The first war in the Persian Gulf, once begun, won the overwhelming support of the American people, first because of the tendency of the public to "rally around the flag" and the Commander in Chief during a crisis, and second because the war itself went extraordinarily well. A methodical air campaign was followed by a swift and decisive ground campaign, with American war dead limited to about one hundred. Victory is its own best spin control. But in the aftermath of that victory, it is worth remembering that the decision to go to war was intensely controversial, with the American public deeply divided up to the very point that the action began.
It is even more important to note that the beginning of the Persian Gulf War, had it gone slightly differently, might have triggered a Constitutional crisis. As it was, the decision to go to war, and the way it was determined, raised and gave an unexpected answer to a fundamental question of Constitutional government: the nature of the "war power."
In recent decades, this question has been one of the most contentious, sensitive, and complex issues in modern American policy, politics, and law. The Constitution reserves to Congress, and to Congress alone, the power to declare war. The Constitution also, however, empowers the President to act as Commander in Chief of U.S. armed forces. As such, he clearly has the authority to direct war policy once war is declared. He also has the peacetime power to order movements of troops, ships, and aircraft, save where specifically forbidden by Congress.1
But wars are not always declared. Indeed, in modern times, they most often have not been declared, most notably not in the cases of Korea and Vietnam. (In the strictest narrow legality, war was also not declared in the Persian Gulf crisis, a point which will be considered in greater detail below.)2 Presidents have used their peacetime power as Commander in C...