Who Has the Power of War?

[davidswanson]

Crossposted from Voters for Peace
http://votersforpeace.us/press/index.php?itemid=2782

David Swanson is the author of the new book "Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union" by Seven Stories Press, an immediate bestseller at Amazon.com http://tr.im/xBt3 This article is adapted from "Daybreak."

Since 1973 presidents who have launched wars without the authorization of Congress have done so, not just in violation of the Constitution, but also in violation of the War Powers Act, a law written in reaction to President Richard Nixon's abuses of power and passed over his veto. The law allows a president to send armed forces into action abroad only with the authorization of Congress, unless the United States is actually under attack or serious threat. The president is required to notify Congress within 48 hours if he commits armed forces to action abroad, and forces cannot be kept in action for more than sixty days without an authorization from Congress. This law is actually weaker than the constitutional requirement and should be strengthened, but it is a law that Bush (and Congress) violated.

One way in which Bush Jr. outdid his predecessors in martial criminality was by persuading Congress to issue a vague and general authorization to "use force" at any point in the future when the president believed certain conditions had been met. By so doing the Congress, as well as the president, violated the Constitution and the War Powers Act. The Iraq War was not launched with any specific and timely authorization from Congress. That is the first of many reasons the war is widely considered illegal. Congress's authorization allowing the president to determine whether to go to war was an unconstitutional delegation of the power to declare war. My friend John Bonifaz led a legal suit on behalf of soldiers and members of Congress aimed at preventing the war on those grounds, and the courts avoided it rather than ruling on the merits.

In defense of Congress, its resolution did require that if the president decided to use force he must submit a report to Congress explaining how this use of force met certain criteria. The explanation Bush gave made false claims about "weapons of mass destruction" and ties to al-Qaeda.

The fact that Bush used Congress's "Authorization to Use Force" without actually complying with its terms is a second reason the Iraq War is illegal. In addition, Bush signed had that authorization and asserted in the accompanying signing statement that he did not actually need any authorization at all.

The claims that Bush made in his report to Congress, as well as a long list of claims that he and his subordinates made publicly and directly to Congress, orally and in writing, established a false case for war.

Bush, Cheney, Rice, Rumsfeld, et alia, violated the federal anti-conspiracy statute, which makes it a felony "to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose," and the False Statements Accountability Act, which makes it a felony to issue knowingly and willfully false statements to Congress. That the Iraq War was based on lies is a third reason that it is widely deemed illegal.

Bush unsuccessfully sought a resolution from the United Nations to make his war on Iraq legal under international law. The single biggest day of protest in the history of the world, including a massive demonstration in New York City, on February 15, 2003, played a role in persuading the United Nations to refuse to authorize the invasion. Under Article VI of the US Constitution, any treaty to which the United States is a party is the law of the land. The United States is a party to the United Nations Charter. Under the UN Charter, any war not fought in actual self-defense or authorized by the UN Security Council is illegal. That the Iraq War is blatantly illegal under the UN Charter is a fourth reason that it is considered an illegal war.

It is also illegal, under international treaties to which the United States is party, to invade another nation for the purpose of controlling its resources. That the Iraq War had this basis is a fifth powerful reason that it is considered an illegal war.

The current occupation of Iraq has seen the United States target civilians, journalists, hospitals, and ambulances; use antipersonnel weapons including cluster bombs in densely settled urban areas; use white phosphorous as a weapon; use depleted uranium weapons; employ a new version of napalm found in Mark 77 firebombs; engage in collective punishment of Iraqi civilian populations (including by blocking roads, cutting electricity and water, destroying fuel stations, planting bombs in farm fields, demolishing houses, and plowing down orchards); detain people without charge or legal process without the rights of prisoners of war; imprison children; torture; and murder. The various war crimes are a sixth reason that the Iraq War is considered illegal.

The seventh reason to view the Iraq War, along with the "global war on terror" of which it is supposedly a part, as illegal is the endless plague of crimes and abuses of power that surround the war and are supposedly justified by it. The criminal waste and fraud in contracting is part of this. The planning of the war has gone on in illegal secrecy.

