Brief and Borrowed Response

Many people who are for the expansion of war powers from Congress to the Executive, or are just rear-guard defenders of the Bush Doctrine or the wars in Iraq and Afghanistan, they will respond to the Constitutional argument against the legality of these wars by siting some of our Founding Fathers and the wars they engaged in as Commander-in-Chief of the US.

Apparently this is a fairly common argument because Mr. Thomas E. Woods, libertarian, economist and historian, has written specifically to address this argument.

Here is the link to his whole article.

I would like to cite this work, Presidential War Powers, published on LewRockwell.com on this issue, at length. Forgive my lack of summary, but I'm in an airport with slow WiFi and need to board the next plane soon, but feel morally compelled to push out at least an initial response. And I certainly do not have the scholarship of Woods behind me, so I will simply quote from the best and link to the rest!

Here Woods is responding to the drastic limits that the Constitution directly placed on the Executive, giving all war powers to Congress.

The typical neoconservative response to this argument is to claim that the president has sent troops into battle hundreds of times without congressional authorization. A well-known neoconservative whose name I shall mercifully keep to myself made just this argument in his review of my Politically Incorrect Guide to American History.

Let’s see how well the claim stands up.

Supporters of a broad executive war power have sometimes appealed to the Quasi War with France, in the closing years of the eighteenth century, as an example of unilateral warmaking on the part of the president. Francis Wormuth, an authority on war powers and the Constitution, describes that contention as "altogether false." John Adams "took absolutely no independent action. Congress passed a series of acts that amounted, so the Supreme Court said, to a declaration of imperfect war; and Adams complied with these statutes." (Wormuth’s reference to the Supreme Court recalls a decision rendered in the wake of the Quasi War, in which the Court ruled that Congress could either declare war or approve hostilities by means of statutes that authorized an undeclared war. The Quasi War was an example of the latter case.)

Consider an interesting and revealing incident that occurred during the Quasi War. Congress authorized the president to seize vessels sailing to French ports. But President Adams, acting on his own authority and without the sanction of Congress, instructed American ships to capture vessels sailing either to or from French ports. Captain George Little, acting under the authority of Adams’ order, seized a Danish ship sailing from a French port. When Little was sued for damages, the case made its way to the Supreme Court. Chief Justice John Marshall ruled that Captain Little could indeed be sued for damages in the case. "In short," writes Louis Fisher in summary, "congressional policy announced in a statute necessarily prevails over inconsistent presidential orders and military actions. Presidential orders, even those issued as Commander in Chief, are subject to restrictions imposed by Congress."

Another incident frequently cited on behalf of a general presidential power to deploy American forces and commence hostilities involves Jefferson’s policy toward the Barbary states, which demanded protection money from governments whose ships sailed the Mediterranean. Immediately prior to Jefferson’s inauguration in 1801, Congress passed naval legislation that, among other things, provided for six frigates that "shall be officered and manned as the President of the United States may direct." It was to this instruction and authority that Jefferson appealed when he ordered American ships to the Mediterranean. In the event of a declaration of war on the United States by the Barbary powers, these ships were to "protect our commerce & chastise their insolence – by sinking, burning or destroying their ships & Vessels wherever you shall find them."

In late 1801, the pasha of Tripoli did declare war on the U.S. Jefferson sent a small force to the area to protect American ships and citizens against potential aggression, but insisted that he was "unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense"; Congress alone could authorize "measures of offense also." Thus Jefferson told Congress: "I communicate [to you] all material information on this subject, that in the exercise of this important function confided by the Constitution to the Legislature exclusively their judgment may form itself on a knowledge and consideration of every circumstance of weight."

Jefferson consistently deferred to Congress in his dealings with the Barbary pirates. "Recent studies by the Justice Department and statements made during congressional debate," Fisher writes, "imply that Jefferson took military measures against the Barbary powers without seeking the approval or authority of Congress. In fact, in at least ten statutes, Congress explicitly authorized military action by Presidents Jefferson and Madison. Congress passed legislation in 1802 to authorize the President to equip armed vessels to protect commerce and seamen in the Atlantic, the Mediterranean, and adjoining seas. The statute authorized American ships to seize vessels belonging to the Bey of Tripoli, with the captured property distributed to those who brought the vessels into port. Additional legislation in 1804 gave explicit support for ‘warlike operations against the regency of Tripoli, or any other of the Barbary powers.’"

