H.1. Permissible Enemies

A Declaration of War may be made against either a sovereign State or a non-state entity that: (a) has engaged in or is preparing to engage in sustained acts of armed aggression, terrorism, or coercion against the United States, its Citizens, or its lawful allies; and (b) possesses organized command structure and the capacity to carry out such acts.

This clarifies and updates who the subjects of a declaration of war can be. There was debate in the wake of 9/11 regarding whether Congress could declare war against Al Qaeda, since it wasn’t a nation. Despite not being a nation, they were capable of coordinating an attack on the United States, killing over 3,000 people. This highlighted a definitional weakness and exposed how our systems had not adapted to a changing world. This clause is intended to remedy that.

The language here explicitly allows a declaration to be made either against a sovereign state or a non-state entity. In the latter case, that entity must have engaged or be preparing to engage in sustained acts of armed aggression, terrorism, or coercion. It must also have a command structure organized enough to carry out those attacks and the general capacity to do so. Al Qaeda would have met that bar. Timothy McVeigh and Terry Nichols would not have.

The final point in this passage is that the threat need not be against us directly. If the threat is to one of our lawful allies, that is, a nation with which we have a formal treaty obligation, that still meets the bar for a permissible enemy.

Congress shall also have the power to declare war, upon request of the President, against any organized group or coalition that has engaged in coordinated acts of violent armed rebellion against the United States. Such a Declaration may be made only in response to actual attacks, not in anticipation of them. Once declared, the full powers of war may be exercised to suppress and defeat the rebellion.

The previous passage addresses foreign actors – state or non-state. This one deals squarely with domestic threats that rise to the level of rebellion. It establishes a clear boundary for when Congress can declare war against a rebellion. Congress may not preemptively declare war against “insurgents” or “rebels”. In such cases, the insurgents must have already launched an attack. This limitation appears in a specific context and doesn’t apply to external actors, only to domestic ones. Once a declaration is made against them, there are no special rules; the United States can execute war against them the same way it would against any other enemy. They are a wartime enemy, not a special class.