News The President's Power to Initiate War: A Historical Perspective

[phinds]

The war on terror? Today? IMO, yes.

Or we could just let them kill us whenever and wherever they want. Not a very appealing alternative.

Phoenix, what did you have in mind when you asked if it is necessary ?

 

[mheslep]

... "Due process" comes from the constitution. It applies to American citizens in civilian courts. It does not apply in war. ...

The war on terror? Today? IMO, yes.

I agree war and criminal proceedings should treated very differently and traditionally have been. However, I am disappointed in the lack of modern, useful definition of how and under what circumstances a state of war is said to exist. Historically, Congress actually declared war against other nation states, turning on war legal war powers, and nation states could and did surrender, turning war powers back off again. Modern circumstances have changed, but modern statesmen have failed in their obligation to reestablish clear legal definitions between war and where due process applies once again.

I mean seriously; do you think we should send some state police over to knock on the Taliban's caves and serve arrest warrants?

Try to see that from the other side: should the United States remain in a state of war, granting war powers to its President, because of some guys in caves on the other side of the world?

 

[russ_watters]

I agree that the definition of war has become murky, but I'm not so sure that actually indicates a problem. Why? Because war powers DON'T switch on and off. Several levels:

1. If that was the intention of the Constitution, maybe it needs to be amended to clarify, but as written the "declare war" power of Congress has no meaning (it isn't explained).
2. Functionally, no president has accepted the War Powers act's validity an several have openly violated it. Others ignored it, only to have Congress bail out the act by passing an unsolicited approval.
3. I don't see a problem here that needs fixing. Could you perhaps provide a historical example or hypothetical scenario where there would be a problem that would benefit from congress stepping in?

 

[mheslep]

...
3. I don't see a problem here that needs fixing. Could you perhaps provide a historical example or hypothetical scenario where there would be a problem that would benefit from congress stepping in?

A US President enjoying war powers like those granted by Congress post 9/11 can deploy and engage the US military anytime, anywhere outside the US, without declaring an emergency, without answering to anyone but the voters, or maybe never. I think that's a problem, and smells of empire, certainly not the limited government spelled out in the founding, repeatedly. A peace time president can deploy the US military, but not engage them absent an emergency, which must be explained to Congress in 90 days, etc.

 

[russ_watters]

I think you mean "dictatorship", not "empire". An empire is any country that seizes territorial claims in war. And I think you mean "separation of powers", not "limited government". The issue here is whether one branch has a complete power that another can't check - and whether they should.

As a veteran; as a matter of policy, there is one critical leadership principle of the military at work here: unification/singularity of command. Yes, it goes against "separation of powers". But it is necessary for maintaining a clear vision for a military operation. You can't run a war, even a little one, by committee.

Second, as a matter of history, there really has never been a question of whether a small military engagement must be approved by Congress. There have, in fact, been dozens of undeclared military actions throughout history, including some of our more famous wars, such as the First Barbary war in 1801 and the Indian Wars.
http://wiki.answers.com/Q/List_in_order_all_wars_in_American_history

Wiki claims as many as 125 in our history: https://en.wikipedia.org/wiki/Declaration_of_war_by_the_United_States#Other_undeclared_wars

So you see, the dilemma posed by a changing definition of "war" doesn't actually exist. The distinction between "war" and "not war" has never been clear and that has never mattered.

 

[MarneMath]

I don't really disagree with your sentiment but from my limited memory of U.S. History and some books, I don't believe saying that in our history the question of what extent the president has to start/declare/make war never really existed is correct. Hamilton explicitly argued in the Federalist papers that the present shall be the commander in chief and congress shall declare war. Madison also argued a similar point with the added clarification that the president shall have the ability to repel hostile action without the congress approval, but congress would be the approving authority for the declaration of war. James Wilson argued at the Pennsylvania convention that no single man shall have the ability to declare war.

Now what happened in the course of history is obviously another thing, but the question of presidential powers and reach clearly existed.

 

[russ_watters]

I didn't say the President can/has declare(d) war, I said he can/has fought(fight) wars - under most definitions of "war" - without them being declared.

 

[MarneMath]

Well, maybe I'm misreading mheslep intent. It seems that he as a particular problem with a president having the ability to start a war and deploy a troops to foreign country without the consent of congress. Sure technically that may not be a declared war, but I'm sure in most people's eyes and the troops fighting in such conflicts, it's war enough, and it's that easy ability to do that makes many people nervous.

Speaking for myself, regardless of what you choose to call it, it will never seem okay for the president to deploy troops to a foreign country with hostile intent without the consent of congress. Once such consent is given, I fully agree that congress shall have no role in the fight of the war, but prior to that consent the president shall not fight such war. The Federalist papers seemed pretty clear on that was the intent of this certain check and balance.

 

[russ_watters]

Well, maybe I'm misreading mheslep intent. It seems that he as a particular problem with a president having the ability to start a war and deploy a troops to foreign country without the consent of congress.

Yes, and he thinks that's a new "problem", caused in part by a changing definition of war. So I pointed out that the President has always been able to do that, even before the new definition, and has done it over a hundred times in the past 200+ years.