CAMPBELL v. CLINTON, 203 F.3rd 19 (D.C. Cir. 2000), cert. denied 121 S. Ct 50 (2000).

Congressmen filed suit seeking declaration that President violated War Powers Clause of Constitution and War Powers Resolution by directing United States forces' participation in North Atlantic Treaty Organization (NATO) airstrikes against Federal Republic of Yugoslavia without congressional authorization. The United States District Court for the District of Columbia, Paul L. Friedman, J., 52 F.Supp.2d 34, granted President's motion to dismiss, and congressmen appealed. The Court of Appeals, Silberman, Circuit Judge, held that congressmen lacked standing to bring suit.

SILBERMAN, Circuit Judge, concurring:

Appellants argued that we should consider in our standing analysis that if congressmen lack standing only military personnel might be able to challenge a President's arguably unlawful use of force, and it would be undesirable to put the armed forces in such a position. Although that is not a consideration that bears on standing, see Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974), that argument leads me to observe that, in my view, no one is able to bring this challenge because the two claims are not justiciable. We lack "judicially discoverable and manageable standards" for addressing them, and the War Powers Clause claim implicates the political question doctrine. See Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

Prior litigation under the WPR has turned on the threshold test whether U.S. forces are engaged in hostilities or are in imminent danger of hostilities. But the question posed by appellants--whether the President's refusal to discontinue American activities in Yugoslavia violates the WPR--necessarily depends on the statute having been triggered in the first place. It has been held that the statutory threshold standard is not precise enough and too obviously calls for a political judgment to be one suitable for judicial determinations. See, e.g., Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C.Cir.1985) (aid to Contras); Crockett v. Reagan, 720 F.2d 1355, 1356- 57 (D.C.Cir.1983) (U.S. advisors in El Salvador); see also Ange v. Bush, 752 F.Supp. 509, 514 (D.D.C.1990) (pre-Gulf War buildup); Lowry v. Reagan, 676 F.Supp. 333, 340 n. 53 (D.D.C.1987) (reflagging operations in the Persian Gulf). I think that is correct. Appellants point to a House Report suggesting that hostilities for purposes of the WPR include all situations "where there is a reasonable expectation that American military personnel will be subject to hostile fire." See H.R. REP. NO. 287, 93rd Cong., 1st Sess. 7 (1973). That elaboration hardly helps. It could reasonably be thought that anytime American soldiers are confronted by armed or potentially armed forces of a non-ally there is a reasonable expectation that they will be subject to hostile fire. Certainly any competent military leader will assume that to be so.

Appellants argue that here there is no real problem of definition because this air war was so overwhelming and indisputable. It is asserted that the President implicitly conceded the applicability of the WPR by sending the report to Congress. In truth, the President only said the report was "consistent" with the WPR. In any event, I do not think it matters how clear it is in any particular case that "hostilities" were initiated if the statutory standard is one generally unsuited to judicial resolution.

Nor is the constitutional claim justiciable. Appellants contend this case is governed by Mitchell v. Laird, 488 F.2d 611, 614 (D.C.Cir.1973), where we said that "[t]here would be no insuperable difficulty in a court determining whether" the Vietnam conflict constituted a war in the Constitutional sense. See also Dellums v. Bush, 752 F.Supp. 1141, 1146 (D.D.C.1990) ("[T]he Court has no hesitation in concluding that an offensive entry into Iraq by several hundred thousand United States servicemen ... could be described as a 'war' within the meaning ... of the Constitution."). But a careful reading of both cases reveals that the language upon which appellants rely is only dicta. (In Laird the Court ultimately held that the resolution of the issues was a political question. See 488 F.2d at 616.)