Consider also Jefferson’s statement to Congress in late 1805 regarding a boundary dispute with Spain over Louisiana and Florida. According to Jefferson, Spain appeared to have an "intention to advance on our possessions until they shall be repressed by an opposing force. Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force…. But the course to be pursued will require the command of means which it belongs to Congress exclusively to yield or to deny. To them I communicate every fact material for their information and the documents necessary to enable them to judge for themselves. To their wisdom, then, I look for the course I am to pursue, and will pursue with sincere zeal that which they shall approve."

The nineteenth century, on closer inspection, turns out not to provide the precedents for presidential warmaking that its proponents would prefer to see. We don’t see anything approaching the open-ended and truly staggering authority that neoconservatives would grant the president until the closing years of that century, and even then only in miniature.

Cornell University’s Walter LaFeber pinpoints the origins of modern presidential war powers in an obscure incident from 1900. In 1898 a group of anti-foreign Chinese fighters known to the West as the Boxers rose up in protest against foreign exploitation and extraterritorial privileges in their country. They targeted Christian missionaries and Chinese converts, as well as French and Belgian engineers. After the German minister was killed in 1900, several nations sent troops to restore order amid the growing terror. McKinley contributed 5,000 American troops. This apparently minor action, however, was pregnant with consequences...

I'll do a follow up to contrast this with the resolutions that Bush/Obama have drawn on to begin and continue the wars in Iraq and Afghanistan.

gomer

AMDG

Response About the Legality of War in America

Jimmy (and Hussle),

I appreciate your email. Let me explain what I mean by the wars are illegal so you don't think I'm being "too extreme" in my calling of the Iraq war illegal.

Warning, this is long, but its not (hopefully) offensive, so no blood should boil in reading this response when compared to my earlier ones. More on policy than anything else.

I'm just going to make an apology right at the beginning, though. I want this to be a discussion and I apologize for causing in others or responding to others in an emotional, visceral or insulting way. I love you guys, respect the hell out of you, and -believe it or not- am not trying to piss you off. So, i'm going to be more cautious in my approach. Maybe I should just post this on a blog and not on email so longer submissions can be made and read by people here who care. Email really does suck for stuff like this. In fact, we should be arguing over some beers. My motivation is simply this, I want to be consistently pro-life across the board and America's 75 years of interventionism abroad (and at home) I believe is inconsistent with an ethic of life, with the rule of law, and with the US Constitution. Here's my argument below.

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US Constitution and the Legality of War: Iraq does not meet US Constitutional requirements

The US Constitution and the framers purposefully removed from the Executive the power to declare war. They saw it as a dangerous power to put in the hands of one person, especially since that one person had command of the military in times of war. What they did was put War Powers in the hands of Congress, so that our representatives would be the ones who declared war and also held the power of the purse to fund the war, in case the President wasn't doing his job as Commander in Chief correctly. This is supposed to mean that the People, through their representatives, have the say-so over the war, not one man with kinglike authority as in the British system. This is a cornerstone of the Constitution's separation of powers. As Madison wrote to Jefferson,

"The Constitution supposes, what the history of all governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature."

The Constitution makes it abundantly clear that War Powers belong to the Legislature alone and they are to declare war in order to engage our troops. In the Federalist Papers, #69, Hamilton explains that the Executive is only nominally like the British King in war powers,

"but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war to the RAISING and REGULATING of fleets and armies, all of which, by the Constitution under consideration, would appertain to the legislature." (capitalization was in the original)

The president is merely the first general and generals do not get to declare war in a Democratic Republic. Ever. That would, de facto make it a dictatorship. Lincoln once said in a debate with a gentleman (unknown to me) who wanted all of the war powers to be invested in the President and not the legislature:

The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.