The lies used to launch the war involved the illegal selective leaking of classified information; and whistleblowers exposing those lies have been illegally punished, including by exposing the identity of an undercover agent. Investigations of those abuses have been criminally obstructed. Mercenaries and other contractors in Iraq have been permitted to operate in a lawless zone, subject neither to Iraqi law nor to US military justice. People, including children, in Iraq, Afghanistan, and around the world, including in the United States, have been detained without charge or due process, tortured, rendered to other nations to be tortured, imprisoned in secret prisons with no access to legal counsel, and murdered. Bush and Cheney threatened a similar war against Iran, made similar lies about Iran, and funded terrorist activities within Iran. Bush violated the Posse Comitatus Act at home, as well as engaging in warrantless spying and various illegal assertions of power. Bush and Cheney used the war to try to justify all of the above actions.

An eighth reason the ongoing occupation of Iraq is illegal is that, while the United Nations did not and could not have legalized the invasion, it did, after the fact, condone the occupation until December 31, 2008. When that UN fig leaf expired it was replaced with a treaty negotiated by President Bush and Iraqi President Nouri al-Maliki. The US Senate was never consulted, and the Iraqi Parliament only approved the treaty on condition that the Iraqi people be permitted to vote it up or down sometime before the end of July 2009 (and that vote has not happened). A treaty authorizing three years of war has dubious legal standing to begin with, and this is aggravated by the unconstitutional failure to gain Senate ratification.

We are now a nation that regularly bombs civilians, detains the innocent, and tortures suspects -- sometimes to death. Opinion of the United States around the world has plummeted to the point where we are seen as the most dangerous "rogue state." And this began with Afghanistan, where we have killed and destroyed in great measure, but done very little to either apprehend the criminals we were supposedly there to find, or to benefit the innocent people whose country we have made a more dangerous, more impoverished place to live.

The wars we are fighting are not wars of defense or even wars between two militaries. They are wars of a powerful military against the guerilla resistance of occupied populations. No one "wins" these wars any more than you can "win" a hurricane. They are unmitigated disasters, and our own intelligence services tell us our occupations have become recruiting tools for terrorists. International terrorist incidents increased in 2004, and then the US government ceased reporting the statistic.

The Constitution very clearly puts the president in charge of the military, a fact that found its way through the brain of George W. Bush and exited his mouth as "I’m the commander guy." And yet, this does not put the president in charge of launching war, or in charge of rules for prisoners of war, or in charge of funding and creating the military, or of making rules to govern and regulate the military, because the Constitution gives those powers to Congress, along with the power to raise and support armies as needed for wars. The Constitution bans the appropriation of any money for that use for longer than two years. This means that during a lengthy war Congress must decide again at least every two years to keep fighting it, and therefore the "commander guy" does not have the power to begin or end wars, but only the power to serve as the commander of the military determining how a war is fought.

Any war by the United States is illegal if Congress has not declared war or if Congress has declared a war over. This was the clear intention of the authors of the Constitution. Unconstitutional wars have become the norm by now, with Democrats launching at least as many as Republicans.

Nonetheless, George W. Bush managed in this area, as in many, to outdo his predecessors. For one thing, he repeatedly declared in signing statements that Congress cannot in any way regulate the military. Never mind that the Constitution says precisely the opposite, that Congress and only Congress has the power "to make Rules for the Government and Regulation of the land and naval Forces." This power is also being stripped away by the increased use of mercenaries not properly regulated by Congress.

Three proposals have been floated recently related to the War Powers Act, one of them awful, the other two commendable. The first comes from a bipartisan commission of elder statesmen including Ed Meese, Warren Christopher, James Baker, and Lee Hamilton. The proposal that came out of this latest commission in July 2008 was, predictably, to repeal the War Powers Act and replace it with an act requiring that the president "consult" with Congress prior to launching a war. This role of consultant is exactly the role current congressional leaders want, a role once played with more grace by court jesters. But it is a recipe for legislating in place the aggrandizement of the executive against which James Madison warned.

