Comments for The Power to Make War Part I

The Power to Make War Part I

2008-07-09T07:18:18Z

A country has refused to accept the neutrality of the United States in its ongoing conflict. It is attacking United States' merchant ships. It is sinking ships and taking prisoners. This country has closed ports to US shipping. This country's navy has actually followed and attacked US ships in US waters. They believe that, in fact, the US is supporting their enemies by continuing to trade or carry cargo for their declared enemy.

The president wishes to avoid war and has made several attempts to find accommodations with the government of that country. However, based on continuing acts of aggression and a refusal to meet with a delegation from the United States, force the president to conclude that US interests are in danger and that they should be protected. The President orders US Navy forces to protect US shipping.

Members of Congress are insisting that the US avoid war with this country. The US should avoid foreign entanglements, particularly in the continuing wars of Europe. Further, there is some sympathy for this nation and a desire for a potential alliance against an expanding threat. Members of Congress and other leading citizens have opened back channels, talking to official and unofficial representatives of that country. They assure them that the US has no interest in going to war and shares their interest in countering their enemy.

These members of Congress work openly and covertly to counter any moves that might precipitate war. They attempt to influence the US population through opinion pieces in newspapers. They accuse the president of being a warmonger. They believe he has already decided to go to war and that his orders to call up the army, expand the navy and even to protect US shipping with armed force is escalating a misunderstanding to war.

Others in congress believe that all of the acts of the offending nation are, indeed, acts of war and that the United States should declare war. They believe that every minute lost is another minute that US interests and possibly survival is threatened. They are vocal in congress and in the media demanding war and accusing the president of being weak and indecisive for not declaring war in the face of such aggression.

The president believes that there is something fundamentally wrong with the opposing nation's government. It has already committed atrocious acts on its own citizens and others. News of these acts are slow in reaching the United States and are, at first, considered rumors or exaggerations. The president believes that the future of the United States lies with trading and alliance with the other country. Still, he continues to try to reach an agreement with the offending country while building defense forces.

The US citizenry is torn between the two opposing ideas: a strong US defending its interest declaring war and staying neutral, isolating the US from the continuous, destructive wars of Europe. Some citizens actually join organizations that support and reflect the ideas of the opposing nation's government. This includes wearing the recognized symbol of the government, hanging the flag, singing songs and organized meetings that sometimes includes representatives of that country speaking about their ideas and hoping to gain support.

The president is withholding information that could turn the course of the nation. He hopes to hold that information as long as possible until his own efforts have come to one conclusion or another. He suspects that some members of his administration may have sympathy with the opposing Congressional party's views and may be acting to provide information or actively block his efforts.

In fact, news of the information he is holding is leaked to Congress, though they do not know its exact contents. Congress begins to demand that the information be released immediately. They believe that this information will exonerate their views and that the president is only withholding the information in order to secure his position and demand a declaration of war.

Congress demands that the President appear before congress and make a full report and explanation of his actions. The president ignores the demands and continues to hold his own counsel. Some in Congress talk about impeaching the president.

It is 1798.

John Adams is the second president of the United States and the first faced with potential war with another nation, under the laws of the Constitution, since the close of the Revolutionary War. His opponents in Congress are led by his Vice President, President of the Senate, Thomas Jefferson.

France, under the revolutionary "Directorate", believes that the US signing of the Jay Treaty, for mutual commerce, in 1794 effectively ends the US treaty with France of 1778 and makes the US an ally of Britain. Jefferson, a long time admirer of the French and a believer in the idea of perpetual revolutions. Even in the face of information that the "revolution" has turned to a "reign of terror", Jefferson insists that France should be the natural ally of the US.

The US is in an "unofficial war" with France. Also known as the Quasi War. The information that Adams withholds from Congress is a coded communique from the three envoys concerning the "X,Y, Z Affair". Adams withholds the information believing that it will inflame the public to demand war. He also believes that the US, without a strong navy, is vulnerable if a full war is declared. However, congress repeatedly demands the release of the information. Adams' expectations are realized as the general public turns decidedly sour against the French and demands war.

The release also forces the Democratic-Republicans, led by Jefferson, to back down and finally authorize money for a strong navy and call up of troops. Congress performs its first act to "authorize the use of force" without a formal declaration of war by officially authorizing an aggressive campaign against French Naval forces and shipping instead of defensive actions.

