PRESIDENTS AT WAR
The President sat in the Oval Office and staring intently at his Secretary of State. It would fall to him to either order the United States to war or to consult with Congress. He had already stated his intention to fight the enemy anywhere in the world to protect the nation at home. It was time to make good on his promise: “We’ve got to stop the sons of bitches, no matter what, and that’s all there is to it.”
It is a scene that could have been taken easily from the first term of President George W. Bush and his commencement of military action in Afghanistan and Iraq. However, it was not Islamic terrorists but communists that was the scourge in June 1950 and the president was Harry S. Truman. He was committed to the Truman Doctrine to oppose communist expansion around the world and 135,000 communists were on the march across the 38th parallel. It was a decision that would unleash the Korean War. Within days of Truman’s statement, the Army 4th Infantry Division would engage the North Koreans at Osan, suffering heavy losses – all without congressional notice, let alone authorization.
Truman was perhaps the first modern Commander-in-Chief who saw military intervention in such strategic terms – demanding more rapid and often unilateral deployments of troops. Perhaps it was his service as an artillery officer in World War I that had impressed upon Truman the need to move quickly and decisively in the face of the enemy. As Captain in charge of the “Dizzy D” Battery of the 129th Field Artillery, Truman haq mastered the highly mobile French 75-mm Puteaux field gun – learning that one had to put down fire as soon as one saw the massing of enemy troops and to anticipate their movements. As President, he showed the same inclinations.
Truman would later become the model for George Bush, who shared his view of inherent presidential power and his disdain for conferring with Congress on the use of military interventions (even though he would ultimately secure congressional authorization for his wars). Moreover, like the unpopular Truman, Bush insisted that his record low approval ratings would ultimately be answered by a more complimentary view of history. Putting aside the question of a Bush revival, his identification with Truman is quite apt. Both wars raised serious constitutional questions as to the inherent authority of the American President. Like many of their predecessors, Truman and Bush resisted the shared powers with Congress when it came to war. What makes a great artillery man and perhaps even a great Commander-in-Chief does not necessarily make for a great President in the constitutional sense. Indeed, it is a tension that has marked the administrations of presidents going back to the founding of the Republic.
War (What is it Good For?)
The 1970 classic “War (What is it good for?)” is one of the few modern songs that might have been written by the Framers in 1790. The Framers uniformly viewed wars, to quote Edwin Starr, as largely “good for nothing.” European wars were viewed as the inefficient and egotistical occupations of monarchs and despots. It is not that the Framers were pacifists, they were pragmatists. They saw the wars as serving little good but to drain lives and treasure for the glory of national leaders. Their solution to this problem would prove maddening for dozens of later presidents: they denied the president the ability to declare or to maintain a war.
Over two hundred years later, the division of war powers between the President and Congress has led to a fierce struggle over the Iraq War with calls to shut off funds, to set time tables for the withdrawal of troops, and even to commence impeachment proceedings for misleading the public on pre-war intelligence. What is most striking about today’s debate is that the positions and even the words have not greatly changed over the centuries. Presidents and congresses have always sparred over their prerogatives of war. Of course, when wars have proven unpopular, the debate has shifted from one of prerogative to one of responsibility. Today’s Iraq war (once so popular) is now an example of how “success has many fathers, but failure is an orphan.’’ Politicians could legitimately call the Korean War “Truman’s War,” since he bypassed Congress. It is far less convincing today when members of Congress (who rushed to approve military action) insist that this is “Bush’s War.” It is a claim as absurd as an angry parent using “your child” to describe a misbehaving kid. The Constitution requires two parents – the executive and legislative branches – to consummate a war. In doing so, the Framers guaranteed that both branches would have equal authority and blame for making war. Yet, history has shown that, once the drums of war are sounding, both presidents and congresses have danced around both the limitations and expectations of the Framers.
