when Jefferson, Madison, Lincoln, and even Justice Scalia think you’ve gone too far

Glenn Greenwald went deep into the legal and constitutional problems with unlimited executive authority over the military in yesterday’s column:

I made this argument over and over during the Bush years… I invariably cited the dissent written by Antonin Scalia — and joined by John Paul Stevens — in Hamdi v. Rumsfeld, in which the Surpeme Court ruled that the President, as “Commander-in-Chief,” has the power to detain even American citizens as “enemy combatants.”

Both Scalia and Stevens insisted that any such attempt was plainly unconstitutional, and emphatically rejected the Bush/Cheney (now-Obama/Clinton) view that Presidents have unconstrained national security power under Article II. They explained just how limited of a power the “Commander-in-Chief” clause vests, and that the expansive Bush/Cheney view would replicate the worst excesses of the British King:

The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders’ general mistrust of military power permanently at the Executive’s disposal. . . . No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution’s authorization of standing armies in peacetime. Many safeguards in the Constitution reflect these concerns. Congress’s authority “[t]o raise and support Armies” was hedged with the proviso that “no Appropriation of Money to that Use shall be for a longer Term than two Years.” U.S. Const., Art. 1, §8, cl. 12. Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II. As Hamilton explained, the President’s military authority would be “much inferior” to that of the British King:

“[The Commander-in-Chief power] 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, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature.” The Federalist No. 69, p. 357….

That bolded section — quoting Alexander Hamilton, the founder most enthusiastic of executive power — is dispositive. The British King could start wars on his own; the American President cannot, as that power is reserved exclusively for Congress.

Consider Thomas Jefferson’s respectful approach to Congress’s privilege of declaring war in his first State Of The Union address. Faced with extortion by the Pasha of Tripoli and harassment of U.S. ships on the Mediterranean by pirates from North Africa, Jefferson desperately needed to prove, through decisive military action, that the young American nation could not be bullied or robbed without consequence. Yet he felt constrained by the Constitution. Laying out the situation for the members of Congress in his address, he told the story of an American schooner which had recently come under attack by Tripolitan pirates:

To this state of general peace with which we have been blessed, one only exception exists. Tripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact, and had permitted itself to denounce war on our failure to comply before a given day. The style of the demand admitted but one answer.

I sent a small squadron of frigates into the Mediterranean, with assurances to that power [i.e., Tripoli] of our sincere desire to remain in peace, but with orders to protect our commerce against the threatened attack. The measure was seasonable and salutary. The Bey had already declared war. His cruisers were out. Two had arrived at Gibraltar. Our commerce in the Mediterranean was blockaded and that of the Atlantic in peril.

The arrival of our squadron dispelled the danger. One of the Tripolitan cruisers having fallen in with and engaged the small schooner Enterprise, commanded by Lieutenant Sterret, which had gone as a tender to our larger vessels, was captured, after a heavy slaughter of her men, without the loss of a single 1 on our part. The bravery exhibited by our citizens on that element will, I trust, be a testimony to the world that it is not the want of that virtue which makes us seek their peace, but a conscientious desire to direct the energies of our nation to the multiplication of the human race, and not to its destruction. 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.

Here was a U.S. president faced with actual attacks on American ships, by pirates (his era’s terrorists) openly backed by a power which had already unilaterally declared war on the United States — yet he paused before going to war with the Tripolitans. He felt that his role as Commander-In-Chief, without specific Congressional approval, was limited to defending against immediate attacks — to the point that he could not even take prisoners of war or confiscate a warship. Jefferson thus made his plea to the Congress to specifically authorize him to take further steps:

The Legislature will doubtless consider whether, by authorizing measures of offense also, they will place our force on an equal footing with that of its adversaries. I communicate 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 circumstances of weight.

President Jefferson’s understanding of the limits of his own power accorded with that of the gentlemen charged with drafting the Constitution. Records of the 1787 Constitutional Convention show debate over the exact phrasing of the clause designating Congress’s war powers:

Mr Butler. The Objections agst the Legislature lie in a great degree agst the Senate. He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it.

Mr. M[adison] and Mr Gerry moved to insert “declare,” striking out “make” war; leaving to the Executive the power to repel sudden attacks.

Mr Sharman thought it stood very well. The Executive shd. be able to repel and not to commence war. “Make” better than “declare” the latter narrowing the power too much.

Mr Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war.

In case these notes are unclear: When Mr. Butler tries briefly to advocate for the idea of the power to make war residing solely in the hands of the President, he is swiftly rebuffed by Madison, Gerry, and Sharman — who, nonetheless, revise the language slightly to make clear that the President may take defensive action (“make” war) if needed, but may not initiate (“declare”) war.