 

Appellants cannot point to any constitutional test for what is war. See, e.g., Holtzman v. Schlesinger, 414 U.S. 1316, 94 S.Ct. 8, 38 L.Ed.2d 28 (1973) (Justice Douglas, in chambers, vacating order of Court of Appeals granting stay of district court's injunction against bombing of Cambodia), 414 U.S. at 1321, 94 S.Ct. 8 (1973) (Justice Marshall, in chambers, granting stay the same day with the concurrence of the other Justices); Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir.1973) (holding legality of Cambodia bombing nonjusticiable because courts lack expertise to determine import of various military actions). Instead, appellants offer a rough definition of war provided in 1994 by an Assistant Attorney General to four Senators with respect to a planned intervention in Haiti, as well as a number of law review articles each containing its own definition of war. I do not think any of these sources, however, offers a coherent test for judges to apply to the question what constitutes war, a point only accentuated by the variances, for instance, between the numerous law review articles. For that reason, I disagree with Judge Tatel's assertion that we can decide appellants' constitutional claim because it is somehow obvious in this case that our country fought a war. See infra at 40 (Tatel, J., concurring). Baker v. Carr speaks of a case involving "a lack of judicially discoverable and manageable standards for resolving" the issue presented, see 369 U.S. at 217, 82 S.Ct. 691, not just a case the facts of which are obscure; the focus is on the standards. Even if this court knows all there is to know about the Kosovo conflict, we still do not know what standards to apply to those facts.

Judge Tatel points to numerous cases in which a court has determined that our nation was at war, but none of these cases involved the question whether the President had "declared war" in violation of the Constitution. For instance, in Bas v. Tingy, 4 U.S. (4 Dall.) 37, 1 L.Ed. 731 (1800), the question whether there was a "war" was only relevant to determining whether France was an "enemy" within the meaning of a prize statute. See id. at 37 ("[T]he argument turned, principally, upon two inquiries: 1st. Whether the Act of March 1799, applied only to the event of a future general war? 2d. Whether France was an enemy of the United States, within the meaning of the law?"). Indeed, Justice Washington's opinion in that case, upon which Judge Tatel principally relies, suggests that whether there was a war in the constitutional sense was irrelevant. See id. at 42 ("Besides, it may be asked, why should the rate of salvage be different in such a war as the present, from the salvage in a war more solemn [i.e. a declared war] or general?"). It is similarly irrelevant that courts have determined the existence of a war in cases involving insurance policies and other contracts, the Federal Tort Claims Act, and provisions of the military criminal code applicable in "time of war." See infra at 39 (Tatel, J., concurring). None of these cases asked whether there was a war as the Constitution uses that word, but only whether a particular statutory or contractual provision was triggered by some instance of fighting. Comparing Bas v. Tingy's lengthy discussion whether our quarrel with France constituted a solemn or imperfect, general or limited war, see 4 U.S. at 40-41, with today's propensity to label any widespread conflict an undifferentiated war, it would not be surprising if an insurance contract's "war" provisions, or even a statute's for that matter, were triggered before the Constitution's.

Even assuming a court could determine what "war" is, it is important to remember that the Constitution grants Congress the power to declare war, which is not necessarily the same as the power to determine whether U.S. forces will fight in a war. This distinction was drawn in the Prize Cases, 67 U.S. (2 Black) 635, 17 L.Ed. 459 (1862). There, petitioners challenged the authority of the President to impose a blockade on the secessionist States, an act of war, where Congress had not declared war against the Confederacy. The Court, while recognizing that the President "has no power to initiate or declare a war," observed that "war may exist without a declaration on either side." Id. at 668. In instances where war is declared against the United States by the actions of another country, the President "does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority." Id. Importantly, the Court made clear that it would not dispute the President on measures necessary to repel foreign aggression. The President alone must determine what degree of force the crisis demands. The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case.

Id. at 670. [FN2] And, to confirm the independent authority of the President to meet foreign aggression, the Court noted that while Congress had authorized the war, it may not have been required to: "If it were necessary to the technical existence of a war, that it should have a legislative sanction, we find it...." Id. (emphasis added).

