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On Going to War

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Washington Monthly columnist and blogger Kevin Drum reminds us that Article I, Section 8 of the Constitution grants Congress the power to authorize war. He then notes that no Congress has done so in 60 years. Both Iraq “wars”, Kosovo … all major military actions taken on the “word” of the president, not Congress. Drum suggests this makes a mockery of the Constitution.

In our 230-year history, Congress has declared five wars: the War of 1812, the Mexican-American War, the Spanish-American War, World War I and World War II. Beginning with Korea, American presidents have used their position as commander-in-chief to fight “wars” that are not declared by Congress.

When those executive actions take place, they set the stage for Congress to reiterate its authority in determining how and when troops are deployed. The 1973 War Powers Resolution (Public Law 93-148, Title 50, United States Code, Sections 1541-1548) seeks to “… insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities…” President Nixon, not surprisingly but unsuccessfully, vetoed the resolution.

The War Powers Resolution directs the president to “… consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances …” Note — this resolution authorizes presidential action when hostilities are imminent. This was not the case for Iraq I or Iraq II, nor was it for Kosovo.

Back to Basics

According to Thomas E. Woods, Jr., assistant professor of history at Suffolk Community College-SUNY and author of Politically Incorrect Guide to American History:

The Framers of the Constitution believed that history amply testified to the executive’s penchant for war. As James Madison wrote to Thomas Jefferson, “The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature.”

Woods quotes President Lincoln:

Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose – and you allow him to make war at pleasure… Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose. If, to-day, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, “I see no probability of the British invading us” but he will say to you “be silent; I see it, if you don’t.”

The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood.

Current Controversies
As recently as 10 years ago, during the Clinton Administration, Republicans and Democrats came down on opposite sides of this issue. Have the parties reversed themselves, or was President Lincoln an anomaly in the Republican Party?

“Mr. Chairman, I think it is a fact of modern history that declarations of war are gone. I think they are anachronistic. I do not think they will happen. Clearly the Constitution assigns the declarations of war function to Congress and only to Congress. But declaring war has consequences in a technologically advanced world that nobody wants to face…. We have the untrammeled authority to unappropriate, disappropriate funds. That is the key; and that makes us the king of the hill.”
Representative Henry Hyde (R-IL)(Congressional Record, June 7, 1995)

“The Constitution is explicit. The founders took great pains to debate one issue: No one person could ever place America and our troops at war…. I am going to support the Dornan amendment [to defund the Bosnian occupation] … and I will probably vote for every one of these nonbinding, after-the-fact, feel-good, kiss-your-sister types of votes here tonight. But it is not good policy, and the Congress of the United States should govern and the American people should govern, and right now, ladies and gentlemen, the American people do not govern anymore; governance comes from the White House.”

Representative James Traficant (D-OH)(Congressional Record, December 13, 1995)

The SCOTUS blog suggests that the Senate planned to ask Supreme Court nominee Harriet Miers about war powers – not “inside the White House decisionmaking,” per administration spin. A letter from Senate Judiciary Chair Arlen Specter (R-PA) confirms that presidential war powers was on the mind of the chair, if not the entire committee.

Also last month, Andrew J. Bacevich, professor of international relations at Boston University and author of The New American Militarism: How Americans Are Seduced by War, asks in the New York Times: “In a post-Sept. 11 world, what limits, if any, exist on the president’s authority to use force?”

On Capitol Hill, the response to this sweeping assertion of presidential authority fell somewhere between somnolent and supine. With the administration gearing up to invade Iraq, the Congress roused itself just long enough to instruct the president in October 2002 to “defend the national security of the United States against the continuing threat posed by Iraq.”

As Lyndon Johnson did with the Tonkin Gulf Resolution of 1964, Bush interpreted this as a mandate to wage war however he saw fit, an interpretation that Rice has now reaffirmed.

Yet the brief history of America’s global war on terrorism demonstrates the folly of allowing the executive branch a free hand in determining the scope and conduct of that conflict. Deference to Bush’s fixation with Saddam Hussein has cost the United States dearly. To expand that misadventure will only drive those costs higher. Furthermore, an attack on either Syria or Iran, launched merely on the president’s say-so, would produce a profound reaction, in all likelihood surpassing that induced by Richard Nixon’s 1970 incursion into Cambodia.