Jefferson, Madison, Gerry, and Sharman’s conception of the limits of executive power were still embraced by Lincoln (a lawyer as well as a war president) decades later. It was Lincoln’s own Republican party which would, during Reconstruction, dramatically shift power away from the states and toward the federal government through the 14th Amendment and other mechanisms. This move necessarily entailed, to some extent, expanding the powers of the executive branch. Yet Lincoln wrote in a letter to his law partner,

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 allow him to make war at pleasure…. 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.’

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.

President Truman, a war president twice over, decided in 1950 to view things a different way. Hammered by anti-communists at home for perceived weakness in the face of a growing Red Menace, and fearing a more aggressive communist bloc, Truman determined to act quickly when Soviet-backed North Korean forces crossed the 38th parallel into Syngman Rhee’s pro-Western Republic of Korea in a bid to reunite the peninsula under a communist government. Rather than wait for Congress, Truman ordered military support for the ROK right away, justifying the move as merely joining in a United Nations “police action.” He then sent Gen. Omar Bradley to explain the gravity of the situation to Congress and to ask for funding.

Truman made a number of questionable decisions in Asia in the second half of his last term, including authorizing Gen. MacArthur, who had successfully repelled the North Korean forces, to proceed past the 38th parallel and all the way to the Chinese border. At the same time, Truman ordered the American 7th Fleet to protect the island of Formosa, now Taiwan, from imminent attack by the People’s Republic of China. The combination of American interference on behalf of the Chinese Nationalist partisans on Formosa and the presence of MacArthur’s troops on their border goaded the Chinese to intervene in Korea on behalf of the communist North. The Chinese forces quickly pushed U.N./U.S. troops back to the middle of the peninsula, where the two sides beat the everloving shit out of each other for three more years before calling it quits.

It was also Truman who first involved us in “French Indochina,” which would lead to America’s second undeclared war in the region ten years later.

It’s hard to argue, with the benefit of hindsight, that Truman was wrong, exactly, to send American troops to Korea. (Indochina might be another story.) Certainly we don’t know the counterfactual, but we do know that in our universe, South Korea and Taiwan have been prosperous, eventually democratic, and largely peaceful. By the 1990s, they had become economic dynamos helping to drive the world economy. There’s an argument to be made that China would have turned toward market capitalism in the 70s even without the goad of prosperous smaller nations on her flanks, but they certainly didn’t hurt. And Truman may well have been right that by countering communist expansion early, the U.S. encouraged China and the USSR to think twice about future military adventures. (Though obviously this is open to a counterargument that it instead led to a race to define spheres of influence and dozens of low-grade proxy conflicts.)

Regardless of whether he made the right decisions, Truman clearly felt that the global balance of power was at stake. The whole system of nations was in play. He may be forgiven for feeling a need to act quickly, and there’s a sense in which, if the existential threat is large enough, even an aggressive action in another part of the world can be seen in a certain light as falling within the President’s defensive mandate. Even so, both liberals and conservatives in Congress expressed grave doubts about Truman’s usurpation of the legislature’s role in deciding when and with whom the United States goes to war.

And they were, it turns out, quite correct. Under the leadership of presidents acting on Truman’s model, the United States went on to major wars in Vietnam/Cambodia/Laos, Kuwait, Afghanistan, and Iraq, minor ones in Grenada, Lebanon, and Panama, and (let’s say) a medium-sized one in the Balkans. This is to say nothing of the Bay of Pigs, covert actions in Chile, a flatly illegal intervention in Nicaragua, and disastrously failed special ops missions in Iran and Somalia. Or, for that matter, the drug war in Columbia, Peru, and Bolivia.

Not one of these has been a “declared” war, but after Nixon’s misadventures in Cambodia, Congress did at least put in place a mechanism — the War Powers Resolution — whereby presidents could seek “statutory authorization” for military action even in situations where the United States did not wish to formally declare war on another country. (The WPR also codifies a specific timetable for a president acting defensively in an emergency to seek Congressional approval.) Perhaps surprisingly, both Presidents Bush sought and received statutory authorization under the WPR for their military actions; President Obama, sadly, chose not to.

Unfortunate though it is that all too often this “statutory authorization” has become mere rubber-stamp approval of what the President either already has done or intends to do anyway, it is at least a speed-bump on the road to war, an opportunity for the people’s representatives to question the President’s case for war and an opportunity for the President to make his case to the nation. This is not an idle nicety; it is, as Lincoln noted, the whole difference between the informed consent of the governed in a republic and the absolutism of monarchy.

All of which is simply to say that President Obama is wrong here. Whether he is right that our intervention in Libya will produce good results (an idea of which I remain skeptical, but willing to be convinced), he is wrong on the law, wrong in his disregard for the processes of democracy, and wrong to further the precedent of war by presidential fiat.

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One Response to when Jefferson, Madison, Lincoln, and even Justice Scalia think you’ve gone too far

  1. Pingback: drones aren’t “hostile,” they’re just AGGRESSIVELY FRIENDLY | The Handsome Camel

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