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 *25political 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) (re-flagging 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 Are.” 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 justicia-ble. Appellants contend this case is governed by Mitchell v. Laird, 488 F.2d 611, 614 (D.C.Cir.1973), where we said that “[tjhere 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.)1 ’ .
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 *26legality of Cambodia bombing nonjusticia-ble 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 22 (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 [ie. 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 20-21 (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 *27repel foreign aggression, alone The President
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 670.2 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).
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, 138 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 22 (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 *28national 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.
. The additional cases upon which Judge Ta-tel relies with respect to this point were also held to present political questions. See Massachusetts v. Laird, 451 F.2d 26, 34 (1st Cir.1971) ("All we hold here is that in a situation of prolonged but undeclared hostilities, where the executive continues to act not only in the absence of any conflicting congressional claim of authority but with steady congressional support, -the Constitution has not been breached.”); Orlando v. Laird, 443 F.2d 1039, 1043 (2d Cir.1971) (whether Vietnam conflict required a declaration of war was a political question); Berk v. Laird, 429 . F.2d. 302 (2d Cir.1970) (denying a preliminary injunction against dispatch of soldier to Vietnam because whether Congress had authorized conflict was a political question).
. 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 20 (Tatel, J., concurring).