FN2. Judge Tatel's reliance on the Prize Cases as an example of the Court concluding a war exists is misplaced because the Court itself did not label the Civil War such, but instead deferred to the President's determination that the country was at war. See 67 U.S. (2 Black) at 670 ("Whether the President in fulfilling his duties, as Commander-in- chief ... has met with such armed hostile resistance ... as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted") (emphasis in original). Therefore, the Court's assertion that "it is bound to notice and to know" the war, see id. at 667, provides no support for the proposition that a court itself may decide when in fact there is one. The Prize Cases thus refute the suggestion in Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28, 2 L.Ed. 15 (1801), that only acts of Congress are evidence of the existence of a war. See infra at 38 (Tatel, J., concurring).

I read the Prize Cases to stand for the proposition that the President has independent authority to repel aggressive acts by third parties even without specific congressional authorization, and courts may not review the level of force selected. See Geoffrey Corn, Presidential War Power: Do the Courts Offer Any Answers?, 157 MIL. L. REV. 180, 214 (1998); J. Gregory Sidak, To Declare War, 41 DUKE L.J. 27, 54 (1991); Cyrus R. Vance, Striking the Balance: Congress and the President Under the War Powers Resolution, 133 U. PA. L. REV. 79, 85 (1984). Therefore, I assume, arguendo, that appellants are correct and only Congress has authority to initiate "war." If the President may direct U.S. forces in response to third-party initiated war, then the question any plaintiff who challenges the constitutionality of a war must answer is, who started it? The question of who is responsible for a conflict is, as history reveals, rather difficult to answer, and we lack judicial standards for resolving it. See, e.g., Greenham Women Against Cruise Missiles v. Reagan, 591 F.Supp. 1332, 1337-38 (S.D.N.Y.1984) (court lacked judicially manageable standards to decide if placement of U.S. cruise missiles in England was a war-like, "aggressive" act). Then there is the problem of actually discovering the necessary information to answer the question, when such information may be unavailable to the U.S. or its allies, or unavailable to courts due to its sensitivity. See id. at 1338. Perhaps Yugoslavia did pose a threat to a much wider region of Europe and to U.S. civilian and military interests and personnel there.

Judge Tatel does not take into account the Prize Cases when he concludes that the President was not exercising his independent authority to respond to foreign aggression because "in fact, the Kosovo issue had been festering for years." See infra at 40 (Tatel, J., concurring). As quoted above the President alone "must determine what degree of force the crisis demands." See 67 U.S. at 670. Judge Tatel would substitute our judgment for the President's as to the point at which an intervention for reasons of national security is justified, after which point--when the crisis is no longer acute--the President must obtain a declaration of war. One should bear in mind that Kosovo's tensions antedate the creation of this republic.

In most cases this will also be an issue of the greatest sensitivity for our foreign relations. Here, the President claimed on national television that our country needed to respond to Yugoslav aggression to protect our trading interests in Europe, and to prevent a replay of World War I. A pronouncement by another branch of the U.S. government that U.S. participation in Kosovo was "unjustified" would no doubt cause strains within NATO. Cf. United States v. New, 50 M.J. 729, 739-40 (Army Ct.Crim.App.1999) (lawfulness of U.N. peacekeeping operation in Macedonia was a political question).

In sum, there are no standards to determine either the statutory or constitutional questions raised in this case, and the question of whether the President has intruded on the war-declaring authority of Congress fits squarely within the political question doctrine. We therefore have another basis for our affirming the district court's dismissal of appellants' case.

RANDOLPH, Circuit Judge, concurring in the judgment:

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A congressional declaration of war carries with it profound consequences. [FN6] The United States Code is thick with laws expanding executive power "in time of war." See OFFICE OF THE JUDGE ADVOCATE GENERAL, UNITED STATES AIR FORCE, DIGEST OF WAR AND EMERGENCY LEGISLATION AFFECTING THE DEPARTMENT OF DEFENSE 171-84 (1996) (listing statutes "effective in time of war"); cf. id. at 185-91 (listing statutes "effective in time of national emergency declared by the President"); id. at 192-98 (listing statutes "effective in time of national emergency declared by Congress"). [FN7] Under these laws, the President's authority over industries, the use of land, and the terms and conditions of military employment is greatly enhanced. [FN8] A declaration of war may also have the effect of decreasing commercial choices and curtailing civil liberties. [FN9] See WILLIAM H. REHNQUIST, ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME 218-19 (1998) ("Without question the government's authority to engage in conduct that infringes civil liberty is greatest in time of declared war--the Schenck and Hirabayashi opinions make this clear.... [B]ut from the point of view of governmental authority under the Constitution, it is clear that the President may do many things in carrying out a congressional directive that he may not be able to do on his own.").

