Share this article

print logo

WAR POWERS AND THE ORIGINAL INTENT OF THE FOUNDING FATHERS

Debates over the original intent of the framers of our Constitution tend to be sterile, self-serving and hypocritical. Like the Bible and Shakespeare, the U.S. Constitution can be quoted to support nearly any desired outcome. Witness the current debate over the relative powers of the president and Congress in the conduct of our military policy.

The Constitution gives Congress the power to declare war, but it gives the president, as commander-in-chief, the power to conduct war. Those who are against going to war in the Persian Gulf emphasize the former power, while those who are in favor of war point to the latter power. At a slightly more abstract level, those who favor increased congressional power look to the former, while those who favor increased presidential power look to the latter.

As is typical in debates over original intent, the relevant world has changed fundamentally over the past two centuries. Nations simply do not "declare" war the way they used to do. Military options are far more calibrated than they were in the 18th century. They include threats, bluffs, development of new weapons, covert operations, massing of troops, small-scale incursions, surgical strikes, full-scale troop movements and even nuclear attack. Declaring war is also an option, but not a very good one in most situations.

Consider President Kennedy's successful handling of the Cuban missile crisis of 1962. The president threatened, readied various weapons systems, blockaded and -- perhaps -- bluffed. It worked. The Soviets removed their nuclear weapons without a shot being fired. Had the president been required to obtain a declaration of war before threatening a war or ordering a blockade (which, under international law, is an act of war), a divisive congressional debate would have ensued. Did a majority of Americans really want us to go to war with the Soviet Union over nuclear weapons in Cuba? Did these missiles really pose a qualitatively greater threat to the United States than the thousands of missiles already pointed at us from the Soviet Union and other places?

Fortunately, we never had to answer that question, because Khrushchev blinked. President Kennedy -- who surely did not want to go to war -- was able to convince the Soviets that he might actually go to war to keep hostile nuclear missiles off our continent.

Shouldn't President Bush have the same constitutional power to bluff, without his bluff being exposed by a divided Congress? Doesn't our commander-in-chief have the power to lead Saddam Hussein into believing that we will attack him if he does not leave Kuwait, so that he will leave Kuwait without the need for us to attack him? "Of course he should," answer those who demand that Congress declare war before the president commits troops to combat. "But," they ask, "what if this isn't a bluff? What if he does go to war?"

The reality, of course, is that we do not know and cannot know whether the president is bluffing. If we know, then Saddam Hussein knows. And if Saddam knows, then it is no longer a bluff. Uncertainty is the essence of every successful bluff.

Nor can Congress be included in a decision to bluff. Even if Congress could keep a collective secret, it would not be right to keep critical information from the public.

Before we abdicate this important tool of military diplomacy -- a tool that can often avoid bloodshed -- we ought to be certain that our Constitution does not authorize it. I am not so certain that the congressional power to declare war denies the president the power to threaten war -- and even to carry through on his threat, without a formal congressional declaration of war.

Certainly Congress can give the president the power to bluff if it chooses to. And perhaps that is the way out of the current deadlock. President Bush can ask for, and Congress can grant, the power to create a credible threat of military force directed against Saddam Hussein if he does not leave Kuwait by a certain date. If that date arrives and there is no withdrawal, Congress can then give the president the additional authority to use military force at any time that is tactically advantageous to do so.

All this is quite complicated. But we live under a complex system of democratic checks and balances, in which the power to wage war is divided between the legislative and executive branches, all subject to public debate and electoral checks. Nobody ever said that democracy was efficient. Nobody ever said the Constitution makes it easy to commit American troops to battle. The "original intent" of the framers provides only the most general outline for how the most important power in the Constitution should be shared. Every generation of Americans has to fill in the blanks.

There are no comments - be the first to comment