Another first occurs when a private citizen, a quaker, takes it upon himself to travel to France and attempt to negotiate peace. This inspires the "Logan Act" which makes it illegal for any citizen, besides the recognized and duly authorized government representatives, to actively treat or negotiate with any other country on behalf of the United States.

It also set the stage for another long argued precedent, particularly in the time of war: the Alien and Sedition Acts.

It also sets the tone and over-arching precedent of the tension between the President of the United States and Congress for the declaration of war. Originally created by the founders to insure that neither the president act precipitously nor congress dither so long the Republic is lost. Every war, since that time, has been contentious and partisan with very few exceptions where Congress was never unanimously in support of war, even if they voted for it. Where the president has attempted to use his powers as Commander in Chief to send the military somewhere to do something without actually declaring war and sometimes without consulting congress for one reason or the other.

In that imperfect tension was born the Korean Conflict, the Vietnam War and now the Second Gulf War (though history has yet to settle on the name) and the 1973 War Powers Act that attempted to resolve these tensions in favor of Congress in order to "put the war powers back where they belong".

Now, the War Powers Commission wants to do just that by putting together a new, improved War Powers Consultation Act of 2009 that would eliminate the 1973 act. The questions that came to mind were: where does the power to make war belong?

Comment from Yu-Ain Gonnano on 2008-07-10

2008-07-10T14:07:04Z

Re: "Frakin" That's actually the spelling I was going for. I can't help it. I'm a geek.

Re: Grumpy and "Declaration of War".

11. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

Yep, I've read it three times now and I still don't see "11. To declare War (by drafting legislation with the title "Declaration of War"), grant Letters of Marque and Reprisal (by drafting legislation with the title "Letters of Marque and Reprisal"), and make Rules concerning Captures on Land and Water (by drafting legislation with the title "Rules concerning Captures on Land and Water")."

Maybe you have one of George Lucas' Special Edition Constitutions.

The real Constitution (the one where Han shot first) grants congress the power to do certain things. How it is to do them is left open ended.

Comment from fdcol63 on 2008-07-10

2008-07-10T13:22:26Z

All Americans used to think of America as "exceptional" and worthy of protection, and politics regarding foreign and defense matters used to stop "at the water's edge" when we were protected by our ocean barriers. In those days, we could reasonably expect a formal declaration of war from Congress when necessary. Alas, this is no longer the case.

Instead, one of the two major parties has, for the last 60 years, argued that America is not exceptional, that we're simply "just another country" and that we should focus on being "citizens of the world". Through their fellow travelers in academia, entertainment, and media, they've inculcated into our children the belief that the American military is not truly worthy of respect, and that all uses of armed force are morally equivalent and "bad", that European and other foreign diplomats are somehow inherently more "sophisticated" and "nuanced" and morally "superior" compared to their "ignorant" and "ugly American" cousins, and that we should look to international organizations like the UN for collective security rather than rely on our own "war-mongering" and "jingoistic" military steeped in evil, "nationalistic" and "fascistic" pride.

Because of this divide, I doubt we'll ever see another formal Congressional declaration of war, and unlike Grumpy, I don't believe that such a declaration by itself would "bring the whole Nation into the war" effort or sustain the national will to achieve victory. As we've seen post 9/11, even the horrors of that day was not enough to squash opposition to the war in Afghanistan or to sustain our national will in the current campaign against radical Islamists.

I don't think any POTUS should abrogate his responsibility to protect the American people by failing to act militarily when necessary because he or she could not secure a formal declaration of war through a divided and partisan Congress.

Comment from XBradTC on 2008-07-09

2008-07-10T02:10:14Z

As to the new and improved consultative war powers act, remember this:

A council of war is a council of defeat.

Comment from XBradTC on 2008-07-09

2008-07-10T02:03:14Z

The AUMF is a declaration of war, for all intents and purposes. And Congress, in its wisdom has continued to fund it. Don't like it? Write your congressman.

Comment from Cannoneer No. 4 on 2008-07-09

2008-07-10T01:12:27Z

I wish President Bush would go to Congress and ask for a formal, old-fashioned Declaration of War against Iran. Call 'em all back to Washington from the campaign trail. In his speech he could list all the atrocities they’ve commited against us since 1979. Beirut Marine Barracks, Khobar Towers, all the casus belli they've given us. Get a roll call vote.