Congress, however, as we all know, does not give a crap about the Constitution nor in following it (hence Obamacare). The interesting thing is, though, that in regards to War Powers Congress abdicated its responsibility. Congress, in the past 75 years, has not reigned in the encroaching power of the Executive according to the Constitution. Korea and Vietnam were disasters and were also the first full scale wars the President engaged in without approval by Congress (the first large engagement with a foreign government was with China in 1900 by President McKinley sending 5,000 troops against the government-backed Boxer rebellion). In 1973 Congress tried to curb this trend after the Vietnam disaster with the War Powers Resolution, but it had not the desired effect and really only increased presidential war power.

What Congress has done and continues to do, being a bunch of weaklings who avoid responsibility for their rule, is to give up the Constitution for the sake of political expediency, as historian Arthur Schlesinger describes the erosion of Congressional war powers was "as much a matter of congressional acquiescence as presidential usurpation."

They pass meaningless (constitutionally) resolutions in compliance with UN authorization and not our own Constitution that authorize the President to "use whatever force necessary". This is extremely dangerous language and practice for America because it means that influences other than the will of the people can cause our troops to be deployed indefinitely overseas at the whim of the President, which I believe is an immoral tyranny that destroys the lives of our troops needlessly. As Lincoln said,

Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose – and you allow him to make war at pleasure…

and again later:

Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose. If, to-day, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, "I see no probability of the British invading us" but he will say to you "be silent; I see it, if you don’t."

It also causes the exact thing that the Constitution, as well as all conservatives in theory should hate: the expansion of government, and that expansion residing in the Executive branch alone. For example: If the President is a globalist progressive like Bill Clinton, then our troops will be sent here and there on supposed humanitarian military missions. None of which is integral for our national security because none of those wars involved acts of aggression against the US, soil or citizens, and resulting in spilling blood and wasting money. One cannot call themselves "Pro-Soldier" who is fine with putting them in harms way illegally and immorally time and time again. I oppose this completely.

Danger of Going to War without Declaring War

The further danger by allowing the Executive to engage our troops in war without calling it war or treating it like war, but having it really be war, is that everything, especially the definition of victory, is vague, shifting and unfocused and the perimeters of combat are equally shaky. Thus, these authorizations for the use of force to bring about peace are precisely the things that increase the danger for our troops, because nothing is well defined, the support from the people at home is not unified, the mission remains shifting and the goals unclear. This causes not only mission creep, but mission redefinition, which is not how war ought to be conducted at all when people's lives are on the line. (I'm not talking about the prosecution of the war from a strategic/military perspective, but from a policy perspective when I say things like "how war ought to be conducted".)

Declarations of War are important. They have a specific function that we desperately need today and that is painfully missing. Declaring war changes things. First, all of Congress is forced to make an Up or Down vote on this monumental issue, which at least implies commitment by the people through their representatives to the war effort. Declaring war sharply defines the war itself, how it is carried out (not strategy, but purpose) and what the goals are. Declaring war also means that the President is fully vested with Commander-in-Chief powers with no vagaries in meaning, intention or goal.

Declarations of War are important also because it is up to our nation to fight our own wars. UN or NATO resolutions are not sufficient enough ever to command the US to engage her sons in battle. Clinton couldn't get a UN resolution for the invasion of Kosovo, so he got a NATO resolution, all without Congresses approval. We did not surrender our sovereign rights, powers and responsibilities by joining the UN or forming NATO, though often we have, especially since Clinton and George H.W. Bush. International agencies cannot commit our troops, only the people and our representatives can do this. Even the President cannot commit our troops, acting alone.

With Iraq there was no declaration of war on behalf of Congress, there was just the resolution to use force, which desperately shrouded itself with supposed legality by drawing on UN resolution 1441 condemning Iraq regarding earlier resolutions against Iraq left in place since Persian Gulf 1. Bush's speech, combined with the Congressional resolution for the use of force to keep peace in Iraq, became the President's cover- thin though it was- to engage the Iraqi people in full out war. (Despite the fact that many other nations have violated UN Resolutions without us declaring war against them, yet for Iraq, that is all we need.) This is illegal according to our Constitution. The framers placed restrictions against precisely this, of which our presidents and the legislative branches today either neglect or reject. Bush even further declared that the UN resolution combined with the Iraqi use of force resolution from Congress (not a declaration of war) even permitted him to full-scale invade Iran. This is big government power growing exponentially!

