News What Legal Framework Governs Presidential Military Actions in the U.S.?

[Dissident Dan]

What are the conditions necessary for military attacks in the United States, and by what laws? Who can make the decision? What conditions must be met before the decision can legally be made?

 

[Laser Eyes]

A moron for president, a gutless congress, a compliant media and a gullible population.

 

[kat]

Originally posted by Dissident Dan
What are the conditions necessary for military attacks in the United States, and by what laws? Who can make the decision? What conditions must be met before the decision can legally be made?

I believe that the conditions necessary are described in the Constition under "Limits To Congress" Article 1, Section 9 which states, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." It's commonly believed that only congress has the right to suspend habeas corpus, but the president as commander in chief could concievably also declare martial law, the congress could then concievably accept, or declare it unlawful. Where it becomes murky is if the congress were to not accept presidential declaration of martial law.
There have been instances where Governors have also declared martial law in limited areas. In those instances the conditions were Cases of rebellion and disasters.

 

[russ_watters]

I assume this is a biproduct of the other thread where you brought up the War Powers Act. Like Kat said, it *IS* murky, but the overriding basis for his military authority is Article 2, Section 2, Clause 1: "The President shall be Commander in Chief of the Army and Navy of the United States..."

But of course, where it gets murky is Article 1, Section 2: "[Congress shall have the Power] To declare war." So this of course begs the question: what is a declaration of war and when is it necessary? In 1775 if two militaries were fighting each other, it was almost always a declared war. Today, that just isn't the case. The military has been sent to dozens of places since WWII without a declaration of war.

The War Powers Act was written to clarify the Constitutional powers of Congress and the President. http://www.luminet.net/~tgort/wpa.htm is a link, but the key quote is: "It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States..." But oops - Congress does not have the power to do that. Congress writes laws. The Supreme Court interprets laws and the Constitution. So a clarification of the Constitutional powers of the President and Congress with regard to war can be done one of two ways: with a Constitutional Amendment, or by a Supreme Court decision. Thus (and don't believe me, find yourself a Constitutional Law paper (or 10) on Google), the War Powers Act is unconstitutional.

So, back to square 1: What are the war powers of the President and what can be done if he violates his Constitutional obligations? IMO (with similar but varying opinions from the Constitutional law I've read), the President's war powers are very broad and a declaration of war is only required in a large conflict requiring a major portion of the resources of the US military and country. Korea and Vietnam would certainly qualify. Gulf I and II would both probably also qualify under my definition. Afghanistan would not. But here's the catch - in both Gulf wars, Congress gave its approval (whether the President asked for it or not). So that makes discussion of whether or not they needed a declaration of war moot - Congress authorized force without one.

Now, If Congress decides he's overstepped his bounds, they can impeach and remove him - the War Powers Act isn't required for that. As I have said numerous times, if they really want they can decide that big ears is a high crime and remove him for that. But there is a slight problem - if I remember correctly, the Supreme court has to oversee the impeachment/conviction process and I doubt they would accept an impeachment charge that directly contradicts a previous act passed by Congress. So though they could impeach Bush for big ears, they'd actually have a tougher time impeaching him for misuse of Constiutitonal power.

 

[Zero]

Russ has used big words to say something rather simple: Bush is now, for all intents and purposes, King of America.

 

[schwarzchildradius]

More like king of the Jungle.

_________________
"He is a fool! You will be master!" -- Rummy to Cheney

 

[Zero]

The problem I have is that the President is NOT supposed to be a military leader. He is designated Commander in Chief so that the military stays under civilian control, not so that Shrub can play G.I. Joe.

 

[kat]

Originally posted by Zero
The problem I have is that the President is NOT supposed to be a military leader. He is designated Commander in Chief so that the military stays under civilian control, not so that Shrub can play G.I. Joe.

Erm, maybe I'm misunderstanding what you're saying here but..General George Washington?

 

[Zero]

Originally posted by kat
Erm, maybe I'm misunderstanding what you're saying here but..General George Washington?

Actually, while I am not exactly sure of the history of the American army of teh time(whether or not it was a standing army or no), Washinton had gone home after the war, for about 3 years before being elected.

Of course, my interpretation of things must be wrong, since they are not endorsed by Bush.

 

[kat]

Originally posted by Zero
Actually, while I am not exactly sure of the history of the American army of teh time(whether or not it was a standing army or no), Washinton had gone home after the war, for about 3 years before being elected.

