Take a look at the main page for National Review Onlinea to get an idea of the current conservative mindset: the sections are labeled “At War: Mideast,” “At War: Iraq,” “At War: Culture,” and “At War: Islamic Fascism.” Detect a pattern? Why, you’d almost think that America was at war with some country or something.
This is somewhat understandable considering that since 9/11 American troops have invaded two countries, Iraq and Afghanistan, and deposed their respective governments. We have captured people, such as Salim Ahmed Hamdan on the fields of battle in Afghanistan, and locked them up in Cuba to await whatever justice we choose to mete out. These are certainly the actions of a country at war.
But, contrary to NRO’s rhetoric, we’re not at war. At least not in a constitutional sense. And that’s why the Supreme Court, although for somewhat the wrong reasons, got the right answer in Hamdan v. Rumsfeld, where a military commission created to preside over a detainee’s trial was stricken for being insufficient.
During times of war a president is entitled to extra deference while prosecuting that war in order to ensure the best chances of victory. But in order for America to be at war, Congress has to declare it. That’s a power expressly designated to Congress by the Constitution. We’re not at war because NRO’s writers think we’re at war, nor because any president insists that we’re at war. If the president, as Commander in Chief of the armed forces, is to be considered the master of the dogs of war, Congress is the gatekeeper who gets to decide when the dogs are let out of their pen.
The drafters of the Constitution certainly saw danger in vesting the power to declare war in the same hands as the power to wage it. Unlike the king of Great Britain, whose power was seen as an example to avoid, the advocates of the Constitution, in Federalist #69, took great pains to distinguish how the president’s power would be “much inferior” to that of a monarch if his authority over the armed forces came without the power to also declare war and raise those armies.
As the Federalist Papers favorably quoted Montesquieu in #47, “When the legislative and executive powers are united in the same person or body, there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner.” Federalist #75 went on to describe the difference between legislative and executive authority, whereby the former “prescribe[s] rules for the regulation of society,” while the latter has authority over the “execution of the laws.”
In this way, the power to declare war prescribes the rule for how the executive may wield his military authority. While the president may be able to control “the direction of war,” as it is described in Federalist #74, he doesn’t get to start it.
This brings us back to the recent decision in Hamdan v. Rumsfeld, which conservatives have bemoaned as an unwarranted invasion by the judiciary into the affairs of war. In essence, it was argued that since Hamdan was captured on a battlefield in Afghanistan, and in the service of Osama bin Laden, the president had the power to proscribe whatever kind of military commission desired in order to prosecute and punish him, as this was a wartime situation that demanded wartime deference.
The Supreme Court majority minced around the problem by assuming that a state of war did exist, but then holding that the commission as it was organized did not meet the standards of the Uniform Code of Military Justice and the Geneva Conventions. But the real problem was that there was no state of war in the first place. We’re at peace, regardless of the rhetoric, and therefore the president must abide by our laws in full when dealing with foreigners held on American soil.
Some argue that Congress did declare war, in that it enacted an Authorization for Use of Military Force that permitted President Bush to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks . . . in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Using all necessary and appropriate force against nations certainly sounds like war, doesn’t it?
Well, no. War isn’t about “necessary and appropriate force,” it’s about blowing the other side to smithereens, proportionality be damned. Proportionality wasn’t guiding President Truman in deciding whether or not to drop atomic bombs on Japan. War is about winning, not winning pretty.
Not to mention that under the Supreme Court’s own previous decisions, Congress can’t just sign over its own powers to the president. Even if one reads “all necessary and appropriate force” as a grant of war, the AUMF allows the president to decide who to go to war with, which is the same as declaring war. That’s not allowed, any more than Congress could pass a law allowing the president to pass laws. Constitutionally, Congress cannot turn the president into a monarch, even if it wanted to.
If conservatives want the president to wield wartime power so that the Hamdans of the world can be shoved under the rug, all that is needed is a declaration of war from Congress. Such a declaration need not be against only countries. Conceivably, Congress could enact a law granting the president wartime authority over incidents involving terrorism. This would be dangerous, as any president could argue that practically anything would qualify as necessary in the pursuit of terrorism, but at least it would be constitutional. Otherwise, we risk a situation where the rhetoric of war becomes the power of war, and we’ll never see peace again.
James N. Markels is an attorney and a regular columnist for Brainwash. He is the co-author, with the Institute for Justice, of an amicus brief to the Washington State Supreme Court in Rickert v. State of Washington Public Disclosure Commission.
Source: AFF Doublethink Online | Kathlyn Ehl
Source: AFF Doublethink Online | Jacob Hayutin