Some have said that since there is no formal way to declare war in the Constitution, a resolution for the use of force is enough. This, however, flies in the face of precedent in US history. The US Congress had before it an Act to Declare War, sponsored by a representative who opposed the war, but wanted at least for it to be Constitutional. Congress knew what they were doing. The arguments against the declaration of war were made because actually declaring war is too severe, too over-the-top, and ultimately, in the words of a real US Representative on the House floor debating the issue, Article 1, Section 8 of the US Constitution on War Powers "is anachronistic"! (from a Republican, no less.)

Merely by congress members regarding Article 1, Section 8 as anachronistic, they have alleviated from themselves the burden of Constitutionality. - here's an article about a debate at the progressive Wilson Center regarding Congress and the War Powers: Constitutional Anchor or Anachronism? The progressive view is that it is anachronistic because the modern world is different than the 18th century. Speaking for the Founders view of war powers and the 1973 War Powers Resolution that I briefly mentioned above: W.P.R. is a betrayal of the founders' intent because it gives the President 60 to 90 days to wage war anywhere, for any reason. 'It is an extremely dishonest resolution' (says this guy Fisher) and does not insure collective judgement."

Thus, you have a Congress that was fully aware of what it was doing - abdicating responsibility - in allowing the President to have full control of whether or not to go to war, whether or not to put our troops in harms way, whether or not to bomb a foreign country. They shot down the rule of law and the US Constitution. They have committed our troops to involvement in a whole series of foreign battles that have nothing to do with our national security (I understand that this point is arguable), in fact makes us weaker, because it ignores National Defense (border issues, etc) for the sake of an aggressive war 7,000 miles away.

This allowed the President to push phony justifications for war (WMDs) and then suddenly shifting the purpose for us being there, to depose Saddam who is a tyrant to his own people, i.e. a humanitarian mission. It was Bush in the 2000 presidential campaign against Algore who criticized the Clinton-Gore Administration for being too interventionist. He said, quote: "If we don't stop extending our troops all around the world in nation-building missions, then we're going to have a serious problem coming down the road. And I'm going to prevent that."

Colin Powell, Bush's guy to push the war on the nation and the UN, left the office of the Secretary of State in 2005 for many reasons. One of those was because he became the mouthpiece of war against Iraq using intelligence that he would discover two years later was altogether false and that the administration knew the information was false when he presented it, thus putting a permanent "blot" on his reputation hereafter (and he should have known too).

As former CIA agent Ray McGovern put it about the WMDs and the Administrations knowledge of it from the last link:

In sum, the CIA had both the Iraqi foreign minister (Sabri) and the Iraqi intelligence chief (Habbush) "turned" and reporting to us in the months before the war (in Naji Sabri's case) and the weeks before your U.N. speech (in the case of Tahir Jalil Habbush). Both were part of Saddam Hussein's inner circle; both reported that there were no weapons of mass destruction. But this was not what the president wanted to hear, so Tenet (CIA Director) put the kibosh on Habbush and put Sabri on a cutter to Qatar.

Another dangerous reason why this war is illegal, I will let Senator Byrd (not a conservative) tell it:

"This nation is about to embark upon the first test of the revolutionary doctrine applied in an extraordinary way at an unfortunate time. The doctrine of preemption – the idea that the United States or any other nation can legitimately attack a nation that is not imminently threatening but may be threatening in the future – is a radical new twist on the traditional idea of self-defense."