Like Drum, whose essay prompted this examination of the War Powers Resolution, Bacevich believes that the first responsiblity of Congress is to “exercise independent judgment,” not to “support the commander-in-chief” blindly.

Drum’s closing paragraph seems straightforward and straight-shooting:

If the president wants to go to war, he should get a declaration of war. Not an “authorization of force” six months before the fact, but a declaration of war a few days before the invasion. Not only is that what the constitution requires, but it also means that members of Congress can no longer play games about what their vote really meant. After all, a declaration of war can hardly be misinterpreted.

What do you think?

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This article first appeared at uspolitics.about.com

Edited: nd – who forgot to close the font tag (dn)

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  • Nancy

    What does it matter when the congress are so craven they were practically wetting their pants in their haste to unload THEIR responsibility regarding hostilities into Dubya’s willing & waiting hands in the days following 9/11? I was so disgusted by this cowardice & headlong race to push the decisions off onto someone else.

  • Michael

    Yes, to me democrats have some responsibility into allowing the president the authority to use force as a last resort.

    But the administration took that resolution and grossly abused the power of the presidency. They certainly rushed into war, and had no idea what to do after the invasion was complete.

    I blame democrats for stupidity and no backbone, republicans for continually writing blank checks to this administration and its policies and I blame this administration for the situation it has created for our soldiers. How dare they choose war as their right. That should be for the people of this country, and we said war as a last resort, the final decision after all diplomatic and peace negotiations have failed.

  • Hi, Nancy — giving the Administration war powers post-9-11 for Afghanistan was one thing … authorizing force in late 2002 (just before off-year election cycle) that wasn’t used for another six months is, imo, quite different.

  • Hi, Michael … Although Congress (“we”) may have intended war as a last resort … may I re-direct you to Lincoln’s quote? Basically, it’s along the line of “once the genie is out of the bottle…”

    There was, however, a thirst for retaliation among Americans, as a whole, if you go back and look at polling data. I’d argue that deft use of media helped channel that into support for a war in Iraq, even though Iraq was not implicated in 9-11.

  • RJ

    “If the president wants to go to war, he should get a declaration of war. Not an “authorization of force” six months before the fact, but a declaration of war a few days before the invasion.”

    This is lunatic, in today’s world.

    You would be giving the enemy crucial information by doing so – like, when the invasion would begin. This would cost lives, and perhaps lose the war.

    Also, let’s pretend the Congress officially declared war on Iraq. We still wouldn’t know what the end-game was. Do we leave as soon as Saddam is captured? Do we leave as soon as our troops are in Baghdad? Do we stay until the Congress says we must leave? What’s the exit strategy?

    This proposal solves no problems, but only creates some more.

    The President is CIC. That means he gets to decide when and where to strike at our enemies. If the Congress doesn’t like it, they can vote to de-fund the war.

  • Let’s blame the democrats, let’s blame the republicans, let’s blame bush.

    But by all means don’t blame the terrorists who crashed into the WTC, the man who gave them their orders, the Mullahs who are shielding him now, the Imams and Mullahs who are promoting a philosophy of religious and cultural hatred, or the terrorists who are taking advantage of our presence in Iraq to terrorize civilians and undermine.


  • Hi, RJ .. you wrote:

    The President is CIC. That means he gets to decide when and where to strike at our enemies.

    Not according to the Constitution.

  • Hi, Dave … you wrote:

    But by all means don’t blame the terrorists who crashed into the WTC, the man who gave them their orders, the Mullahs who are shielding him now, the Imams and Mullahs who are promoting a philosophy of religious and cultural hatred, or the terrorists who are taking advantage of our presence in Iraq to terrorize civilians and undermine.

    1) Iraq didn’t sponsor the terrorists who crashed the WTC
    2) Iraq isn’t shielding OBL
    3) The terrorists in Iraq that you speak of arrived post-March 2003 … after we tossed SH out on the street, so to speak.

  • If you try to isolate Iraq and take it out of the context of the entire region then you don’t understand why we are fighting there or why that region generates terrorism which threatens the US. Although we are fighting IN Iraq we are no longer fighting against Iraq, nor were we even in anything but the most technical sense. The Iraq War is just a front in a fight against international terrorism and the religious extremism which produces it. To try to reduce this to just Iraq serves the purposes of those who oppose the war very nicely, but it is an inadequate and incomplete way to look at the situation.


