OF ABROGATION ITS WARMAKING POWERS: The Shame of the 20th Century US Congress Occasional Speech, Residence Week Master of Arts in Diplomacy On-line Program Norwich University, Northfield, Vermont Wednesday, June 21, 2006 Russell W. Ramsey, Ph.D., D. Min. ABSTRACT: The US Constitution lists the duties of the Congress first, since the Founding Fathers thought that the Legislative Branch was the one which would create and maintain democracy. In the 20th century, the US Congress declared war against the Central Powers in 1917, and against Japan, Germany and Italy a few days apart in 1941. Since those two huge wars, the United States has been committed to four large wars, and perhaps two dozen smaller one of various types. In all cases, no declaration of war was sought by the Executive Branch, nor demanded to be debated and voted upon by the Legislative Branch. This constitutes the most serious abrogation of stated Constitutional powers in our times. As a result, many of the Constitutional conditions and powers intended in the document cannot come on line, since they are not being invoked. CONSTITUTIONAL BASIS AND PRECEDENT To abdicate is to renounce, but that is not precisely what the US Congress has done since 1941 with its Constitutionally mandated war making powers. To abrogate is to repeal, annul, or abolish, and this term, in a de facto sense, correctly describes the situation. Strongly influenced by James Madison and Thomas Jefferson to enumerate the duties of the legislative body as the first business of the Constitution following its Preamble, the authors of the Constitution placed the power and duty of declaring war in Article 1, Section 8. "The Congress shall have Power: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 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 Officers, and the Authority of training the Militia according to the discipline prescribed by Congress..." John Jay and Alexander Hamilton wrote specifically on the need for clear executive 1
powers, and these are the statements about warfare from Article 2, Section 2, of the Constitution: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States..... He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur..." Alexander Hamilton, the Federalist and supporter of a stronger central government as first US Secretary of the Treasury, thought that legislative oversight was both historically valid and vitally necessary. "In England," he wrote in The Federalist #26, "for a long time after the Norman Conquest, the authority of the monarch was almost unlimited. Inroads were gradually made upon the prerogative, in favor of liberty, first by the barons, and afterwards by the people....till the Revolution in 1688. As incident to the undefined powers of making war, an acknowledged prerogative of the Crown, Charles II had....kept on foot in time of peace a body of 5,000 regular troops....James II increased [this number] to 30,000...At the Revolution, to abolish the execution of so dangerous an authority, it became an article of the Bill of Rights then framed, that `the raising or keeping of a standing army within the kingdom in time of peace, unless with consent of the Parliament, was against the law.'" James Madison is a unique figure in US political history, for as Constitutional author he most favored the Legislative Branch for the great decisions of the Republic, believing that branch to be closest to the people. Clearly he thought that legislative control of the power to decide upon a state of war was urgent and fundamental. Yet as 4th President, he is the only US President ever to be literally driven from the national capital by foreign troops, and to be humiliated as the Commander-in-Chief who could not defend US sovereignty. The Mexican War, the Civil War, and the War of Cuban Independence were the other three international conflagrations of the 19th century in which the United States was a party, and Presidents James K. Polk, Abraham Lincoln, and William McKinley each managed to prepare, over varied opposition, a successful war message for the Congress. The 20th century saw the rise of the United States to center stage in world power politics, and the Westphalian international system, heavily European in character, was in full bloom. Thus, it is not a great surprise to find that Woodrow Wilson, after winning re-election as the "President who kept us out of war," crafted a war message to Congress in 1917 over public outcry against the infamous "Zimmerman Telegram Affair" between Germany and Mexico, and the sinking of the Lusitania, in which the United States was hardly an innocent party. After all, the business of high state affairs in that era was done by rules and precedent. President Franklin D. Roosevelt worked to evade US entanglement in rising tides of European conflict in the 1930s, and still support Britain and France without appearing to violate neutrality. When the Japanese surprised all US intelligence estimates at Pearl Harbor on December 7, 1941, the Congress responded to Roosevelt's war message in the rousing affirmative on December 8th. Within the following week, Germany and Italy declared war on the United States, and the Congress 2
