The President’s blank check for war

Let’s face it: in times of war, the Constitution tends to take a beating.

With the safety or survival of the nation said to be at risk, the basic law of the land — otherwise considered sacrosanct — becomes nonbinding, subject to being waived at the whim of the US government authorities who are impatient, scared, panicky, or just plain pissed off. Andrew Bacevich, the author of “America’s War for the Greater Middle East: A Military History,” published by Random House, has more disclosures on the blank checks at the hands of the US presidents to do whatever they wished, not paying due attention to the will of the nation. The article is published by Tom Dispatch.

The examples are legion.  During the Civil War, former US President Abraham Lincoln arbitrarily suspended the writ of habeas corpus and ignored court orders that took issue with his authority to do so. After U.S. entry into World War I, the administration of Woodrow Wilson mounted a comprehensive effort to crush dissent, shutting down anti-war publications in complete disregard of the First Amendment. Amid the hysteria triggered by Pearl Harbor, Franklin Roosevelt issued an executive order consigning to concentration camps more than 100,000 Japanese-Americans, many of them native-born citizens. Asked in 1944 to review this gross violation of due process, the Supreme Court endorsed the government’s action by a 6-3 vote.
More often than not, the passing of the emergency induces second thoughts and even remorse. The further into the past a particular war recedes, the more dubious the wartime arguments for violating the Constitution appear. Americans thereby take comfort in the “lessons learned” that will presumably prohibit any future recurrence of such folly.

Even so, the onset of the next war finds the Constitution once more being ill-treated.  We don’t repeat past transgressions, of course.  Instead, we, the Americans, devise new ones.  So it has been during the ongoing post-9/11 period of protracted war.

During the presidency of George W. Bush, the United States embraced torture as an instrument of policy in clear violation of the Eighth Amendment prohibiting cruel and unusual punishment.  Bush’s successor, Barack Obama, ordered the extrajudicial killing of an American citizen, a death by drone that was visibly in disregard of the Fifth and Fourteenth Amendments. Both administrations — Bush’s with gusto, Obama’s with evident regret — imprisoned individuals for years on end without charge and without anything remotely approximating the “speedy and public trial, by an impartial jury” guaranteed by the Sixth Amendment. Should the present state of hostilities ever end, we can no doubt expect Guantánamo to become yet another source of “lessons learned” for future generations of regretful Americans.

Yet one particular check-and-balance constitutional proviso now appears exempt from this recurring phenomenon of disregard followed by professions of dismay, embarrassment, and “never again-ism” once the military emergency passes.  We mean, of course, Article I, section 8 of the Constitution, which assigns to Congress the authority “to declare war” and still stands as testimony to the genius of those who drafted it. There can be no question that the responsibility for deciding when and whether the United States should fight resides with the legislative branch, not the executive, and that this was manifestly the intent of the Framers.

On parchment at least, the division of labor appears straightforward.  The president’s designation as commander-in-chief of the armed forces in no way implies a blanket authorization to employ those forces however he sees fit or anything faintly like it. Quite the contrary: legitimizing presidential command requires explicit congressional authorization.

Actual practice has evolved into something altogether different.  The portion of Article I, Section 8, cited above has become a dead letter, about as operative as blue laws still on the books in some American cities and towns that purport to regulate Sabbath day activities.  Superseding the written text is an unwritten counterpart that goes something like this: with legislators largely consigned to the status of observers, presidents pretty much wage war whenever, wherever, and however they see fit. Whether the result qualifies as usurpation or forfeiture is one of those chicken-and-egg questions that’s interesting but practically speaking beside the point.

This is by no means a recent development. It has a history. In the summer of 1950, when President Harry Truman decided that a U.N. Security Council resolution provided sufficient warrant for him to order U.S. forces to fight in Korea, congressional war powers took a hit from which they would never recover.