  • The executive and legislative branches are complicit in this significant change to the way wars are begun in the U.S. That said, this is really a We the People… thing. If we voted presidents / congressmen / senators out who “don’t follow the constitution” and get away with it, we’d have declarations of war on the table once again.

  • Hi, Dave:

    I try very diligently to avoid “you” comments as they, generally speaking, have nothing to do with the issue.

    Yes, I’m aware of the history of the region. No, I don’t “buy” the same spin/frame/etc on “the war on terror” or “the threat of the middle east” as you seem to, based on your dig at me.

  • Hi, Eric:

    I agree – I don’t think it’s good for checks-and-balances when both branches of Congress and the Presidency is in the hands of the same party. There is quite an interesting thread based on Kevin’s post — arguing the same point raised here, that “declarations of war” are out-of-date on the global scene.

  • It seems to me to be another example of the deteriorating public standards in the USA that the country never even had the integrity to declare war against Afghanistan or Iraq. It ought NOT to be possible that the country can be committed to such a course without approval from the legislative bodies of the country.

    The amount of Orwellian doublespeak going on at the moment is simply depressing and ultimately is going to be extremely damaging to the standing of the country going forward.

    That it is not the Democrats but the Republicans, with their incredibly convoluted blend of policies intended to pander to voter groups, rather than an integrated set of policies designed to improve your still young nation, that is perpetrating this intellectual fraud on the country is somehow of greater concern, implying a greater malaise deep in the bedrock of US society.

  • Kathy, when I use ‘you’ in a statement like that it doesn’t mean ‘you’ (Kathy) it means ‘you’ the person who holds the beliefs indicated in the comment.

    As for my ‘spin’ on the situation, you can certainly characterize it that way, but to believe that the entire region and culture are not part of the problem requires a pretty strong willingness to deny facts which are glaringly obvious and more so every day.


  • Nancy

    I had no problem with retaliation against those who enacted 9/11 or their sponsoring organizations or the enabling cultures/people they came from; I had a lot of problems with congress wholesale throwing their constitutional authority at Bush & his cronies, because they were too chickenshit to think about the actual issues or take responsibility for their actions, AS elected representatives who act for the people.

  • If you’re waiting for the day that Congress shows some backbone you’re going to get old waiting. This whole ‘authorization for the use of force idea’ has become popular because it lets them authorize war without taking responsibility for it. It’s typical weaseling.


  • tommyd

    No matter arguing the details leading up to America’s illegal war in Iraq, the fact remains that the entire world will suffer from the destabilizing effects of America’s illegal war for generations. America and Israel’s dream of creating an Arab state which would be openly friendly and recognize Israel will never be achieved.

  • Nancy

    You’re right, Dave: being an idealist is terribly debilitating on the various systems. One could make a full-time job just ranting.

  • steve

    tommyd…are you trying to blame it all on the jews?

  • Dave Nalle

    Steve, you must have missed the previous outing of TommyD and his pro-nazi anti-semitism.


  • tommyd

    Dave and Steve, stick and stones will break my bones but names will never hurt me. Fact is, though, many of the leading neocon architects for “regime change” in Iraq were Jews. I’ve been against America’s war on Iraq from before the beginning.

    But, if I’m such a “pro-nazi” explain to me why the United States waged aggressive war on Iraq just like the Nazis waged aggressive war on Poland in 1939?? Poland bordered Germany, but what’s America’s poor excuse for attacking a weak country who supposedly posed an “imminent threat” from 10,000 miles away?

    BTW, the Nazi’s premier crime which they were convicted of at Nuremburg was “aggressive war against the peace”.

  • Dave and Steve, stick and stones will break my bones but names will never hurt me.

    Certainly not. You wear them with pride on little patches on your brown shirt, right?

    Fact is, though, many of the leading neocon architects for “regime change” in Iraq were Jews. I’ve been against America’s war on Iraq from before the beginning.

    And against Jews as well, I imagine.


  • Dave: I’m debating with myself as to whether your remarks above are not verging on going too far. With due respect for your track record here, I’ve decided not to delete it, but I was offended and disappointed and then exercised complete control over my impulse to delete your remarks. Definitely skirting the line there in my humble opinion…

  • tommyd

    Alienboy, Dave and other people forget that there’s freedom of speech in America, especially on the internet. Some people just can’t get over their own sacred cow beliefs and anyone who even questions their views are met with intense animosity and hatred. Forgive them Alienboy, for imagine if you had to go through life like them. I’m personally not offended by them.

