- The Washington Times - Tuesday, March 18, 2008


The fate of the United States pivots on H.J. Res. 53, a resolution sponsored by Rep. Walter Jones, North Carolina Republican. The legislation would check the president’s current uncircumscribed power to initiate war by requiring explicit congressional authorization both to commence and to continue military hostilities; and, by making criminal any expenditure of funds in support of congressionally unauthorized wars.

Even if H.J. Res. 53 is enacted a large question mark will remain. Will Congress exert an independent judgment in matters of war and peace; or, will it follow the president like a flock of sheep? At present, members are too ignorant of history and too eager to shun responsibility to challenge the president with courage and resolve. Would Congress oppose a request by President George W. Bush to attack Iran because he believes with “slam dunk” certainty that the mullahs possess nuclear weapons? A law is no substitute for character.

Executive-initiated wars have proven the ruination of republican forms of government featuring checks and balances since the beginning of time. James Madison, father of the Constitution, explained that war was “the true nurse of executive aggrandizement.” It multiples the honors and emoluments of the executive office, and fosters secret government free from political and legal scrutiny. Its further political attraction is immediate enthusiasm from a myopic public. Remember the carefree or smiling British soldiers in August 1914 marching off to die in trenches over inches of turf in the Battle of the Somme. Madison continued: “The strongest passions and most dangerous weakness of the human breast; ambition, avarice, vanity, the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace.” Thus, the Constitution “supposes, what the History of all Govts demonstrate, that the Ex. is the branch of power most interested in war & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl.”

The Constitution’s distribution of war powers has been abandoned both in letter and in spirit since the United States became a global power. The president typically decides, and Congress customarily either follows or quibbles. President Harry Truman dispatched troops to fight in Korea in a so-called “police action” without congressional authorization. Congress rubber-stamped the ill-starred Gulf of Tonkin Resolution based on false intelligence provided by President Lyndon B. Johnson. The Vietnam War debacle ensued. President William Jefferson Clinton unilaterally waged an air war against Serbia. Out of political courtesy, President George W. Bush asked and received congressional approval for warring against Afghanistan, Iraq and global terrorism facilitated by lies concerning weapons of mass destruction and Saddam Hussein’s ties to al Qaeda.

The current presidential campaign underscores the intellectual revolution in war powers thinking that has transpired since World War II. The candidates field questions about their plans for the wars in Iraq or Afghanistan. They are asked whether they might initiate war against Iran over nuclear weapons. Every questioner assumes that issues of war and peace are entrusted to the president to the exclusion of Congress. Compare the remarks of Founding Father and later Supreme Court Justice James Wilson to the Pennsylvania convention elected to ratify the Constitution: “[It] will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”

That the constitutionally ordained war powers of Congress have been usurped by the president with congressional and public acceptance is alarming for twofold reasons: First, the rule of law requires that claimed constitutional defects be cured by constitutional amendments, not by fiat; second, presidents are inclined to contrive excuses for war to achieve fame and run roughshod over constitutional limitations at the expense of American taxpayers and courageous American soldiers.

President Bush is exemplary. He has engulfed the nation in trillion-dollar conflicts in Iraq and Afghanistan with no end in sight. His war against international terrorism is permanent. There will never come a time when the international terrorist risk will plunge to zero, the political benchmark for renouncing emergency war powers. And he is flirting with an attack on Iran’s nuclear facilities, which would boost the political fortunes of Iran’s popularly detested mullahs. He insists that spending stupendous sums on warring all over the planet and sacrificing American lives is necessary to prevent a caliphate in the United States established by al Qaeda fanatics. He should listen to Col. Scott McBride of the First Brigade Combat Team of the 101st Airborne Division in Salahuddin, Iraq, as reported in the New York Times: “I don’t know that I’ve ever heard one [insurgent] say, ‘I believe in a caliphate.’”

If H.J. Res. 53 is not enacted, the United States will follow the trajectory of every empire into executive despotism, perpetual war and a bankrupt treasury. A successor to author Edward Gibbon will be born to repeat: “History is little more than a register of the crimes, follies and misfortunes of mankind.”

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda.

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