The second proposal seeks instead to remedy this problem. It comes from Larry Sabato's 2007 book "A More Perfect Constitution." Sabato recommends a constitutional amendment that would add to the War Powers Act the requirement that congressional authorizations of war include time limits, after which Congress must vote again to extend the war or end it. While I agree time limits would be ideal, I think the same solution should be pursued first through legislation. I would add that those time limits should be no longer than twelve months.

The third proposal comes from a white paper published by the Center for Constitutional Rights (CCR) in April 2009 called "Restore. Protect.
Expand. Amend the War Powers Resolution." Because it is so difficult to end wars once begun, CCR proposed eliminating the permission that the War Powers Act currently and unconstitutionally grants for a president to wage war for sixty to ninety days before gaining congressional approval, arguing that the only exception should be for the short-term use of force to repel (not retaliate for) sudden attacks on US territories, troops, or citizens. (The inclusion of troops or citizens here seems to weaken the reform and provide an easy way to provoke or pretend an excuse for war, so I would limit it to territories.)

CCR also proposes adding an adequate enforcement mechanism to deal with occasions on which presidents violate the law. A new law would prohibit the use of funds for actions violating the law, allow for judicial oversight in cases of conflict between Congress and the president, and explicitly make a violation of this law an impeachable offense.

Of course, when Congress does authorize military action, it must be in accordance with the UN Charter and international law, and it must not be treated as the supposed authorization to engage in abuses of power and violations of rights. We also need a reform, perhaps called "The Cheney-Halliburton Act," that would make war profiteering by any war-maker a major felony. This would apply to employees of the federal government or anyone who had within the past decade been an employee of the federal government, especially the President and Vice President themselves.

I'm very much in favor of another reform that might truly prevent aggressive wars. When soldiers are sent into war, they and their friends and family do not play any significant role in the war-making decision. Yet their lives are put at risk on the basis of claims made by people themselves taking no risk at all, claims of a sort that have through the course of history proven almost universally false. The United States is not supposed to have a lower class that suffers and dies and an upper class that decides when others should suffer and die. There is a simple way around this. We should require that, in any war, the military-aged children and grandchildren of the president, the vice president, all cabinet officials, and all Congress members serve on the front lines in the most dangerous combat positions. Oh, how cruel and awful! But how much more cruel and awful to send other families' children to die. War is our biggest business and grandest undertaking. Why should our government itself not be involved?

An updated US Constitution might state that:

--No more than 25 percent of discretionary US government spending in any given year can be devoted to military expenses of any sort, including wars, including debt and interest payments for past military expenses and wars, and including care for veterans.

--All military veterans must be provided with free comprehensive health care and education.

--The United States is forbidden to maintain a military presence in any foreign nation, to engage in any war of aggression, to employ mercenaries, or to make use of military force on American soil except when actually engaged in a defensive war against a foreign nation.

--The executive cannot begin a war without authorization and funding from Congress, and Congress cannot provide those for longer than one year at a time.

--A congressional vote to end a war is not subject to presidential veto.

--During war, the children and grandchildren of the president, vice president, all cabinet officers, and every member of Congress, who are of military age, must serve in the most dangerous combat positions.

--A president, vice president, or member of Congress who profits financially from any war and is convicted of doing so in a court of law shall be imprisoned for a minimum of ten years, and there shall be no statute of limitations on this crime.

David Swanson, a member of the Project Board of Voters For Peace, is the author of the new book "Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union" by Seven Stories Press, an immediate bestseller at Amazon.com http://tr.im/xBt3 This article is adapted from "Daybreak."

[Thothmes]

1. If the first item of the Updated Constitution

was in effect in 1942, we would have to cease all offensive operations against Japan and Germany within 5 months of the start of the war. If the third
line was in effect, we would not have be able to invade North Africa, Sicily, Italy, Southern France, Normandy, the Phillipines, Okinawa or any of a dozen other Pacific islands. Nor would we have been able to occupy Germany or Japan after the end the war. We would not have been able to use England as a staging area for the Normandy Invasion. We could not use Australia as a advance submarine base to operate against the Japanese.

[Piewhacket]

2. david is more patriot activist, than constitutional scholar... still..

These are complex political and legal issues. I commend his
efforts to grapple with them, to bring them under public discussion,
to point out abuses he sees, and to suggest ideas for remediation.

