Mar 17, 2008
"Conservative or liberal, we are all constitutionalists" - Barack Obama, The Audacity of Hope
It's like a perfect storm. A "unitary executive" jet stream swirls over the nation's capitol. There's hailstorm 24/7 news coverage of presidential politics. Add to the mix the 5th anniversary of the fog of war in Iraq and we're talking near-zero visibility.
For us fair-weather fans, we can take some solace in the irony that the present fog happens to coincide with Sunshine Week - a time the Fourth Estate devotes to shining a light on the Constitution.
Let there be light - even if it's just a sliver of sunshine to chase away the shadows cast over the Constitution - the explicit source of authority to "declare war, ...raise and support Armies," as well as the implicit power of overseeing military matters.
These are powers that America's constitutional authors saw fit to invest in Congress; not the President (see Article I, Section 8).
And that's why the first ever U.S. Congressional investigative committee was established to probe the 1792 military engagement against this continent's indigenous people in the "Northwest Territory." U.S. forces were under the command of General Arthur St. Clair and Congress wanted to know how the hell a bunch of "backward" Indians managed to wipe out half the General's army.
Charles Stevenson, a former longtime professor at the National War College and now with the Nitze School of Advanced International Studies at John Hopkins University, tells us that for the next century or so about half of all Congressional investigations were related to military activities. But in the second half of the 20th century, only about 10 percent of all congressional hearings involved defense or foreign policy issues.
As a former longtime professor at the National War College, Stevenson's scholarship provides useful reference material, noting that "despite widespread views that the standard - and preferred - practice is for Congress to go on vacation once a war starts, leaving all key decisions to the President and his commanders, there are ample precedents showing vigorous congressional involvement in the management and oversight of major military operations. Sometimes that involvement has been disruptive or even harmful, but often it has been constructive."
The origins of this Constitutional debate can be traced to August 17, 1787 when the Committee on Detail took up the power to "make war." The point was made that Congress would act too slowly, but James Madison's argument won the day when he suggested changing "make war" to "declare war," which would give the President "the power to repel sudden attacks" without violating the spirit of checks and balances.
And so the argument goes: supporters of broad Congressional war powers cite Madison, while unitary-executive-types call on Alexander "Strong President" Hamilton., though putting war power in the hands of Congress wasn't the real flashpoint of the early debate. Standing armies was the issue; so much so that prominent patriots like Patrick Henry and James Monroe refused to sign the new Constitution because of their opposition to standing armies.
In fact, the standing army beef is what gave birth to the Third Amendment, prohibiting soldiers from being "quartered in any house, without the consent of the owner."
Interesting to note: Congress has only declared war in five conflicts but has authorized military action on 15 occasions, using a variety of language with varying degrees of specificity (not including the various military engagements that occurred without formal Congressional approval).
Even more interesting: since World War II, not a single military action has been authorized by Congress using the "declare war" phrase. Wars after World War II have been pursued through other use-of-force authorizations.
That includes authorizations for military force in both Iraq wars - the difference being that the 1991 war had UN Security Council backing before hostilities began. The other big difference is that Poppy Bush's Iraq War was 80 percent funded by other nations. Iraq War II has been financed with borrowed money because of W's stubborn commitment to tax cuts for the wealthy.
Congressional power to end military engagements? There's Nicaragua 1932. Somalia 1994. Haiti 1995. Oh wait, I skipped Algeria 1815, when Congress refused to give the President an I-declare-war card.
The most far-reaching Congressional war power on the books is the 1973 War Powers Resolution, enacted with an override of President Nixon's veto. That law, among other provisions, requires the President to consult with Congress before committing troops to hostile action.
"The bottom line," to go back to Stevenson, "is that Congress need not sit on the sidelines as wars approach or are fought. The precedents...provide an ample menu of options, if lawmakers are willing to make the judgments and take the risks and opportunities available."
After five years of war in Iraq, the fog has clouded the Constitution. Of course, even in the sunlight, there are those who will cling to the foggy notion that the President is the be-all and end-all when it comes to military matters. But, in the sunlight, such reasoning can be seen on the wrong side of the Constitution and without historical precedent.
Sean Gonsalves is a syndicated columnist and assistant news editor with the Cape Cod Times. He can be reached at firstname.lastname@example.org
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