The United States of America is in a constitutional crisis. Will Congress regain the sole authority to initiate war as specified by the Constitution, or will the executive branch continue to assume that right for itself?
At issue is the war in Libya. The 1973 War Powers Resolution (WPR) gave President Obama 60 days in which to obtain a congressional authorization for his action in Libya. The deadline was May 20. At this writing, the war remains unauthorized. Therefore, it is unconstitutional.
Some reporters and commentators have said that on May 20, the president "requested" or even "urged" authorization, but I find no evidence of that. On the final day of the grace period, Mr. Obama sent to the congressional leadership a letter that discussed the hostilities and concluded, "I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution. I appreciate the support of the Congress in this action." The letter neither requested an authorization, nor recognized the need for one. It treated the Congress as merely a source of help. This has been typical of recent presidents.
Also on May 20, Mr. Obama reportedly told House Speaker John A. Boehner, Ohio Republican, that he would "support" a resolution drafted by the Senate. Again, this put Congress in a role of providing assistance. Rep. Dennis J. Kucinich, Ohio Democrat, proposed a resolution on Friday ordering an end to our hostilities in Libya, which the House defeated, 265-148.
In its struggle to retain exclusive authority to make war, Congress is handicapped by a pervasive belief, fostered by the State Department, that the WPR is unconstitutional. In support of that position, the State Department has published lists of events which, it claims, are presidential war-making precedents going back to the early days of the republic. This contentionis false. Early presidents knew that the writers of the Constitution strongly opposed giving the war power to any individual person. History from Pericles to Napoleon had shown that individual rulers were liable to start wars for no good reason and then demand support as everybody's patriotic duty.
Our second president, John Adams, not only acknowledged Congress' right to "declare" war as stated in the Constitution, but assumed that the Congress' authority included undeclared war. In 1798, Adams obtained from Congress an authorization to attack French privateers off the Atlantic coast. Later in the same year, Congress authorized attack on French privateers wherever they might be found. The resulting 1798-1800 undeclared naval conflict historians call the "Quasi-War."
Yet in 1966, the State Department listed the Quasi-War as not having been authorized by the legislative branch, according to a memorandum of March 4 sent to the Foreign Relations Committee and published in the Department of State Bulletin of March 28.
In 1801 and 1802, Congress authorized President Thomas Jefferson to attack the Barbary pirates. The alternative was to pay tribute to the pasha of Tripoli.
In 1806, according to the State Department, the U.S. Navy repelled French and Spanish privateers without congressional permission. However, the department's source of information was Dudley Knox's "A History of the U.S. Navy," and it says that the "privateers" actually were ordinary pirates falsely showing the flags of France and Spain.
In 1812, at the request of President James Madison, Congress declared war on Great Britain. Madison was the last president to have attended the Constitutional Convention of 1787.
Egregiously, the State Department has cited Commodore T.A.C. Jones' 1842 landing in Mexico as a significant military action. The commodore landed in error, thinking war had begun. Discovering peace, he withdrew.
Major constitutional confusion began in the 20th century. In 1900, President William McKinley dispatched 5,000 troops to China to protect foreign legations during the Boxer Rebellion. This had to be done quickly, the action was popular and the conflict lasted only few months. In order to keep the record straight, it would have been well for McKinley to seek authorization, but he did not. President Woodrow Wilson understood the Founders' intent. Wilson was waiting for a congressional authorization to land troops in Mexico during a civil war there, when an impending delivery of arms suddenly required occupying the port of Vera Cruz.
Needless to say, Congress declared American participation in World War I and World War II.
In 1950, President Harry S. Truman violated the Constitution in a big way. He sent troops to protect South Korea from North Korea and never did obtain a congressional authorization. Truman said the intervention was a "police action" directed against "bandits." This unauthorized and undeclared war, soon to involve China, generated a great deal of complaint as it dragged on for three years.
Remembering Truman's bitter experience with Korea, President Lyndon Johnson obtained the Tonkin Gulf Resolution (correctly the Southeast Asia Resolution) as he planned formal entry into the Vietnam War. But Johnson did not make his purpose clear. Most legislators thought the president merely wanted backup for having ordered air strikes in response to North Vietnamese attacks on American warships. (There actually was one attack. The second incident, occurring at night, was an electronic illusion.)
Since the passage of the WPR in 1973, no president initiating military action has explicitly acknowledged a need for congressional approval. President George W. Bush came the closest. In advance of invading Iraq, he requested a congressional resolution in 2002. Then, however, he said that his signing the law "does not constitute any change in the long-standing positions of the executive branch on either the president's constitutional authority to use force to deter, prevent or respond to aggression or other threats to U.S. interests or on the constitutionality of the War Powers Resolution."
How can Congress win back its control of the war power?
Impeachment comes to mind. Vice President Joseph R. Biden, when he was chairman of the Senate Foreign Relations Committee, warned President George W. Bush that if Iran were invaded, he would "make it my business to impeach him." Mr. Biden claimed that he had the backing of five constitutional scholars. (A point of clarification: The House issues impeachments, which are like indictments. The Senate holds the trial.)
The courts have refused to take up the WPR controversy. Perhaps the judges have been brainwashed by the State Department and its lists.
Congress could cut off funds for the Libyan action. Even if temporary, this would hurt the war effort and be denounced as unpatriotic. But reasserting the legislative branch's constitutional authority might be more important than whatever we are doing in Libya.
Obviously, some kind of drastic action - far more than a House resolution - will be needed if the WPR ever is to put a check on executive war-making.
Eugene G. Windchy worked for the U.S. Information Agency and is author of "Tonkin Gulf" (Doubleday, 1971).
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