Almon Leroy Way, Jr.
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 consid- ering 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--
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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