Sort of a Conclusion:

If, as I am alleging, the so-called War on Terror (it's a bad name because you cannot declare war on a tactic) that is conducted in Iraq is an illegal war, then, as a Catholic and a citizen, I must oppose it. Or, if you think it is the right and just thing- as anyone here may- then you must work to get it made legal by forcing congress to declare war on Iraq. Right now it is illegal and saying "that anachronistic" equals saying "the rule of law no longer matters. We are in the hands of the strong man now." (fascism)

We cannot take the Rush Limbaugh approach- as Jonathan and Brian can attest to (if they remember listening to him while playing Halo 3 at 1AM) - of which he said, "It doesn't matter how we got into the war now. That was the past. All that matters is that we finish the job now that we are here." With all due respect, I whole-heartedly disagree. If we entered illegally, then remaining here continues our illegality. One cannot do evil so that good may come. One cannot say the end justifies the means, especially when the "end" shifts like sand.

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I'm not a part of the blame-America-first crowd. Technically, and if we want to throw labels around, I'm a member of the "Defend America First" crowd. I think interventionism destroys America, and in those places where America engages in interventionism in foreign countries and blowback occurs from that intervention, I will blame America only in those instances because America would be in the wrong. For instance, deposing democratically elected leaders because they are not our puppets and imposing brutal dictatorships that are our puppets is immoral, illegal and needs to be confronted by Catholics. As Chesterton said, "My country- right or wrong, makes about as much sense as My mother- drunk or sober." I love America, that's why I want her to be good, not just strong. In fact, I'll give up the strength if it were to increase the goodness.

As a Republican form of government I have to question the US gov't, her leaders, and her Pentagon. That's what it means to be a responsible citizen.

...

The next step we should ask is WHY DO THESE PEOPLE ENGAGE IN TERRORIST ACTIVITIES in the first place. If we do not get to these answers, if we do not understand their motivations to become terrorists, suicide bombers and the like, if we just say 'their evil and insane' and leave it at that, then we will never overcome terrorism because we will endlessly be treating the effects and not the causes of terrorism.

All of the evidence points to just one reason ('excuse' or 'justification' might be better than 'reason') for why people become so desperate that they become suicide terrorists.

gomer

AMDG

Peace and Commerce with All

"Where goods do not cross borders, armies will." -Frederick Bastiat

"Peace, commerce, and honest friendship with all nations, entangling alliances with none..." -Thomas Jefferson

"Instability in trade is one of the prime causes of creating conditions that lead to war." -Ron Paul

How to Stop (or Start) Wars

It seems to me (and a lot of other smart people, see above quotes) that the way to remove war from our midst is to engage in the tradition of open and honest trade with all countries, especially countries that are potential powder kegs of war. The opposite is also true: if you want war, then disrupt trade, prevent the flow of goods across borders and soon armies will go off to the march.

Pope John Paul II championed that form of human relationship called "inter-dependence", where cooperation with one another gave definition to human actions. Interdependence is a mark of our human freedom and frailty: we need each other. Alasdair MacIntyre treated at length this notion of interdependence in his work "Dependent Rational Animals: Why Human Beings Need the Virtues". Interdependence means that we achieve maturity, flourishing and independence only through dependence on others.

Poetically, we can say "No man is an island." This truth of human independence and our inherent need for cooperation is written across every dimension of human existence.

Economically, the division of labor embodies our human interdependence, for no one is sufficient unto themselves to achieve prosperity. Philosophically, we can repeat Aristotle's axiom that "Man is a Social Animal" and it is our nature to be inherently ordered to good relationships with other social animals. Theologically, I believe it is caught up in the Scriptural understanding of the Trinity as God-as-Community-of-Persons and man, male and female, are made in the image of this divine communio personarum. In short, we need each other in order to achieve for ourselves any measure of personal independence and human flourishing.

The same is true when persons gather into communities or governments. As the world grows smaller, we see how each country is increasingly interrelated, interdependent, with one another. The more a nation is isolated from others, the more vulnerable they are to aggression from outside or towards acting aggressively to other nations. Thus, the key to warfare is isolation, to isolate your enemy in as many ways as you possibly can, especially in the court of public opinion.

Apply this to Iran. Right now we are increasing Iranian isolation by placing massive embargos upon their petroleum, not allowing them to ship crude oil to refineries and refusing to deal with anyone who shipped refined oil products to Iran. This effectively isolates the whole populace of Iran with an act of sheer aggression that is a precursor to war.

