Beltway Right Wrong - Only Congress Can Declare War
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Very graciously for the Emperor of the New World Order, President Bush has stated that he will consult Congress before going to war against Iraq and even promises to listen to people who don't want to go to war at all.

But, as he remarked last week, after the consulting, the listening and the "debate," then

"I'll be making up my mind based upon the latest intelligence and how best to protect our own country plus our friends and allies."

In other words, Mr. Bush thinks he has the right to initiate a full-scale war against a foreign nation.

He's not the only one. Bruce Fein, a legal columnist for the Washington Times and a charter member of the neo-conservative Zionist war party yelling for us and them to fight, agrees.

Some people, writes Mr. Fein in a recent column, actually imagine that just because the U.S. Constitution gives Congress the right to declare war, that means only the Congress can declare war. How silly of some people. "The constitutional criticism," he snorts, "is unconvincing." [Washington Times, Warring under the Constitution, Bruce Fein, August 20, 2002]

But Mr. Fein's case (and in general the case for presidential war powers that neo-conservatives make) rests on some very dubious reasoning and even more dubious facts. "The Founding Fathers," he assures us, "held no pronounced prejudice against executive declarations of war."

Really? This is what James Madison, "Father of the Constitution," had to say about it in his "Political Observations" of 1795:

"Of all the enemies to liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. ... In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The Constitution expressly and exclusively vests in the Legislature the power of declaring a state of war [and] the power of raising armies.... A delegation of such powers [to the president] would have struck, not only at the fabric of our Constitution, but at the foundation of all well organized and well checked governments."

In Madison's Notes of the Constitutional Convention he quotes Elbridge Gerry as remarking "Mr. Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war," while George Mason of Virginia "was agst. giving the power of war to the Executive, because not safely to be trusted with it."

Mr. Fein also claims the Framers "were skeptical of handcuffing national security powers with legally enforceable constitutional constraints," and to support that claim he quotes Alexander Hamilton in Federalist 23 that "[War] powers ought to exist without limitation, etc."

This passage is grotesquely torn from context. Hamilton was not talking about the power to initiate war but merely the authority

"to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, etc."

Mr. Fein also quotes the philosopher John Locke on the powers of the executive (which has nothing to do with constitutional powers) and cites Lincoln's justifications of his "extra-constitutional" (i.e., illegal) actions in the Civil War.

Whatever the merits of Lincoln's policies, their rationale was the "emergency" the republic faced if laws were not violated to preserve it. That excuse doesn't apply to the current war. No one claims that Iraq is contemplating a war against us or that we face any "emergency" that justifies suspension of the laws and Constitution.

Finally, Mr. Fein points to a long series of executive-authorized military actions without congressional authorization as precedents. 

Again, the argument is without merit. Citing the unconstitutional actions of previous presidents does nothing to justify unconstitutional action today. You might as well cite Bill Clinton's perjury to justify lying by President Bush. Secondly, none of the executive actions Mr. Fein cites was a full-scale war; almost all were rescue operations intended to meet emergencies (e.g., McKinley's dispatch of troops to rescue the besieged Americans in Peking during the Boxer Rebellion; President Ford's rescue of the S.S. Mayaguez in Cambodia in 1975).

Military rescue operations are one thing; war — especially against a nation that has done nothing to attack us — is quite another.

In the end, it's Mr. Fein who's "unconvincing" in his case for virtually unrestricted executive war powers, and his phony arguments and fake facts are typical of the arguments the neo-conservative war lobby is mounting.

So far neither the president nor his "intellectual allies" in the Beltway Right have shown us any compelling reason to go to war at all - let alone that the president has the constitutional power to start one.


August 22, 2002

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