When the Framers met in Philadelphia in the summer of 1787, many had war on their minds. There was considerable debate over the role of the president – or even whether a single president was needed. Edmund Randolph warned that executive power was “the foetus of monarchy” and, like many of his contemporaries, he feared that the president would try to rule unilaterally as more king than public servant. It was a debate that often came back to war. John Jay voiced a common view in The Federalist Papers, when he cautioned that “[a]bsolute monarchs will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as, a thirst for military glory.” Past wars, he noted, were justified “only [in] the mind of the Sovereign . . . [rather than] the voices and interests of his people.” Other Framers denounced most wars as merely part of “a theatre of glory” for rulers.
As on many such occasions, the concerns of the Framers proved prophetic. Later, presidents and political leaders would opine that it is war that often propels a president into the ranks of the “great presidents.” Teddy Roosevelt once complained that “if there is not the war, you don’t get the great general; if there is not the great occasion, you don’t get the great statesman; if Lincoln had lived in times of peace, no one would know his name now.” Many presidents have sought the advice of historians and reached the same conclusion: greatness is often found on the other side of a war. When asked about the motivation behind the first Gulf War, Admiral William Crowe, former chair of the Joint Chiefs of Staff, noted that “[t]o be a great president you have to have a war. All the great presidents have had their wars.” More recently, many critics have described the same “theatre of glory” in such scenes over four years ago when President Bush strutted in a pilot jumpsuit on the deck of the aircraft carrier Abraham Lincoln under a “Mission Accomplished” banner.
The Framers had personally witnessed the vainglorious defeat of King George and viewed most wars as fought for the glory of an individual rather than a nation. For that reason, there was universal agreement that a president could not be trusted with the authority to declare and make war.
The solution to this fear of a power-hungry or war-bent executive was a division of powers, particularly the war powers. As George Mason noted, “the purse & the sword ought never to get into the same hands.” This aversion to executive power was reflected in the original version of Article I of the Constitution, which gave Congress the sole authority “to make war.” This is how the Constitution would have read if it were not for a small amendment suggested on August 17, 1787 by South Carolina delegate Pierce Butler and Massachusetts delegate Elbridge Gerry (who would later vote against the Constitution). Butler and Gerry suggested that the word “make” be replaced by “declare’ in Article I. There is little recorded about this word change. Connecticut delegate Roger Sherman objected that it would result “in narrowing the power too much” while others indicated that war demanded less deliberation and more action – once it has been properly declared.
Ultimately, by a vote of eight to two (and one abstention), the word change was made. That single word change helped set the course of over two hundred years of squabbling over where the war powers line is drawn between presidents and congresses.
Under Article I of the Constitution, Congress alone has the right to declare a war and to maintain the armed forces of the United States. These powers of declaration and appropriation gave Congress a powerful voice in war-making. Thus, while the President is the Commander-in-Chief in the execution of a war, it is Congress that determines whether he can unleash the dogs of war – and how much he can feed them. It is an arrangement designed to make war the most difficult power for the president to exercise. During the Pennsylvania ratification convention, James Wilson noted that the need for congressional approval will guarantee that no one “will . . . hurry us into war [since] it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress.”
At the same time, once Congress declared war, the President was recognized as the Commander-in-Chief in the prosecution of the conflict. This power in Article II was meant to end the meddling in war-time decisionmaking that was common under the Continental Congress. Congress would release the dogs of war, but only the president directs their fury.
Teddy’s Ships and Congress’ Fuel: The Battle Over the White Fleet.
George W. Bush is just the last of a long line of presidents who have struggled with the limitations placed on the Commander-in-Chief. The vast majority of presidents have chaffed at the need to ask Congress to declare war and to maintain war efforts. At various times, they have tried to bully, badger, and even bluff Congress into yielding to their demands.
