THE PROGRESSIVE CONSERVATIVE, USA

An Online Journal of Political Commentary & Analysis

Volume II, Issue # 1, June 10-December 31, 1999

Dr. Almon Leroy Way, Jr., Editor

Page One

HOW AMERICA GOES TO WAR

THE PRESIDENT, AMERICAN LAW, & U.S. MILITARY
INTERVENTION INTO FOREIGN CONFLICTS

By

Almon Leroy Way, Jr.



A. THE WAR POWERS--PUBLIC DEBATE & CONTROVERSY

One impact the Kosovo crisis and the American-led NATO military intervention into the Yugoslav conflict has been revival of public debate and political controversy within the U.S.A. over the proper and legitimate exercise of the national government's war-making powers under the United States Constitution. As was the case in the late 1960s and early 1970s, during the period of direct, massive, and escalating U.S. military involvement in the Vietnam War, politically influential individuals and groups within American society are questioning the constitutionality of the nation's participation in an undeclared war abroad. During the 78-day period of NATO's air strikes in Yugoslavia, highly articulate voices began to be heard insisting that, in the absence of a congressional declaration of war or an overt foreign military attack on the territory or military forces of the U.S.A., a presidential decision to commit American troops to a foreign war is a violation of the United States Constitution. Antiwar voices, emanating mainly from the political Right (rather than from the political Left, as was the case during the Vietnam War), asserted that, since President William J. Clinton's involvement of the U.S. Armed Forces in the Kosovo crisis and the aerial bombing campaign over Yugoslavia is unconstitutional, Congress should oppose and block further implementation of Clinton's military policy in the region, making use of the War Powers Act of 1973 to compel the President to withdraw American military forces from the Balkans and bring the troops back home. At the same time they were urging congressional action along these lines, opponents of the President's military policy were also seeking to pursue in the U.S. Courts a constitutional challenge to the President's involvement of the U.S.A. in the Balkan war, hoping to get the case heard by the Supreme Court and obtain from it a clear and unambiguous ruling that presidential war-making in foreign regions without congressional authorization is unconstitutional and null and void.

Public controversy over the war powers of the national government and over which branch of government, legislature or executive, may legitimately (i.e., legally, or lawfully) exercise these powers is a recurring theme in American political and constitutional history. Committing American forces to military conflict abroad has always stimulated political and legal controversy over which governmental branch has the constitutional authority to make such a commitment. What are the reasons for this? One reason is that, in the arena of American partisan political rivalry, no governmental function is sacred and above the rough and tumble of partisan politics and, therefore, professional politicians have a very strong tendency to "play politics" in taking public positions on matters of national defense and security. A second reason, much more important and fundamental, is that, under the U.S. Constitution, both Congress and the President possess powers which can be construed as controlling the comitment of troops to armed conflict. The Constitution does not lodge the war powers in a single organ or branch of the national government; instead, its grants some of these powers to Congress and others to the President.


B. CONSTITUTIONAL ALLOCATION OF THE WAR POWERS>

Article I, Section 8, Clause 1, of the U.S. Constitution grants to Congress the power to "lay and collect Taxes" (and, by implication, appropriate money from the U.S. Treasury) in order to "provide for the Common Defense ... of the United States." In the same article and section, Clauses 11-16 and 18 delegate to Congress the following powers:

    "To declare War, grant letters of Marque and Reprisal, and
        make rules concerning Captures on Land and Water;"
        [Clause 11]
    "To raise and support Armies (including, by implication, an
        Air Force), but no Appropriation of Money to that Use
        Shall be for a longer period than two Years;"
        [Clause 12]
    "To provide and maintain a Navy;"
        [Clause 13]
    "To make rules for the Government and Regulation of the land
        and naval Forces;"
        [Clause 14]
    "To provide for calling forth the Militia to execute (i.e.,
        enforce) the Laws of the Union, suppress Insurrections
        and repel Invasions;"
        [Clause 15]
    "To provide for organizing, arming, and disciplining the
        Militia, and for governing such Part of them as may be
        employed in the Service of the United States, reserving
        to the States respectively, the Appointment of the Of-
        ficers, and the Authority of training the Militia ac-
        cording to the discipline prescribed by Congress;"
        [Clause 16]
    "To make all Laws which shall be necessary and proper for
        carrying into Execution the foregoing [war] powers [of
        Congress] ... and [those war powers] "vested by this
        Constitution in [the President] ...."
        [Clause 18]

Arguments for congressional control of commitment of the nation's military forces to foreign hostilities are based on the enumerated delegations of power to Congress contained in the foregoing clauses of Article I, Section.

Those who favor the President's control of America's military commitments abroad rest their case on Article II, Section 2, Clause 1, of the Constitution:

    "The President shall be Commander in Chief of the Army and
        Navy"--and, by implication, any other military forces
        (including the Air Force) "of the United States, and of
        the Militia of the several States, when called into the
        actual Service of the United States;"

C. THE ALLOCATION & THE INTENT OF THE FOUNDERS

In dividing the war-making powers between Congress and the President, the Framers of the U.S. Constitution sought to make the system of checks and balances they were creating applicable to governmental decisions of war and peace and to thereby impose limits on the authority of the national government to commit the country to foreign hostilities. It was the Framers intent that Congress would make the decision as to whether or not, in a given situation, the U.S.A. would go to war. Congress would make such a momentous decision through exercise of its powers to grant or withhold a war declaration proposed by the President and to appropriate or decline to appropriate funds for the purpose of raising, supporting, and maintaining the military forces necessary for successful prosecution of the war.

