Vox Populi
A Letter to the Editor

I believe Congress has more control over our military than the President
Wednesday, February 14, 2007

by Kenneth Scot Stremsky

Thank you very much for the February 9 Commentary. Religious freedom is supposed to be protected. Too often, however, religious freedom is attacked.

On another issue, however:

I believe Congress has more control over our military than the President of the United States of America does because of Article One, Section Eight of the United States Constitution.

I do not believe the President of the United States of America has the power to overrule acts of Congress based on Article One, Section Eight. If the President of the United States of America does not execute such Article One, Section Eight-based decisions on the part of Congress, the President of the United States of America is committing a high Crime that justifies Impeachment. Article One, Section Eight says Congress has the power "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations" (clause 10) Terrorism is against the "Law of Nations" which means Congress gets to decide how terrorists are to be dealt with. In addition, Congress has power "[t]o constitute Tribunals inferior to the Supreme Court" which means Congress is supposed to decide where and how terrorists are tried. Congress, further, has the power "[t]o declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water" (clause 11). Congress gets to decide how captured terrorists and enemy soldiers are treated. Congress gets to say if torture is not okay and the President of the United States of America does not have the power to disregard the decision.

In addition, Congress has power "[t]o constitute Tribunals inferior to the Supreme Court" (clause 9) which means Congress is supposed to decide where and how terrorists are to be tried.

Congress also has power--

"[t]o raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years" (clause 12) "[t]o provide and maintain a Navy" (clause 13) "[t]o make Rules for the Government and Regulation of the land and naval Forces" (clause 14) This gives Congress the ability to keep more troops from going where Congress does not want them to go and it also gives Congress the ability to recall troops. The President of the United States of America does not have the power to disregard these decisions. "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections and repel invasions" (clause 15) This gives Congress the power to draft men and women. I do not believe Congress has the power to require that such people who have been drafted serve outside of our borders.

[NOTE from the Editor: It is presumed, given the context in which this statement appears, that the writer of this 'vox Populi' is here referring to the Militia of the several States (which, nowadays, would, of course, include that which is now called the National Guard) when he speaks of Congress not having "the power to require that such people who have been drafted serve outside of our borders"- if only because the very power to raise and support an Army and provide and maintain a Navy the writer had earlier cited seemingly implies that Congress does have all due power to send men and women of the regular Armed Forces outside of our borders. The comments in the response of Richard E. Berg-Andersson seen directly underneath this 'vox Populi' will reflect this presumption as regards clause 15 of Article I, section 8.]

"[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress" (clause 16) Congress does not have the power to pass a resolution authorizing the President of the United States of America to use force because this is not a power discussed in Article One, Section Eight. Though, as already mentioned, Congress may pass "Letters of Marque and Reprisal".

[NOTE from the Editor: If only for purposes of clarification, a "Letter of Marque" was a device by which civilian vessels were specifically authorized to capture (and keep as a prize) the vessels of an enemy during time of war; a "Letter of Reprisal" was the equivalent during peacetime against a nation which had been seen as having, in some way, wronged the country issuing the Letter short of war. Treaties could be negotiated between Nation-States forbidding a country signatory to the Treaty from accepting such Letters of Marque and Reprisal from a third Nation-State with which either of the parties to said Treaty happened to be at war (the United States itself made such Treaties during the early 19th Century with most of the newly-independent republics of Latin America and the Caribbean, such provisions- at least in part- making possible the potential enforcement of the famous "Monroe Doctrine" opposed to interference in the Western Hemisphere by the so-called 'Great Powers' of Europe).

