Book Review: War Powers

How the Imperial Presidency Hijacked the Constitution

Peter Irons

Metropolitan Books, Henry Holt and Company, pp320, 2005
Reviewed by Mark Biskeborn

We view the past from various perspectives. Its distance from the emotional sensations of the present provides us with more freedom to choose how we see it. In this book, Irons looks at American history with questions about its basic legal, and even its philosophical, foundations and how they apply to its decisions to wage wars.

His review of history enables us to consider many events such as court rulings, congressional votes, and presidential policies, in an objective manner. The insightful analysis of the past draws contrasts against the current religious and pro-war hysteria that overtook many Americans in the wake of the 9/11 attacks.

“This sketch of significant events, from 1787 to the present, provides a context for the questions addressed in this book. Let me summarize these questions before we begin with the Constitutional Convention in 1787. What did the Constitution’s Framers mean in giving Congress the sole power to declare war and making the president the commander in chief of the nation’s military forces? How did Congress and presidents exercise their shared powers during the nineteenth century, as the United Sates grew rapidly in populations and in economic strength? … To what extent has the emergence of the imperial presidency contributed to the subversion of the Constitution by usurping the war-declaring power that belongs solely to Congress? …”

These questions open a Pandora’s Box of other questions relevant to the most recent wars the U.S. has waged, the current occupation of Iraq in particular. By considering what the original laws are and how the government officials have gradually subverted them, we come to the current point of crisis in American politics as well as its ethical foundation. “If the nation is engaged in a war on terror that will not end with a formal surrender or peace treaty, has the Constitution become outmoded?”

Irons guides us through historical facts about how presidents have or have waged war legally or illegally. We discover that America has, over time, eroded the nation’s original foundations as the Framers had designed them in the Constitution.

Separation of Powers -- A President, Not Emperor

During the last decades of the eighteenth century, the Framers of the Constitution carried out long debates about how to separate the powers of government. Among others, James Madison and Alexander Hamilton incorporated the ideas of classical philosophers and political theorists of the enlightenment. Our current legislative, judicial, and executive branches of government arose directly from the tripartite system that John Locke proposed in his Second Treatise of Government. But when defining more precisely what powers and roles these three branches would obtain, the Framers wisely determined the need to separate the powers of the sword from those of the purse. Thus, they gave the President power to use the military as commander in chief only in times when the country came under urgent danger of attack from enemies. To declare war, however, only Congress could decide.

The Framers wanted to make the rules clear on this delineation of powers such that “the executive should be able to repel and not to commence war,” as Madison and Gerry expressed it. Their design “was for clogging rather than facilitating war, but for facilitating peace.” As they later clarified in Section 2 of the Constitution, the Framers agreed that the president could act without a congressional declaration of war to repel an invasion but that only Congress could authorize the deployment of forces outside the nation’s territory in combat against foreign troops.

Once Irons clarifies this separation of power between the president and Congress, he reviews the history of American wars and how presidents have repeatedly and increasingly, seized on the provision to repel invasion as a means to claim for themselves the war-making power which the Framers placed specifically in the hands of Congress.

The Algiers Affaire -- Refinement of the Terms of Engagement

As a young nation, at the turn of the nineteenth century, America was sparsely populated (only four million people, a fourth of which were slaves) and had hardly developed its military power. Two years before the Constitution was drafted, the newly formed United States encountered one of its first military crises. Algerian pirates in the Mediterranean were attacking and robbing U.S. merchant ships. This crisis, called the “Algiers Affaire,” began in 1785 when George Washington was president and lasted until 1815 when James Madison was president.

When the piracy began, public opinion and outrage called for Washington and his then secretary of state, Jefferson, to order naval and ground attacks against the pirates. But both men deferred to Congress to make such a move. Later, when Jefferson became president, he continued to abide by the rules of powers, and wrote that Congress would consider “how far they will enable the Executive to engage” as well as determine the treatises and any ransom for the captured merchant sailors.

Finally, by 1815 the dangers of piracy became so serious that President James Madison asked Congress for a declaration of war against Algiers. Congress responded with legislation authorizing Madison to employ “such of the armed vessels of the United States as may be judged requisite.” In this way, Congress began a precedent that would become almost a lasting tradition of granting blank-check military powers to the president to deploy American forces in combat short of a formal declaration of war.

