That is precisely why they took extra care to parse
the war powers in the constitution, assigning the
conduct of war and command of the troops to the president,
but retaining for the Congress the crucial power of
deciding whether or not, and when, our nation might
decide to go war.
Indeed, this limitation on the power of the executive
to make war was seen as crucially important. James
Madison wrote in a letter to Thomas Jefferson, "The
constitution supposes, what the history of all governments
demonstrates, that the Executive is the branch of
power most interested in war, and most prone to it.
It has accordingly with studied care, vested the question
of war in the legislature."
In more recent decades, the emergence of new weapons
that virtually eliminate the period of time between
the decision to go to war and the waging of war have
naturally led to a reconsideration of the exact nature
of the executive's war-making power. But the practicalities
of modern warfare which necessarily increase the war
powers of the President at the expense of Congress
do not render moot the concerns our founders had so
long ago that the making of war by the president -
when added to his other powers - carries with it the
potential for unbalancing the careful design of our
constitution, and in the process, threatening our
liberty.
They were greatly influenced - far more than we can
imagine - by a careful reading of the history and
human dramas surrounding the democracies of ancient
Greece and the Roman republic. They knew, for example,
that democracy disappeared in Rome when Caesar crossed
the Rubicon in violation of the Senate's long prohibition
against a returning general entering the city while
still in command of military forces. Though the Senate
lingered in form and was humored for decades, when
Caesar impoliticly combined his military commander
role with his chief executive role, the Senate - and
with it the Republic - withered away. And then for
all intents and purposes, the great dream of democracy
disappeared from the face of the Earth for seventeen
centuries, until its rebirth in our land.
Symbolically, President Bush has been attempting to
conflate his commander-in-chief role and his head
of government role to maximize the power people are
eager to give those who promise to defend them against
active threats. But as he does so, we are witnessing
some serious erosion of the checks and balances that
have always maintained a healthy democracy in America.
In Justice Jackson's famous concurring opinion in
the Youngstown Steel case in the 1950's, the single
most important Supreme Court case on the subject of
what powers are inherent to the commander in chief
in a time of war, he wrote, "The example of such
unlimited executive power that must have most impressed
the forefathers was the prerogative exercised by George
III, and the description of its evils in the declaration
of independence leads me to doubt that they created
their new Executive in their image...and if we seek
instruction from our own times, we can match it only
from the Executive governments we disparagingly describe
as totalitarian."
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I am convinced that our founders would counsel us
today that the greatest challenge facing our republic
is not terrorism but how we react to terrorism, and
not war, but how we manage our fears and achieve security
without losing our freedom. I am also convinced that
they would warn us that democracy itself is in grave
danger if we allow any president to use his role as
commander in chief to rupture the careful balance
between the executive, the legislative and the judicial
branches of government. Our current president has
gone to war and has come back into "the city"
and declared that our nation is now in a permanent
state of war, which he says justifies his reinterpretation
of the Constitution in ways that increase his personal
power at the expense of Congress, the courts, and
every individual citizen.
We must surrender some of our traditional American
freedoms, he tells us, so that he may have sufficient
power to protect us against those who would do us
harm. Public fear remains at an unusually high level
almost three years after we were attacked on September
11th, 2001. In response to those devastating attacks,
the president properly assumed his role as commander
in chief and directed a military invasion of the land
in which our attackers built their training camps,
were harbored and planned their assault. But just
as the tide of battle was shifting decisively in our
favor, the commander in chief made a controversial
decision to divert a major portion of our army to
invade another country that, according to the best
evidence compiled in a new, exhaustive, bi-partisan
study, posed no imminent threat to us and had nothing
to do with the attack against us.
As the main body of our troops were redeployed for
the new invasion, those who organized the attacks
against us escaped and many of them are still at large.
Indeed, their overall numbers seem to have grown considerably
because our invasion of the country that did not pose
any imminent threat to us was perceived in their part
of the world as a gross injustice, and the way in
which we have conducted that war further fueled a
sense of rage against the United States in those lands
and, according to several studies, has stimulated
a wave of new recruits for the terrorist group that
attacked us and still wishes us harm. |
