CHOICE OF COLORS
Federal War Powers in relation to possible war with Iraq
Friday, September 13, 2002
by RICHARD E. BERG~ANDERSSON
On Thursday 12 September 2002, a year and a day after the terrorist attacks on the United States of America carried out by operatives of al-Qa'eda, President George W. Bush went before the United Nations General Assembly to lay out his reasoning as to why Saddam Hussein's regime, currently in control of Iraq, should be forced to "fish or cut bait". Given the subject matter of his recent address, I decided it would be a good idea to now supplement my Commentary of 8 September with some thoughts on the President's authority as Commander in Chief of the Nation's Armed Forces and the relation of said authority to the Power of Congress to Declare War (thereby also further clarifying my original contention that the Bush Administration would- absent assent by the United Nations and/or clear support by more of Our Nation's allies as regards a war against Iraq- be better served by at least seriously considering asking Congress for a formal Declaration of War).
There is no real question as to the vital role of the President of the United States and his office (that is, his ability to delegate all necessary authority to underlings largely responsible to him) in the carrying out of the obligations to defend the Nation and to aggressively pursue war if and when it should become necessary to so pursue such a course. At the very beginning of its Article II, Section 2, the Constitution of the United States emphatically declares that
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States...
Put into post-World War II/Department of Defense era terms, the President is constitutionally the highest authority (and, most importantly, a civilian authority!) in a Chain of Command that runs not only through the Army and Navy (including the Marines and, in general wartime, the Coast Guard) but- if one heeds the words of U.S. Supreme Court Justice Harlan Fiske Stone (in his opinion in the so-called Classic case of 1941 and which I liberally quoted in a response to a recent 'vox Populi' posted on this site) that "in determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the Framers were not familiar. For in setting up an enduring framework of government they undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses. Hence we read its words, not as we read legislative codes which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes of which were intended to be achieved by the Constitution as a continuing instrument of government"- through the Air Force as well! Likewise, "the Militia of the several States, when called into the actual Service of the United States" includes today's State Air and Army National Guards (though only once "federalized" upon the direct order of the President, upon which he takes command of such "state militia" from the Governors of the respective States from which such National Guard units might come). Over all this military apparatus is the President of the United States constitutionally and legitimately "Commander in Chief".
But, lately, the current Bush Administration has argued that the President- in his capacity as Commander in Chief- has virtually the sole power to determine whether and when to attack Iraq on the basis of that country merely being deemed (by the Administration) a threat to this Nation; there was even a time when this Administration argued that the President need not even ask for the consent of Congress in his pursuit of just such an endeavor, on grounds that- as Commander in Chief in all things military- he alone could "make war" under his sole authority to order the Armed Forces of the United States into battle. Lately, the Administration has backed off this rather absolutist interpretation of the President's war powers and now cites Congressional resolutions (most notably, that which authorized 'Desert Storm' against Iraq back in January 1991) as yet giving him-some years later- such sole power and authority, though the Administration has given at least some indication that it might very well give Congress the "courtesy" of allowing it to debate the issue- forgetting, of course, that the Federal Executive can give Congress nothing in this regard, for Article I, Section 8, clause 11 of the very same document that makes the President "Commander in Chief" also gives Congress the power "[t]o declare war"! The basic fact is that there is a significant difference- in American Constitutional Law- between the power to "make war" (this being the sole prerogative of the President as Commander in Chief) and the power to "declare war" going all the way back to the Framers of the Constitution themselves!!
The Constitutional Underpinning of Federal War Powers
Making the political executive the Commander in Chief of the Military is an ancient and honorable device within the system of governance we Americans inherited from our time as a part of the nascent British Empire prior to the mid-1770s. Sir William Blackstone, in his voluminous mid-1760s Commentaries on the Laws of England- certainly the leading compendium of English Common Law at the time of its publication (and one with which the Framers of the U.S. Constitution were reasonably familiar)- notes that "the king has... the sole prerogative of making war and peace. For it is held by all the writers on the law of nature and nations, that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in the sovereign power". Thus, the King of England- being the Sovereign (a term still used to refer to the person who wears the Crown of the United Kingdom to this day)- was, by definition, "Commander in Chief" of the English Army and Navy.