Most notable of the blank-checks Congress would give presidents,

“was the Tonkin Gulf Resolution in August 1964, authoring Lyndon Johnson to commit troops against the North Vietnamese. But unlike the Vietnam War, the Algiers Affair ended on a peaceful note, in 1816, when the Algerian ruler signed a treaty that halted further acts of piracy. During a period of more than thirty years, four American presidents, from Washington through Madison, refrained from unilateral military action and worked closely with Congress to resolve the conflict peacefully.”

During this relatively peaceful period, several conflicts arose between the U.S. and other countries, such as the Quasi-War with France that set legal precedent and prompted Congress to legislate law such as the Neutrality Act. Likewise, the Court ruled on specific cases which also clarified the Constitutional principles:
• Bas v. Tingy prompted Congress and the Courts to refine the terms and conditions of “perfect” war or “imperfect” conflict and what scope of power a president might exercise in either
• Little v. Barreme became a vehicle for the Court to limit presidential power and to reassert congressional authority in foreign affairs -- a Constitutional principle which subsequent presidents undermine although its legitimacy remains valid
• United States v. Smith reasserts the principle that the president, like any other citizen, remains subject to all laws established by the legislature – “the president does not possess a [law] dispensing power”

Congressional legislation and court rulings helped to cool tempers during these early years of the nation as well as to clarify the separation of powers between the branches of government. One might speculate that the proper functioning of the U.S. government, as it was originally designed, helped to avoid all out wars between the U.S. and other countries such as Algiers, France, and Spain. “How the presidents and Congress responded to these early challenges, and how the courts resolved cases stemming from them, have continuing relevance to later assertions of inherent presidential war-making powers.” As the U.S. expands its territory and its ambitions, we find that presidents gain increasing power over Congress and the Court leading to increasing imperial war-making power for the Executive office.

War of 1812 Declared -- We Have to Go With the Call to Arms

With the War of 1812, Congress reluctantly declared war for the first time (the first of five formally declared wars in its history). Madison had tried to avoid war against the British through diplomacy, but ultimately he was forced to defend against their aggressions. At this time, the British gloried in the world’s strongest naval fleet and army, but their arrogance allowed them to overreach their resources as they were also waging war against France at the same time. Although Madison and Congress worked together according to the legal process, Irons considers this war in light of an important court case, Martin v. Mott. Jacob Mott was a New York militiaman who refused to go to this unpopular war on the grounds that it made no “imminent” threat to New York State. The court ruling carries significance today in terms of the military draft. The court ruled that the president does not need to prove “imminent” danger to oblige soldiers to war. In later conflicts, such as Vietnam, presidents might have had difficulty in waging war without this ruling.

Mexican-American War Declared -- Oops, gosh, they attacked us!

In 1846, Congress declared war for a second time. The Mexican War represents a tuning point in how the U.S. wages war. The country took its first step in territorial expansion through conquest by war. Moreover, President Polk found a clever way to subvert the Constitutional process to obtain Congressional approval. He provoked the Mexican army to attack U.S. troops on the border. In this way, he could legally take immediate military action to “repel aggression.” The initial conflict fueled popular opinion for the expansion to take the territories of Texas and all the way to the Pacific Ocean. This war marked the first of imperial wars as well as of the “first major exercise of presidential war making with Congress adding its approval only after Polk had approved military actions along the Rio Grande.” This war also led to two court rulings in the cases of American Insurance and Fleming upholding the right of the United States to expand its territory by “conquest or treaty.” But these cases also reaffirmed that only Congress, not the president, could declare war and ratify a treaty to expand it territory.

Unlike Polk, the presidents that followed him, Taylor, Fillmore, Pierce, and Buchanan, had no expansionist ambitions. They proactively reaffirmed that Congress alone could declare war -- these presidents enjoyed a time of peace and economic growth.

Civil War – Sets Unintended Precedent for Increasing the Imperial Presidency

When analyzing the Civil War, which caused over 600,000 deaths, the most lethal of all wars in U.S. history, the author focuses on two important decisions President Lincoln made while Congress was in recess:
• imposed a blockade on Confederate States
• suspended the habeas corpus

Lincoln took these initiatives in urgent response to the conflict that erupted abruptly within the first five weeks of his office. Angered by Lincoln’s anti-slavery stand, particularly in regard to the Dred Scott case, Confederate States seceded and their troops fired upon Fort Sumter in South Carolina. Prompted by the aggressive, surprise attack, “Lincoln called Congress to special session, citing ‘the power vested in me by the Constitution’ to call up the state militias and ‘to cause the laws to be duly executed.’ Thus, in accordance with the law, Congress declared war, but this was a war against an internal aggression, an insurrection and claim for succession.