Once Congress had made the decision to go to war, having declared war and having authorized recruitment, support, maintenance, and mobilization of the necessary military forces, the President, as Commander in Chief, would have full authority and responsibility under the Constitution for successful prosecution of the war against the enemy power or powers officially designated as such by Congress in its declaration of war. In military strategy and operations, the President, as supreme commander of the U.S. Armed Forces and of the state militia (National Guard) units called into the national military service, would become dominant and remain so until the enemy had been defeated, its threat to the U.S.A. removed, and the war had come to an end.

The Framers' allocation of the war powers between Congress and the President was in accord with the philosophy that (1) a legislative assembly consisting of the people's elected representatives should decide, by majority vote, whether the country was to go to war against a foreign foe and (2) once the determination to go to war had been made by this representative assembly, the successful prosecution of the war required that a single high civil officer, preferably the nation's civilian chief executive, be in full command of the military forces. A large body of elected representatives should decide the question of going to war, but a single person had to be in complete charge of the actual waging of the war, if it was to be waged successfully.


D. THE FOUNDER'S INTENT & LATE TWENTIETH-CENTURY REALITY

In the late eighteenth century, the Framer' constitutional allocation of the war powers and the philosophical assumptions underlying the allocation were far more realistic than they are today, very close to the end of the twentieth century. At the time of the Federal Constitutional Convention of 1787, when the delegates to the Convention were considering the matter of allocating the central government's war powers, the U.S.A. was a geographically distant country, separated by a vast ocean from Europe and its frequent wars. It required weeks for the slow-moving sailing vessels of the late 1700s to transport military personnel, supplies, and equipment from Europe across the Atlantic Ocean to the North American continent. This gave Congress ample time, in the event of serious trouble between the U.S.A. and one or more European powers, to debate and deliberate on the issue of committing the country to all-out war with the European power(s). Once the two houses of Congress had passed the war declaration recommended by the President, had approved taxes and appropriations to fund the war effort and had provided for calling the state militias into the national service, there would be plenty of time for recruiting, organizing, and mobilizing the military forces that would engage the enemy.

Most of the delegates to the Constitutional Convention perceived the raising and support of armies as a governmental function to be performed on an occasional and temporary basis--a measure taken by the national government to deal with a temporary emergency, an emergency in the form of a threat to American sovereignty and independence created by the hostile actions of one or more foreign states. Once a peace treaty had been concluded and the foreign threat ended, Congress would provide for disbanding the armies and sending the troops back home and would sharply reduce military appropriations. With peace restored, the President's role as Commander in Chief would revert to its normal character--a role much smaller and less significant in time of peace than in time of war.

The overwhelming majority of the delegates to the Constitutional Convention did not forsee the formation and maintenance in the U.S.A., during peacetime as well as wartime, of permanent, large-scale military forces. Most Americans of the period were opposed to the very idea of such a military policy, seeing it as an unnecessary and unfair burden on the taxpayers and a great danger to civil liberties. Americans, like their British cousins, tended strongly to fear large standing armies, unwilling to pay the costs of their maintenance during peacetime and viewing them as potential instruments of arbitrary and tyrannical rule by the Chief Executive or by the military establishment, therefore constituting a serious threat to constitutional, representative government, the rule of law, and the rights and liberties of the individual citizen or subject under the Constitution. Such military forces were seen as an onerous and oppressive financial strain on the populace and an avenue to executive despotism or military dictatorship.

As American governmental institutions and their underlying political culture have evolved over the past two centuries, both executive tyranny and military dictatorship in the U.S.A., with or without large standing armies, have become very remote possibilities. The danger of tyrannical rule by the Chief Executive has been minimized by--

      (1)  The fundamental political values and beliefs of Ameri-
           cans--values and beliefs that are widely shared and
           strongly held by the people, by elites as well as the
           general populace;

      (2)  Meaningful elections held regularly and frequently;

      (3)  Operation of the constitutional system of separation
           of powers and checks and balances;

      (4)  A strong and independent bicameral national legisla-
           ture, the U.S. Congress;

      (5)  Operation of a system of courts based on the rule of
           law and largely independent of both the Chief Execu-
           tive and the Congress;

      (6)  The availability of the impeachment process to deal
           with the President or any other federal civil officer
           who violates the Constitution and/or other laws of the
           United States.

The danger of military dictatorship has been attenuated by civilian control and direction of the Armed Forces and by the military establishment's own basic norms--norms which dictate that military personnel (especially commissioned officers of high rank) not become actively and publicly involved in partisan politics while they are on active duty or subject to call to active duty. These norms are strictly enforced by application of very unpleasant sanctions against violators. A military officer making public statements about politically controversial matters and/or openly engaging in activities relating to such matters puts his military career (including opportunity for future advancement and choice assignments) in serious jeopardy. Even if he survives efforts of his superiors to demote him or drum him out of the service, his goose is cooked. He would be wise to seek early retirement.

