Declaring War

Ten days ago, while I was driving with my family on Skyline Drive atop Virginia’s Blue Ridge, Kenneth posted a brief piece decrying this country’s abandonment of Article I, Section 8 of the Constitution of the United States – which stipulates that “Congress shall have the Power…to declare War.” This morning, George Friedman, founder and CEO of Stratfor, took up the same issue in a post on Townhall.com.

Kenneth was concerned that Congress’s failure to live up to its responsibilities has enabled the executive and the United Nations to drag us into unnecessary wars at odds with our interests. As he put it, “Going to war is the most serious and consequential action of the state.  Our Founding Fathers intended, therefore, that before our government engaged in acts of war, the will of the people should be expressed through the agency of their elected representatives.”

George Friedman – who did a Ph.D. in political philosophy years ago at Cornell University back when I was an assistant professor of history there – believes that “this is the point where the burdens and interests of the United States as a global empire collide with the principles and rights of the United States as a republic.”

In Friedman’s view, the Constitution is “explicit in requiring a formal declaration . . . for two reasons.”

The first is to prevent the president from taking the country to war without the consent of the governed, as represented by Congress. Second, by providing for a specific path to war, it provides the president power and legitimacy he would not have without that declaration; it both restrains the president and empowers him. Not only does it make his position as commander in chief unassailable by authorizing military action, it creates shared responsibility for war. A declaration of war informs the public of the burdens they will have to bear by leaving no doubt that Congress has decided on a new order — war — with how each member of Congress voted made known to the public.

When Congress last declared war following the Japanese attack on Pearl Harbor, Friedman observes, “It was a moment of majesty and sobriety, and with Congress’ affirmation, represented the unquestioned will of the republic. There was no going back, and there was no question that the burden would be borne.” He acknowledges that the Japanese assault made “getting the declaration easier,” but he adds that this is “what the founders intended: Going to war should be difficult; once at war, the commander in chief’s authority should be unquestionable.” He finds it decidedly “odd” that Harry Truman, Lyndon Johnson, and the younger George Bush chose not to pursue such a declaration, and he argues that this decision cost them success as Presidents: “the legitimacy of each war was questioned and became a contentious political issue certainly is rooted in the failure to follow constitutional pathways.” Now, he adds, with regard to Libya, we have reached the point “where even resolutions are no longer needed.”

In my judgment of the discretion that should be left to the executive, I am closer to John Yoo than I am to Kenneth. Our interests are far-flung and complex. It is inconceivable that a bicameral legislative body could intelligently direct policy. What is needed are the qualities that Alexander Hamilton in The Federalist attributed to the executive: vigor, energy, and dispatch.

But Kenneth has a point. When Montesquieu assessed monarchy in his Spirit of Laws, he acknowledged that one of its main drawbacks was its propensity to go to war for the sake of glory. The American President has very little power in the domestic sphere. He is responsible for the execution of the law; he has the power to veto legislation. But Congress can override his veto, and his independent policy-making capacity is restricted. In foreign affairs, however, he has greater latitude, and in that sphere he may be tempted by ambition and imagination to undertake projects not genuinely in the national interest.

There are reasons good and bad why, during the Cold War, the declaration of war fell into abeyance. We were, after all, at war in a time when we had to pretend that we were at peace. We were, moreover, engaged in a twilight struggle in which we had to do a great many things for which we could not acknowledge responsibility. And, to turn to the reasons that are bad, our Presidents were happy to be unfettered, and the members of Congress were delighted that they did not have to take responsibility for anything that might prove to be unpleasant.

To some degree, we are in the same boat today. We are involved in a clandestine war with Al Qa’eda, and this requires on our part certain maneuvers that are best left in the dark. Moreover, we are involved in a struggle with Iran that demands of us a measure of secrecy. No one would want us to declare war on Iran today, and no one would want there to be a congressional debate over the propriety of our deployment of Stuxnet. It was considerably simpler when the United States was a third-rate power unrivaled on this continent and protected from outside assault by the Atlantic, the Pacific, and the British navy.

Nonetheless, Kenneth has a point, and so does George Friedman. I do not think it appropriate to describe the United States in Friedman’s fashion as “a global empire.” We are, at best, a global hegemon. But that is a quibble, and I am particularly struck by the force of the second of Friedman’s two arguments. In my lifetime, President after President has found himself in a position in which Congress, having sanctioned force by a resolution or by appropriating the necessary funds, has acquiesced in war and then turned on the commander-in-chief when that war became less popular. In the new constitutional order, established after World War II by Truman and accepted by every President since, the President is free to act but he lacks the legal and moral authority to follow through. The last thing that we want to engage in is half-hearted wars.

In my judgment, in 2001, George W. Bush should have asked for a declaration of war. In the last few weeks, if President Obama wanted to overthrow Muamar Gadaffi, he should have done the same.

I would not describe Libya as a vital national interest. I would, however, say that there is something of real strategic significance to us at stake, and my opinion is that if we were on every occasion to wait until a vital national interest was in danger we would soon find that we had already lost out.

Was the freedom of Czechoslovakia for Britain in 1938 a vital national interest? Or was it a country far away of which the British knew little or nothing? It was, in fact, something in between, and what happened there nonetheless mattered a great deal. What happens in Libya matters as well. Oil is a strategic substance. Oil outside the Persian Gulf may prove to be vital in the foreseeable future. Moreover, what happens in Libya will influence calculations in and about the Persian Gulf. Compelling Congress to live up to its responsibilities would have this advantage: the debate in Congress would force the American people to think through what is required for the defense of their long-term interests. That is a debate that we need to have – lest, under the delusion that gripped Stanley Baldwin, we drift into pursuing a policy in which we unthinkingly fritter away the advantages that we gained in the last century at a terrible cost.