Perhaps the most vivid example of the uneasy relationship of the two branches occurred over Teddy Roosevelt’s White Fleet. Roosevelt had announced his “Big Stick” policy and wanted a physical manifestation of that stick to be seen around the world. He hatched upon the idea of sending all sixteen capital ships of the American Navy on the first ever circumvention of the globe by a naval fleet. It was an idea viewed as unnecessary and wasteful by many in Congress, which refused to appropriate the funds. For the Rough Rider President, it was an affront that he could not let pass. He decided to send the ships anyway – without a guarantee of funds or fuel for the trip. On December 16, 1907, the sixteen battleships, assorted other supporting vessels, and over 14,000 sailors and marines set out from Norfolk in a column three miles long. Roosevelt himself shadowed the fleet and its impressive flag ship Connecticut out to sea in his own presidential yacht, Mayflower. Roosevelt then sent a message to Congress that he had sent the fleet with enough fuel to get halfway around the world. If Congress wanted the fleet back, he suggested, they might want to send the fuel. They did so.
Roosevelt’s bluff captures the essence of the division of authority over war powers. Roosevelt controlled the ships, but Congress supplied the fuel. Despite their bravado, presidents cannot get to far without Congress. They essentially must conduct a war on a credit card furnished by Congress – a card that can come with any number of limitations and penalties for the cardholder. However, Presidents can use their powers to force the hand of Congress – including pushing the nation to the brink of war or into actual armed conflict.
How to Engineer a War
Bertolt Brecht once said “war is like love; it always finds a way.’ This is certainly true with some past American wars. Presidents have repeatedly found a way to lead an often reluctant nation to war. They have ample authority to create the circumstances – both politically and militarily – that lead inevitably to war. Since presidents can order troop deployments, diplomatic changes, and other provocative acts, it is relatively easy to start a fight that Congress will have to finish. For later presidents, the Mexican-American War served a textbook example of how to start a fight. Many legislators did not want to go to war with Mexico – particularly members of the Whig party. President James Polk, however, coveted the Upper California and New Mexico. To that end, Polk sent John Slidell in 1845 to Mexico City to buy the territory for roughly $35 million in cash and loan forgiveness.
Unable to buy the land, Polk set out to take it. He claimed the area between the Nueces River and Rio Grande as American soil — though the vast majority of experts then and now viewed the land as clearly Mexican. Polk sent General Zachary Taylor to the Rio Grande to claim the territory in full expectation that the Mexicans would oppose such a move. Taylor took the most provocative possible action – building a fort (later known as Fort Brown) on the border. The Mexicans were furious and, April 24, 1846, a 2,000-man cavalry force attacked a U.S. patrol of 63 men. Eleven were killed. Fort Brown and the Mexicans exchanged artillery gun fire until Taylor arrived with 2,400 additional troops. At the ensuing Battle of Resaca de la Palma, the two armies fought – at times hand to hand – for the territory. The Americans prevailed largely due to their new innovation of “flying artillery” where light artillery was moved on horse carriages quickly around the battlefield. Polk had his war. On May 11, 1846, Polk told Congress that “American blood [has] been spilled on American soil” and thus “the cup of forebearance [has] been exhausted.” Even though Whigs voted against the war as the product of Polk’s “lust of dominion,” Congress declared war. Among the dissenting votes were former president John Quincy Adams and future president Abraham Lincoln. A clearly suspicious Lincoln demanded that the Administration “show me the spot” where the patrol had been originally attacked.
Lincoln was not the only American leader suspicious of war-triggering events. A veteran of the 23rd Ohio Volunteer Infantry (under the command of future president Rutherford Hayes), McKinley had seen all of the death that he wanted to see in this lifetime. Despite the clamoring for war by hawks like Assistant Secretary of the Navy, McKinley resisted. “I’ve been through one war,” he stated, “I’ve seen the bodies stacked like cord wood, and I don’t want to go through that sort of thing again.” Roosevelt and others, however, stoked the flames of war. When pro-war and yellow journalist William R. Hearst was told that by his staff the crisis was not yet a war, he promised “you furnish the pictures and I’ll furnish the war.” The issue came to a head at 9:30 p.m. on February 15, 1898, when the battleship USS Maine exploded in Havana Harbor. Even at the time, there was great uncertainty as to whether the explosion was accidental or intentional. Many claimed then and since that the explosion was caused internally, including a 1976 investigation suggesting the explosion of a coal bunker that was located dangerously near the ammunition magazine. Hawks, however, seized on the disaster as a deliberative act by a submarine mine (a view supported a century later in a National Geographic investigation). Even as people chanted “Remember the Maine, To Hell with Spain,” McKinley still just wanted to act deliberatively. He asked Congress, not for a declaration of war, but authority to use U.S. troops to quell the civil war in Cuba in light of Spain’s inability to do so. Congress, however, went further and approved the use of force to secure Cuban independence. Spain declared war four days later and Congress happily declared war in what Roosevelt would call that “splendid little war.”