FN6. Although the United States has committed its armed forces into combat more than a hundred times, Congress has declared war only five times: the War of 1812, the Mexican-American War of 1848, the Spanish- American War of 1898, World War I, and World War II. See CONGRESSIONAL RESEARCH SERVICE, INSTANCES OF USE OF UNITED STATES ARMED FORCES ABROAD , 1789-1989 (Ellen C. Collier ed., 1989), reprinted in THOMAS M. FRANCK & MICHAEL J. GLENNON, FOREIGN RELATIONS AND NATIONAL SECURITY LAW 650 (2d ed.1993); OFFICE OF THE LEGAL ADVISER, U.S. DEPARTMENT OF STATE, THE LEGALITY OF UNITED STATES PARTICIPATION IN THE DEFENSE OF VIETNAM (1966), reprinted in 1 THE VIETNAM WAR AND INTERNATIONAL LAW 583, 597 (Richard A. Falk ed., 1968) (listing 125 incidents prior to the Vietnam Conflict).

 

FN7. In the early days of the Republic, the power of the executive in time of war was constrained by an absence of legislation. For example, in Brown v. United States, 12 U.S. (8 Cranch) 110, 3 L.Ed. 504 (1814), the Court rejected the argument that the President had the authority to confiscate enemy property found within the United States without explicit statutory authority even during a declared war. See id. at 129. The same reasoning was applied to the taking of ships on the high seas in Little v. Barreme, 6 U.S. (2 Cranch) 170, 2 L.Ed. 243 (1804). Even in the wake of World War II, after Congress passed a large number of war- related measures, the Court strictly construed the President's authority. The most notable example, of course, is Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) ("The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself."); cf. also Dames & Moore v. Regan, 453 U.S. 654, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981).

FN8. See, e.g., 10 U.S.C. 2538 (authorizing the President to "take immediate possession of any plant that is equipped to manufacture, or that ... is capable of manufacturing" war material "in time of war or when war is imminent"); 10 U.S.C. 2644 ("In time of war, the President, through the Secretary of Defense, may take possession and assume control of all or part of any system of transportation to transport troops, war material, and equipment, or for other purposes related to the emergency."); 10 U.S.C. 2663(b) ("In time of war or when war is imminent, the United States may, immediately upon the filing of a petition for condemnation under subsection (a), take and use the land to the extent of the interest sought to be acquired."); 50 U.S.C. 1829 ("Notwithstanding any other provision of law, the President, through the Attorney General, may authorize physical searches without a court order ... to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by the Congress.").

FN9. See, e.g., 18 U.S.C. 2388(a) ("Whoever, when the United States is at war, willfully causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or willfully obstructs the recruiting or enlistment service of the United States, to the injury of the service or the United States, or attempts to do so--Shall be fined under this title or imprisoned not more than twenty years, or both."); 18 U.S.C. 3287 (tolling statute of limitations for any offense involving fraud against the property of the United States until three years after the termination of hostilities).

 

The vote of the House on April 28, 1999, deprived President Clinton of these powers. The vote against declaring war followed immediately upon the vote not to require immediate withdrawal. Those who voted against a declaration of war did so to deprive the President of the authority to expand hostilities beyond the bombing campaign and, specifically, to deprive him of the authority to introduce ground troops into the conflict. See 145 CONG. REC. H2427-41 (daily ed. Apr. 28, 1999). There is no suggestion that despite the vote, President Clinton invaded Yugoslavia by land or took some other action authorized only during a declared war. It follows that plaintiffs' votes against declaring war were not for naught. For that reason, plaintiffs do not have standing to sue on their constitutional claim.