The actual title of "Commander in Chief" is a relatively modern one, however: it seems to have originated during the reign of King Charles I and was, in fact, originally applied to himself; his son, Charles II, upon the Restoration of the Stuarts in 1660, appointed a high-ranking military officer specifically as his "Commander in Chief" (to whom the new King delegated his own military authority) but when this particular officer died a decade later, Charles II appointed no successor- theoretically re-assuming the title himself. Following the newly-established practice in (and terminology of) their Mother Country, the English colonies in America had their respective Governors specifically designated Commander in Chief of the colonial militias and this practice continued under the first State Constitutions (one of the few instances where the earliest State Governors actually were given at least some little power apart from direct control by the legislatures). The Framers of the U.S. Constitution meeting in Philadelphia during the Summer of 1787 were, therefore, merely following a by now accepted constitutional practice with which they were doubtless well familiar when they ended up making the President the Commander in Chief in their new document: having the Executive carry out such a function was part and parcel of many of the "plans" submitted for consideration on the floor and in committee during the first half of the Convention and there was little dispute that the new Executive- whatever its ultimate form- should have this authority.
The workings of the war powers under the new Constitution per se were quite another matter, however: in the Articles of Confederation- at the time the Constitutional Convention was meeting, the still-operative "constitution" of the United States and the very document the Convention had been authorized to "revise"- the very beginning of that document's Article Nine stated that "the United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war..."; during the early phases of the Convention, few were the plans that would have changed this right and power as regarded the new National Legislature then being created. Even those plans making the Executive Commander in Chief, as noted above, would have required the Legislature to actually conduct the war as well as first determine whether war was even necessary in the first place: in essence, the Executive-as-Commander in Chief in these early plans was not to at all function as the Warrior-King of contemporary English/British Constitutionalism (a concept that clearly struck the Framers as being of that Tyranny against which they had but lately fought in the American Revolution) but rather to have the same relationship to the National Legislature as an appointed Commander in Chief back in Britain would have had to the Crown; the only difference was that- whereas, in Britain, the King could resume his "office" as Commander in Chief at any time, as Charles II had done in 1670 (that is, the King could- however temporarily- delegate authority that was inherently his own to someone else)- the American National Executive would not ever have to give up his (or its, for there was a time when it was being suggested in the Convention that the Executive be a multi-person body) title as Commander in Chief, the flip side of this particular coin being that the National Legislature would not ever be able to give the Executive the permanent authority to conduct any war the Legislature might declare (that is, the Executive could only carry out his/its authority as Commander in Chief solely under Congressional direction).
This perception of the relation of the Executive-as-Commander in Chief to the National Legislature (where the Commander in Chief would have been subservient) maintained itself even during the work of the Committee on Detail, into the lap of which the Convention temporarily was dumping all the proposals that the Convention had already adopted (along with more than a few thorny problems not yet fully addressed by the full Convention) on 26 July 1787 with the charge that the Committee report out the rough draft of an actual document that could pass as the basis of a National Constitution. On 6 August, the Committee on Detail reported out a draft that included a provision that the National Legislature (it still had yet to be called "Congress") still have the power to "make war" (that is, conduct it as well as declare it: the Executive, as Commander in Chief, being able to direct the war only according to the deliberative dictates of the Legislature). But a consensus was beginning to evolve, even before the Committee on Detail reported, that the Executive-as-Commander in Chief had to be allowed no little discretion in wartime; Alexander Hamilton's plan- brought to the attention of the Convention as early as 18 June- probably summed up the new ideal best when it suggested giving the Executive sole power to carry out "the entire direction of war when authorized or begun" (by clear implication, the term authorized here referred to war initiated by the United States, while the term begun referred to war imposed on the country [that is, when the United States would have to act in self-defense!])
On 17 August, the Convention began to debate the war powers as they appeared in the draft brought forth eleven days earlier by the Committee on Detail: immediately, Charles Pinckney proposed that the Senate- and not the entire Congress- be given the power to "make war" on the grounds that the House of Representatives would, by its nature as the popularly elected body (recall that the Senate was originally elected by the State Legislatures; the Executive would come to be elected by an Electoral College), move much too slowly (he also opined that large and small States alike would be affected similarly by a war- hence placing the power in a body with state representation based on population made little sense- and also added that the Senate- as the ratifier of treaties and the confirmer of ambassadors- would be the more knowledgeable about foreign affairs and, thus, more attuned than the House as to when war would or would not be necessary). But Pierce Butler argued that the Senate, as a legislative body itself, would have much the same "slowness" problem the House would have (Butler supported giving all war powers solely to the President who, so he felt, would not be inclined to make war if the Nation as a whole did not support it).