Most presidents have had a more difficult time pushing the country to war and have used their own calculated measures to create the context for a declaration as Franklin Delano Roosevelt did in the years leading up to World War II. Other presidents have been accused of falsifying or embellishing the case for war. The best example is the Tonkin Bay incident.
The Battle That Wasn’t: The Tonkin Bay Incident
In November 1963, Lyndon Johnson had authorized covert operations against Northern Vietnam under OPLAN (Operations Plan) 34-A. While the United States was assisting the South Vietnamese, Congress had never approved of full combat operations in the country. These efforts were escalated further in March 1964 under the National Security Action Memorandum No. 288.
For their part, the North Vietnamese were committed to attacking any vessel engaged in hostile action within their waters. On the evening of August 4, 1964, the destroyer USS Maddox sent a high-priority message that an attack by North Vietnamese PT-Boats (or Swatows) was imminent. There had been an attack by such boats on August 2, 1964 – a brief exchange that left the North Vietnamese vessels heavily damaged and killing some crew members. (Only one shell hit the Maddox). On August 4, 1964, the Administration reported a second attack, which led to a demand for authority to commence full military operations. Where Lincoln had demanded to be shown the spot of the attack that started the Mexican-American War, few legislators questioned the veracity or accuracy of attack of September 4th. Senator J. William Fulbright, chairman of the Foreign Relations Committee, declared, “the facts of the immediate situation are clear.” Much like the later Iraq War vote, even liberal members like Senator Frank Church called on colleagues to act with hesitation or serious scrutiny: “there is a time to question the route of the flag, and there is a time to rally around it, lest it be routed. This is the time for the latter course.” Congress quickly gave the President the authority that he sought in the Gulf of Tonkin Resolution.
It would be years later that the second attack would be discredited as unsubstantiated and probably untrue. (Ultimately, even Secretary of Defense McNamara would express doubt that any attack actually occurred). Indeed, it was not until 2003 that many documents were released showing little evidence of the attack. While considerable ordinance had been fired by U.S. forces, no one saw an actual vessel and only a few personnel even thought that they saw torpedo wakes or flashes in the water.
The Senate began to question the Tonkin Bay account in 1968 – after the war had become unpopular with citizens. Fulbright and his colleagues demanded and received information that cast serious doubt on the account given to them by the administration. Fulbright noted that, if this information “had been put before me on the 6th of August , I certainly don’t believe that I would have rushed into action.” The same statements are now being made by many senators who claim that, had they known the whole story, they would never have voted for the second Iraq War – despite their failure to insist on such information at the time as a precondition for their vote.
From 1787 to 2007: The Debate Continues
The current debate over the origins and wisdom of the Iraq War could have been taken directly from the debate in the late eighteenth century. Bush is accused of misleading the country as to the need to go to war. His motivation is often viewed as influenced by personal desires in retaliation for Saddam Hussein’s attempt to assassinate his father. Bush himself fueled this widespread view when, during the debate leading to the invasion in 2002, he stressed that “this is the guy who tried to kill my dad.”
The Framers were most worried about such personal views as influencing war decision-making. Even Alexander Hamilton (who was generally pro-executive power) warned against presidents who acted like Pericles who led Athens into a destructive war due to his “private passions.”
Bush’s supporters insist he had reason to believe there were weapons of mass destruction and was therefore justified in the use of preventive invasion before such weapons could be used against the United States or Israel.
