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Making war difficult

By Bruce Fein
April 15, 2008

Since World War II, the congressional power to declare war or otherwise authorize the initiation of military hostilities has been hijacked by the executive branch.

Despite the original intent of the Founding Fathers, the prevailing custom is for the president to determine whether to move the nation from a state of peace to a state of war, i.e., to make intentional killings legal. In some cases, the president has acted unilaterally. President Harry Truman commenced war against North Korea in 1950 without obtaining congressional authorization. He relied on a United Nations resolution that had never been presented to Congress. When the treaty to ratify the United Nations Charter was before the Senate, however, Truman promised that, "When any such [U.N.] agreement or agreements [for military operations] are negotiated it will be my purpose to ask Congress for appropriate legislation to approve them."

In 1999, President William Jefferson Clinton initiated hostilities against Yugoslavia despite twin votes in the House of Representatives against declaring or authorizing war.

In other cases, the president has obtained sheeplike congressional acquiescence to requests to authorize war. The Gulf of Tonkin Resolution of 1964 concerning South Vietnam and the Joint Resolution of 2002 concerning Iraq are exemplary. Indeed, Congress agreed to place the nation on a permanent war footing in its 2001 Authorization to Use Military Force against international terrorism.

Generally speaking, Congress has been relegated to deciding whether ongoing hostilities precipitated by presidential action should be limited or ended by a curtailment of funding. Even that option may be more illusory than real. The president can veto prohibitions on expenditures for specified war purposes, for example, a denial of funds to expand the war in Iraq to Iran. Two-thirds majorities in both chambers are necessary to override a veto, whereas simple majorities can block an authorization to initiate or expand war.

In addition, the president may have stumbled into a military predicament with no attractive exit strategies. At present, that describes the quagmire in Iraq. An immediate or phased withdrawal of U.S. military forces would unleash a civil war there; boost the fortunes of arch-enemy Iran; and, jeopardize needed oil and gas supplies. Iraq may never be capable of defending its current political dispensation from domestic or foreign foes. The president has boxed Congress into supporting endless military stalemate in Iraq at the cost of American lives and staggering expenditures by seizing the war initiative.

Making war easy rather than hard to initiate by substituting unilateral presidential action in lieu of wary congressional deliberation has endangered checks and balances and cherished constitutional liberties while weakening rather than strengthening national security.

According to a recently declassified document, the Justice Department opined in 2001 that in the perpetual war against international terrorism, the military is unconstrained by the Fourth Amendment in arresting, searching or spying on U.S. citizens — a tyranny practiced by King George III that provoked the American Revolution.

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