again supported Roosevelt's war message to oppose them. No one dreamed that it would be the last time. When World War II ended, Americans entered into the arena of wishful thinking that often accompanies the finale of great conflicts. Within two years, Ambassador George Kennan had published the now-famous "Mr. X" article in the Journal of Foreign Affairs, naming the Soviet Union and her possible allies as long-term adversary of a new genre, one which would call forth the broadest need for national defense across political, economic, and military lines. An impulsive launch of ground forces into South Korea, in 1950, became the funeral procession for Constitutional war making powers as the architects of our country conceived them. THE ANTWERP SYNDROME, THE NAPOLEON SYNDROME Next, we shall examine four large Presidential wars, and two small Presidential wars; but as a preface it is useful to explore the outer boundaries of the problem. Why, one may ask, did the President of the United States, a man well versed in international security issues by that time, not ask the Congress to declare war on North Korea, as an aggressor against the treaty ally South Korea? Here are the polarities that have emerged. About the idea of entrusting the legislative body of a democracy with the power to declare war, there are two extremes. These are the Antwerp Syndrome, and the Napoleon Syndrome. Imperial Spanish forces occupied the Netherlands in great force in the late 16th century, and the Revolt of the Netherlands pitted emerging local supporters of democracy against the autocratic Hapsburg dynasty of Spain. The proud burghers of Antwerp had recently built a gorgeous City Hall, and in it they conducted city business in a form not unlike a modern European or North American city of today. Spanish troops had gone unpaid; and rampaging, mutinous units carried out a bloody sack at Antwerp in early November 1575. More of this occurred in the 1580s. Upon occasion, the City Council was actually debating the apportionment of costs for defending themselves as infuriated Spanish swordsmen entered the room and murdered the municipal leaders. Those who oppose granting the war making powers in a democracy to a legislative body sometimes cite this situation. What, they ask, would happen if Congress cannot agree to defend our country, and part or all of the nation is conquered while they yet debate? This might be considered the Antwerp Syndrome. Opposing the Antwerp Syndrome, then, we may posit the Napoleon Syndrome. After all, Napoleon Bonaparte took power in a giddy climate of growing personal freedom, with a license, in essence, to halt the senseless violence and vengeance of the Committee of Public Safety. Several European states, to include Rome and the Papal State itself, had factions which welcomed French troops at liberators. But Napoleon decided that conquest was better than liberation, and there was no legislative body capable of restraining his aggressive impulses. Thus, acting as Supreme Executive of Europe's greatest land power, he initiated invasions as far away as Moscow, thereby destroying the democratizing influence and value of the French Revolution. People who worry about executive abuse of the war powers may be said to fear the Napoleon Syndrome. 3
THE MARCH TO ABROGATION: Four Big Wars, Two Small Wars It appears that a variety of circumstances coalesced to lift the Antwerp Syndrome to political supremacy, for the United States entered the Korean War based on a Joint Resolution of Congress, in 1950. The war ended as a stalemate and satisfied no one, but the principle of legislative control over making war was ruptured. Fourteen years later, President Lyndon B. Johnson faced a comparable situation in Asia, namely, a former colony artificially divided between a northern nation-state allied with the Warsaw Pact powers, and a southern nation-state allied with the NATO powers. So in 1964, Johnson was not doing anything new by contriving evidence to support his request for troops and funds to wage war in South Vietnam; but he was following the Truman precedent by circumventing, again, the Congressional war making powers in the Constitution. This was Round Two for the Antwerp Syndrome. In 1973, the US Congress passed the War Powers Resolution, attempting to force the White House to conduct itself according to the Constitution. But a law could scarcely do what the Constitution from which it derives cannot do, and the War Powers Resolution has become more form than substance. In 1983, President Ronald Reagan decided to protect US citizens in the island nation of Grenada, just off the coast of Venezuela. The agenda included effort an to prevent Cuba's Premier Fidel Castro from establishing a beachhead closer to the South American continent. Utilizing only the War Powers Act and some supplementary budget requests, President Reagan landed troops in Granada, overthrew the government, arrested and deported foreigners from several communist nations, and established a pro-US government in a