Constitutional Rights, Lobel has litigated important issues regarding the application of international law in the U.S. courts. In the late 1980’s, he advised the Nicaraguan government on the development of its first democratic constitution, and has also advised the Burundi government on constitutional law issues.
Professor Lobel is editor of a text on civil rights litigation and of a collection of essays on the U.S. Constitution, A Less Than Perfect Union (Monthly Review Press, 1988). He is author of numerous articles on international law, foreign affairs, and the U.S. Constitution in publications including Yale Law Journal, Harvard International Law Journal, Cornell Law Review, and Virginia Law Review. He is a member of the American Society of International Law.
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By Robert F. Turner
Robert F. Turner holds both professional and academic doctorates from the University of Virginia School of Law. He co-founded the Center for National Security Law with Professor John Norton Moore in April 1981 and has served as its associate director since then except for two periods of government service in the 1980s and during 1994-95, when he occupied the Charles H. Stockton Chair of International Law at the U.S. Naval War College in Newport, Rhode Island. A veteran of two Army tours in Vietnam, Turner served as a research associate and public affairs fellow at Stanford's Hoover Institution on War, Revolution and Peace before spending five years in the mid-1970s as national security adviser to Senator Robert P. Griffin, a member of the Senate Foreign Relations Committee. He has also served in the executive branch as a member of the Senior Executive Service, first in the Pentagon as Special Assistant to the Under Secretary of Defense for Policy, then in the White House as Counsel to the President's Intelligence Oversight Board, and at the State Department as acting assistant secretary for legislative affairs. In 1986-87, he was the first president of the congressionally established United States Institute of Peace.
A former three-term chairman of the ABA Standing Committee on Law and National Security (and for many years editor of the ABA National Security Law Report), Turner has taught undergraduate courses at Virginia on international law, U.S. foreign policy, the Vietnam War and foreign policy and the law in what is now the Woodrow Wilson Department of Politics. In addition he the law school seminars Advanced Topics in National Security Law I & II with Professor Moore.
The author or editor of more than fifteen books and monographs (including co-editor of the Center's National Security Law, National Security Law Documents, and Legal Issues in the Struggle Against Terror) and numerous articles in law reviews and professional journals, Turner has also contributed articles to most of the major U.S. newspapers
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