While America's more than 200 years of political and cultural evolution has significantly weakened opposition to and strengthened support for large standing military forces in the U.S.A., the existence of such forces on a continuing basis have been made absolutely necessary by changes that have occurred in the nation's external, or international, environment. In the contemporary era, the maintenance of large-scale, well-equipped, and well-organized standing military forces, capable of rapid and decisive action in the event of foreign hostilities, is essential to American national defense and security. Today, the U.S.A. exists and operates in a tense and troubled world of numerous sovereign states with conflicting interests and clashing world views--a world in which there is widespread access (via research and development or, failing that, via espionage and the international blackmarket) to modern military technology and in which wars involve rapid deployment of military personnel, supplies, equipment, and arms (including intercontinental ballistic missiles). To survive in this world and preserve our system of governance and way of life, the American nation-state must be able and willing to move quickly and decisively to deal with any foreign power or combination of foreign powers which attacks or in any other manner endangers the territory and military forces of the United States or which threatens our vital national interests abroad.

When the U.S.A. is faced with such a foreign threat, as has frequently been the case during recent decades, the President, as Commander in Chief, must take swift and decisive action to confront and ward off or eliminate the threat. More often than not, this necessarily entails the President's immediately ordering the Armed Forces into action against the enemy and, at a later date, concerning himself with obtaining from Congress official ratification or endorsement of his action. In short, the President, without first securing from Congress a declaration of war or other authorizing legislation, can and often does send U.S. military forces into action against a foreign enemy or potential enemy, thereby committing the nation to war.

This situation was not appreciably changed by the three most significant international developments of the late 1980s and early 1990s--the dissolution of the Warsaw Pact, the collapse of the Soviet Union, and the end of World War III (i.e., the "Cold War"). In the post-World War III era, recent international developments--e.g., the revival of ancient ethnic and religious animosities, reemergence of the Balkans as the "powderkeg" or "tinderbox" of Europe, increased international terrorist activity, the sale of nuclear weapons in the international blackmarket, the efforts of rogue states to develop nuclear and biological warfare capabilities, and the presence in the world of more than a few hostile, anti-Western LCDs, each aspiring to become a world superpower (or, at least, the dominant power in its own region) and hoping to utilize its strengthened position to challenge American hegemony and to undermine and ultimately destroy Western civilation--have added to and thereby complicated the general problem of protecting the vital national-security interests of the U.S.A. at home and abroad and of working with our allies to promote the conditions essential to world peace.

The international environment in which the U.S.A. exists and operates remains tense, troubled, and volatile. When military emergencies happen, they happen suddenly and often unexpectedly. To meet such an emergency, the nation must move swiftly. There is no time for raising, training, and equipping the country's military forces. To be effective, the military forces must be forces in being, preexisting forces that can be quickly deployed and that are fully trained, equipped, and prepared to accomplish their mission

One person, the civilian Chief Executive, must be fully in charge and have ample statutory as well as constitutional authority to order the troops into military action in foreign regions. It is the proper function of Congress to enact and provide for executive implemention of standing legislation prescribing the general military policy of the U.S.A., including provisions defining in advance the general conditions and circumstances under which the nation would automatically become involved in a war with a foreign foe, whether that foe be an established sovereign state, an alliance of sovereign states, an international terrorist group, a foreign or international violent revolutionary movement, a gang of international blackmarketeers, or some other type of hostile foreign threat. When such conditions and circumstances are present and the U.S.A. is facing a hostile foreign threat, it is--or should be--the proper function of the President, as Commander-in- Chief and national Chief Executive, to quickly and decisively order the military action needed to remove the threat and, after he has issued the order and made certain that it is being carried out, to issue a presidential proclamation officially announcing and explaining to Congress and the nation the fact that the conditions and circumstances obtain and that the country is at war. Military emergencies no longer allow time for Congress to debate and deliberate on passage of a declaration of war or for the President to wait around and take action only after Congress has gotten around to passing the war declaration.

What could be done about a president who deliberately misleads Congress and the nation in order to start a war which, in the absence of presidential deception, would not have occurred? If there is strong and widespread suspicion that the President knowingly made false and misleading statements in his war proclamation and thereby abused his war-making authority, a congressional investigation could be conducted--most appropriately, after the military emergency has ended--and, if the evidence warrants it, impeachment proceedings could be instituted against the President. To augment its ability to impeach the President, put him on trial, convict him and remove him from office, Congress could, prior to such proceedings being initiated against a given president, enact a general statute granting every future presidential proclamation the status of a statement of facts given under oath, thus making any false and misleading statement the President makes in the proclamation a violation of the laws against perjury.

Considering the technology and characteristics of modern warfare, official declarations of war are obsolete. A modern war begins prior to a declaration of war. War begins when opposing military forces have been mobilized and are on the move.


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THE PROGRESSIVE CONSERVATIVE, USA
An Online Journal of Political Commentary & Analysis
Dr. Almon Leroy Way, Jr., Editor

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