I suspect DAT will be along in short order to savage it mercilessly:
A recent broadcast of [name] touched on the fact that congress has not issued a formal declaration of war since the Second World War. There is considerable debate over the extent of the president’s powers with regards to committing the armed forces of the United States. That debate centers on the constitutional provision that only congress may declare war. While the citation is correct the interpretation seems lacking. The more stringent interpreters claim that the president cannot commit the armed forces of the United States to combat unless congress has first blessed the action through a specifically-worded declaration of war; an “Authorization for the Use of Force†having been deemed insufficient.
Worse, there are those who make more hysteria-based cries of “Treason!†This is this school of thought that needs to be confronted not only for the danger of inviting the enemies of the US to act-out against a slow-moving US national security apparatus but for the domestic discontent it seeks to manufacture. To falsely claim a president is treasonous is to incite unrest of the worst sort.
Whether or not a given conflict is truly in the best interests of the US is always debatable and it ought to be vigorously debated by any people who wish to remain free and promote freedom but to claim the proper authority of the chief executive is treasonous demands firm resistance.
First, as a matter of foundation-laying, Article 2 of the Constitution names the president and the president alone as the Commander in Chief of the army and navy of the United States. This fact may be so obvious that it seems pointless to recite but it has to be asked what exactly that means in practical terms.
To imply any Commander-in-Chief is hidebound to seek the approval of an overly politicized committee such as congress for every move or commitment of forces is to neuter the term of all relevancies. Either the commander commands or he is not the commander and is merely an administrator. The founders noted and rejected the history of the Roman mechanism of selecting two concurrently presiding Consuls to divide and balance military power in the name of domestic liberty. If two presidents were deemed an unfitting scheme for checking executive power in the US republic how much more so they rejected the notion that 435 professional squabblers serving as the gatekeepers.
In fact, the Federalist rejected the notion of tying the president’s hands, as Federalist Paper, No. 23 asserts:
The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.
The role of congress in guarding against a rogue military or rogue chief executive are secured in Article 1, Section 8 where congress alone can set appropriations for the size and nature of the armed forces and then, never for more than 2 years in advance. As Madison stated, "The sword is in the hands of the British king; the purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist."
If congress believes the military and/or Chief Commander, grow too restive they are free to not fund as many battalion or aircraft carriers as they believe are necessary to deprive the would-be usurpers of the material power to achieve their schemes. If congress believes a conflict is ill-advised it is free to decline all supplemental appropriations. All conflicts require additional expenditures for the logistics, payroll and incidentals involved. The mere act of not acting to fund such things is all the congressional oversight required and it is exactly the extent of the oversight envisioned by the founders. Each time congress does fund the cost incurred during an armed conflict it provides its tacit approval.
Since 9/11/01 the fact that dangers erupt suddenly and severely cannot be ignored and it is just this sort of calamity the federalist anticipated, if not in exacting terms, at least in general nature. While there were no airliners to hijack to be used as missiles the founders understood threats emerge without warning and they wanted a vigorous CINC able to engage such threats.
“Well of course the president can interdict imminent threats,†those contending for declarations-of-war-only will admit; but in so doing they concede the entirety of their argument. The constitution does not contain a “except in case of imminent threat†clause. If their preferred constitutional reading is to be taken at their word and on the strict terms based on their understanding of the letter of Article 1, Section 8, they assume the indictment they would assign to others.
Add to this the fact that despite the horrors of 9/11/01 a full 35-percent of Democrats believed a sitting US president either allowed the attacks to occur despite prior knowledge or actually staged the attacks in an elaborate conspiracy to justify foreign wars of aggression analogous to Hitler’s burning of the Reichstag. That the nation’s security should ever be subordinated to a faction that must curry favor from such a significant portion of its base of delusional voters is shocking.
Worse, such a mistaken interpretation would submit all evidence—and with it all sources and methods—of impending threats to the very same congress where members of the House and Senate have entered into unilateral agreements with communist regimes (John Kerry, Nicaragua, 1985) or made publicity tours to erstwhile belligerents (Jim McDermott, Iraq, 2003) or outright lobbied on behalf of hostile governments (Ted Kennedy, USSR, 1983) all in the name of cynically stunting the rightful authority of presidents who were in the wrong political party for their tastes. This too was foreseen by the founders as the schoolmaster that is History had instructed them time and again that such things were inevitable.