Rep. Ron Paul had the harshest of comments regarding these sanctions, saying "Sanctions are not diplomacy. They are a precursor to war and an embarrassment to a country that pays lip service to free trade. It is ironic that people who decry isolationism support actions like this."

What do you think is going to be the outcome of embargos and sanctions against a nation, cutting them off from open and honest trade with other nations? There can only be one outcome: the lesser power, now cut off, will begin lashing out violently, chaffing against the fetters that we put them in. The greater power will use these acts of violence as excuses for escalation of war, claiming "unjustified aggression" and demanding other nations support them in their "self-defense." Further entangling alliances are fostered as other nations are dragged deeper into conflict.

Our embargo declares that the US will not do business with any nation that does refined petroleum business with Iran. As the lone superpower in the world today, such an embargo brings the whole world to bare against a single nation, as virtually all of the world is entangled and helpless against this unipolar New World Order.

Just a few years ago during the Clinton presidency when there were sanctions against Iran, the then-former Defense Secretary under George H. W. Bush, who was the then-current CEO of Halliburton, Mr. Dick Cheney, complained against the US government sanctions, saying that they just wanted to engage in commerce with Iran. After Cheney becomes the Vice President with W. he sang an entirely different tune, championing war with the Islamic Republic and an increase to the sanctions.

Since that infamous speech of Bush's calling North Korea, Iran and Iraq the "Axis of Evil" the push to isolate those countries as far as possible was begun. In fact, Iraq was under a decade of sanctions int he 90's with embargoes from the US and the UN and North Korea is, arguably, the most isolated nation on the face of the earth. Coupling Iran with these other two nations was the rhetorical key to war with Iran. Calling them "Holocaust Deniers" and saying they want nukes to drive Israel into the sea, that's the nail in their coffin.

Iran has #2 largest supply of both oil and natural gas. It has great natural wealth, but with the inability to refine their own products, this great wealth is reduced to nothing. Instead of allowing such goods to flow freely across the borders of Iran with the rest of the world, these strategic sanctions will lead to the flood of war sweeping across the Persian nation.

Currently, Iran has no nuclear weapons and has no capacity to produce nuclear weapons (a shocker if you only get your news from FoxNews or CNN), but any reasonable person could see how acquiring nuclear weapons would be desirous of any nation in the position Iran is in, for the US treats nuclear powers in an utterly different way (more non-interventionist) than non-nuclear powers. Consider how the US lobs bombs into Yemen, an extreme Islamic country, but does nothing to our near-and-dear nuclear friend Pakistan, an extreme Islamic country and buddy to Al-Qaeda.

For sheer deterrence, rationally, Iran should be seeking nuclear weapons, if only to tone down the war-shouting rhetoric of American government leaders, talking heads, and the Pentagon. Obviously, no one wants Iran to have nuclear weapons, but if the world's only superpower insists on destroying your entire existence and that is the only way to stave off the onslaught, at least it is completely rational to want such weapons. Especially with freakish warhawks in the Israeli government who desire and actively seek Iran's demise who themselves are armed to the teeth with nuclear weapons.

The path to peace with Iran is the same with all nations: commerce. Money for oil is far better than blood for oil, I think we can all agree to that. Commerce establishes the interdependence of the nations. If one has a non-interventionist foreign policy, than commerce with all nations can occur without those entangling alliances causing massive uncooperation and isolationism.

Commerce makes me get along with you for my benefit, which benefits you. Mutual dependence allows each party to achieve greater flourishing. As individuals, true interdependence creates human flourishing and excellence. As nations, it creates prosperity as the division of labor is maximized over the globe, for the good of all nations.

Free trade and honest commerce is the path to world peace. But if you want war, you attack your enemy's ability to trade openly. Trade must be fostered with all nations and we must allow any nation, no matter how despicable the regime, to trade with others. Isolation conceives war.

Mother Theresa rightly said, "If you want peace, work for justice." This is especially true in our global village. If you want peace, work for honest and free trade. Then armies won't have to march across borders.

gomer

AMDG