War Powers: James Baker's Next "Non-binding" Commission

Big bad Baker's back.

According to a press release from University of Virginia's Miller Center of Public Affairs, former Secretaries of State James A. Baker III and Warren Christopher will head up the National War Powers Commission. The commission will be a "private bipartisan panel" that will "examine how the Constitution allocates the powers of beginning, conducting, and ending war." This panel promises to have as much impact on government policy as Baker's Iraq Study Group had.

None.

A Thousand Days Late and Hundreds of Billions Short

Young Mr. Bush treated the Iraq Study Group's report on Iraq like a disposable hygiene product, even though that report was intended as a stern admonition to correct his administration's failed Iraq policy. The National War Powers Commission doesn't even aspire to have any influence on current policies. From the Miller Center press release:

The Commission intends to produce a report making recommendations to assist Presidents, Congresses, Courts, and other policymakers in addressing war powers issues. When they are issued, the Commission’s recommendations will be entirely prospective in nature and not applicable to the present presidential Administration or present Congress.

Separation of war powers among the executive, legislative and judicial branches is the central issue of today's American political environment, and the obvious reason that the War Powers Commission was convened in the first place. So why bother to establish a commission to make "recommendations" that aren't applicable to the present situation?

And why bother to throw (presumably) six-figure plus stipends at yet another group of political have-beens and "other experts" to tell us what the Constitution says about war powers? We can all read the constitution for ourselves and it don't cost nothin'. It's posted online, and you don't need a member name or password to read it.

We the People

Article II, section 2 of the Constitution makes the president commander in chief of the military. It makes no distinction of his authority in that role between wartime and peacetime, nor does it make any distinctions between declared and undeclared wars.

Article I grants all other war making powers--including the authority to declare war and grant letters of marque and reprisal--to the legislature.

Nowhere does the Constitution overtly grant a president "unitary," "plenary," or "extraordinary" powers to act outside what Article III describes as "…this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority."

Constitutionally, when making claims of extraordinary war powers, Mr. Bush doesn't really have a pot to go potty in. But that doesn't keep him and his neocon puppet masters from treating the Constitution like a public restroom.

There is no codified set of "war powers" that give a president extra-constitutional or extra-legal powers in a time of armed conflict. The War Powers Resolution of 1973 does not give the executive expanded authority in time of war. It limits his authority to commit U.S forces to combat without a declaration of war, "specific statutory authorization" from Congress, or a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

In the course of more than a year and a half of researching the history of U.S. presidential powers, I found one--I repeat one--instance of a law passed by Congress that gives the executive branch a special privilege in wartime is this blurb at the very end of the Foreign Intelligence Surveillance Act (FISA).

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.

In December of 2005, we discovered that Mr. Bush had authorized warrantless electronic surveillance for several calendar years.

By summer of 2006, a federal district judge (Anna Diggs Taylor) had declared the warrantless wiretapping program to be unconstitutional, stating in her decision that "There are no hereditary kings in America and no powers not created by the Constitution.'' But Bush's legal mastiff Alberto Gonzales insisted on the executive right to continue the program until the case could be appealed at the federal circuit level. In January, Mr. Bush bowed to the decision of the district court and placed the surveillance program back under control of the special Foreign Intelligence Surveillance Court.

Throughout America's history, presidents have exercised, or attempted to exercise, extraordinary powers in times of armed conflict. Sometimes they've gotten away with it, sometimes they haven't. Congress has not declared war, per se, since World War II, but presidents have committed troops to combat many times since Harry Truman sent U.S. forces to Korea in the 1950s. Arguably, young Mr. Bush has exceeded all other presidents in practicing the concept of executive privilege

Today, Democrats (and some Republicans) in Congress are seeking ways to limit young Mr. Bush's authority to conduct war in Iraq, but have so far been unsuccessful. He has, as we noted earlier, acceded to pressure to place the domestic surveillance program back under supervision of the FISA Court, but we don't know the details of that arrangement because they're secret. He blinked in the Jose Padilla affair, opting to levy charges against Padilla in federal court rather than face a showdown with the Supreme Court over whether or not he could hold a U.S. citizen as an illegal combatant,

We have yet to see if Bush will attack Iran without the legislature's approval. In early February, U.S. forces conducted air strikes in Somalia. I have yet to discover under what auspices those strikes were conducted, and have yet to hear anyone in the mainstream media or Congress even ask that question.

As to the proper division of war powers among the three branches of the federal government, I seriously doubt whether Mr. Baker's new commission will provide any meaningful answers to that question. And even if they do, I doubt anyone will pay any attention.

The time for Baker's new commission was four or five years ago. Now, as Mr. Bush might say, it will be a mere semicolon in the history of American tyranny.

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Related article: "Smoke, Mirrors and War Powers"

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Commander Jeff Huber, U.S. Navy (Retired) writes from Virginia Beach, Virginia. Read his commentaries at Pen and Sword.