This post originally appeared at TomDispatch.
Let’s face it: in times of war, the Constitution tends to take a beating. With the safety or survival of the nation said to be at risk, the basic law of the land — otherwise considered sacrosanct — becomes nonbinding, subject to being waived at the whim of government authorities who are impatient, scared, panicky or just plain pissed off.
The examples are legion. During the Civil War, Abraham Lincoln arbitrarily suspended the writ of habeas corpus and ignored court orders that took issue with his authority to do so. After US entry into World War I, the administration of Woodrow Wilson mounted a comprehensive effort to crush dissent, shutting down anti-war publications in complete disregard of the First Amendment. Amid the hysteria triggered by Pearl Harbor, Franklin Roosevelt issued an executive order consigning to concentration camps more than 100,000 Japanese-Americans, many of them native-born citizens. Asked in 1944 to review this gross violation of due process, the Supreme Court endorsed the government’s action by a 6-3 vote.
More often than not, the passing of the emergency induces second thoughts and even remorse. The further into the past a particular war recedes, the more dubious the wartime arguments for violating the Constitution appear. Americans thereby take comfort in the “lessons learned” that will presumably prohibit any future recurrence of such folly.
Even so, the onset of the next war finds the Constitution once more being ill-treated. We don’t repeat past transgressions, of course. Instead, we devise new ones. So it has been during the ongoing post-9/11 period of protracted war.
During the presidency of George W. Bush, the United States embraced torture as an instrument of policy in clear violation of the Eighth Amendment prohibiting cruel and unusual punishment. Bush’s successor, Barack Obama, ordered the extrajudicial killing of an American citizen, a death by drone that was visibly in disregard of the Fifth and Fourteenth Amendments. Both administrations — Bush’s with gusto, Obama’s with evident regret — imprisoned individuals for years on end without charge and without anything remotely approximating the “speedy and public trial, by an impartial jury” guaranteed by the Sixth Amendment. Should the present state of hostilities ever end, we can no doubt expect Guantánamo to become yet another source of “lessons learned” for future generations of rueful Americans.
Congress on the Sidelines
Yet one particular check-and-balance constitutional proviso now appears exempt from this recurring phenomenon of disregard followed by professions of dismay, embarrassment and “never again-ism” once the military emergency passes. I mean, of course, Article I, section 8 of the Constitution, which assigns to Congress the authority “to declare war” and still stands as testimony to the genius of those who drafted it. There can be no question that the responsibility for deciding when and whether the United States should fight resides with the legislative branch, not the executive, and that this was manifestly the intent of the Framers.
On parchment at least, the division of labor appears straightforward. The president’s designation as commander-in-chief of the armed forces in no way implies a blanket authorization to employ those forces however he sees fit or anything faintly like it. Quite the contrary: legitimizing presidential command requires explicit congressional sanction.
Actual practice has evolved into something altogether different. The portion of Article I, Section 8, cited above has become a dead letter, about as operative as blue laws still on the books in some American cities and towns that purport to regulate Sabbath day activities. Superseding the written text is an unwritten counterpart that goes something like this:with legislators largely consigned to the status of observers, presidents pretty much wage war whenever, wherever, and however they see fit. Whether the result qualifies as usurpation or forfeiture is one of those chicken-and-egg questions that’s interesting but practically speaking beside the point.
This is by no means a recent development. It has a history. In the summer of 1950, when President Harry Truman decided that a UN Security Council resolution provided sufficient warrant for him to order US forces to fight in Korea, congressional war powers took a hit from which they would never recover.
Congress soon thereafter bought into the notion, fashionable during the Cold War, that formal declarations of hostilities had become passé. Waging the “long twilight struggle” ostensibly required deference to the commander-in-chief on all matters related to national security. To sustain the pretense that it still retained some relevance, Congress took to issuing what were essentially permission slips, granting presidents maximum freedom of action to do whatever they might decide needed to be done in response to the latest perceived crisis.
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