 

TATEL, Circuit Judge, concurring:

Although I agree with Judge Silberman that Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997), as interpreted by this court in Chenoweth v. Clinton, 181 F.3d 112 (D.C.Cir.1999), deprives plaintiffs of standing to bring this action, I do not share his view that the case poses a nonjusticiable political question. See supra (Silberman, J., concurring).

In my view, were this case brought by plaintiffs with standing, we could determine whether the President, in undertaking the air campaign in Yugoslavia, exceeded his authority under the Constitution or the War Powers Resolution.

To begin with, I do not agree that courts lack judicially discoverable and manageable standards for "determining the existence of a 'war.' " Brief of Appellee at 36. See also supra at 24-25 (Silberman, J., concurring). Whether the military activity in Yugoslavia amounted to "war" within the meaning of the Declare War Clause, U.S. Const. art. I, 8, cl. 11, is no more standardless than any other question regarding the constitutionality of government action. Precisely what police conduct violates the Fourth Amendment guarantee "against unreasonable searches and seizures?" When does government action amount to "an establishment of religion" prohibited by the First Amendment? When is an election district so bizarrely shaped as to violate the Fourteenth Amendment guarantee of "equal protection of the laws?" Because such constitutional terms are not self-defining, standards for answering these questions have evolved, as legal standards always do, through years of judicial decisionmaking. Courts have proven no less capable of developing standards to resolve war powers challenges.

Since the earliest years of the nation, courts have not hesitated to determine when military action constitutes "war." In Bas v. Tingy, 4 U.S. (4 Dall.) 37, 1 L.Ed. 731 (1800), the Supreme Court had to decide whether hostilities between France and the United States amounted to a state of war in order to resolve disputes over captured ships. Because outright war had not been declared, the justices examined both the facts of the conflict ("the scene of bloodshed, depredation and confiscation, which has unhappily occurred," id. at 39) and the acts of Congress that had authorized limited military action:

In March 1799, congress had raised an army; stopped all intercourse with France; dissolved our treaty; built and equipt ships of war; and commissioned private armed ships; enjoining the former, and authorising the latter, to defend themselves against the armed ships of France, to attack them on the high seas, to subdue and take them as prize, nd to re- capture armed vessels found in their possession. Id. at 41. Given these events, Justice Bushrod Washington concluded that France and the United States were at war both "[i]n fact and in law." Id. at 42. "If they were not our enemies," he said, "I know not what constitutes an enemy." Id. at 41. One year later, Chief Justice Marshall, focusing on the same conflict with France, said: "The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this enquiry.... To determine the real situation of America in regard to France, the acts of congress are to be inspected." Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28, 2 L.Ed. 15 (1801).

Half a century later, in The Prize Cases, 67 U.S. (2 Black) 635, 666, 17 L.Ed. 459 (1862), the Court had to determine whether a state of war, though undeclared, existed "de facto" between the United States and the confederacy, and if so, whether it justified the U.S. naval blockade of confederate ports. "As a civil war is never publicly proclaimed, ... its actual existence is a fact in our domestic history which the Court is bound to notice and to know." Id. at 667. There was no formal declaration of war, the Court explained, because the Constitution does not permit Congress to "declare war against a State, or any number of States." Id. at 668. Yet the Court, guided by the definition of war as "[t]hat state in which a nation prosecutes its right by force," id. at 666, determined that a state of war actually existed.

A civil war is never solemnly declared; it becomes such by its accidents-- the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war. Id. at 666-67. In making this determination, the Court looked to the facts of the conflict, id., to the acts of foreign governments recognizing the war and declaring their neutrality, id. at 669, and to congressional action authorizing the President's use of force, id. at 670-71. Given these facts, the Court refused "to affect a technical ignorance of the existence of a war, which all the world acknowledges to be the greatest civil war known in the history of the human race." Id. at 669.