This well-intended but misguided view of declarations of war also entices a president seeking to avoid factional bickering or the compromising of assets to wait until distant threats become imminent threats; a game of timing that cannot be permitted as the securing the lives of innocent Americans from violent threats is the first duty of instituted government. No imagining of constitutional intent demands American blood be first spilled. We are not required to see our cities to burn simply to prove honest stewards of national security are also lawful stewards.
There are three very prominent examples of presidents acting to confront threats to the United States absent congressional declarations of war and each example brings unique factors to the discussion.
The first example is the war fought against the Barbary Pirates. In this foreign war congress stated it did not need to declare war because war was first declared against the US. What is more telling was the nature of this declaration by the Pasha of Tripoli: the flagpole in front of the US consulate was cut down. If a mere diplomatic affront was sufficient casus belli to the mind of congress then how much more so the unending series of violent assaults suffered by the US at the hands of violent Islamists and Marxists when the lives of thousands have been stolen from us.
Those who claim deploying federal forces absent a declaration of war is unconstitutional or treasonous might want to petition for a posthumous impeachment and trial of George Washington for his actions during the Whiskey Rebellion. Yes, the father of our nation, the hero of the revolution to free us from tyranny and the American Cincinnatus mounted his horse and rode out with federal troops in tow to bring force of military arms to bear on American citizens on American soil…without congressional approval. Either we damn Washington as a hypocrite and a traitor or we admit his understandings of his authorities are nearer to the mark.
Lastly is the modern example of the Cuban missile crisis. In that crisis the president deployed all manner of US military assets to prepare for a war as well as engage in actual acts of war when the US navy blockaded Cuba. If the faulty interpretation of the declaration of war provision were assumed the actions to prevent a global war would have defaulted in that very same war. If President Kennedy had not imposed a blockade the Soviets would have gained their nuclear foothold within first-strike distance of the US unchallenged and we would have had no ability to reverse their action without invasion. If the overly-strict view were accepted congress would have declared war leaving the Soviets no opportunity to withdraw.
And to those who assert the current mechanism for congressional consent, the Authorization for the Use of Military Force (AUMF) is insufficient to those who would safeguard liberty it should stated that an AUMF better serves their own purposes.
When the United States is in a formal state of war the powers conferred upon the executive branch are near limitless. The US Code is written in such a manner, particularly in the shadow of modern nuclear reality that the president may, without prior congressional consent seize communication, transportation and industrial assets. Domestic “spying†that would cause even the most ardent supporters of the Patriot Act to blush may proceed unchallenged. Persons of foreign descent, if related to the belligerent nation, may be deported or interned at the president’s unilateral determination. Food, fuel and other vital commodities can be rationed.
Add to these facts that the current Global War on Terrorism entails conflict with an enemy that is by definition a non-state actor (one of the many qualities that make them unlawful combatants). There is no national command structure to topple, no enemy capital to seize. The enemy hides in the cities of non-belligerents and allies. There can be no formal declaration of war because there is no foreign government against whom we can declare peace or victory. Not only does it make it impossible for a declaration of war to expire it invites perfidy by those who would use terrorists as proxies. A president that cannot respond militarily to attacks must rely solely on civil policing agencies that are then constitutionally required to extend to all attackers the rules of Miranda rights, probable cause, chains of evidence, discovery of sources and methods, appeals, public trial, opposing counsel, extradition (assuming such agreements exists), etc. or else we ask civil law enforcement to set aside the guarantees we need to hold closest to our hearts.
In contrast, to level the most powerful military of human history requires a threshold to be crossed that cannot go unnoticed or unexamined. Unlike law enforcement that can serve warrants in the dead of night, once the troops move forward all parties are on notice whether they would safeguard our liberties or tear them down. Even commandos and stealth drones leave in their wake the undeniable markings of their form and function. It takes much to awaken the sleeping giant but once the giant awakens its footfalls are unmistakable. To invoke the US armed forces is to admit the danger exceeds the capabilities of diplomats and law enforcement, no matter how determined and professional those agencies may be. It is impossible to deploy the US military without subsequently asking if this is indeed the means for contending with a perceived threat; and that scrutiny alone is the single greatest guarantee of our freedom from within but let us not then imperil our freedoms from without by imposing impractical and unfounded restrictions.