Ultimately, James Madison and Elbridge Gerry (who, ironically, would together be President and Vice-President during the next full-scale American military conflict- the War of 1812!) proposed that the word "make" in the Committee on Detail's draft now be replaced by the word "declare" (Gerry's retort to Butler was that he "never expected to hear in a Republic a motion to empower the Executive alone to declare war")- thus leaving it to the President-as-Commander in Chief to repel sudden attacks but otherwise leaving the power to decide on war to Congress; Roger Sherman was in opposition to Madison and Gerry's motion- but only on grounds of semantics: he agreed that the Executive should be allowed to repel, but never to- on his own- commence, war and felt that the term "declare", unlike "make", actually narrowed Congress' power too much in relation to that of the President as regards war powers. In the end, the Convention made the change from Congress being empowered to "make war" to that of having the power to "declare war" on a vote, by States, of 7 to 2 with one abstention. In the end, however indirectly, Hamilton's conception of Congress determining whether or not a state of war exists, or should exist (except in case of sudden, unexpected attack), but leaving it to the President to pretty much carry out its "entire direction" once war was underway made it into the final document.
And so it has been, at least in constitutional theory (whatever the actual practice at times), down to the present day. There can be no doubt that Congress retains its constitutional power to "declare war", even though it has lately been the habit of Presidents- for more than a half century now- to not ask Congress for such a declaration (the last Declarations of War by the United States being those bringing the country into World War II) and, instead, either ask for (or, so many Presidents- perhaps even the current one- would say, allow for) Joint Resolutions of Congress authorizing direct military action (especially when- as was the case with both the Korean War and the Persian Gulf War- any military operations have been under the auspices of the United Nations; in these cases, the United States Congress appears to have been acting less as the "declarer" of the conflict itself than as the legislative department of a UN Member State acceding to actions already authorized by that international body: in a sense, the conflict itself had already been "declared" by the UN and the USofA was merely formalizing its going along with this). By the same token, it is equally clear that once war is legitimately underway and the Armed Forces of the United States have been committed to same, the President alone gives any and all highest-level orders necessary to its conduct without having to consult with Congress about every little operational detail carried out by the Nation's military! The best analogy I can think of here is that of the Home Team being able to postpone, cancel or delay a Baseball game, if necessary, up until the Umpire cries "Play Ball!" and the first pitch is then thrown, after which the game (including any and all decisions as to whether the game should be delayed or even called on account of inclement weather) is solely in the hands of the umpiring crew and no longer a prerogative of the Home Club: likewise, Congress gets to determine whether or not there should be a state of war but, once war is so declared, the President of the United States- as constitutional Commander in Chief- actually carries it out with minimal political interference. Again, as Hamilton himself might have put it: whether specifically authorized by Congress or begun by a need to immediately- without the time to consult with Congress- defend the Nation, the President alone is responsible for a war's "entire direction" once that war is legitimized.
The Color Code
But what about that whole "sudden attack" thing brought up by Madison and Gerry on the floor of the 1787 Constitutional Convention? What about that whole issue of "anticipatory self-defense" which I myself discussed in my own 8 September Commentary?? When does the President have to get Congressional authorization and when does he not have to??!! In order to explain my own thoughts on these questions (and then apply them to the whole issue of a possible war with Iraq), I will use a color scheme to define and illustrate the different possibilities; I will here borrow at least some of the color code used by the Office of Homeland Security in their assessment of potential threats and then establishing a threat level for a given period of time:
RED is when the United States of America is, to use President Franklin Delano Roosevelt's well-known phraseology in the wake of Pearl Harbor, "suddenly and deliberately attacked" without warning or apparent provocation (except, perhaps, only in the minds of the attackers themselves and their supporters, aiders and abettors). YELLOW is when a threat against the United States seemingly exists but the threat is either nebulous, possible but not necessarily probable or not immediate-- that is, someone could do something with adverse effect to the Nation but it hasn't been done yet. In between red and yellow is ORANGE, the proverbial "gray area" between sudden attack and a mere potential of threat, which I will explain as I go along here.
