Louis Fisher of the Congressional Research Service (CRS) testified:
The framers gave Congress the power to initiate war because they believed that Presidents, in their search for fame and personal glory, would have too great an appetite for war. John Jay, generally supportive of executive power, warned in Federalist No. 4 that “absolute monarchs will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.”
In studying history and politics, the framers came to fear the Executive’s potential appetite for war. Has human nature changed in recent decades to permit us to trust independent presidential decisions in war? The historical record tells us that what Jay said in 1788 applies equally well to contemporary times. (my emphasis)
For the Halliburton Republicans, we could write Jay's concerns in 5-story letter, in all caps like Yoo's testimony. Fisher goes on to explain an obvious problem with the notion that the Constitution gives Congress decision-making power on war and peace only by cutting off funds after the President has initiated war:
The advantage to the President [in Yoo's unilateral executive argument on this point] is striking. Executive wars may persist so long as the President has one-third plus one in a single chamber to prevent Congress from overriding his veto of a funding-cutoff.
This general issue took real form in 1973 when Congress passed legislation to deny funds for the war in Southeast Asia. After President Nixon vetoed the bill, the House effort to override failed on a vote of 241 to 173, or 35 votes short of the necessary two-thirds majority. 119 Cong. Rec. 21778 (1973). A lawsuit filed by Representative Elizabeth Holtzman (D-N.Y.) asked the courts to determine that President Nixon could not engage in combat operations in Cambodia and elsewhere in Indochina in the absence of congressional authorization. District Judge Judd held that Congress had not authorized the bombing of Cambodia. Its inability to override the veto and the subsequent adoption of an August 15 deadline for the bombing could not be taken as an affirmative grant of legislative authority: “It cannot be the rule that the President needs a vote of only one-third plus one of either House in order to conduct a war, but this would be the consequence of holding that Congress must override a Presidential veto in order to terminate hostilities which it has not authorized.” Appellate courts mooted the case because the August 15 compromise resolved the dispute between the two branches.
Alton Frye of the Council on Foreign Relations focused on the benefits of Congressional participation in the decision to go to war:
Congress’s stand on how our nation uses the mighty arsenal at its disposal also bears crucially on America’s standing in the world. Even among our closest allies, American power elicits mixed emotions: awe and fear, respect and anxiety. That should surprise no one. Military and economic capabilities of the magnitude America possesses cannot fail to cause alarm in other countries, however benign our intentions. That alarm is heightened to the degree that American force appears to be too easily deployed. In the eyes of others, no less than of our own citizens, American military action may be seen as most legitimate when it is demonstrably subject to democratic governance. This insight is akin to Justice Jackson’s memorable formulation that the President’s power is at its maximum only when he acts “pursuant to an explicit or implied authorization of Congress.”
Marshaling international coalitions to wage the war on terrorism will depend importantly on giving our allies confidence that American power is guided and restrained by a disciplined relationship between Congress and President. Absent attentive, persistent congressional involvement, public diplomacy in the war on terrorism could lose much of the credibility that arises from the perception of America as a model of representative government.
And lose credibility, the US and the Bush administration certainly have!
Michael Glennon of the Woodrow Wilson International Center for Scholars looks at the 2001 Use of Force resolution that Bush is now claiming gives him authority to conduct warrantless wiretaps:
The central conclusion that emerges from these words—which represent the only substantive provision of this statute—is that all authority that the statute confers is tightly linked to the events of September 11. The statute confers no authority unrelated to those events. The statute authorizes the President to act only against entities that planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001. No authority is provided to act against entities that were not involved in those attacks. The closing reference limits rather than expands the authority granted, by specifying the purpose for which that authority must be exercised—“to prevent any future acts of international terrorism against the United States….” No authority is conferred to act for any other purpose, or to act against “nations, organizations or persons” generally. Action is permitted only against “such” nations, organizations or persons, to wit, those involved in the September 11 attacks.
The statute thus cannot serve as a source of authority to use force in prosecuting the war on terrorism against entities other than those involved in the September 11 attacks. To justify use of force under this statute, some nexus must be established between the entity against which action is taken and the September 11 attacks. A recent article co-authored by Deputy Assistant Attorney General John C. Yoo accurately emphasized the narrowness of the authority conferred by S.J.Res. 23. Professor Yoo wrote as follows:
The Joint Resolution’s authorization to use force is limited only to those individuals, groups, or states that planned, authorized, committed, or aided the attacks, and those nations that harbored them. It does not, therefore, reach other terrorist individuals, groups, or states that cannot be determined to have links to the September 11 attacks.
Glennon also notes of the history of judicial disputes between the President and Congress over war power issues, "The actual record is striking: Congress has never losta war powers dispute with the President before the Supreme Court."
He also is confident that the Framers did not intend to create a unilateral Executive with sole discretion over national security issues:
The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.