More recent cases have also recognized the competence of courts to determine whether a state of war exists. Responding to a challenge to the constitutionality of the Vietnam War, this circuit confronted "the critical question ... whether the hostilities in Indo-China constitute in the Constitutional sense a 'war,' both within and beyond the meaning of that term in Article I, Section 8, Clause 11." Mitchell v. Laird, 488 F.2d 611, 614 (D.C.Cir.1973) (emphasis added). The court found "no insuperable difficulty in a court determining whether," given the extent of the hostilities, "there has been a war in Indo-China." Id. Once the war was recognized as such, the court saw no problem in "facing up to the question as to whether because of the war's duration and magnitude the President is or was without power to continue the war without Congressional approval," or "whether Congress has given, in a Constitutionally satisfactory form, the approval

requisite for a war of considerable duration and magnitude." Id. Nor did the court hesitate to determine that once the Gulf of Tonkin resolution had been repealed, later congressional actions appropriating funds for the war and extending the draft were insufficient to "serve as a valid assent to the Vietnam war." Id. at 615. Given this absence of congressional approval for the war's continuation, the President had a duty to try "in good faith and to the best of his ability, to bring the war to an end as promptly as was consistent with the safety of those fighting and with a profound concern for the durable interests of the nation--its defense, its honor, its morality." Id. at 616. Although the court ultimately declined to answer the question whether President Nixon was in fact fulfilling his duty to end the Vietnam War, see id., it nonetheless made clear that courts are competent to adjudge the existence of war and the allocation of war powers between the President and Congress. Regardless of whether this language is dicta, see supra at 25 (Silberman, J., concurring), Mitchell supports my view that this court could resolve the war powers claims presented here. See also, e.g., Massachusetts v. Laird, 451 F.2d 26, 34 (1st Cir.1971) ("The war in Vietnam is a product of the jointly supportive actions of the two branches to whom the congeries of the war powers have been committed. Because the branches are not in opposition, there is no necessity of determining boundaries. Should either branch be opposed to the continuance of hostilities, however, and present the issue in clear terms, a court might well take a different view."); Orlando v. Laird, 443 F.2d 1039, 1042 (2d Cir.1971) ("[T]he constitutional delegation of the war-declaring power to the Congress contains a discoverable and manageable standard imposing on the Congress a duty of mutual participation in the prosecution of war. Judicial scrutiny of that duty, therefore, is not foreclosed by the political question doctrine."); Berk v. Laird, 429 F.2d 302, 305 (2d Cir.1970) ("History makes clear that the congressional power 'to declare War' conferred by Article I, section 8, of the Constitution was intended as an explicit restriction upon the power of the Executive to initiate war on his own prerogative which was enjoyed by the British sovereign.... [E]xecutive officers are under a threshold constitutional duty which can be judicially identified and its breach judicially determined.") (internal quotation marks and brackets omitted).

Without undue difficulty, courts have also determined whether hostilities amount to "war" in other contexts. These have included insurance policies and other contracts, see, e.g., Western Reserve Life Ins. Co. v. Meadows, 152 Tex. 559, 567, 261 S.W.2d 554, 559 (1953) ("We are unwilling in deciding this case to shut our eyes to what everyone knows, that there has been ... actually and in reality a war in Korea in which the United States has

been seriously engaged."); Pan Am. World Airways, Inc. v. Aetna Casualty & Sur. Co., 505 F.2d 989, 1012-15 (2d Cir.1974); Navios Corp. v. The Ulysses II, 161 F.Supp. 932 (D.Md.1958), aff'd, 260 F.2d 959 (4th Cir.1958), the Federal Tort Claims Act, see, e.g., Koohi v. United States, 976 F.2d 1328 (9th Cir.1992) (noting that even absent a formal declaration, "no one can doubt that a state of war existed when our armed forces marched first into Kuwait and then into Iraq"); Rotko v. Abrams, 338 F.Supp. 46, 47-48 (D.Conn.1971), aff'd, 455 F.2d 992 (2d Cir.1972), and provisions of military criminal law applicable "in time of war," see, e.g., United States v. Anderson, 17 U.S.C.M.A. 588, 1968 WL 5425 (1968); United States v. Ayers, 4 U.S.C.M.A. 220, 1954 WL 2280 (1954).