Tuesday, January 30, 2007

War and (on?) the Constitution

I'm going to risk exile from bloggerdom by admitting that there are some important things I don't know. But I don't, and I'd like to know. So, here are some questions:

1) When the Congress passed legislation authorizing the Iraq invasion, it wasn't a formal declaration of war, was it? As I recollect, it was an authorization to use force but not yet a declaration of war.

2) How open-ended was that initial authorization--did it authorize an indefinite occupation of Iraq or just the removal of Hussein from power?

3) We all call it the Iraq "War," but, like the Vietnam "War," it's a war in fact but not in law--we're only constitutionally at war when the Congress declares that we are. Given that fact, is the President right when he says, "I'm the decision-maker"? That is, if the Congress hasn't actually declared war, does the President have the right to send troops where he wants when he wants? Isn't it still Congress's decision at this point?

This has been bothering me a lot lately. As anybody who slogs through Mike's and my posts on the war knows, we've long had our doubts about its wisdom. More so now than ever, I see it as a waste of lives, money, energy, and credibility. But beyond that, I'm really uncomfortable with the fact that it now seems accepted by the American people and their legislators that the President (whoever it may be) can send troops into conflict entirely at his or her discretion. The framers of the Constitution gave the Congress--and only the Congress--the right to declare war, and they did it for a reason.

The President, yes, is commander-in-chief, and that's excellent. Keeping the military under civilian control in that way makes it harder for generals to seize control of the government.

But the same philosophy of checks and balances that works against tyranny by giving ultimate military power to a civilian is also built into Congress's power to declare war. As I understand the Constitution, the President can tell the military how to conduct itself, but the President cannot single-handedly take the nation to war. He or she needs backing of the Congress (in theory, the people's representatives) to start a war. And that makes sense to me--if you can't get a majority of elected officials to decide that the country is under attack, then the country probably shouldn't be at war.

I'm not a Constitutional scholar, and I could very well be overlooking some legal precedent that makes the Iraq (Non)War a legal. But it doesn't make logical sense to me that the power to declare war is the same as the power to declare February 7, 2007 to be "Jane Doe Day" in commemoration of her heroic saving of Fluffy from that very tall tree. The declaration of war isn't ceremonial; it's quite literally a call to arms. It shouldn't be possible to devote our resources and lives to organized violence without a declaration. According to the Constitution, the decision that war is necessary should ultimately be the Congress's, just as the decision as to how to conduct a war once it's declared should ultimately be the President's. But that's not how it is now. And that's a problem, a huge one.

Now, obviously, if you're fighting international terrorism or even drug cartels, then sometimes the President will need to authorize small-scale attacks without waiting for a formal declaration of war. But the difference between inserting an eight-man SEAL team into an al-Qaeda training camp is of a vastly different magnitude than sending 150,000 soldiers and hundreds of billions of dollars to Iraq. The Iraqi conflict is exactly what the framers understood by war, and the fact that Congress has never declared that war unnerves me. It should unnerve you too.

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