The Declaration at Paris in 1856 (officially, the first Convention on the International Law of Sea War) made Marque and Reprisal itself an offense against the Law of Nations. The United States of America was not a signatory to this original Convention (which was part of the negotiations [known as the Congress of Paris] which led to the Treaty that ended the Crimean War, in which the USofA had not been a belligerent) but- as the United States has been a signatory to a number of later Conventions covering this very topic, and in which it is assumed that the 1856 Paris Convention remains in force, the illegality of Marque and Reprisal is now (for the very reasons restated in the 9 February Commentary to which the writer of this 'vox' has referred) generally considered to be "the Supreme Law of the Land" as regards the United States, despite the provisions of clause 11 of Article I, section 8 permitting such Letters.]

I hope people will read The Art of War by Sun Tzu, as translated by Samuel B. Griffith as well as the Second Revised Edition of Strategy by B.H. Liddell Hart which discusses military history.

Kenneth Scot Stremsky
Manchester, New Hampshire
former candidate for the 2002 Republican nomination for the United States Senate from New Hampshire
kstremsky1 at yahoo dot com

Mr. Berg-Andersson of 'The Green Papers' responds:

Thank you, Mr. Stremsky, for your appreciation of my most recent Commentary.

Now, as to the main thrust of Mr. Stremsky's 'vox Populi'- the subject in question being the military powers of Congress as over against the position of the President of the United States as Commander in Chief of the Armed Forces: I wrote at length about this relationship in a Commentary dated 13 September 2002 in which I discussed, at some length, the origin of the concept of a Commander in Chief who had the authority to "make war" as opposed to a checking Congress retaining the power to "declare war" in terms of the delegates to the 1787 Constitutional Convention in Philadelphia struggling with how best to have the two work together in actual time of war.

In that piece, I noted- as I attempted to, as simply as was practicable, outline the main line of the Convention's evolving thought process- that the original idea seems to have been (here quoting myself) that:

the American National Executive would not ever have to give up his... 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... authority as Commander in Chief solely under Congressional direction).

I described this particular application of what was the historical basis of this notion (the English Crown as Commander in Chief, which seems to have strongly influenced, if largely in the negative, the Convention as it first considered the issue of War Powers) in the following terms:

Even those plans making the Executive Commander in Chief... 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...

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 [as the Convention proceeded apace]... [b]ut a consensus was beginning to evolve [as the Convention went on]... that the Executive-as-Commander in Chief had to be allowed no little discretion in wartime... 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!])

Ultimately, the Convention- of course- agreed to the language now found in Article One, Section Eight, clause 11 (as quoted by Mr. Stremsky himself in his 'vox Populi' above)- giving Congress alone power "[t]o declare war"- again, quoting my Commentary regarding this power:

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... [that is:] 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.

Mr. Stremsky's points in this regard are, to be sure, well taken- but the what amounts to "micromanagement" of a President's military decisions by Congress that would likely result were Mr. Stremsky's interpretation of Article I, Section 8's clause 14 (an interpretation re: which he emphatically states that "[t]his gives Congress the ability to keep more troops from going where Congress does not want them to go and it also gives Congress the ability to recall troops. The President of the United States of America does not have the power to disregard these decisions") adhered to might, in my opinion, only serve to make the giving and carrying out of orders from the very top of, and then throughout, the military Chain of Command- even where the movement of troops so ordered were reactive (that is, in response to a sudden attack either on the United States itself or against U.S. interests abroad)- rather problematic.

In my 13 September 2002 piece, I noted- for example- how, during the debate in the Constitutional Convention,

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... But Pierce Butler argued that the Senate, as a legislative body itself, would have much the same "slowness" problem the House would have.

Thus, even the Framers themselves easily saw the problems I myself now see in Mr. Stremsky's postion as regards clause 14.

Granted that the eventual position on War Powers taken by the Philadelphia Convention is not without its problems (problems with which we Americans are today now wrestling, as we debate the war in Iraq in particular and, perhaps, the whole War on Terror- at home, as well as abroad- in general), but it seems clear to me that- upon a careful reading of the Legislative History of (that is, the various and sundry proposals and counterproposals presented regarding) the Federal War Power- the Convention moved at least somewhat away from its original concept of a President-as-Commander in Chief who could not do that which Congress had not specifically directed to one where the President would- rightly or wrongly- have quite a bit of leeway once Congress had determined that a state of war did, indeed, exist.

