Who Controls the Powers of War?

In the scope of human affairs few actions can bring about such terrible destruction and death as war. It is inherently chaotic and extremely unpredictable. It is nothing less than the systematic slaughter of human beings for the sake of a political objective. As this cold brutality slowly seeps in through the filtered lens of the major news networks we begin to ask tough questions of our leaders. How did we get into war? Where are we going with it? And more importantly, in whose authority does the decision to begin, widen, or end a war lie?

This becomes even more important when there is disagreement on the morality, legality and overall practicality of a particular conflict. If the majority of Americans oppose a military action, and the congress follows suit, then can the president as commander in chief ignore those views and do what he thinks is right? To answer this question the most obvious thing to do would be to consult the very foundation of our government, the constitution itself. In article I, section 8 it is stated that the congress shall have the powers "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water". In addition section 8 gives congress the authority to "raise and support armies" giving it the ability to decide how large of a force we have, and how much money is given to support its actions. In article II section 2 it states that "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 from simple reading of the document it may be inferred that the congress declares war, and the president commands how it is fought.

This assertion is countered by the claim that a declaration of war is simply a formalized statement that officially puts the United States in a state of conflict with another nation. Many who support President Bush's view that he has wide ranging authority as commander in chief claim that article 2 section 8 does not preauthorize force, but merely approves of it. If there is an imminent danger to the United States or its citizens the president can order the military to action. Interestingly, that is exactly what happened in the first foreign war of the United States, the actions on the Barbary Coast in 1801. In response to the pirating and kidnapping of U.S shipping off the coasts of Tripoli, Tunis, Morocco, and Algiers Thomas Jefferson sent a group of frigates into the area. The frigates found themselves in combat after the pirates ignored the demands of the U.S and engaged the USS Enterprise. It was not until after this action had taken place that Jefferson asked congress to authorize further war with the pirates.

Upon reading of this early history of U.S conflict some may argue that it shows a precedent whereby the president can send U.S forces into hostile areas without congressional approval. However if we look at Jefferson's own words in his first state of the union address where he explains to congress his decision, we find an important point.-'' Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense, the vessel, being disabled from committing further hostilities, was liberated with its crew." What this statement refers to is the fact that after defeating and disabling the pirate ship that attacked it, the USS Enterprise freed its crew and let them go. According to Jefferson this was done because it was purely a defensive act, and not part of formal hostilities which the congress now had to authorize. So in our fist foreign war, with a founding father serving as president we have a precedent where the president has the power as commander in chief to defend U.S citizens in imminent danger, but then needs to ask congress to approve what he called "measures of offense"; essentially a full scale war.

So when President Bush says that he is the "decider" when it comes to military actions, and congress has no role aside from funding, is he flat out wrong? In an attempt to answer this question On January 30^th the Senate Judiciary Committee held a hearing titled; "Exercising Congressional Power to End a War". During this hearing Harvard Law Professor David J. Brown stated "our constitutional tradition shows that measures such as those now being considered concerning military operations in Iraq - whether they place caps on troop levels, restrictions on the introduction of new troops, or establish a date certain by which troops must be redeployed - are clearly constitutional exercises of well-established congressional war powers."

So we have our straight reading of the constitution, a historical example of its application, and the testimony of experts such as Professor Brown which point to the assessment that congress, not the President ultimately decides who we fight, when, and for how long. The question now is whether congress is prepared to use those powers, or if it will give the President the leeway he thinks he deserves to prosecute the so called "war on terrorism" This question applies not just to Iraq, but also to a confrontation with Iran and with issues such as the warrant less wiretapping of U.S citizens. It is a larger philosophical question about who we are and what we stand for; the very ideals that are supposed to separate us from those we fight. Do we give just one man the authority to do whatever he thinks necessary to protect us? Or do we entrust that authority to the whole of government, within the framework of a constitution that checks and balances power to protect us not just from injury and death, but from tyranny as well.