| Two
days of hearings. Two days of listening to a roster of well screened witnesses
who all seem to sing from the same lyric sheet. Two days of the predictable and
carefully packaged dissemination of pro-war pap and then with consciences salved
– off for summer recess. If the Congress and the Executive branch truly believe
that what transpired last week in the hearing rooms of the Senate Foreign Relations
Committee was a sufficient expenditure of time and effort spent to debate the
merits and pitfalls of the possible – or should I say probable? – use of the United
States Armed Forces in regards to the situation in Iraq, then God help us all. The
comments contained herein are not meant to offer an opinion one way or another
on the validity of the oft professed need for military action against Iraq but
rather that the established legal / political framework to deliberate such a question
is fully utilized. For that is the way democracies are supposed to make war: within
the guidelines of the law and with the consent of the governed. Not by fiat. Not
by decree. The
procedures that are to be followed before waging war in the name of the United
States are in place for two a priori reasons. First, there can be no greater trust
placed in the hands of any political leader than the authority to send directly
into harm's way the young men and women they are charged to protect and defend.
And secondly, that sacred responsibility has been grossly misused throughout history. The
framers of the Constitution were men who were all well versed in the classical
traditions of the Greco-Roman school. Particularly when reading the Federalist
Papers, you will find countless references to the wisdom imparted by these ancient
cultures. What these men took from their studies was not only what these cultures
had done correctly but what mistakes they had made and how we could minimize their
repetition. Primarily: as students of history they were all too aware of the tendency
amongst men to become overly enamored with absolute power once it is possessed.
To further illustrate that tendency they did not need to go back to the days of
Alexander and Caesar. It was all too evident in the actions of King George and
his Parliamentarian acolytes. The
system these visionaries conceived was meant to insure that such tyranny would
not be permitted a foothold here in America. Not only is our political power structure
aligned so that no one man ever gain such power but that not even one branch of
government would do so. Still,
it was widely recognized that control of the military in times of national emergency
would be ill served by a rule by committee arrangement. Therefore, as Commander-in-Chief,
the President is the key figure in ensuring that the armed forces of the United
States are used in the most effective and efficient manner to "provide for the
common defense." Within that charge is the power to use those forces, when
the situation warrants, with a wide degree of latitude. A freedom of action that
has a clear and easily justifiable motivation behind it. Those
who seek to do us harm rarely do so by adhering to a clearly delineated schedule.
Violence is defined in part as "caused by unexpected force." Therefore as
a society it is imperative that we not so restrict ourselves in our ability to
respond to immediate and unexpected danger. However, the need to balance the quick
and decisive response, when the situation demands it, to protect and defend the
interests and well being of Americans with the belief that the military might
of this nation be used only with the express permission of the duly elected representatives
was given paramount consideration. Which is precisely why only Congress has the
power to declare war – a power succinctly spelled out in Article I, Section
8, Clause 11 of the Constitution of the United States – "Congress shall have the
power To declare War, grant Letters of Marque and Reprisal, and make Rules concerning
Captures on Land and Water." And
if that wasn't clear enough – which, judging by the way it had been ignored so
readily over the years, it apparently wasn't – Congress enacted, in spite of Richard
Nixon's veto, the War Powers Act of 1973 – a piece of legislation that supposedly
reinforced what the Constitution had already made very plain. As
stated in the Act – "nothing in this joint resolution 1) is intended to alter
the constitutional authority of the Congress or of the President, or the provision
of existing treaties; or, 2) shall be construed as granting any authority to the
President with respect to the introduction of United States Armed Forces into
hostilities or into situations wherein involvement in hostilities is clearly indicated
by the circumstances which authority he would not have had in the absence of this
joint resolution." In
the case of Iraq: the very fact that we are apparently going to take the next
several months to prepare for conflict, rather than have to respond to an unforeseen
crisis, is proof that the decision to wage this war needs to be vetted through
Congressional approval. Still,
the odds on this not taking place as proscribed by law are stacked decidedly in
favor of the Executive branch. The reasons are twofold. First, Congress has abdicated
its Constitutional role on so many occasions over the past 50-odd years that the
concept of precedent now seems to carry more weight than the clearly defined statues
of the Constitution. Not since that fateful week in early December 1941 has the
Congress of the United States declared war. It is a statement of the obvious that
this lack of Congressional approval has failed to keep our troops idle. The armed
forces of the United States have been engaged in dozens of military actions in
the past several decades, ranging from the multi-year conflicts in Korea and Vietnam
– wars that claimed in excess of 100,000 American lives – to those "small" engagements
such as Panama and Grenada. The
second reason for the lack of due process in our military matters is more to the
point – evidently the average Congressperson just doesn't have the guts to make
the life and death call that such a deliberation entails. Political
cowardice aside, the legality of all of this has never actually been determined.
The closest the Supreme Court has come to define which branch of the Federal Government
has the final say in how the armed forces are to be used is in the case of Curtiss-Wright
Export vs US, 1936. In that landmark case the majority ruled that the President
has "plenary" power and "inherent authority" in the arena of foreign affairs.
This ruling has been used ever since to justify the Presidential prerogative of
the use of military power. All
challenges to this position have been cut off at the knees by the subsequent refusal
of the Supreme Court to review cases heard by lower federal courts that have dealt
with that ruling. And as long as the Court maintains the belief that the issue
is "inappropriate for judicial resolution" and that it is a political one it will
remain exactly that; a matter for the people to decide. It is only fitting that
the ultimate authority is in our hands. That is, after all, the defining principal
of a democratic society. And besides; it is our sons and daughters who are called
upon to kill and be killed. Michael
Shannon is a free-lance writer. | 