There is no doubt the President has great powers, and the waging of war
is arguably the most concerning and destructive of actions he can take
in the name of the United States. The power has been abused. Attempts
have been made to curtail it, but with less than success. Yet there is still
the debate that if we curb too much the abuses, will we cripple our
country's ability to respond to real external threats.

david grapples with these ideas. he begins to grapple. It is a worthy endeavor.

[Vattel]

3. Only Congress has the constitutional authority to create war

in the sense of bringing into existence a state of war between the United States and another nation. The Founders regarded declaring war as the only lawful way to create war, and Article I grants Congress the power to declare war. It is arguable, however, that if another nation creates a state of war between it and the United States (e.g., by invading the United States, or by declaring war against the United States), then the President has the authority to wage war against that nation without any Congressional declaration or authorization of war. That was Alexander Hamilton's view anyway, and it reflected the views of many legal experts of the day.

[Vattel]

4. A sample of the evidence for the view

that only Congress has the constitutional authority to declare war:

1. Hamilton described Congress’s power to create war as “the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war.”

2. Hamilton also wrote: “While, therefore, the legislature can alone declare war, can alone actually transfer the nation from a state of peace to a state of hostility, it belongs to the “executive power” to do whatever else the law of nations, cooperating with the treaties of the country, enjoin in the intercourse of the United States with foreign powers. In this distribution of authority, the wisdom of our Constitution is manifested. It is the province and duty of the executive to preserve to the nation the blessings of peace. The legislature alone can interrupt them by placing the nation in a state of war.”

3. In President Jefferson’s first annual message to Congress (December 8. 1801), he recognized that Tripoli had declared war, but denied that he had the constitutional right to authorize anything more than self-defense. Explaining the release of an enemy ship and its crew, he stated: “Unauthorized by the constitution, without the sanction of Congress to go out beyond the line of defence, the vessel being disabled from committing further hostilities, was liberated with its crew. The legislature will doubtless consider whether, by authorizing measures of offence, also, they will place our force on an equal footing with that of its adversaries.”

4. And in a special message to Congress on Foreign Policy (Dec. 6, 1805), President Jefferson remarked, “Congress alone is constitutionally invested with the power of changing our condition from peace to war . . .”

5. Jefferson again: “The idea seems to gain credit that the naval powers combined against France will prohibit supplies even of provisions to that country. Should this be formally notified I should suppose congress would be called, because it is a justifiable cause of war, and as the Executive cannot decide the question of war on the affirmative side, neither ought it to do so on the negative side,”(1006 TJ writings)

6. In a letter to General William Moultrie (Aug. 28, 1793), President Washington wrote: “The constitution vests the power to declare war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject and authorized such a measure.”

7. Madison wrote: “In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”

8. Madison also wrote: “The president shall be commander in chief of the army and navy of the United States, and of the militia when called into the actual service of the United States.’ There can be no relation worth examining between this power and the general power of making treaties. And instead of being analogous to the power of declaring war, it affords a striking illustration of the incompatibility of the two powers in the same hands. Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded.”

9. And in a message to Congress urging war against Great Britain (June 14, 1812), President Madison wrote: “Whether the United States shall continue passive under these progressive usurpations and these accumulating wrongs, or, opposing force to force in defense of their national rights, shall commit a just cause into the hands of the Almighty Disposer of Events, avoiding all connections which might entangle it in the contest or views of other powers, and preserving a constant readiness to concur in an honorable reestablishment of peace and friendship, is a solemn question which the Constitution wisely confides to the legislative department of the Government.”

10. In the Pennsylvania ratifying convention, James Wilson argued (Dec. 7, 1787): “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress, for the important power of declaring war is vested in the legislature at large.”
A delegate to the Virginia ratifying convention, John Marshall, later served as Chief Justice of the US Supreme Court and in an 1801 opinion wrote, “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 inquiry.”

As for, quotations that suggest that at least some Founders believed that the President has the power to create war, there are none!

[Piewhacket]

5. Very well, and no disrespect to the above brothers in DU, but I am also obliged...

to explain, in forthright and understandable terms, that the matter
is not "simple", nor a matter of black or white, but is instead "complicated".

