Or, The Ignored Constitutional Requirements for Declaring War

Memorial Day is an excellent time to remember that we are not at War, not technically. In fact, we have not been at War since armistice was declared in 1945.

Granted, there have been battles big and small since then. Every generation it seems, like clockwork. A hundred thousand or so dead US troops alone since the last declared War. Probably five times that or more wounded mentally or physically. God only knows how many civilians adversely affected. Occasional great wounds ripped in the national psychic. Trillions upon trillions in today’s scarce dollars pumped into the military industrial complex as President Eisenhower characterized it to prepare for, initiate or recover from such conflicts. Yet, no War actually declared in a full six decades, a goodly chunk of our nation’s entire history.

Oh, the press, pundits and politicians rhapsodize, or more accurately hyperbolize, about us being at “war” against this or that. It routinely drips off their collective tongues like the sound of cow plop falling from the four foot height of a steer’s behind. Publications are saturated with the word. And, it is hard to find a TV or radio channel that does not at some point dramatically mention during the day either the “war against drugs,” “war against crime,” or “war against aids.” Heck, we have so cheapened the phrase that there is now apparently even a so-called “war” against obesity, perhaps even a “war” against erectile dysfunctions if the spam invading our email is accurate.

Even ignoring however the “wars” where people are dying from bombs and bullets, such as the Iraq “war” or the “war” in Afghanistan or the ubiquitous “war against terrorism,” we are still not genuinely at “War,” not as our forefathers intended, and definitely not as enshrined in the very Constitution our politicians swear each inaugural to uphold. While our Presidents for the past half century are always spouting off bombastically (no pun intended) about how we are supposedly at “war” with somebody, Article I, Section 8, gives to Congress, not the President, the power:

“To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

The man self styled as “Commander-in-chief” might get to pretend dress in a military flight suit and use an entire multi billion dollar aircraft carrier as a mere backdrop for a speech. He might tell his troops it’s okay to torture (although the section quoted above from the Constitution suggests otherwise). He might get the Marine Band to play at his dinner parties. He might send his boys and loud toys into harm’s way. But, he does not get to declare War. That is reserved to the elected members of Congress.

Why hasn’t there been any Wars declared in 60 odd years? It is not as if there were not plenty of situations that deserved us going to War. A classic example was our successful endeavor in evicting Saddam from Kuwait after he invaded that sovereign country. The Korean “War” had plenty of justification on just about any level. Possibly even Vietnam (although the initial excuse of the Gulf of Tonkin “incident” proved to be largely bogus) could have justified declaring War against the North.

It is not as if there was not enough time, especially since we are probably not contemplating sneak nuclear missile attacks at the moment. Bush proudly and publically proclaimed well in advance each time he was on the way with our current set of combatants. Besides, look how fast Congress assembled to prevent tubes from being disconnected to one brain dead woman. When the right cause exists, as War often is, surely a quorum of Congress can be assembled quite quickly to debate, demand to see or hear some proof under oath, and quickly pass a Declaration of War.

Even as to Afghanistan (where interestingly enough, the Taliban at one point apparently offered internationally to surrender Osama for prosecution if the US would merely prove the same low level of evidence, i.e. probable cause, that is needed to indict someone caught, say, speeding) the invasion was not instantaneous even in this supersonic age. The President immediately rejected the Taliban’s offer, did not bother to see if it might be genuine, refused to provide any evidence of guilt, claimed essentially he didn’t need to show any stinking proof, and demanded an equally sovereign nation surrender a resident or else be invaded. Even assuming the Taliban were lying or stalling and even assuming Osama would not have been finally surrendered or caught except by invasion, there were still a number of days granted to the Taliban. Usually, some time is needed to gear up the military option. Why couldn’t that holding period have been used for Congress to actively debate on a Declaration of War? What “war” has been shown to be so time critical lately that a few days could not have been used to really discuss it first?

Think about it. Why have all the “wars” since World War II been forced to be called “police actions” or incursions or rescue missions or nation building or foreign adventurism or whatever? Perhaps it is the same reason we renamed the War Department the Defense Department after WWII. Cowardice and contempt.

That’s right. Cowardice! It’s gutless, craven Congressmen afraid of either the President or their constituents or what other nations might say or all of the above that has blocked Declarations of War from being debated. For those outside the current Administration who have actually read the Constitution, it is abundantly clear our Founding Fathers deliberately and with wisdom aforethought set up the mechanism of our government specifically to insure that it is difficult to accomplish things without airing what is at stake and discussing the relative merits. A Declaration of War, by its very nature, requires public debate where the general population, not to mention its representatives in Congress, have a chance to learn what is going on and cogitate whether it is the right thing to do. It cannot be done overnight, but it can be done relatively speedily when need be. Congressmen though fear that they may lose the next election. They fear asking questions. They fear anything that may hold them accountable for their own actions. They fear international embarrassment. They like leaving it up to the President. It lets them off the hook. They fear forcing the American public to act like we are at War with the inevitable resulting results on taxes, the economy, the requirement to conserve resources or possibly force white suburbanites off the tennis courts and into uniform against their will.

Some might argue what is the harm in ignoring that particular section of the Constitution? After all, can’t we accomplish the same end result (applications of force on others) without bothering with all that rigamarole? Isn’t a Congressional resolution good enough if anything at all is required on paper? Why force a paper trail, so to speak? We managed to invade Iraq without it? Yes we did, but is that a good idea? Look at the results.

The other aspect of the refusal to formally Declare War is the contempt it ultimately breeds of the Congress and the Constitution itself. That contempt by the voters and, more importantly, the President, lead some, particularly aggrandizing Presidents, to view it as disposable.

We should never have contempt for a process that insures careful contemplation, compromise, cooperation, consensus and common sense. Naturally, those qualities are anathema to Presidents, especially the weaker ones, the ones who believe in their divine right to rule unimpeded. The ones who have no confidence in their ability to convince on the merits. Still, it is the way the Constitution was designed to work, and has worked pretty well.

More importantly, a Declarations of War, at least in part, is a way custom-made to help prevent tyranny, an all too real possibility for all democracies. The refusal of Congress to risk debating a Declaration of War may be one of the reasons the current President feels personally justified in assuming near dictatorial powers on spying and eavesdropping without warrants and abandoning trials by jury with rights of defense counsel. Those are fundamentals upon which our nation was founded and partially fought in its first War. Or, perhaps it just that the present White House occupant feels he can rationalize such usurpation of power whether he truly believes the alleged justification or not.

Here is the critical issue. If the President can declare war all by himself and get away with it, what need is there of a pesky Congress anymore? Julius Caesar would be proud.

True, a President can always defacto start hostilities by telling troops to do something that will cause others to Declare War against us. Still, if Congress has not formally done so in a Declaration of War, there is always at least the chance to impeach the President for doing so and dig us out of whatever pile of rubble he has wilfully placed us.

Interestingly, Bush argues that in time of “war” he is not bound by either the Courts or Congress. Much of his case is built around that dubious legal theory. Yet, he seems to suffer from fear himself, fear of being forced to state his case in the forum where it is supposed to be.

In any event, if the current President and his successors get away with emasculating the Declaration of War clause of the Constitution, then there is nothing in the Constitution that cannot be equally emasculated. Perhaps it is time to declare war on Congress’s refusal to Declare Wars.

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