Tuesday, November 08, 2005

Fuzzy War Powers

We are finding terrorists and bringing them to justice. We are gathering information about where the terrorists might be hiding. We are trying to disrupt their plots and plans. Anything we do ... to that end in this effort, any activity we conduct, is within the law.

George W. Bush

November 7, 2005

It's pretty clear at this point that Mister Bush doesn't read, and that anything he knows about what's "within the law" is whatever 'Berto and Harry tell him. And anything 'Berto and Harry tell him is what he wants to hear.

Yesterday, we discussed how the Patriot Act violates the U.S. Constitution, and why Congress violated the Constitution by passing it. Today, we'll delve into Presidential War Powers, a concept that is almost pure myth.

Let's take a look at a few pertinent documents and see if we can determine just what a president's "war powers" consist of.

We'll start with the presidential oath of office, contained in Article II of the U.S. Constitution.
"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

So there's little doubt where the first priority of a president lies.

Here's what Article II says about the president's war powers:
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States…

…shall commission all the officers of the United States.

And that's it.

Constitutionally, Article I gives most of the cards in the war deck to the legislature. It is empowered…
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.

Nothing in the Constitution allows Congress to delegate these powers to the executive branch.

Article I also contains the single mention of suspension of individual rights in time of war.
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

Note that the permission to suspend the habeas corpus privilege in cases of rebellion or invasion specifically addresses Congress, and as with the other war powers, Congress is not allowed to transfer that authority to another branch of government.

Before we leave the Constitution, let's visit some pertinent statements in Article VI.
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land...

Treaties are the law of the land, just like the Constitution itself. There's no mention anywhere about abrogating treaties if we get into a "new" kind of war, and there's no permission given to suspend the law of the land in wartime.

Here's one other thing from Article VI to consider:
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution…

All legislators, all officers of the executive and judicial branches, federal and state, are bound by our founding document.

No exceptions. No excuses. Not even for Karl or Rummy or Uncle Dick.

And slightly off topic but worth noting, Article VI also states that...
...no religious test shall ever be required as a qualification to any office or public trust under the United States.

The War Powers Act of 1973

Congress passed this Act in response to the conduct of the Vietnam War by Presidents Johnson and Nixon. It's a reasonably terse piece of legislation, and if you've never read it, please take the time to do so.

The Simple Simon summary is that absent a Congressional declaration of war, a president can't commit U.S. forces into combat for more than sixty days without permission of the legislature (an additional thirty days are allowed under some circumstances).

By passing the Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq in October of 2002, Congress granted Mister Bush "specific statutory authorization" to invade Iraq in accordance with the 1973 War Powers Act.

But again, nothing in the War Powers Act or the Iraq resolution gave the president authority to break treaties or suspend portions of the Constitution, or violate any laws enacted under it.

Title 10

Title 10 of U.S. Code deals with military law and issues concerning organization, personnel, training, supply, and other details of maintaining the military and the separate services.

As with the other documents we have discussed, nothing in Title 10 grants any branch of government to disregard laws or treaties in time of war, declared or undeclared.


The legality of the manner in which the Bush administration led America into the current Iraq war is not specifically addressed in any of the documents we have discussed, and is a subject for another day.

But things like the USA Patriot Act, Mister Bush's insistence on his authority to unilaterally designate prisoners as "enemy combatants," rejection of both the Geneva Convention and the U.N. Convention Against Torture, the establishment of holding facilities like the one in Guantanamo, extraordinary rendition, military tribunals, and dozens of other actions the executive branch has undertaken in the execution of the Iraq War are completely outside the tenets and restrictions of the U.S. Constitution and the domestic and international treaty laws it encompasses.

Keep that in mind the next time you hear Mister Bush lecture another country about the importance of "the rule of law."


  1. Yeah, the Presidential powers with respect to war are more aligned with the conduct of the war, in his role as Commander in Chief, than in whether or when to go to war, which is more squarely vested with the legislature. This was one of the things sometimes adversaries like Jefferson and Hamilton agreed on.

    Hamilton wrote in the Federalist papers:

    "The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States."

  2. My impression has been that they both agreed about the evils of the European monarchy in the conduct of foreign policy and war.

    Though, oddly enough, wasn't it Jefferson who conducted the "quasi-war" without a mandate from Congress.

    Guess I'll have to look that up.