There is no question but that the attacks of 11 September 2001 represented a "Situation RED": constitutionally speaking, the President- as Commander in Chief- had full power to well respond to those attacks with the U.S. Military on his own, without consulting with Congress at all. The unfortunate necessity for the President to prepare for possibly having to give the horrific, but potentially necessary, order to have American fighters shoot down an American civilian airliner in order to protect many more Americans that terrible day is an illustration of the power inherent in the Commander in Chief in just such a situation. I would go even further: as I have already opined in my 8 September Commentary, the President had- in my opinion- full power, under the doctrine of Anticipatory Self-Defense, to send the Armed Forces of the United States out to attack al-Qa'eda and the Taliban in Afghanistan as a preventative measure without the necessity of authorization by Congress (though, of course, President Bush did ask for and receive such authorization), since it became quite apparent that Talibanized Afghanistan was the epicenter of the planning and eventual carrying-out of the horrible events of September 11th!
Saddam Hussein's Iraq, however, represents a "Situation YELLOW": unless and until there is evidence produced that links Saddam's regime directly to the September 11th attacks (that is, the Iraqi government was actively involved in the planning and carrying out of those attacks), Saddam's threat to the United States is a rather indirect one. However much such gestures as refusing to have the Iraqi flag at the UN Mission of Iraq in New York City fly at half-staff in the immediate aftermath of September 11th might make Saddam and his minions the moral equivalent of pond scum to the vast majority of Americans, being angry at the current Iraqi government because of this is not grounds for war; in American Criminal Law, one cannot be prosecuted for a crime simply because one is merely acting like a jerk-- it is really not all that much different in the realm of International Law!
This is why I- in my 8 September piece- purposely seized upon the analogy of the "Zimmermann telegram" (also known as the "Zimmermann note") of early 1917. After all, back in January 1917, the Second Reich of Kaiser Wilhelm II was not massing spike-helmeted troops South of the Border poising to seize Brownsville or El Paso, Texas or Douglas or Nogales, Arizona or San Diego, California; there was no massive build-up of German-supplied Mexican forces directly threatening Deming or Las Cruces, New Mexico! The offer proferred to the United States of Mexico by the Foreign Secretary of the German Empire was a rather bumbling, inept attempt to get Mexico to harry- if not outright distract- the United States should America, on its own, join the Allies then at war against Germany (to my amateur historian's mind, with most of a century since gone, methinks Arthur Zimmermann had read one too many "dime novels" mangled with the then-still quite recent reports of the exploits of Pancho Villa!).
So, how did President Woodrow Wilson (himself a former professional historian) respond to this indirect threat posed by the "Zimmermann telegram"? He had it published in- and widely disseminated by- the media of the time and then asked for (and received) a formal Declaration of War from Congress. All these years later, this certainly seems the right thing for him to have done. Why? Because a "Situation YELLOW", in my opinion, was involved and such a situation well required it! Where the threat was so indirect as that posed by the "Zimmermann note", the duly elected representatives of the American People had to vicariously go on record with the Will of "We, the People" before President Wilson- in his capacity as Commander in Chief- could, from that point on, well carry on the "entire direction" of America's military forces during World War I. On 8 September, I argued that- for the same reason (a nebulous, indirect threat)- the current Commander in Chief should have to do as his predecessor Mr. Wilson had once done should he decide to attack Iraq (especially if such an attack is a more or less unilateral one).
The Need for a Supermajority in the United States for War
Those of us once educated in the public and private schools here in America have grown up so often hearing the familiar phrase that "in a Democracy, the Majority rules"; of course, the United States is not a Democracy- it is a Republic: that is, a Constitutional Democracy in which Minorities of Opinion, Race and Religion (among others) are at least legally protected from (and, where such protection fails, have legal redress against) what is (too often rightly) referred to as the Tyranny of the Majority. No, Majority does not always rule here... nor should it!