However, Lincoln imposed the blockade and suspended the habeas corpus without congressional approval and under urgent wartime needs while Congress remained in recess. Lincoln publicly acknowledged that he was acting without the required congressional process. He justified his unilateral proclamations by the urgent need to defend against the sudden war. In doing so, Irons argues that, although Lincoln, acknowledged he exceeded his powers in urgent circumstances, he established precedence for later presidents such as Henry Truman, Clinton, and both Bushes who expanded presidential power. From the Japanese detainment camps to the Guantánamo Bay, Abu Ghaib abuses, and the Patriot Act, some presidents have brashly and unapologetically overreached their legally authorized powers even for wartime situations.


Spanish-American War Declared -- a Cookie-Cutter Model for the Iraqi Invasion

Following the Civil War, America’s economy pulled itself out of the muck of war and expanded rapidly as inventions spurred on productivity with modern machines and millions of Europeans immigrated to populate the resource rich and virgin lands. As Mark Twain called it, the Gilded Age sparkled in the nation where entrepreneurs like Andrew Carnegie and John D. Rockefeller built their financial empires. The author remains focused on analyzing the increasing bellicose and expansionist fever in the country. At this time, an almost religious fever for aggressive growth pushed a majority of hawks to imperial grabs for territory. Congress pushed Cleveland to go to war with Spain over Cuba and the Philippines. Cleveland resisted war. This brought up a new twist in Constitutional regarding war. What if Congress declared a war and the president refused to sound the battle cry? “Under the Constitution, the only remedy would be impeachment,…”

In 1897, William McKinely also resisted the congressional push for war, at least until the American battleship, the Maine mysteriously exploded while anchored in Havana’s harbor. The American public was outraged and immediately accused Spain for the sinking of the ship along with 266 U.S. sailors. Later and more thorough analysis proved that an internal design flaw caused the Maine to sink. But that report surfaced to the public only after the U.S. war with Spain ended. Congressional and popular disdain pushed McKinley to war against Spain. One important ideological justification for this war was to spread democracy and to make Cuban “free and independent.”

The Spanish-American was the shortest of the five declared wars, lasting less than four months. When it broke out, the politically ambitious hawk, Teddy Roosevelt, quit his bureaucratic job with the Navy to organize a volunteer cavalry brigade. His adventures on the island brought him popularity and boosted his political career. Despite the rhetorical claims to spread democracy, Cuba and the Philippines became a dependent colony “in all but name, …with its…U.S. control.”

Irons draws the irresistible parallels between the colonization of Cuba and that of Iraq. The intelligence information that was covered up, the falsified and ever evolving justification for the war, all point to a model that G.W. Bush used in cookie-cutter fashion for the invasion and occupation of Iraq, although the latter proves much less profitable because of the unexpected strong insurgency. “The Spanish-American war had less to do with Cuba than with American interests in the Pacific.” Likewise, the occupation of Iraq never would have occurred without the U.S.’s obvious interest in oil.

World War I Declared -- Neutrality is Good for Business, But So Is War

Ask most anyone why the U.S. declared war on Germany in 1917, they might answer that Germany aggressively attacked American passenger ships, the Lusitania most famously. However, the Lusitania, like most other American passengers ships at the time, was also carrying many tons of concealed munitions which U.S. contractors had sold to British forces. Information about the munitions cargo remained a little known fact until after the war. The U.S. remained neutral for the first three years of WWI because selling products to all sides of the war was more profitable than selling to any one chosen side. “…European war restored the American economy to a healthy state; by 1917, England and its allies had purchased more than $2billion in supplies. Neutrality was good for business.” But as the war dragged on, the international economic system became jeopardized. “One factor that most clearly prompted Wilson to shift from neutrality between England and Germany was his fear that a drawn-out war, with neither side able to force the other to surrender, would gravely damage or even destroy the international economic system.”

