What exactly is an "authorization of the use of military force" and how does it differ from a declaration of war? It is a difficult question. However, it continues to come up in political debate, most recently in the Supreme Court rulings on the right of detainees to habeas corpus.

I suppose first we should look at the various means we have of conducting military operations. The most prominent, of course, is the declaration of war. Throughout history this has been our most common means of authorizing military action. However, since World War II, we have been very reluctant to issue one of these formal declarations, and have fought at least ten conflicts¹ that would have previously been called war using alternate formulations, such as our most recent, or through an exercise of the war powers act, which is essentially a standing authorization of short duration military actions².

There are some limits to formal declarations of war. For instance we cannot use them when fighting against enemies other than nation states, which is why there was no formal declaration of war during our fight against Pancho Villa's troops along the Mexican border , our many Indian wars, and the struggle with the Barbary pirates. Though the terminiology did not then exist, those conflicts were essentially carried out by something akin to our current authorization of the use of military force.

So, in the past we had a mixture of formally declared wars, both World Wars, the Spanish-American War, the Mexican-American War, and the War of 1812, as well as a number of military actions which were not preceded by declarations of war. In recent times it appears that neither side has the political will to force a formal declaration, so all of our conflicts are carried out either through a congressional authorization or through an executive order under the war powers act.

So, how do the two situations differ?

For those on the receiving end, I doubt they differ at all. Whether it is a declaration of war, an authorization of military force, or a use of troops prior to congressional approval, is a moot point for those being attacked. In all three cases, they are subject to attack by our troops, are taken into custody if captured, and are protected by the Geneva Conventions if captured in uniform. From their perspective, all of the above are exactly like a formal declaration of war, there is no difference to them.

And, historically, it seems that our ancestors saw no difference either. Even in naming they did not make a distinction, calling the conflicts with the Barbary pirates and the various Indian nations "wars" even without a formal declaration. They treated these conflicts in the same way as they treated those with a formal declaration. Troops had the same rights and immunities, commanders had the same authority, in every respect there was no difference between the way they viewed a conflict with a formal declaration and one where congress voted to allow the use of force, but without a formal declaration of war (usually because our enemy was not a nation)³.

Only in recent times has the lack of a formal declaration become an issue. Specifically, during the Bush presidency. As recently as Bill Clinton's presidency this wasn't an issue. No one was asking during the Kossovo or Bosnia invasions if those we captured were legitimately prisoners of war, or whether prisoners had additional rights. Only since the "war on terror" began has this even become an issue.

I would propose that there is no difference between any use of force. Whether there is a formal declaration of war, an authorization, or just the deployment of troops pending a war powers act vote, it is a war. Our enemies will be fighting as if at war, our troops will be as well. The essential needs of warfare do not change because of terminology.

And those who oppose treating the two the same are not even consistent themselves. They started this entire debate by arguing for treating Guantanamo detainees as POWs under the Geneva Conventions. But those apply only during war time.So to make that request is to tacitly recognize that there is no difference between our current situation and true warfare. Nor would they accept it if we argued that we do not have to treat Iraqi Army detainees as POWs since this is not war.

So, it seems to me there is no reason to distinguish this from a war.

Though, in the case of the Boumedine decision, this does raise one pesky little question, why aren't we following the precedent of Ex Parte Quirin⁴? As the only argument against doing so seems to be that we are not in formally declared war, I really can't answer that question.

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1. These include Korea, the Dominican Republic (1965), Vietnam, Guam, Panama, the First Gulf War, Bosnia, Kossovo, Afghanistan, and the Second Gulf War. I am excluding Somalia and both interventions in Lebanon (1958 and 1982) as in those cases the enemy was not a nation state. 

2. Technically, the war powers act was intended to limit presidential powers as commander and chief. However, because the wording requires that the president get congressional approval within 60 days, it created the assumption that the rpesident was justified in sending troops for periods shorter than 60 days without approval. Where in the pat he might have been questioned by congress for so doing, he now had essentially carte blanche for any conflict lasting 60 days or less.

3. Obviously, prior to the 20th century, the concept of rules of war was not an issue, so that question never arose.

4. Quirin is particularly bad for those seeking civil rights for terrorists, as those the Quirin ruling concerned included a citizen, yet it found military tribunal authorization of execution adequate even for citizens, provided they were found fighting out of uniform.