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

be used except in a true emergency to repel an attack, without the passage of a congressional resolution.

Following these procedures will make it more difficult for the nation to go to war--a difficulty that the Framers intended. It will also make it more likely that we will stay the course once we decide to use force, and that we will do so without the acrimonious public debate that only weakens us abroad and tears at the fabric of our society.


NOTES
1.
See Hearings on the War Powers Resolution: Review of the Operation and Effectiveness of the War Powers Resolution before the Senate Foreign Relations Committee, 95th Cong., 1st Sess., at 209 ( 1977) (statement of Herbert J. Hansell, Legal Adviser, Dept. of State); see also Hearings on Review of the War Powers Resolution before the Investigations Subcommittee of the House Armed Services Committee, 101st Cong., 1st & 2d Sess., at 320 ( May 24, Sept. 26, 1989, & Jan. 29, 1990) (H.A.S.C. 101-80) (testimony of Jimmy Carter) ("I have never made any public condemnation of the War Powers Resolution. My position has been different than that of Gerald Ford, Richard Nixon, Ronald Reagan, and George Bush, who have expressed very strong views against the resolution. . . . Only once during my presidency was there an incident when the resolution seemed to apply. This was when the attempt was made to rescue the hostages in Iran. After the attempt, I immediately called in the House and Senate leadership and informed them of everything that had happened. I made a full report.").
2.
Nonetheless, as a matter of constitutional law, we believe that Congress's power to declare war means that the President cannot initiate military action without specific congressional authorization, except "to repel sudden attacks." Congress could preauthorize the President to use forces for specific purposes, for example in response to U.N.-authorized actions, but such authority must be clear and explicit.
3.
See The Vietnam Legacy: The War, American Society, and the Future of American Foreign Policy ( Anthony Lake ed., 1976) (demonstrating that there was no consistent viewpoint on whether the Vietnam War constituted a threat to vital interests).
4.
We use the term "forced" deliberately. Most members of Congress, including its leader, have usually supported Presidents when they initiated the use of force and asserted that Congress need not, and should not, be consulted. For example, rather than protesting Bush's decision to commit forces to Somalia without congressional authorization, many congressional leaders applauded his action and asserted they saw no reason for Congress to vote on the matter. Members of Congress prefer to avoid the responsibility for intervention. They try, above all else, to avoid a vote that can be used against them by opponents in the next election.
5.
President Bush seems to have made both of these errors in dealing with Somalia and Bosnia-resisting military intervention in Bosnia and rejecting advice to intervene in Somalia for a long time because the Joint Chiefs were opposed. In so doing, he ignored the fact that from the Berlin blockade to Yugoslavia, the chiefs have almost always objected to the use of armed forces, especially when they were not given a free hand to do whatever they wanted. When the Chairman of the Joint Chiefs, Gen. Colin Powell, switched positions and agreed to use military force in Somalia, Bush also made the mistake of accepting the condition laid down by the military that a U.S. general command all American forces and be in full control of the situation.
6.
SeeChapter 4 by Jane Stromseth.

-176-

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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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