Sunday, December 11, 2016

Declarations of War

Last Wednesday was the 75th anniversary of the Japanese attack on Pearl Harbor. The following day, logically enough, was the 75th anniversary of the American declaration of war against Japan, which was approved unanimously in the Senate and with only a single dissenting vote in the House of Representatives (cast by Congresswoman Jeanette Rankin, a strict pacifist). The vote came after one of the most recognizable moments in American history: the "day of infamy" speech of President Franklin Roosevelt. Within the space of twenty-four hours, a previously isolationist United States had been forced by history onto the global stage, from which it has never since withdrawn.

Roosevelt was faced with a problem, for he clearly saw that Nazi Germany, and not Imperial Japan, was the greater threat to the United States and to the world in general, yet Germany had not attacked the United States. Hitler solved this problem for Roosevelt in one of the more stupid moves made by a world leader in history when he declared war on the United States, despite not being required to do so by his treaty with Japan. The United States, logically enough, declared war on Germany (and Italy, which made the same mistake) on December 11. Just to make it all a nice packaged deal, the United States declared war on the smaller Axis nations of Bulgaria, Hungary, and Romania on June 5, 1942. We never bothered to declare war on Finland, which was sort of a special case.

The American declarations of war during 1941-42 were the most recent occasions that the United States formally declared war on any other nation. It comes as something of a surprise to learn that this took place only four other times in American history: against Britain in 1812, against Mexico in 1846, against Spain in 1898, and against Germany and Austria-Hungary in 1917 (we never bothered to declare war against the other members of the Central Powers, Bulgaria and the Ottoman Empire, during the First World War). During the American Civil War, the Confederate government formally declared war on the United States, but the reverse never happened as it would have required the Union to recognize the Confederacy as a legitimate government.

A very important point needs to be made about all of these declarations: they were issued by Congress and not by the President. Article One, Section Eight, of the Constitution specifically states that the power to declare war is held by Congress and not the President. Since 1945, America has fought several major military conflicts, including Korea (1950-1953), Vietnam (1964-1973), the Persian Gulf War (1991), the Afghanistan War (2001-present) and the Iraq War (2003-2011). None of these involved a formal declaration of war, yet only a fool would describe them as anything other than a war. In all cases, Congress passed resolutions giving the President permission to engage in military action, although under dubious circumstances in the cases of both the Vietnam War and the Iraq War. What I find troubling is that Congress essentially legislated so as to give to the President the power to decide whether or not to go to war, which certainly violates the spirit, and probably violates the letter, of the Constitution.

Then you have the countless smaller military actions, that might not reach the level of an out-and-out war but which cannot be described as insignificant. The first memory I have of a news event was the destruction of the Marine barracks in Lebanon in 1983, during Reagan's ill-fated intervention there. Since then, we have the invasion of Grenada in 1983, the invasion of Panama in 1989, the various interventions in the Balkans in the 1990s, and the intervention in Libya in 2011. Some of these actions were approved by Congress, with varying degrees of enthusiasm, while some were not.

The Founding Fathers lived in an age when kings and emperors still ruled most of the world. Such men were natural seekers of glory and generally cared little for whatever suffering might be inflicted on others as a result. Only a few decades before their time, Louis XIV of France had sought to immortalize his reign through martial achievements and during their lives Frederick the Great of Prussia had done the same. Moreover, being products of an education largely centered on classical history, the Founders could look to the past and see examples such as Alexander the Great and Julius Caesar. It was a concession to common sense, therefore, that the delegates to the Constitutional Convention gave the power to declare war to Congress rather than the President. To place such a momentous decision in the hands of a single individual was simply too dangerous.

Indeed, an argument can be made that the delegates to the Constitutional Convention wanted to prevent a permanent standing army from ever being created. Article One, Section Eight, specifies that the Congress has the power to "raise and support armies" and to "provide and maintain a navy". Why this wording? Why didn't the delegates say "provide and maintain an army and navy"? It seems pretty clear to me that the Founders intended the navy to be a permanent force, but only expected armies to be raised in time of war. During peacetime, the state militias were expected to provide whatever military force would be necessary. After all, having a powerful standing army would not only be expensive, but might provide the President with an irresistible temptation to foreign military involvement either for the sake of personal glory or to distract the people from domestic political problems.

The question of whether Congress or the President should have the final say on questions of peace or war has been on my mind lately and not just because of the anniversary of our entry into the Second World War. President-Elect Donald Trump will take office next month and he is a man famous for shooting from the hip and making decisions based on gut instinct rather than long consideration. He has also expressed support for military actions that are clearly illegal, such as torturing prisoners and killing the innocent family members of terrorists. Some have suggested that the military would refuse to follow such orders if President Trump were to give them, which would make for quite the dilemma for a military officer. Frankly, the very fact that we have to ask the question at all is deeply troubling. Upon entering office, will President Trump respect the constitutional fact that Congress, and not the President, is the part of government which has the power to declare war? Based on his past statements, I would have to assume he won't.

This question is about far more than President Trump, however. It's about the presidency in general, no matter which individual happens to be sitting in the Oval Office. Since the Second World War, our country has quietly allowed the presidency to assert far greater authority in the sphere of war and peace than was envisioned by the Founding Fathers. In 1973, after the disaster of the Vietnam War, Congress attempted to reassert its war declaration authority with the War Powers Resolution. Unfortunately, this simply made an already bad problem even worse. It specified that the President must obtain congressional authorization for any military action that lasts for more than sixty days. This implies, obviously, that the President does not need congressional authorization for a military operation of a shorter duration. An airstrike lasts a matter of minutes, so does the President have the constitutional right to order an airstrike against any country he wants, for whatever reason he wants? Can he order a Tomahawk missile strike against a restaurant in Paris if he didn't like their soup?

This becomes all the more frightening when we consider the possible use of nuclear weapons. If Congress has abdicated its war declaration responsibility to the President so completely, what constitutional barriers are in place to prevent the President from ordering a nuclear strike on his own volition? If the President has a gut feeling, absent any real evidence, that China is about to launch a nuclear attack on us, can he unilaterally order a preemptive nuclear strike? Under operational procedures, the Secretary of Defense must confirm any launch order from the President, but this is only to confirm the validity of the order and does not technically give the Secretary of Defense the power to block the order itself.

In 1973, an Air Force major named Harold Hering, who was attached to one of the units operating Minuteman ICBMs with nuclear warheads, asked his superiors whether he would have to follow orders to launch his missiles if he suspected that the President was "deranged, disordered or. . . damagingly intoxicated" or showed some other sign of not being in possession of his faculties. For the simple act of asking this question, Major Hering was discharged from the Air Force.

The Founding Fathers were quite right to invest Congress rather than the President with the power to declare war, for they well understood the danger of granting such authority to a single person. They would be both astonished and horrified to see how the executive branch has gradually accumulated that power to itself over the past few decades, under multiple presidents of both parties. To me, it is terrifying enough to have the lives of hundreds of thousands of American soldiers potentially placed at risk due to the whims of a single person. In an age of nuclear weapons, it's not too much to say that the stakes are raised to the level of the survival of the human race.

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