Should Congress Declare War on al Qaeda?

Testifying before Congress today, Attorney General Michael Mukasey urged Congress to formally declare war on al Qaeda. Appearing to provide testimony about pending legislation concerning the decision in the Boumediene case that detainees in Guantanamo Bay do have habeas rights, Mukasey argued that the legislation should:

prohibit courts from ordering a detainee to be released within the United States, protect secrets in court hearings, ensure that soldiers are not taken from the battlefield to testify and prevent challenges from delaying detainee trials,

In addition, he said, "Any legislation should acknowledge again and explicitly that this nation remains engaged in an armed conflict with al Qaeda, the Taliban and associated organizations, who have already proclaimed themselves at war with us."

"Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda," and related groups, he said.

As readers of this blog, I have long argued that the congressional power to declare war is about the legal status of individuals under the jurisdiction of US law, rather than the power to deploy troops and initial hostilities, and Mukasey's request fits along that opinion.

However, it would be disastrous if Congress declared war. Fortunately, it's hard to imagine Congress doing so, especially as the Bush presidency comes to an end. But, if Congress agrees with Mukasey and does declare war, Bush would be placed at the absolute zenith of presidential power. Declarations of war are tools by which Congress recognizes the grave danger faced by the nation and expands presidential power to meet that threat. The expanded power enjoyed by the president under a formal declaration of war is, in essence, the power to legislate normally possessed by Congress. Thus, under a declaration of war, presidents are able to intern US citizens, seize domestic industry, censor the press, and take similar actions of a legislative nature. Clearly, these are the kinds of powers Mukasey has in mind, as he seeks stronger powers to detain, investigate, and try those suspected of involvement in international terrorism.

And that is why Congress should not declare war. Reasonable people can and do debate over the nature of the threat posed to the US by al Qaeda. But al Qaeda does not threaten to destroy the United States, and has not even be able to mount a successful attack against the US since 2001. While the threat may very well be serious, and may even be the most serious threat faced by the US today, it does not justify giving such broad powers to the president. True, the administration has faced several setbacks in its efforts to combat al Qaeda at the hands of the Supreme Court, which very well may hurt those efforts. But cutting the Court out of the process by getting a declaration of war is not the answer. Rather, the Bush Administration should consult more with Congress to get legislative backing for its policies.