War is one of the best illustrations of this very principle. Arguably, one of the many lessons of the Vietnam War (in which I was too young to either fight- or decide not to fight!- but of which I am old enough to well remember its controversies) is that a President of the United States has to have significantly much more than a bare majority in support in order to well prosecute a war: President Richard Nixon was doubtless correct when he so often talked about his "Silent Majority", that which he saw as the counterweight to the Anti-War Movement so active during his first term; those who were opposed to American involvement in the conflict in Indo-China were (by even the admission of most of the leaders of that movement) never ever a majority: however, they were a large enough minority, and were so often enough- particularly during the Nixon Years, to make it difficult- where not nearly impossible- for the Administration to do quite a lot of whatever they wished to do in Vietnam and its neighbors as part of that war (and where the Administration sought to squelch opposition- with the gravest overtones as regarded civil liberties- it usually only tended to increase opposition to the war and was, thus, largely counterproductive).
On the other hand, there have been at least two American wars which have not engendered a significant, let alone serious, anti-war opposition: World War II (remarkable in that America's participation in that conflict lasted nearly four years) and the Persian Gulf War ("Desert Storm" being so short in time as to render any real opposition moot); even the relatively short Spanish-American War caused no little opposition: indeed, one of that war's aftermaths, the American suppression of the Filipino Insurrectos led by Emilio Aguinaldo (a guerilla war inherited from Spain when the U.S. first acquired the Philippines by virtue of the peace treaty signed at the end of 1898), was opposed by many- including Mark Twain, who penned 'The War Prayer' (posthumously published in the anthology Europe and Elsewhere) in 1904 as an expression of his opposition. (The jury is, of course, still well out as to how the current War Against International Terrorism will fare on this score in the long run.) The lessons are, of course, patently obvious- if a President can gain (and, more to the point, maintain) a supermajority in support (at least two-thirds of the voters... but especially if the support is above 75% [for example, the current President Bush's father had significantly more than that in support of "Desert Storm" throughout its prosecution in early 1991]), then he can prosecute a war even if he doesn't necessarily get Congressional authorization (and President Bush # 41 did ask for and got a Joint Resolution, though the tally of the vote in each house of Congress was much closer divided than the general public appeared to be at the time); where a President runs into trouble is if he loses, or even never ever has, that supermajority in favor of military action- both Lyndon Johnson and Richard Nixon could have attested to that, were they each to have given us an honest appraisal instead of being forced to justify their actions the way they each did in their respective memoirs!
That ever tricky "Gray Area"
Which brings me to "Situation ORANGE" in my color-coded scheme of analogy:
This is that "gray area" between RED (a "no-brainer" in which the President can act on his own in the Nation's self-defense) and YELLOW (where the President had better have "We, the People" behind him via a formal Declaration of War by the People's own elected representatives): ORANGE would cover situations such as our going to war against countries harboring terrorists other than those of al-Qa'eda (al-Qa'eda being, at least as far as I know, pretty much solely responsible for September 11th) or countries harboring al-Qa'eda and not cooperating with us in our efforts to root them out (it is a far different thing, of course, if a given country itself is trying to get rid of al-Qa'eda terrorists within their own borders!)- threats that are not nearly as mere potential as I would argue Saddam Hussein currently is but to which we are not responding as in self-defense against a sudden, unexpected attack against us directly; ORANGE would also cover situations in which (as was the case, as I've already pointed out, with "Desert Storm") we are willing to send out troops in support of a United Nations-authorized military operation. Here, I think the President is obligated to get authorization from Congress but not necessarily in the form of a formal Declaration of War; it might, at times, also be acceptable to have Congressional authorization of the military situation "as is" (in other words, the President may even be able to start the ball rolling militarily without direct action by Congress, subject to Congressional approval of what has already been done [in addition to what is still in the planning stages] in order for the President to keep the military operation going).
But ORANGE is that gray area-- it is generally relatively easy to tell YELLOW from RED (just as I, in my 8 September Commentary, attempted to point out the difference between the current war in Afghanistan and a possible future war in Iraq); RED is easy to discern even from ORANGE (either the USofA was the victim of unprovoked attack or it wasn't-- the Framers of the U.S. Constitution clearly, as one can see by merely perusing the discussion on 17 August 1787 in the Philadelphia Convention as summarized earlier in this piece, could have made just such a distinction!)... it is trying to tell ORANGE from YELLOW that appears to be the more problematic!!
In closing, I want to make it clear that I have, in this piece, always been referring to overt military action; I have not herein attempted to at all address the subject of covert activities (which would be a whole other "can of worms"!)