  • Freedom of speech is both over-rated and has it’s limitations too…

  • Dave Nalle

    Tommy, you’re free to endorse the National Front and bash on the Zionist Conspiracy of International Jewry, and I’m free to point out that you’ve been doing it. That’s how free speech works. I bet alienboy understands that.

    And AB – I appreciate your restraint. I never would have said something like that about him had he not previously publicly stated his sympathy with those causes on another thread.


  • tommyd

    Alienboy, yes free speech has it’s limitations…such as limiting the amount of ad hominem attacks that people engage in when they see their arguments fail to make reason.

    For the record, I don’t believe that “the Jews” are soley to blame for all the ills of the world. That is ablsoutely not true. Have some Jews been, and are still involved in policy making which has turned out to hurt Americans-yes. Were there Gentiles and WASP’s who have made policies that were and are hurtful to Americans-yes. I’m not the only person who thinks like this, there’s millions.

    America’s insane march to war in Iraq has fed the movement of nationalists/anti-immigrationists and Islamic jihadists across the world, because although the US has been involved in several disgraceful wars in the past, this one in Iraq, in the age of superfast technology, has just exposed the massive deceit so much faster to so many more people than ever before in history. People are pissed off. It’s not my fault for pointing it out.

  • So far I’m really getting off on the level of restraint being deployed and looking forward to seeing where this convo is going next…

  • Alienboy, *I* am offended at posts 19 and 20 — they are ad hominem attacks … and imo there is nothing ad hominem or fascist in the comment to which they are replying. Ditto the “brown shirt” reference.

    This is NOT a message board. The stated policy is “Personal attacks are not allowed.” IMO, that means any comment that diverts from the subject of the blog *post* to the nature of a *poster* should be struck.

    I’m waiting to be called a fascist or nazi as a result of this comment.

    OH, and re the “free speech” comment – the First Amendment applies to *government* action and does not preclude a private forum (like this space) from enforcing civility.

  • Resistor

    I don’t think they can be ad hominem attacks when they refer to a specific past action rather than a general assumption. I also remember tommy’s enthusiastic support for racist policies of the french front nationale on one of the threads about the rioting around paris.

  • Kathy, you’re such a Fascist Nazi.

  • KATHY: Hi there. I can’t see an ad hominem attack in the first of these and scarcely more than a hint of one in the second and as Resistor observed in #30, it doesn’t quite pass the test.

    It can be very frustrating when the comments to a well written post such as yours here wander off on their own little way but that just seems to be human nature I’m afraid. I don’t see how we can or should try to prevent that, regrettable as it may well be.

    Sadly, I don’t find that I can agree with your view “that means any comment that diverts from the subject of the blog *post* to the nature of a *poster* should be struck. Particularly as neither #19 or #20 are about you.

    I would ordinarily have deleted comment #31 but as you set yourself up for it and I’m reasonably certain Matthew was joking, I’m going to leave that in also. I’ve not met him but he seems a decent chap apart from his unhealthy interest in girlie sports like baseball.

  • Dave Nalle

    oh, was that a signal to start a diversional discussion about baseball?

    Who likes the Nationals chances for a penant next year?


  • AB …I’m not going to argue with you about what passes as a personal attack here … but I will point out that “arguments” that are directed at the poster (not the position) are ad hominem, by any reference/resource that I’ve ever read.

    Arguments that require newcomers to “know” past rhetoric relating to a *poster* are not, IMO, relevant to an argument, in the main. One exammple where that might differ would be if someone were arguing that the prescription drugb bill was the best thing since sliced bread — but did not disclose employment by one of the firms administering the program.

    Former Debate Team Champion

  • KATHY: Thanks for confirming my understanding of “ad hominem”.

  • * Alienboy: “girlie sports like baseball

    you shall BURN FOR YOUR INSOLENCE!!!

  • Anthony Grande

    “girlie sports like baseball”

    Honestly, I would love to argue this Anti-American sling but because I kept throwing down Alienboy’s incredible and amazing left-wing rhetoric/proganda Alienboy is refusing to talk to me.

  • Bliffle

    Can’t we all just get along?

    *Sigh* After all these years on this Big Blue Marble I just skip over all the ad hominems, often with the result of eliminating all the discussion, as above. Too bad, since I’ve seen cogent remarks by each party elsewhere. You can do better.