The Power to Declare War

“Congress shall have the power to declare war.” So states Article I, Section 8, Clause 11, of the Constitution. A strict constructionist approach to the constitution grants no concurrent power for the president to declare war.

Since our nation’s origin, presidents asked Congress for and were given declarations of war 11 times. The first was against Britain in 1812, and the last few were against Japan, Germany and their allies in the 1940s.

President Harry Truman circumvented Congress in 1950 by calling the Korean War a police action. In August 1964, in lieu of a declaration of war, Congress passed the Gulf of Tonkin resolution conferring upon President Lyndon B. Johnson and option to use force in Vietnam “as the president determines.” The resolution was slated to expire “when the president shall determine the peace and security of the area is reasonably insured.”

With Iraq, the president pushed through the 107th Congress a resolution authorizing him to use force if diplomatic efforts failed to force Saddam Hussein to relinquish his putative weapons of mass destruction. The president did not consider the resolution a declaration of war. To the contrary, he told Congress, “approving this resolution does not mean that military action is imminent or unavoidable.” It means, “America speaks with one voice.” The president did not ask for a declaration of war, did not intend to receive a declaration of war, nor was the resolution called a declaration of war. Yet, we went to war anyway.

As an example of the kind of stipulations marking Congress’ official declarations of war, consider that of 1941 directed at Japan: “Be it resolved by the Senate and the House of Representatives of the United States of America in Congress assembled that a state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the Untied States is hereby formally declared and the president is hereby authorized and directed (not discretionary) to employ the entire navy and military forces of the United States and the resources of the government to carry on war against the Imperial Government of Japan, and bring the conflict to a successful termination, all resources for the country are hereby pledged by the Congress of the United States.”

Such resolute and stirring phraseology is not characteristic of those declarations with which Congress has abdicated its war-making responsibilities. These resolutions are adroitly phrased, so that if the war is successful, Congress can share credit. But if the war proves a mistake, legislators can tell their constituents all they meant was to give the president a vote of confidence to make the decision.

Recently retired U.S. Sen. Bob Graham of Florida, who served as chairman of the Senate Intelligence Committee, said in a speech on Nov. 30th that six months before the US. Forces invaded Iraq, he asked George Tenet, director of the CIA, to analyze the “readiness and willingness of Iraqis to an invasion” but was ignored. According to Graham, “To the administration, its always going to be Paris in 1944: We would be embraced we would go home, and Iraqi people would be happy…. There was no effort to assess a range of possibilities including an insurgency.”

Graham vote against the resolution, but his was a voice crying in the wilderness.

The issue here is more than semantics. We are better served if Congress, local representatives of all factions, take the grave and sobering step of assessing, as Graham says, the broad range of each proposed war’s possibilities, including estimates of the minimal cost of lives, the minimal time required, and its economic impact. This process inevitably requires each member of Congress to make a personal decision whether the gains of war are worth its heart wrenching sacrifices. Had that been done regarding Iraq, this war of dubious results might have been avoided.

Our constitutional system of governance does not include presidential wars within the wide grasp of the executive branch, and no act of Congress can amend, modify or veto the Constitution, the supreme law of the land.

A robust national debate is long overdue whether the nation should require formal declarations of war. There was wisdom in the Founding Fathers’ stipulation that only Congress should have the power to declare war.

Rather than letting that wisdom slide silently into the grave, shouldn’t we, as a nation, be openly and vigorously debating whether to return to the Constitution?

By Russell Troutman
The Orlando Sentinel
Thursday December 27, 2005

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