The U.S. Constitution and the Power to Go to War: Historical and Current Perspectives

By Gary M. Stern; Morton H. Halperin | Go to book overview

eliminate the "middle option" from our foreign policy retinue; it will simply place it in the public sphere where all major policy decisions of a democratic society belong.


CONCLUSION

The legislature, and the people of this country, have a right, if not an obligation, to be skeptical when the President takes it upon himself to commit the United States to war or any other military action. While he may ultimately have good cause to do so, recent history--the Vietnam War and the Iran-Contra affair alone--invites us to exercise significant caution before supporting such a commitment. If the President cleared his action with Congress before carrying it out, he could avoid the rancorous and disruptive reaction that could otherwise ensue. By overcoming internal division in advance, the President can more effectively focus attention on the military objective at hand.

Advance congressional approval also legitimizes the policy to the outside world once an operation has actually begun. Policy makers have always striven for a bipartisan foreign policy. It allows us to present to allies and adversaries alike a unified front fully committed to achieving its goals; and it would further undermine any attempts by the adversary to try to defeat the President through the Congress.

Finally, advance approval will help to prevent the political backlash from Congress that invariably follows upon a foreign policy failure. Indeed Congress's investigation into the Iran-Contra affair focused extensively on the President's failure to keep Congress informed about the Iran operations, as was required under the intelligence oversight procedures in effect. (The President's violation of the funding restrictions on the Nicaragua operation was a wholly separate problem.) Had the appropriate Members of Congress been so informed, they would have had far less to complain about once the ensuing operation was exposed. While Congress may still have voiced strong objection to the intent and effect of the Iran operation, the President would have at least satisfied all of the existing legal requirements. Of course, we believe that the existing legal requirements are deficient, and should be further tightened, because they allow the President to proceed with a military operation even in the face of congressional opposition.


NOTES
1.
This chapter is based on portions of an article entitled "Lawful Wars" that appeared in Foreign Policy, No. 72, at 173 (Fall 1988). Copyright 1988 by the Carnegie Endowment for International Peace. Reprinted with permission.
2.
Hearings before the House Select Committee to Investigate Covert Arms Transactions with Iran and Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition, 100th Cong., 1st Sess., Testimony of Robert McFarlane, at 9 ( May 11, 1987) [hereafter Iran-Contra Hearings].
3.
See N.Y. Times, Nov. 30, 1984, at A5 (reprinting text of Weinberger's speech: "Fifth, before the U.S. commits combat forces abroad, there must be some reasonable

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The U.S. Constitution and the Power to Go to War: Historical and Current Perspectives
Table of contents

Table of contents

  • Recent Titles in Contributions in Military Studies ii
  • Title Page iii
  • Contents v
  • Acknowledgments vii
  • Introduction 1
  • Notes 8
  • 1: Historical Survey of the War Powers and the Use of Force 11
  • Notes 26
  • 2: Constitutional Constraints: The War Clause 29
  • Notes 46
  • 3: Statutory Constraints: The War Powers Resolution 55
  • 4: Treaty Constraints: The United Nations Charter and War Powers 83
  • Notes 98
  • 5: International Law Constraints 107
  • Notes 118
  • 6: Judicial Constraints: The Courts and War Powers 121
  • Notes 128
  • 7: Constraints on "Covert" Paramilitary Action 133
  • Notes 147
  • 8: "Covert" Paramilitary Action and War Powers 149
  • Notes 157
  • 9: Emergency War Powers 159
  • Notes 166
  • 10: Common Ground 167
  • Notes 176
  • Appendix 179
  • Selected Bibliography 181
  • Index 191
  • About the Editors and Contributors 197
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