Of course, my interpretation of things must be wrong, since they are not endorsed by Bush.

I'm still not grasping your point..maybe it'll be clearer after another cup of coffee.

I'm not sure what the knock about being endorsed by Bush is for, is this supposed to be a personal insult? if so you're off mark, I didn't vote for Bush and I'm not republican, I'm more of an independent libertarian type. I'm not even sure what Bush has to do with the thread...*boggle*

 

[Zero]

Nah, that was just a general comment about how Bush would like to redefine himself as a military dictator.


My point is that ultimate control of the military must fall under civilian control, or else we become a military dictatorship.

 

[russ_watters]

Originally posted by Zero
Russ has used big words to say something rather simple: Bush is now, for all intents and purposes, King of America.

See sig.

The problem I have is that the President is NOT supposed to be a military leader. He is designated Commander in Chief...

I know what you mean, but that's still self-contradictory.

I'm still not grasping your point..maybe it'll be clearer after another cup of coffee.

Kat, the reason you don't understand is because of the contradiction. Zero meant (if I understand correctly) that the President is supposed to be the CIVILIAN head of the military, not a MILITARY head of the military. But the way he said it and the implications he implied are contradictory and/or just plain wrong. Its a difference that has no real difference as applied to the current situation. Overall Presidential power is not and never will be based on his military power.

Nah, that was just a general comment about how Bush would like to redefine himself as a military dictator.

From what you have said before, I guess you really believe that. Sad.

 

[Dissident Dan]

OK, this post has gone horribly off-topic. This is mainly due Zero's input. I am asking for discussion of the written legal boundaries for military action, and any necessary judicial interpretation that is relevant.

Originally posted by russ_watters
I assume this is a biproduct of the other thread where you brought up the War Powers Act. Like Kat said, it *IS* murky, but the overriding basis for his military authority is Article 2, Section 2, Clause 1: "The President shall be Commander in Chief of the Army and Navy of the United States..."

But of course, where it gets murky is Article 1, Section 2: "[Congress shall have the Power] To declare war." So this of course begs the question: what is a declaration of war and when is it necessary? In 1775 if two militaries were fighting each other, it was almost always a declared war. Today, that just isn't the case. The military has been sent to dozens of places since WWII without a declaration of war.

What my interpretation of "the president in C-i-C, and the Congress declares War" is is that the President executes the War that Congress decides upon. The statement regarding the President's power continues: "Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;"

So, the President only directs the Military when called by others (presumably, Congress), right? It doesn't say that the President gets to go "into actual service" (directing the military) whenver he wants to. Actually, that seems pretty explicit to me.

In fact, according the the Consitution Party's website, there following quotes are from some of the founding fathers, which clarify the intent:

"The constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject and authorized such a measure."
George Washington - 1793

". . . The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature . . . the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war."
James Madison - 1793

The War Powers Act was written to clarify the Constitutional powers of Congress and the President. http://www.luminet.net/~tgort/wpa.htm is a link, but the key quote is: "It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States..." But oops - Congress does not have the power to do that. Congress writes laws. The Supreme Court interprets laws and the Constitution. So a clarification of the Constitutional powers of the President and Congress with regard to war can be done one of two ways: with a Constitutional Amendment, or by a Supreme Court decision. Thus (and don't believe me, find yourself a Constitutional Law paper (or 10) on Google), the War Powers Act is unconstitutional.

I hadn't thought of that before. I'll have to look into it more.

So, back to square 1: What are the war powers of the President and what can be done if he violates his Constitutional obligations? IMO (with similar but varying opinions from the Constitutional law I've read), the President's war powers are very broad and a declaration of war is only required in a large conflict requiring a major portion of the resources of the US military and country. Korea and Vietnam would certainly qualify. Gulf I and II would both probably also qualify under my definition. Afghanistan would not. But here's the catch - in both Gulf wars, Congress gave its approval (whether the President asked for it or not). So that makes discussion of whether or not they needed a declaration of war moot - Congress authorized force without one.

Is there anywhere a declaration of what is merely a "military action" or the like, and what is considered War?
I don't agree that formal Declaration of War is a moot point if Congress expressed approval.
1) It is a passing aside of rules and regulations that given necessary structure to government.
2) The political implications of official Declaration of War are different from those of mere approval the President's military action. One difference is that the second is mere rubber stamping of what the President is going to do anyway, resting the decision in the President's hands, rather than in those of Congress. Also, declaration of War carries an importance which renders it less likely, because people won't wanting to be declarin War left and right, while lots of different "military actions" are acceptable to many.

