Screaming Penguin - Source Does Matter

This might seem like a silly or even pointed question but that is not my intention. Is the United States currently at "war"?

I think the answer is no but I also admit that I dont entirely understand the complicated situation. A "war" is something that under the US constitution must be "declared" by congress. Article I, section 8 states that ONLY congress has the power to declare war. Congress did NOT declare war. Therefore the US is NOT in a war.

It gets more complicated though. Presidents in the past had wars WITHOUT any declaration from congress. Korea and Vietnam by the above definition were NOT wars, war was not declared. So in 1973 after those "conflicts" the War Powers Act was passed by congress.

The war powers act basically says that congress must be consulted and must approve any action that involves the US Armed Forces and "hostilities".
It also states the limit is 60 days and to keep troops involved any longer requires that congress either declare war or by LAW extend the 60 day period (or congress must be physically unable to meet due to an attack on the United States). However, this is where things get really murky.

Article I of the constitution says that congress has the power to legislate. Article II gives the president his powers and one of them is commander in chief of the armed forces. So the question becomes can congress legislate that the President cannot direct troops? It is generally accepted that the President must consult with congress based on the war powers act and should get their decree of "support" but that once troops are in place congress is powerless to do anything other than stop funding.

In the Iraq case the President sent a letter to congress with his intent, and the congress subsequently passed a resolution allowing force after some debate.

So congress said "its ok if you decide to use force" but congress did NOT DECLARE WAR.

So why the hell not, if the affront and threat to the United States is (was) so great that we need to send troops why not declare war? This is a matter of debate but it basically boils down to avoiding a standoff and appearing divided at such a critical time if support is NOT 100% (which in this case it was NOT) AND being able to wiggle out of saying you voted for a war that might get unpopular. (NOTE: even if congress did not pass a resolution the President could send troops and disregard the constitution and war powers act and a huge battle would ensue over who has what powers.) Thats right, it boils down to congress not having the fortitude to debate the issue outright and the President wanting to avoid a fight as well.

But the bottom line is that the conflict in Iraq is NOT A WAR. As such the original question becomes paramount. Can you have POWs, can you have "enemy combatants", what can you have in a "conflict" that is not legally a "war"?

I think the answer is, not really but its so sticky no one worries about it. First off international law probably doesnt care if one country declares war or not, if they are fighting its a war. So then under international law a POW is possible. Also the US administration is careful and says "afforded treatment AS a POW" but doesnt call them (Saddam included) ACTUAL POWs. And "enemy combtatant" and such may apply in a time of war or not (not sure)?

All in all though all the administration and congress and media and such calling this a WAR is wrong. Its not a war, not according to US law, unless a WAR is declared. The "war on terror" and the "war in iraq" are not wars at all but marketing campaigns.