"Whether Congress has the power to declare war" is no more a simple question
than the question of "Whether Christ owned the clothes he wore"
('Name of the Rose', movie 1986).

"Whether Congress has the power to declare war" is no more "decided" than the
"Crosspatch Decision" (Robert A. Heinlein) where two boys take a curdling blood
oath to forever-after, on pain of horrifying death, call their mothers "Crosspatch",
(with result that the first boy to invoke the 'Crosspatch decision' before his mother
met a sufficient response that neither boy ever invoked the "decision" again).

Of course I know I set myself up for criticism by such primitive scholarship,
but I believe it sufficient at least to call attention to the problem. I then also
offer the following view for consideration: That during the entire history
of our nation there has been little controversy on whether congress has or should
have the stated theoretical power to declare war, they have the stated power, none
dispute it, yet that turns out to be, not the question.

For a tension has also always existed in the real world as to the true exercise of that
power in context of the myriad ways men can find themselves in physical conflict. I do not
regard this an eloquent statement of the case, for it is off the tip of my keyboard and
simple food for thought and guidance for research. Like the "Crosspatch decision" such decisions
are subject to forces beyond the power of the "deciders", and as such better find their
justifications in the circumstances of case by case. In short, in the context of our (US)
democratic structure, these decision are in the realm of politics rather than law. To treat them
as law is no more realistic than for two boys solemnly and resolutely deciding to thereafter
call their respective mothers "crosspatch". It just doesn't work.

For further consideration I refer the gentlemen to the Korean War, the 'Gulf of Tonkin Resolution',
the 1861 blockade of souther ports by Lincoln, the Bey of Tripoli declaration of war on the US,
and yada yada yada. In the real world, as opposed to the theoretical world where congress has the power
to declare war, the discussion quickly moves from 'who has the power' to 'WTF are we talking about?".

Indeed, the matter is sufficiently complicated that we might better begin with a warmup exercise of
resolving something simpler: whether or not "Christ owned the clothes he wore".

It is no accident at all our Supreme Court has studiously, scrupulously, and systematically evaded
decisions "resolving" this matter. (citations galore, omitted) We may appoint jerks and twits to this
court, but rarely (I won't say never, sigh), rarely do we appoint and confirm complete idiots.
As a consequence Congress and the Executive have been forced to work this out between them.
Quite a (FOOBARed) mess.

For those who ask what our part in this matter is? When we are commanded to do so by our leaders
we provide the means to wage war with the sacrifice of our hopes, our dreams, our blood, and our treasure.
Our role is as the fodder of war. Beyond that, our role is PURELY POLITICAL.

Please forgive any typos. Thank you for your kind attention.

[Vattel]

6. Well, I can agree that it is important

to keep the various issues separate. There is the historical issue of the original understanding of the distribution of the war power. There is the related legal issue of how the war power is actually distributed. And if we want to talk about power in the sense of ability rather than authority, there are various political questions about which branch has what power to decide whether and how to use the military. I also agree that all of these issues are complicated, although John Yoo's views about the first two sets of issues are obviously mistaken.

[Piewhacket]

7. WE are then in agreement that the matter is complex, and very political.

Still it may be discussed. Even in simple terms it may be discussed,
for not everyone understands the issues or what is at stake.
It is reasonably clear we cannot individually do anything about
these decisions, they are resolved by politics at high levels.

But we do have a stake in it. A great stake. It is important.
So we should understand, and we should be heard. If people are to
help decide, and that decision is to be wise, they should be
educated in the truth of it. As the subject is complex, care should be
taken in how it is explained and taught.

Who guards the guardians? It is us. Let us resolve to keep our wits and
weapons sharp, and our shields bright. Salute.
:patriot:


We agree that Yoo's views are irrelevant crap, and have no relation
to anything but a fantasy world he created to give the color of law
to criminal acts. He is a conspirator in commission of war crimes, beyond
any question, and if he is brought before a fair tribunal adhering to law
he will be convicted of war crimes and other offenses.

[Vattel]

8. We do agree. Cheers. n/t