Douglas Kmiec of the Catholic University of America endorsed Torture Yoo's Mussolini theory of the American Presidency:
The President is constitutionally authorized as Commander in Chief to introduce troops into hostilities without prior congressional enactment. ... Congress should direct its legislative efforts at determining how best the President can be supported with the people’s resources; not how cleverly the President’s military judgment can be second-guessed or hampered.
... the purpose of a declaration of war is to define the international effect of military actions undertaken by direction of the President.
In the present War, the Congress by joint resolution has confirmed the President’s constitutional authority. That resolution [of 09/18/06], when construed together with the President’s Article II power, is ample and plenary, allowing the President, together with his military, national security and homeland defense advisors, to determine the timing, scope, and appropriateness for military intervention.
Congress’s role is one of material support, not tactical judgment. ... Congress oversteps its constitutionally determined role if it uses monetary conditions to usurp or impede the tactical decisions that only the President can make. ...
... the Constitution does not envision that Congress would determine the deployment of troops or related law enforcement and intelligence personnel – that is for the President.
No doubt Bush and his partisans would find that interpretation amenable.
Jane Stromseth of Georgetown University Law Center gives a more traditional interpretation of Congressional war powers:
... Congress’s post-September 11th authorization of force correctly recognized that both Congress and the President have a vital constitutional role to play in prosecuting the global war on terrorism; that meaningful high-level consultations are essential as the campaign against terrorists with global reach and their state sponsors unfolds; and that additional congressional authorization may be constitutionally required in some situations in the future.
... the power to “declare war” vested in Congress was intended by the Framers to be a power to decide, to make a choice, about whether the United States should go to war; it was not a formalistic power to simply validate that a legal state of war existed. On the contrary, Congress was given the power to determine whether the United States should initiate war in order to ensure that the decision to expose the country to such risks and sacrifices reflected the deliberation and judgment of the legislature – the branch most directly representative of the American people, whose lives and resources will be placed on the line -- and to ensure broad national support for such a course of action. This interpretation is further validated by the Constitution’s grant of authority to Congress to authorize reprisals, or acts of limited war, that could lead to a wider war, which clearly indicated a broader understanding of Congress’s war-commencing role than simply a formal declaration that a state of war existed.
... Congress’s power of purse, though critically important, is not a substitute for congressional authorization of war before it is commenced. The founders understood that the British monarch’s power to go to war was qualified to a substantial degree by the Parliament’s power of the purse and its control over military supplies. In giving Congress the power of the purse, including the power of appropriating money to “raise and support Armies” and to “provide and maintain a navy,” the Constitution continued this important legislative check. But the Constitution did not stop here. The Constitution also gave Congress the power to declare war and authorize reprisals, so that congressional deliberation would occur before war was commenced. Reliance on the power of the purse alone as a check on executive war powers, moreover, can be an overly blunt and sometimes ineffective tool for expressing the will of Congress. Limiting or cutting off funds after forces have already been committed is problematic because it undercuts both troops in the field and America’s credibility with her allies. Restricting funds in advance is often undesirable as well because it can harm the President’s ability to carry out effective diplomacy. In short, as important as Congress’s power of the purse is, it is not a substitute for Congress’s power to authorize war. ...
Constitutionally, the President clearly possesses the power to repel attacks and to forestall imminent attacks against the United States and its armed forces, and to protect Americans in imminent danger abroad. But the decision to go beyond this and commence a war belongs to Congress. Major military action with far-reaching objectives such as regime change is precisely the kind of action that constitutionally should be debated and authorized by Congress in advance.
Ruth Wedgwood of Yale leaned in her testimony toward an expansive theory of Presidential war-making powers, though she clearly is not thinking of anything like the unilateral executive theory claims. She notes that the 09/18/06 Use of Force Resolution does give the President wide authoirty in going after the perpetrators of the 9/11 attacks. But it's notable that she understands that in terms of military actions abroad, not in terms of exempting the President from FISA:
In the current situation, Congress has acted wisely to give the President broad authorization for action. In the joint resolution of September 18, 2001, the Congress declared that the horrendous acts of violence against the United States were an “unusual and extraordinary threat” to our national security. Congress authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacksthat occurred on September 11, 2001, or harbored such organizations or persons.” The aim, as Congress noted, is “to preventany future acts of international terrorism against the United States by such nations, organizations or persons.” The central importance of this preventative aim gave Congress good warrant for permitting the President a broad range of action.
The initial strategy has been to oust al Qaeda from its comfortable sanctuary with the Taliban in Afghanistan, and to overthrow the Taliban regime. Denying al Qaeda any safe haven in Afghanistan has disrupted its operations, at least for the moment, and has rescued the civilian population of Afghanistan from the Taliban’s brutal oppression. But Congress’s foresighted resolution also appropriately permits the President to pursue al Qaeda in any other venue where it may set up shop or seek alliances.
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