Mr. Stremsky's other views on related matters are much more agreeable to me, however, where they are not also rather intriguing!

For instance, his position regarding clauses 15 and 16, which deal with the relationship of the State Militia to the Federal Government- especially that in relation to clause 15 (in which he argues that this clause specifically prevents units of the National Guard [and other citizens' militia which may legally exist in a given State of the Union] from serving overseas) is well worth noting- for it does appear that the very purposes outlined in said clause for allowing the "Federalizing" of State militia cum National Guard all deal only with homeland security-related issues (after all, "execut[ing] the Laws of the Union, suppress[ing] insurrections and repel[ling] invasions" are all things done here, not "over there"!)

Mr. Stremsky also outlines a rather good argument against the claim of the current Administration as regards the treatment of terrorists and other "enemy combatants" now held as "detainees" rather than as Prisoners of War. I myself touched on this subject in a Commentary dated 2 June 2004 in relation to the Jose Padilla case as well as in a Commentary dated 26 January 2006 about the Bush Administration's "warrantless wiretaps". Since I quoted extensively from myself in this response re: Federal War Powers, I won't bore the reader with even more such self-quoted verbiage here (the interested reader can always click the links provided in this very paragraph, if so desired).

I will actually go even further than Mr. Stremsky here, however, and point out the following---

Article III, section 2 of the United States Constitution opens with the following words:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.

(this, by the way, bolstering my own argument regarding Treaties being as much the Supreme Law of the Land as the Constitution itself made in my Commentary dated 11 October 2002 and which I reiterated in the 9 February 2007 Commentary for which Mr. Stremsky himself thanked me at the beginning of the 'vox Populi' to which I am now responding: for the language in Article III, section 2 mirrors the very language of Article VI, clause 2 of the fundamental Document).

Notice that it says the Federal courts' power "shall extend to all Cases"- not just some cases!- "... arising under... Treaties made, or which shall be made" under the authority of the United States. This means that the interpretation of, for example, the Hague Conventions and the Geneva Conventions- to which the United States of America is a signatory- are not subject solely, nor merely, to the whims of a President as Commander in Chief but are subject to the interpretation, and application of said interpretation to the enforcement, of such a Treaty by a Federal court (so long as a live case or controversy be brought before that court involving legal issues to which said Treaty is germane).

Therefore, not only does Congress act as a check on what the President can do as Commander in Chief- as Mr. Stremsky himself points out (despite whatever disagreement he and I might have- the one I pointed out earlier in this very response- over the efficacy of his interpretation of clause 14 of Article I, Section 8), but the Federal Judiciary might also act as a check in this arena.

Yet we, nowadays, constantly hear the shrill claims of various and sundry Bush Administration apologists about how such checks would unconscionably, where not also unconstitutionally, "hamstring Our Commander in Chief in Wartime" (the implication being that the President would be most unable to effectively fight the War on Terror were we to pay "too" much attention to such constitutional niceties as these ["the Constitution- that pesky thing!" ;-)]).

All such nonsense!

First of all- and let's be most clear here: the President of the United States is not "Our Commander in Chief", for he is- most assuredly- not my Commander in Chief!