In Bush’s favor, it must be noted that, while he originally indicated that he believed that he had authority to act without congressional consent, he did secure authorization from Congress to use military force – something that many of his predecessors did not do. While many democratic leaders are now seeking to shift blame entirely on Bush for the war, they clearly refused to listen to many experts questioning the need to go to war and sharply criticizing the broadly word resolution giving Bush virtually unlimited authority. Indeed, when one looks over the history of the United States at war, there is an almost unbroken tradition in Congress engaging in such willful blindness to pass popular resolutions.
Moreover, Bush was not alone in claiming unilateral power to go to war. Harry Truman pushed the nation into the Korean War by proclaiming it to be a “police action” taken under the authority of a United Nations resolution. At the time, when the issue of Truman’s open circumvention of the Constitution was raised, most senators agreed with Senate Majority Leader Scott Lucas (D-Ill) who simply declared that he “[did] not care to debate that question.”
Many of Bush’s immediate predecessors took similar unilateral measures with little congressional opposition. When President Reagan invaded Grenada in 1983, he did so under his inherent commander-in-chief powers, not a congressional resolution. He used this authority again when he attacked another nation – Libya – in 1986.
President Bush’s father also used his inherent authority to send almost 25,000 troops to invade Panama and capture its leader, General Manuel Noriega. (However, he did secure such authorization for the first Gulf War.) President Clinton repeatedly ordered military action without congressional authorization. Clinton routinely bypassed Congress in forays into Bosnia, Kosovo, Iraq, Haiti, Sudan, and Afghanistan.
A Dormant Congress
Of course, Congress has the ability to use the power of the purse to end such conflicts and force changes even in the deployment of troops. As early as the Mexican-American War, Congress debated restrictions or riders that would send war monies with conditions. In that conflict, many members wanted to impose the “Wilmot Proviso,” barring slavery in the new territory since the war was viewed as a way of expanding pro-slave enclaves.
In the Civil War, particularly during Reconstruction, the Congress routinely attached conditions to appropriations to force policies on the former rebellious states.
Later, Congress moved to impose its will on the composition of military units to guarantee the survival of the Marine Corps. Teddy Roosevelt was viewed as openly hostile to the Marine Corps, stemming from his time as assistant secretary of Navy. Like some at the time, he wanted the Corps absorbed into the army. To that end, he ordered the Marines off their ships. As today, however, the Marines had powerful allies in Congress, which required Roosevelt to return Marines to the ships as a condition for funding.
In Vietnam, Congress withdrew its authorization and set time tables for withdraw. Later, Congress would bar the use of any funds for military incursions or interventions in places like Nicaragua and Angola.
Perhaps the greatest congressional assertion of war powers came with the passage in the Twentieth Century of the War Powers Act – requiring a president to pull back any troops engaged in hostile action after 60 days absent congressional authorization or a 30-day extension.
Yet, despite the War Powers Act, the Twentieth Century saw the increased assertion of presidential war powers and the comparative decline of congressional power. Presidents have resisted this law just as they have Article I. Reagan never reported U.S. military incursions into El Salvador, for example, and was accused of violating the law again in the invasion of Grenada.
The invasion of Panama was a case in point of a dormant Congress. On December 20, 1989, President George H.W. Bush ordered the invasion of a sovereign invasion. Almost 30,000 troops and 300 aircraft were deployed – without any congressional authorization. They faced a Panama Defense Force of roughly 16,000 men. The reasons given for the invasion have remained controversial. Bush argued that Panama had declared war on the United States, which the Panamanians denied. (They insisted that they had merely passed legislation referring to U.S. sanctions as an act of war). It was also claimed that unarmed U.S. personnel were assaulted by Panamanian soldiers, resulting in the death of Lt. Robert Paz. However, the Los Angeles Times reported that the incident was actually a confrontation with a shadowy U.S. group called “the Hard Chargers,” who were tasked with causing disruptions and difficulties with the Panamanian force. (An allegation denied by the U.S.). Finally, the U.S. claimed that Panama had become a drug haven with its leader General Manuel Noreiga as a central player.
