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Don Robinson: What Constitution says about the power to make war

GORDON DANIELS
Don Robinson for Op-Ed page mug

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To be sure, Obama’s hands are not clean on consulting Congress before using his war powers. Deadly missile attacks against persons in Yemen, including an American citizen, have been purely executive actions, without Congressional authorization. The Stuxnet operation (causing computers at Iran’s nuclear works to destroy themselves) was clearly an act of war, and it was done by the Obama administration in secret.

The pressures on a president to take such actions are enormous. Congress as a body does not insist on being consulted. It falls to outliers like senators Rand Paul and Ron Wyden to raise a fuss about it. Meanwhile the hawks, heavyweights like McCain and Graham, clamor impatiently for the president to take decisive action.

Make no mistake: the contemplated strike against Syria would be an act of war. The president says that “our action would be designed to be limited in duration and scope.” But in war, it is almost always impossible to control events.

What does the Constitution provide about the U.S. engaging in war? It is not as clear as we would like it to be. It is, after all, an 18th-century document.

It gives Congress the power “to declare war ....” Right away there is ambiguity. The framers changed the verb in that clause from “make” to “declare,” in order to reserve for the commander in chief the power to respond to “sudden attacks.” What if the attack is provoked? How sudden does it have to be?

It is hazardous to speak of the framers’ intent when the text is not clear. Here the fundamental intent seems clear enough. Monarchs had often dragged nations into war for dynastic or political reasons. Our framers determined to stop that. Part of their design was to give Congress, especially the House of Representatives, control over raising and equipping armed forces. The Senate was given special powers in foreign relations: advice and consent on treaties and the appointment of ambassadors, military officers and cabinet members.

History added other layers of meaning to the Constitution’s words. Can the president, on his own authority, direct actions that fall short of declared war? There is certainly abundant precedent for that. In the 19th century, presidents directed military actions against pirates in the Mediterranean Sea and in support of the Monroe Doctrine in Latin America without explicit Congressional declarations. Lincoln made war on the Confederacy without asking Congress to declare it. Most scholars conclude that these 19th-century episodes stretched but did not openly violate the Constitution.

In the 20th century, especially around mid-century, the picture changed dramatically. Truman took us to war in Korea on the basis of a UN resolution (possible because the Soviet Union was foolishly boycotting the UN at the time). In the wake of the Korean War, two things changed. After every earlier conflict, including World War II, the nation had radically demobilized. We had “no standing army.” Since the mobilization for Korea, we have been on a permanent wartime footing.

Before the 1950s, U.S. foreign policy was grounded on the avoidance of “entangling alliances” (Washington’s idea; Jefferson’s phrase). Beginning with the NATO Treaty of 1949, that notion has gone out the window. We are entangled with Europe, Latin America, Japan, Israel, and countless others nations (well over 100).

These vastly changed circumstances — a perpetual standing army and a global network of mutual defense treaties — have strained the Constitution’s safeguards governing the war powers to the breaking point.

That is why we needed the war-powers resolution, passed, over Nixon’s veto, in 1973. It provides that the president must “consult with Congress” before sending American forces into a potentially hostile environment; and that, if the engagement lasts more than 60 days, he must obtain positive authorization from Congress. Presidents since Nixon have insisted that this act of Congress cannot change the president’s constitutional war powers. The situation has thus remained unresolved, in limbo.

Obama, more than any president since World War II, has appeared ambivalent about his war powers. He has shown himself willing to use them forthrightly, and if necessary even secretly, when he thought national security depended on it. But he is also a constitutionalist. As he said when announcing his decision to seek a Congressional resolution in this case, he is the president of the world’s oldest constitutional democracy. Inasmuch as the usual arguments about the need for haste in responding to a provocation do not apply, there is time for the deliberation that the Constitution requires — and he will have it.

As for the political calculation, presidents need to be mindful of an old adage: if you want folks with you on the crash-landings, you must have them with you on the take-off. The proposed action in Syria looks simple enough, but war is never simple.

Why consult Congress? Because they are geniuses? No. It is because a debate in Congress is a public deliberation. It engages the nation, and its decision is made by elected representatives. It is a hazardous way to proceed, but as a democracy, we believe that government by the people is better than the alternative: government by elites.

The question for believers in democracy is, will this debate help us to adapt our constitutional processes to the realities of the modern world? Will Obama’s decision to “consult” Congress encourage those who dismiss him as a weakling, unfit for leadership of the world’s exemplary constitutional democracy, or will it in time be honored and accepted as a positive precedent?

Don Robinson, a retired professor of government at Smith College, writes a regular column and can be emailed at drobinso@smith.edu.

Related

Alan E. Harazin: President’s punt on Syria weakens the office

Tuesday, September 10, 2013

To the editor: I could not disagree more completely with Don Robinson’s “The power to make war” column (Gazette, Sept. 5). The proposed Syrian military action is not an “act of war.” Did the strikes that President Clinton ordered in the Balkans constitute war? Was our military involvement in Libya war? Of course not, and in neither case did the …

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