He won’t get his Declaration of War, but We The People will know who to hang after the Iranian nuke goes off.

Comment from Grumpy on 2008-07-09

2008-07-09T23:00:58Z

Yu-Ain, you raised the issue of a requirement of the use of the term "Declaration of War".

Consider The U.S. Constitution, Article I, Section VIII- 1. The Congress shall have Power:
11. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

http://www.findlaw.com/casecode/constitution/

Comment from Grumpy on 2008-07-09

2008-07-09T22:36:57Z

Kat, as we consider the "Power to Make War", we need to consider many things. The first thing to consider is "The Constitution of the U.S.". Yes, we'll have many different views. In my view, if there was another 9/11, the President would have immediate command, but only within CONUS, in a defensive format only. Then, if the President desires to make an offensive move, I believe the Constitution requires a theatre specific Congressional Declaration of War. If the President decides to expand the war, he would be required to get another theatre specific Congressional Declaration of War.

Reason: This would bring the whole Nation into the war, not just the Military.

Comment from kat-missouri on 2008-07-09

2008-07-09T17:49:54Z

If it comes to a Constitutional fight, my guess is that the Supremes will declare 5/4 that , based on the shadow of a penumbra of a nuance contained in reading between the lines of Thomas Jefferson's Lost Letters to his imaginary friend, both powers actually reside with SCOTUS...

If you only knew. Apparently, the gentlemen at the War Powers Commission believe that SCOTUS has actually been remiss in not accepting the few cases that have come up. In fact, rejecting them as totally a political issue between the President, the Congress and Foreign Relations. I tend to think that, at least lately, that the Supreme Court may have taken a few too many steps in that direction with the recent GITMO rulings and that they should, indeed, keep their noses out of it.

I will leave the rest of my commentary for tomorrow's "part II".

Comment from steveegg on 2008-07-09

2008-07-09T16:53:10Z

Now that's what I call history. No wonder why it's no longer being taught.

Comment from BillT on 2008-07-09

2008-07-09T16:37:45Z

" frakin' " = " farkin' "

Comment from Yu-Ain Gonnano on 2008-07-09

2008-07-09T15:30:17Z

Damn, and I can't edit my typos. :-(

And there's even a frakin' spell check up there in the comment toolbar.

Comment from BillT on 2008-07-09

2008-07-09T14:03:40Z

Yu-Ain -- Couple of typos:

"foriegn gov't" = "foreign gov't" ... "no where" = "nowhere" ... "explilcitly" = "explicitly"

Serves you write four gettngi yuor comemnt in frist...

Comment from BillT on 2008-07-09

2008-07-09T13:54:55Z

A fine distinction you've cut, kat. The power to *declare* war rests with Congress, but the power to *make* it rests with the Commander-In-Chief -- POTUS.

If it comes to a Constitutional fight, my guess is that the Supremes will declare 5/4 that , based on the shadow of a penumbra of a nuance contained in reading between the lines of Thomas Jefferson's Lost Letters to his imaginary friend, both powers actually reside with SCOTUS...

Comment from Yu-Ain Gonnano on 2008-07-09

2008-07-09T13:53:52Z

Just a couple of typos:

France, under the revolutionary "Directorate", believes that the US signing of the Jay Treaty, for mutual commerce, in 1994 effectively ends the US treaty with France of 1778

I'm thinking that's supposed to be 1794.

It also sets the tone and over-arching precedent of the tension between the President of the United States President

Brought to you by the Department of Redundancy Department. :-)

Now to the question. Undoubtably, the power to make war rests with Congress, the power to execute that war is the CiC (POTUS).

The grey area is that the Constitution never specifies the "How" of declaring war or even what actions constitute a war.

Is lobbing a single cruise missile at a single convoy transporting Bin Laden a "War"? I hold that it isn't and thus can be authorized by the POTUS alone.

Is sending troops onto foreign soil to depose a foriegn gov't a "War"? You betcha! And congress has to approve it.

The question then becomes "How" the congress approves it. Some believe the legislation must be titled "Declaration of War" to be constitutional despite that no where in the Constitution is such a thing required. I hold that legislation saying to the effect "We're OK with sending troops onto foreign soil to depose a foriegn gov't" is, in fact, a declaration of war as it explilcitly approves the act of conducting a war.