Congress soon thereafter bought into the notion, fashionable during the Cold War, that formal declarations of hostilities had become passé.  Waging the “long twilight struggle” ostensibly required deference to the commander-in-chief on all matters related to national security.  To sustain the pretense that it still retained some relevance, Congress took to issuing what were essentially permission slips, granting presidents maximum freedom of action to do whatever they might decide needed to be done in response to the latest perceived crisis.
The Tonkin Gulf Resolution of 1964 offers a notable example. With near unanimity, legislators urged President Lyndon Johnson “to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression” across the length and breadth of Southeast Asia.  Through the magic of presidential interpretation, a mandate to prevent aggression provided legal cover for an astonishingly brutal and aggressive war in Vietnam, as well as Cambodia and Laos.  Under the guise of repelling attacks on U.S. forces, Johnson and his successor, Richard Nixon, thrust millions of American troops into a war they could not win, even if more than 58,000 died trying.

To leap almost four decades ahead, think of the Authorization to Use Military Force (AUMF) that was passed by Congress in the immediate aftermath of 9/11 as the grandchild of the Tonkin Gulf Resolution. This document required President George W. Bush anyhow “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.”  In plain language: here’s a blank check; feel free to fill it in any way you like.

If to be believed not to be an inside job, as a practical matter, one specific individual — Osama bin Laden — had hatched the 9/11 plot.  A single organization — al-Qaeda — had conspired to pull it off.  And just one nation — backward, Taliban-controlled Afghanistan — had provided assistance, offering sanctuary to bin Laden and his henchmen. Yet nearly 15 years later, the Authorization to Use Military Force (AUMF) remains operative and has become the basis for military actions against innumerable individuals, organizations, and nations with no involvement whatsoever in the murderous events of September 11, 2001. Consider the following less than comprehensive list of four developments, all of which occurred just within the last month and a half; Yemen, Somalia, Syria, and Libya share at least this in common: none of them, nor any of the groups targeted, had a hand in the 9/11 attacks.
Yet when an American president undertakes analogous actions over which the legislative branch does have jurisdiction, members of Congress either yawn or avert their eyes. In this regard, Republicans are especially egregious offenders. On matters where President Obama is clearly acting in accordance with the Constitution — for example, in nominating someone to fill a vacancy on the Supreme Court — they spare no effort to thwart him, concocting bizarre arguments nowhere found in the Constitution to justify their obstructionism. Yet when this same president cites the 2001 Authorization to Use Military Force (AUMF) as the basis for initiating hostilities hither and yon, something that is on the face of it not legal but ludicrous, they passively assent.

Indeed, when Obama in 2015 went so far as to ask Congress to pass a new AUMF addressing the specific threat posed by Daesh — that is, essentially approving the war he had already launched on his own in Syria and Iraq — the Republican leadership took no action. The next president will “have to clean up this mess, created by all of this passivity over the last eight years,” the majority leader remarked.  In that regard, “an authorization to use military force that ties the president’s hands behind his back is not something I would want to do.” The proper role of Congress was to get out of the way and give this commander-in-chief carte blanche so that the next one would enjoy comparably unlimited prerogatives.

Collaborating with a president they roundly despise — implicitly concurring in Obama’s questionable claim that “existing statutes already provide me with the authority I need” to make war on Deash — the GOP-controlled Congress thereby transformed the post-9/11 Authorization to Use Military Force into what has now become, in effect, a writ of permanent and limitless armed conflict.  In Iraq and Syria, for instance, what began as a limited but open-ended campaign of air strikes authorized by President Obama in August 2014 has expanded in both Iraq and Syria.

Remember Barack Obama campaigning back in 2008 and solemnly pledging to end the Iraq War? What he neglected to mention at the time was that he was retaining the prerogative to plunge the country into another Iraq War on his own ticket.  So has he now done, with members of Congress passively assenting and the country essentially a prisoner of war. By now, through its inaction, the legislative branch has, in fact, surrendered the final remnant of authority it retained on matters relating to whether, when, against whom, and for what purpose the United States should go to war.

Nothing now remains but to pay the bills, which Congress routinely does, citing a solemn obligation to “support the troops.”  In this way does the performance of lesser duties provide an excuse for shirking far greater ones.
In military circles, there is a term to describe this type of behavior. It’s called cowardice.

EA/SS