A President is, yes, the constitutional "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" per the Constitution's Article II, section 2. Even if you don't happen to agree with Mr. Stremsky's position as regards, for example, the President not being able to constitutionally send Militia/National Guard units overseas (on grounds that the specifically stated purposes for "Federalizing" State Militia in clause 15 of Article I, Section 8 make the very power to so "federalize" self-limiting), this does not at all change the fact that a President has absolutely no Command over me...

for I am a civilian: thus, I am not at all part of the military Chain of Command which the President, as Commander in Chief, heads. Even if you assume that I, as a citizen of the United States and of the State wherein I reside (to borrow the language of Section 1 of the Federal Constitution's 14th Amendment), are- nevertheless- part of a broader "citizens' militia" of my State (in my case, New Jersey) on the theory that a State Militia includes more than just the National Guard (a theory, by the way, which appears to have even been embraced by the very language of the Congressional statutes known as the National Guard Acts themselves), I have not- to my current knowledge- yet, nor ever, been "called into the actual service of the United States".

thus, the President- as I've said- is not my Commander in Chief, though, as a U.S. citizen, I most fully recognize his position as constitutional Commander in Chief of Our Nation's Armed Forces.

In addition, are we now really "in Wartime"?

At the end of my 8 September 2002 Commentary, written a good more than half a year before the invasion of Iraq had even commenced, I made what I subtitled 'The Case for the need for a formal Declaration of War' and I closed my "case"- as well as the Commentary itself- by writing therein that, for the Administration

to treat an attack on Iraq as if it would be an overt moral equivalent of a covert operation not only threatens to undermine Constitutional checks and balances, and at the very time when these very checks and balances- vertical as well as horizontal- are potentially stressed by the newfound requirements of Homeland Security, it is also- and in the main- nothing short of pure Politics and well short of necessary Statesmanship. It is merely the philosophy of the "elected King"- largely (but not, by any means, at all exclusively) the bailiwick of the President's Republican Party (and, yes, there are a minority of Republicans who do not so subscribe)- raising its ugly head at a time when we the more need an "elected Leader". I fear, however, that minds have already been made up in the White House (which will only serve to make minds up in Congress as well as within the general public) and that there will be no formal Declaration of War; thus, I am afraid, we will end up making our own job- as we continue to pursue this War Against International Terrorism, as we have to- so much the harder.

This is what- indeed- has happened: there was no Declaration of War against Iraq and we, in fact, have now made our own job pursuing the larger War Against International Terrorism harder (though, to be fair, the Administration having had such a Declaration in hand would not have made the situation on the ground in Iraq- or, for that matter, Afghanistan [of which we hear comparatively little yet there is no little intimation as regards the Taliban well thwarting our efforts to help rebuild that country no less than the insurgents in Iraq are doing so]- any different than it currently is right now), where we have not also further undermined basic Rights and Liberties here at home, for the defense of which, presumably, Our Armed Forces are always (regardless of the general, overarching causus belli or specific military objective of moment) fighting .

But no Declaration of War also means that the United States of America is not, at this moment, in general Wartime here at home (take that!- all of you who so regularly e-mail me accusing me of Sedition [if not also outright Treason] in response to many of the Commentaries of mine I have cited in this very response).

I am old enough to so well remember the America of the Vietnam War era, in which I grew up, as well as old enough to have a mother who would talk to me often about her own memories of happenings (including rationing of commodities, scrap metal drives and the like) on the Home Front while raged the World War II during which she grew up: the difference between the two periods was altogether clear to me, even as a child, and I can now say, with utmost confidence, that the current period here in the Homeland is far more like that in which *I* came of age than that in which my Mom grew up.

Put simply: this is hardly general Wartime!

So-- the President is not the Commander in Chief of everybody outside the military; his powers as Commander in Chief of the military itself are limited, as well as checked by both Congress and the Federal Judiciary; and Mr. Stremsky's comments in his 'vox Populi' above are, indeed, to be well taken, where not also heeded.

Going back to my 13 September 2002 Commentary, I noted therein that, at one point during the Constitutional Convention's consideration of War Powers, Pierce Butler (the very same man who argued that either house of Congress would act much too slowly as regarded exercising the power to "make war")

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

but that Elbridge Gerry retorted by emphatically declaring

that he "never expected to hear in a Republic a motion to empower the Executive alone to declare war"

we Americans of the early 21st Century should well hear the stern warning inherent in Gerry's long-ago comment!


Vox Populi Home