None of the reason given for the Panama invasion would satisfy the Framers as a basis for an undeclared invasion. Indeed, if Panama had declared war, it would seem obvious that Congress would be allowed to respond to that legislative act. Yet, Congress remained strangely quiet as Operation Just Cause invaded a country and seized its leader. Twenty-four military personnel were killed and 325 wounded in the operation.
From the Quasi War to the Barbary Pirates
Modern Congresses have shown a preference to remain in a largely pedestrian role when it has come to war – ready to claim victory but equally ready to denounce defeat. Where the Framers expected an open and binding debate over the declaration of war, politicians found ways to avoid that politically difficult decision through the use of resolutions or simply yielding to presidential fiat, as in the Korean War.
The ability to have war without declaring war can be traced back to the years immediately following the ratification of the Constitution. In the so-called “Quasi-War,” the United States engaged in a fierce war with the French from 1798 to 1800 without a formal declaration of war. The French had started to attack U.S. ships in retaliation of the Jay Treaty with Britain, which the French viewed as violating the historic alliance between France and the United States. The new Revolutionary government in France ordered the interdiction and seizure of U.S. vessels and Congress responded by appropriating money for an expanded U.S. naval forces. The losses on both sides in shipping were staggering. By the end of the war, over 2000 U.S. merchant ships had been seized or destroyed. The U.S. Navy seized 85 ships of the French.
While the Quasi War would become precedent for the undeclared war, it was unique in one sense. It was a case where Congress wanted full war but the President did not. President John Adams resisted calls for war with France and credited himself with preventing such an expansion of the conflict.
The Quasi War is now the model for modern wars. Presidents have attacked or even invaded other nations without a debate, let alone a declaration, by Congress. After the Quasi War, Congress learned how to use the resolution as a substitute for a declaration. In the 1780s, the rulers of Algiers, Tunis, and Tripoli routinely captured American vessels, selling their cargo, commandeering the vessels, and enslaving the sailors. Over the objections of Thomas Jefferson, the Congress began to pay tributes to the Dey of Algiers which eventually reached $1 million a year for safe passage – 20 percent of the annual federal revenues. The Dey insisted that the Koran gave him authority to “make war upon [sinners] wherever they could be found.” When the Dey demanded $225,000 from the recently elected Jeffersion in 1801, the gravy train ended. Jefferson refused and the Dey declared war. Congress responded by simply authorizing the use of military force deemed necessary. The newly expanded American Navy had tremendous success including the defeat of the corsair Tripoli by the USS Enterprise. Ultimately, the U.S. Marines carried out a surprise attack on the Tripolitan city of Derna in 1805 forcing the war to a negotiated end to the First Barbary War and inspiring the reference “to the shore of Tripoli” in the Marine Hymm. Congress would again authorize the use of force at the discretion of the President in March 1815 in the Second Barbary War. Admiral Decatur made fast work of the Algerian Navy. Decatur used the Constellation to force the 44-gun Algerian flagship Meshuda under the guns of Decatur’s newly commissioned flag ship, USS Guerriere. In the ensuing broadsides, the Algerian commander was killed and the ship taken. Later,Decatur also defeated the brig Estedio – forcing a final settlement with the Dey.
The relative shortness of the Barbary actions would become a signature of later modern resolution authorizing force. Many unilateral deployments by presidents are uncontroversial such as President Truman’s decision in 1948 to order the Berlin airlift. While the airlift was certainly less risky than General Lucius Clay’s proposal to drive an armored division down the Autobahn, it was a massive operation that, at its peak, would require landing a plane every 60 seconds in Berlin and costing the lives of 39 British and 21 U.S. airmen.
Another example of deployments under a president’s inherent power was President Ford’s order to retake the American cargo ship SS Mayaguez. The ship had been taken by Khmer Rough forces on May 12, 1975 – just weeks after the fall of Saigon. As with the Barbary incidents, Ford treated the matter as one of piracy, even though these were Cambodian forces. Using the 9th Marine Regiment and other forces, Ford ordered the retaking of the ship and rescue of its 40-man crew. Unbeknownst to the Americans, the crew had been removed from the ship on a small wooden fishing boat. (U.S. forces tried to prevent any ships from leaving the island of Koh Tang, including the fishing boat, but decided not to sink any boat that might contain the captured crew). Marines retook the Mayaguez on May 15 only to find it empty. Marines landing on Koh Tang, however, experienced disaster after disaster. Of eight CH-53 and HH-53 helicopters, three were destroyed and four heavy damaged. Forty-one personnel were lost and thirty-five wounded. Nevertheless, it was treated by Congress as an exercise of Ford’s inherent authority.
