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The power to ‘declare’ war

Charles Rice | Wednesday, October 6, 2004

“I faced the kind of decision that comes only to the Oval Office,” said President Bush. “Do I forget the lessons of September 11th … or do I take action to defend our country? Faced with that choice, I will defend America every time.”

Campaign rhetoric on both sides implies that the decision for war or peace belongs to one man – the President. The framers of the Constitution saw it differently. On August 17, 1787, they debated whether to give Congress the power to “make war.” James Madison and Elbridge Gerry successfully “moved to insert ‘declare,’ striking out ‘make’ war; leaving to the Executive the power to repel sudden attacks.” Roger Sherman said, “The Executive [should] be able to repel and not to commence war.” They left what Justice Robert Jackson called “a zone of twilight,” with concurrent powers in the President and Congress. The balance is hard to strike.

The War Powers Resolution of 1973, for example, imposed probably unconstitutional time limits on the President’s use of force. Presidents have put forces into combat more than 200 times. Congress has declared war only five times. The last time Congress debated and decided whether to go to war was in 1917.

The President takes an oath to “preserve, protect and defend” the Constitution, while other officers swear only to “support” it. Presidents usually seek Congressional approval before major military action. But no President has admitted that he must do so.

President Clinton bombed Serbia despite the refusal of the House to authorize it. In the Gulf War, the Afghanistan campaign and the Iraq War, Congress gave a blank check to the President. In 2002, Congress authorized him to use the armed forces “as he determines to be necessary and appropriate … to defend … the United States against the … threat posed by Iraq.” The Resolution of September 18, 2001, understandably did not even identify the enemy. It authorized the President “to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or ordered the … attacks … on September 11, 2001, or harbored such organizations or persons.”

In the ongoing war against what the 9/11 Commission called “Islamist terrorism,” who will decide, for example, whether to use force to prevent Iran from achieving nuclear capability? The citizen, lacking information, must give a benefit of the doubt to the justice and wisdom of a decision to use force, whether made by Congress or the President or both. Congress, however, has a duty to inform itself and to participate in, or perhaps control, decisions to initiate a major use of force.

The President needs flexibility to fulfill his duty of defense. But if Congress continues its habit of authorizing the President to use force as he thinks it “necessary and appropriate,” Congress may find itself reduced to a merely advisory and funding role. Can there be a situation today in which Congress must go beyond authorization and must itself decide whether to use military force? Was House Speaker Thomas Foley right when he said the Gulf War resolution had “the moral legal, constitutional, practical consequences of a declaration of war”? Maybe the best we can do is the current pattern of ad hoc cooperation. But the issue compels attention in light of the current expansive concept of defense.

“The wisest use of American strength,” said President Bush, “is to advance freedom.” He sees the liberation of Iraq as “a watershed event in the global democratic revolution.” He views “our commitment to the global expansion of democracy” and specifically our helping Iraq to build a “democratic country in the heart of the Middle East” as a way to “defend our people from danger.” To prevent “rogue states” from acquiring weapons of mass destruction, he pledges, “we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively.”

This new doctrine of seeking security by advancing a “global democratic revolution” and by preemptive military action to prevent presidentially defined “rogue states” from getting WMDs is a presidential creation. And it is light years removed from the framers’ quaint idea of “leaving to the Executive the power to repel sudden attacks.”

These remarks are not intended to focus criticism on President Bush, for whom I will vote. And Senator Kerry’s multiple positions are no less dubious. The point is that, whoever is elected, it ought to be agreed that the decision to initiate major conflict, including separate phases of the “war on terror,” must involve seriously the elected representatives of the people who will fight that war. Elbridge Gerry was from Massachusetts. But he still got it right when he said he “never expected to hear in a republic a motion to empower the Executive alone to declare war.”

Prof. Emeritus Rice is on the Law School Faculty. His column appears every other Thursday. He can be contacted at Plawecki.1@nd.edu.

The views expressed in this column are those of the author and not necessarily those of The Observer.