British protectorate. This was called "Operation Urgent Fury." Six years later, the Panamanian General Manuel Noriega was exploiting anti-US sentiment related to turning the Panama Canal over to Panama, and his security forces murdered and looted both Panamanian and US victims. Acting under the principle of maintaining safety and access around the Panama Canal, President George Bush invaded the country, disarmed its military forces, captured General Noreiga, and extradited him by force to the United States for trial. While some in the US Congress criticized the conduct of the operation, few critics of "Operation Just Cause" pointed out that the Congressional war making powers had once again been circumvented. In 1990, the same President Bush made a beautifully articulated and morally justified case for militarily ousting the Iraqi Army from Kuwait, a sovereign neighbor. There was opposition in the Congress to the war, itself, but little substantive complaint about the structural breach of conducting this conflict, like the Korean Conflict, under nothing more than a United Nations Mandate. Thus, Desert Storm, 1991, became the fifth significant war conducted by the United States in violation of its own Constitution. Most recently, in 2003, President George W. Bush organized the Coalition of the Willing, lacking even a United Nations Mandate, to crush the security forces of Iraq, imprison the head of state Saddam Hussein, and oversee the installation of a more representative and humane form of government. Again, there was cognitive discussion of terrorism, weapons of mass destruction, and regional aggression, but very little 4
substantive outcry that the war lacked Constitutional validity. These then are the Four Big Wars and Two Small Wars out of which abrogation of the Congressional war making power has become a functional reality. Let it quickly be said that, during these same years, the United States was involved in several dozen situations of bellicosity which, in another age, would easily be termed wars. All US Presidents since 1948 have extended military assistance to Israel in forms which blur the line between combat and advisement. President Jimmy Carter mounted an operation in Iran when US Embassy personnel were kidnapped and imprisoned, an act of war on Iran's part. President Ronald Reagan generated a secret war in Central America, funded with extra-legal means which actually raised considerations of impeachment. President Bill Clinton sent combat troops in various multi-national postures into the Balkans, Africa, and the Middle East. While these lesser operations could be compared to President Thomas Jefferson's dispatch of the US Navy and Marine Corps to fight the Barbary Pirates, it is important to note that these mini-wars were part of a larger process in which Presidents no longer thought that obtaining a declaration of war was Constitutionally important. Mostly, they considered support-building within the Congress as a political action to bolster national security, and the constant state of near-war simply helped to blur the line between war and peace. HOW DID IT HAPPEN? Most Americans take their Constitution seriously and have demanded respect for its language and its processes. Why, then, has this huge gaping hole been created in Constitutional process and behavior? There appears to be a collective rush to the Antwerp Syndrome, an abiding fear that the Congress might not support the President adequately or in time, and therefore some element of US military power might suffer defeat. There has been a robust absence of the Napoleon Syndrome, where people worry that the Chief Executive might launch the nation into war after war with little accountability or discussion. Here are some components of this debacle. First, the fear of atomic warfare and mutually assured destruction often provoked, during the Cold War, the statement that we must not upset the Soviet Union too abruptly or they might undertake a nuclear launch against the NATO powers. Second, the gathering of intelligence became so technologically complex, and so secretive in nature, that the public and the Congress often were greeted with supposedly dangerous conditions that they could not understand. Third, liberal and conservative philosophy became more closely identified with the Democratic Party and the Republican Party, respectively, during this period. Moving America from a nation of pragmatists to a nation of ideologues engendered a concept that winning the ideological battle was more important than retaining the Constitution. Fourth, the advent of missiles and rockets having theater or global range has reduced the time for reflection about matters of war and peace. As an applied case of the Antwerp 5