Nevertheless, where the Framers recognized the need of the President to “repel” attacks quickly, they still anticipated that Congress would be the sole body for the declaration of hostilities. Even wars with resolutions like the Iraq War are almost casual on a constitutional level. Where the Framers wanted clarity, Congress created ambiguity in the making of war. In that sense, Truman was wrong in his deployment of U.S. forces in Korea. Secretary of State (like many current Bush officials) insisted that Truman had inherent authority to commence the war. Truman instead used the questionable claim of a police action. These distinctions would have been lost on the Framers, who saw Congress alone as the body needed to commence such wars. It is certainly true that events were moving extremely quickly in June 1950 with the collapse of the South Korean forces. It is also true that wars now moved faster than in the 1700s when months would often pass before the commencement of serious combat. However, face with such exigency, Congress has routinely authorized the use of force, as it did in the Iraq War to its later regret.
When viewed over the course of history, the current Iraq War debate seems like only a more recent production of a long-running play. The same characters have emerged. The once gung-ho senators now claiming deceit. The still gung-ho president insisting on staying the course. What is striking, however, is how different this drama would look to the Framers. They anticipated battles over war powers. Yet, they never anticipated that so many military conflicts would occur without a declaration of war. Through the use of vague resolutions, members of Congress have evaded their obligation to share fully in the decision to go to war. At the same time, Presidents have grown accustomed to launching attacks with the loosest conferral with Congress.
There is one aspect of the current war that is different from all past wars, however. The idea of preventive war would have been controversial with the Framers. Far more controversial, however, would have been the concept of perpetual war. President Bush has insisted that there is a “war on terrorism” in the literal, constitutional sense. He has claimed that this war gives him the elevated authority of a wartime president to exercise extreme, unilateral authority. Thus, just as Lincoln (unconstitutionally) suspended habeas corpus during the civil war, Bush has claimed the right to unilaterally declare any citizen to be an enemy combatant and strip him of his rights, including his right to access to courts or counsel. Yet, since terrorism will never been truly defeated, this new theory would create a perpetual war-time presidency. Most of the unauthorized combat operations by Reagan, Bush Sr., and Clinton were relatively short-term affairs. The framers never anticipated a claim of perpetual war that could be unilaterally declared by a president.
Under the war powers provisions, only Congress can start a war but it is the domain of a president to decide when the war is over. Of course, Congress can engineer the end of a war just as a president can engineer the start of one. However, historically, once the dogs of war are released by Congress, it was expected that the president alone would call them back. There was usually a well-defined point to the end of a war: the taking a capitol city or the signing of a treaty. Yet, with perpetual war, it is inconceivable that any president would suddenly declare that terrorism has been defeated. It is a status that would have been unimaginable to the Framers and, if suggested, would have likely endangered the very passage of the Constitution. In some ways, Bush closed the circle begun with the Quasi War. Eventually a president would claim the unilateral authority to declare war on an ambiguous enemy. Prior to Bush, terrorism was treated as a category of crime. It was not like a nation against which a war could be authorized. For the reason, the Barbary pirates were treated more as criminals than a nation at war. Under the current definition, Jefferson could continue to claim wartime necessity against piracy long after American sailors were rescued.
War powers are now very different in their execution than the system contemplated by the Framers or described in the Constitution. Clear constitutional language has been replaced over the years by political convenience. There has been a mutual silent pact between the executive and legislative branches to forego the difficult burden placed by the Framers. The result is that wars are easier and therefore more common in modern times – precisely what the Framers wanted to prevent in Philadelphia in the summer of 1787.