Now, If Congress decides he's overstepped his bounds, they can impeach and remove him - the War Powers Act isn't required for that.

Well, there is a big difference between impeachment and conviction. Clinton was impeached, but he remained in office. Isn't there some written set of criteria upon which a President can be removed? I need to read the Constitution more. Anyway, I am asking about previous decisions rendered in written legislation and judicial verdicts, not about what people may consider inappropriate in the future.

 

[russ_watters]

Originally posted by Dissident Dan
What my interpretation of "the president in C-i-C, and the Congress declares War" is is that the President executes the War that Congress decides upon. The statement regarding the President's power continues: "Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;"

I'm only about 90% sure here, but I think the militias (national guard, today) are called into federal service by executive order of the President - not Congressional legislation.

Also, you imply that Congress gives orders to the president. This is not the case. The president is commander in chief and therefore takes orders from no one. And since a declaration of War is still a law, it must still be signed by the President. And I think a veto override would be a real Constitutional crisis. There has never been a case in American history where Congress has decided against the president's wishes to go to war.

So, the President only directs the Military when called by others (presumably, Congress), right? It doesn't say that the President gets to go "into actual service" (directing the military) whenver he wants to. Actually, that seems pretty explicit to me.

I completely disagree and there has never been an historical example of this. "Commander in Chief" has a pretty explicit meaning. It means he's at the top.

Interesing quotes though. The first from Washington seems to agree with me actually - it says "offensive expedition of importance." That leaves a broad and vague leway for the president to decide when to use troops. How important is important? And what is offensive? Like I said before, large regional conflicts such as Iraq I and II are straddling the line on that. And very few countries have ever admitted to an offensive war.

Now the second quote (the Madison one) to me doesn't say anything that the Constitution doesn't. Congress has the power to declare war. Yah, we already know that. It says nothing at all about when a declaration of war is necessary.

Is there anywhere a declaration of what is merely a "military action" or the like, and what is considered War?

No. And that of course is why we are having this discussion.

I don't agree that formal Declaration of War is a moot point if Congress expressed approval.

Well if you agree that there are times when a declaration of war isn't necessary (do you?), then presumably Congress could decide this is one of those times. The difficulty would come if Congress thought a declaration was necessary, but the President thought it was not. Congress DOES always have the impeachment recourse, so I guess as long as Congress follows the rules of the impeachment process and follows the constitution (under the supervision of the USSC), it is up to them to decide whether the president has overstepped his bounds.

Well, there is a big difference between impeachment and conviction.

Yes I know the difference, but I sometimes don't complete the sentence because I'm lazy. "The impeachment recourse" is impeachment AND conviction.

Isn't there some written set of criteria upon which a President can be removed? I need to read the Constitution more. Anyway, I am asking about previous decisions rendered in written legislation and judicial verdicts,

Again, the constitution is vague, but I'm pretty sure "high crimes and misdemeanors" is about anything Congress says it is within reason. There may be some commentary from the Clinton impeachment that could shed some light on it.

Toughie, isn't it? Though I disagree with you, I readily admit that its not a simple issue. It could even be a shortcoming in the Constitution (or is it vague on purpose...?).

 

[Ivan Seeking]

Originally posted by russ_watters
The War Powers Act was written to clarify the Constitutional powers of Congress and the President. http://www.luminet.net/~tgort/wpa.htm is a link, but the key quote is: "It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States..." But oops - Congress does not have the power to do that. Congress writes laws. The Supreme Court interprets laws and the Constitution. So a clarification of the Constitutional powers of the President and Congress with regard to war can be done one of two ways: with a Constitutional Amendment, or by a Supreme Court decision. Thus (and don't believe me, find yourself a Constitutional Law paper (or 10) on Google), the War Powers Act is unconstitutional.

However, unless and until the Supreme Court declares the law unconstitutional, it IS the law of the land. How this might otherwise be argued is moot.

 

[Ivan Seeking]

Seems pretty clear to me

Article I, Section 8, the duties of the legislative branch:

To define and punish Piracies and Felonies committed on the high Seas, and Offences
against the Law of Nations;

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;

Article II, Section 2: The duties of President:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

It seems quite clear that the activation and maintenance of military power is reserved for Congress. The duties of the President are to be Commander and Chief when called into service. By whom? By those who:

Make Rules for the Government and Regulation of the land and naval Forces;

Provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

--- Congress!.

