War, Liberty, and Enemy Aliens

This article, originally published in 1992 in the aftermath of the Persian Gulf War, has renewed relevance in light of the September 11, 2001 terrorist attacks on the World Trade Center and the Pentagon, and the Justice Department's subsequent detention of more than 1,000 persons, many of them aliens, suspected of having ties to terrorist organizations.

Declaring war is a valuable constitutional ritual. Its formality increases the political and moral accountability of political actors to the electorate for their decision to use military force to achieve the foreign policy objectives of the United States. Further, it makes the threat to use military force more credible in the eyes of other nations because it is difficult, legally as well as politically, for Congress to rescind a declaration of war if the President insists on continuing to prosecute the war. To these two arguments, which I have made before, this Essay adds a third: a formal declaration of war forces Congress to acknowledge publicly, and to accept, that one cost of waging war is that individual liberty in the United States might have to suffer if the nation is to triumph or even merely survive.

In Part I of this Essay, I summarize my view of how constitutional formality, including that embodied in a declaration of war, serves individual liberty by discouraging unaccountable political decisions. In Part II, I analyze the Alien Enemy Act of 1798, a harsh statute designed to combat spying and sabotage during wartime by empowering the President, during a declared war, to order summarily the arrest, internment, and removal of enemy aliens. I ask four questions: What triggers the Act's delegation of extraordinary powers to the President? What is their scope? What terminates the delegation? What is the scope of judicial review? I show that there is no significant legal constraint on the President's exercise of these extraordinary powers save the prerequisite of a formal declaration of war.

In Part III, I examine whether the harshness of the Act counsels Congress not to use a formal declaration of war to authorize the President to wage war. This antipathy towards formal declarations of war, however, really argues for repealing or amending laws like the Alien Enemy Act, not for eschewing the formality (to say nothing of the candor and moral responsibility) of declaring war when we wage war. I suggest that a declaration of war, more than any purported functional equivalent, serves to acknowledge candidly and collectively that the price of employing military force might be a substantial, and in some respects even permanent, loss of civil and economic liberties.

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