Syndrome, Americans visualized a Congress hopelessly deadlocked in debate, and filibustering Senators reading the Washington DC telephone directory, while rockets from Moscow rained down upon our land. Fifth, the US Congress has gradually abandoned its historic commitment to the notion that political conflict stops at the US borders. While early 19th century Federalists and Democrats angrily denounced each other over who supported Britain and who supported France, they closed ranks, in essence, when the cannons began to fire. In several of America's mini-war ventures, since World War II, there have actually been senior members of the US Congress telling leaders of nation-states against which US military forces are waging conflict that their country will not really attack them, or that US military forces would be committed to help them when the administration had already decided to the contrary. Sixth, the rise of US participation in peacekeeping and conflict avoidance has opened new doors not entirely known to the Founding Fathers. There is no Constitutional language, per se, for declaring one nation the enemy and another the ally when the mission is sanctioned by the United Nations as military but neutral. By opening the door to membership in a multi-national organization lacking sovereignty but seeking occasional military support, a new field of Constitutional utilization of force has been created. Seventh, the abrogation of power by one branch of government to another through law, custom, or default is a dangerous precedent which puts all the stated Constitutional powers on the auction block. SO WHAT DO WE DO NOW? One good outcome of the invasion of Iraq in 2003 could be an awakening of the American people to the fact that Congressional abrogation of the Constitutional war making powers is a tremendous mistake. These powers are not ideological, and they are not related to whose cause is righteous. The Constitutional framers saw clearly that people's ideas on war and peace differ, and that the one certain way to obtain a decision was to have a binding vote of war or peace in the Congress. Beyond that, the President was charged with making America's military effort successful. Congress and President could each be held accountable to the people on these stated terms. When a great criticism is levied, some sort of a recommended solution is demanded for the criticism to be responsible. First, public school curriculum should be mandated in each state to insure that students learn who has the most important powers in the national government. One can visit a public school today and never hear that the war power decision process is Constitutionally off the rails. Instead, one may hear some discussion of the merits of a particular war, which appears to address the issue but does not. Second, citizens should hold their Representative and Senator accountable for demanding the right to vote on war on peace. The matter is not truly debatable, if we are to consider ourselves a Constitutionally obedient democracy. 6
Third, citizens and their political leaders should make an inventory of what is being lost by this abrogation. The lines between war and peace are badly blurred. A belligerant Chief Executive could involve the nation in ruinous, non-ending wars. A timid President could fail to defend the nation when the Congress might well have wished to vote the resources and perhaps a state of conflict to prevent a worsening state of affairs. Fourth, many books are written which allege such things as treason, desertion, and espionage against American citizens who oppose a particular war. Yet the failure of the Congress to declare the state of war makes these grievous things legally impossible to pursue with a juridical basis in Constitutional law. The US Supreme Court actually refused to hear three cases involving civilian legal status during the Vietnam Conflict, leaving many issues in limbo even today. Such military jurisprudence issues as simple desertion v. desertion in the face of the enemy deserve a hearing. Obviously, without a Constitutionally legitimate war at hand, there can be no case precedent to determine. The US Supreme Court must speak out here on a wide range of appropriate cases. From the mid 18th century, there came to this land a set of concepts for governance so advanced, so enlightened, so valuable, that the world has never seen anything more revolutionary and more supportive of freedom, prosperity, and stability. One of these principles is that the power to declare war and the power to wage war must be divided. The People of the United States and their Congress have abrogated this power, and they will one day come to regret it. BIBLIOGRAPHY "Antwerp," New Advent Catholic Encyclopedia. http://www.newadvent.org/cathen Avalon Project, Yale Law School. "War Power Resolution" http://www.yale.edu/lawweb/avalon/warpower Bartow, Doug. "The Power to Declare War," The Future of Freedom Daily. http://www/fff/org Hamilton, Alexander [Publius]. "The Federalist #26," Hamilton, Alexander; James Madison; and John Jay, "The Federalist Papers" http://www.constitution.org/fed/federa26.htm Linder, Doug. Exploring Constitutional Law. http://www.law.umkc.edu/faculty/project Lovinger, Paul W. Fifty Years Since Korea: Fifty Years of Presidential Wars http://warandlaw.homestead.com Staff, "Presidents at War," US News & World Report [Jan 30-Feb 6, 2006] US Constitution 7
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