Note additionally that Congress “Makes Rules for the Government and Regulation of the land and naval Forces”. Here, the War Powers Act seems quite lawful. It is Congress, not the President, who has broad, definitive control over the armed forces of the US. As I read this, Congress has the power to remove the President from the decision making process altogether [as to the activation of the military]. Of course, when called into action, the President is reserved the right as Commander and Chief.

Edit: I think your argument about the War Powers Act fails for the following reason: The War Powers Act is a law. It is not a legal decision. Congress has the power to pass laws regulating the use of military force. Interpretation is merely the motivation. They could have cited the alignment of the planets as a reason.

 

[kat]

Originally posted by Dissident Dan
What are the conditions necessary for military attacks in the United States, and by what laws? Who can make the decision? What conditions must be met before the decision can legally be made?

I'm sorry, my first reply, and probably my confusion with Zero's comment had to do with "military attacks in the United States" apparently by your reply you meant "military attacks by the United States".

I think it all boils down to Congress having “actively acquiesced” to military actions either by appropriating money, activating the draft for vietnam, or giving resolutions of support as in the case of the first Iraqi war. If the Congress has shown aproval in it's actions then I think it would be difficult to show that they did not approve the attack.

Of course the kicker here is that it has never been brought to the supreme court, but if it were then there is already prescedence set in place for article II to be more powerful then article I in this instance. Case prescedence would be found in "Youngstown Sheet and Tube Co. Verses Sawyer" in the opinions of Justice Black and Jackson. Jackson gave an analysis on the powers of congress and the commander in chief. I think it can be found at the findlaw site. I'll see if I can hunt it up later.

 

[Dissident Dan]

Originally posted by russ_watters
I'm only about 90% sure here, but I think the militias (national guard, today) are called into federal service by executive order of the President - not Congressional legislation.

Also, you imply that Congress gives orders to the president. This is not the case. The president is commander in chief and therefore takes orders from no one. And since a declaration of War is still a law, it must still be signed by the President. And I think a veto override would be a real Constitutional crisis. There has never been a case in American history where Congress has decided against the president's wishes to go to war.

I completely disagree and there has never been an historical example of this. "Commander in Chief" has a pretty explicit meaning. It means he's at the top.

If Congress does not give orders to the President, then what is declaration of War? I think that Commander-in-Chief explicity means to guide the actions of the troops when he is called into that service.

Interesing quotes though. The first from Washington seems to agree with me actually - it says "offensive expedition of importance." That leaves a broad and vague leway for the president to decide when to use troops. How important is important? And what is offensive? Like I said before, large regional conflicts such as Iraq I and II are straddling the line on that. And very few countries have ever admitted to an offensive war.

In things like a military peace-keeping effort, I think that that is rather obviously not war. I think that the only vagueness in "offensive expedition of importance" is the "importance" part. Offensive is rather well-defined by society. Protecting your base during an attack is defensive. Invading another land for the purposes of destroying militarily the forces or powers of a recognized government, especially when it is not even in response to an attack upon us, is offensive.

Now, I think that involving hundreds of thousands of troops qualifies as "important" under any set of criteria anywhere close to reasonable.

Well if you agree that there are times when a declaration of war isn't necessary (do you?), then presumably Congress could decide this is one of those times.

I agree that there are times when a declaration of War is not necessary, but I don't think that Congress should decide whimsically decide when that is. There should be specific criteria for when an action must be considered an act of War or not. This would be achieved through A) Supremem Court judicial interpretation or B) Constitutional amendment defining "War".

 

[kat]

Originally posted by kat
Case prescedence would be found in "Youngstown Sheet and Tube Co. Verses Sawyer" in the opinions of Justice Black and Jackson. Jackson gave an analysis on the powers of congress and the commander in chief. I think it can be found at the findlaw site. I'll see if I can hunt it up later.

Here's a good explanation of caselaw and precedence, it include the Youngstown Sheet and Tube Co. vs Sawyer case that I mentioned.

http://www.aclj.org/news/nf_011002_civil_liberties.asp

A. Presidential Authority Limitations - Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

One of the most noted frameworks for analyzing the constitutionality of presidential action in a time of crisis was outlined by Justice Jackson in Youngstown, 343 U.S. at 634 (Jackson, J., concurring). Presidential action may fall into one of three categories:

"1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate."
* * *

"2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility."

* * *

"3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."