As in the Spanish-American war
• public outrage over aggression against American lives and property made it easier for the president to move for war
• the president cranked “up a formidable propaganda machine to create excitement for a military undertaking”
• Congress followed “constitutional formality of granting the president’s request for war, however lame the pretext”

Also significant in this war, the president:
• Used an effective marketing campaign to justify the war and to gain popular support for it, saying that “making the world safe for democracy” was the reason to go to war when in fact, making the world safe for business, was the real reason. And this flimsy, albeit highly ideological, rationalization was enough to capture the approval of the otherwise reluctant American public.
• Took advantage of the wartime situation to grab a little more power. Wilson wrote an influential book entitled Constitutional Government in the United States, in which he claimed that the president held “absolute” control over the nations foreign policy.
• Claimed power to mobilize troops in his proposal to Congress to join the League of Nations, but Congress did not approve this treaty which expanded presidential power beyond constitutional limits

As during the Civil War when the habeas corpus was called into question, so too, during WWI, the court restrained personal freedom when, in the case of Schenck v. United States, Justice Holmes first ruled that Schenck had no right to question the president’s decision to go to war based on his famous test of “shouting fire in the theater.” Later, Holmes reversed his ruling when he dissented in the Abrams v. United States by qualifying his initial “clear and present danger” test with his more defined test of the “imminent threat, immediate interference” of government programs regarding critical speech.

The court adopted Holmes new and more refined test for illegal speech much later and during the Vietnam War. What’s important to note here is how the president can usurp unusual power during a time of war. Irons’s history shows how every war allows a president to broaden his office’s scope of authority.

World War II Declared -- But the Great Depression Leads to Imperial Presidency

With almost a unanimous vote in Senate and Congress, Franklin D. Roosevelt obtained one of the easiest congressional declarations of war, especially in the wake of Japan’s attack on Pearl Harbor, in 1941. Two day later, Italy and Germany declared war on the U.S. and Congress reciprocated by declaring war on those Axis nations.

However, Irons argues that America’s economic struggles against the Great Depression in the 1930’s represents the greatest period of need for centralized power. This stressful decade gave FDR the imperial authority as president and not necessarily the circumstances of WWII.

“In a real sense, the imperial presidency, which took full shape during the Depression, created, in turn, the imperial America that emerged from World War II as the most powerful nation on earth. This link between domestic politics and foreign policy continues to influence both aspects of American society.”

United States vs. Curtiss-Wright Corp. represents the landmark case that granted FDR expansive power in domestic and foreign policy. It began during the Hundred Days session of Congress in 1933, when the overwhelming Democratic majority established several agencies as a means to accomplish the goals of the Recovery Act and the Agricultural Act. Under these acts, the president was given authority to regulate the economy (in terms of production quotas, prices, and wages) in a centralized manner.

The Court argued that these Acts provided the presidency with too much power and left Congress with little more than bureaucratic functions. The case of Curtiss, among other hotly debated trials, ultimately delegated more power to the president in domestic issues than the Constitution originally granted.

The author does bring our attention to the Japanese “internment” camps during WWII as

“the most serious constitutional questions…resulted from the presidential orders that affected more that 100,000 American citizens …they were not engaged in an armed rebellion against the government, as the Confederate states had been during the Civil War. An they had not harshly criticized American participation in war, as had Eugene Debs, for example, during World War I. …only because they ‘looked like the enemy’ and were suspected of disloyalty soley on the basis of reace and ancestry. But the treatment of Japanese Americans during World War II created a constitutional ‘disaster’ for which all three branches of government shared culpability.”

The imprisonment of Japanese as well as the expanded power from the Recovery acts, showed FDR as turning his nose up at the Constitution and demonstrated how fragile its basic principles of human rights can be. The same aberration of the nation’s basic foundation was made during the imprisonment of Muslims from Middle Eastern countries after the 9/11 attacks, without charges and in violation of the habeas corpus.

Korean War -- A Presidential Power Grab on Military Deployment

After WWI, President Wilson tried to foist the Senate to join with the League of Nations; pushed to hard, the Senate rejected the treaty in order to retain its constitutional authority to determine when the nation mobilizes troops.

After WWII, FDR took lessons from Wilson’s failure and asked friendly Senators to introduce the bill to join the United Nations. Signing up with the UN enabled FDR and his successors to deploy troops without express congressional consent. He could send troops on “policing missions” or “peace keeping actions” in foreign lands even when there was no threat to the U.S. FDR used the argument for international use of force without prior congressional approval is like the need for “a police officer who saw someone break into a house could hardly be expected to go to the town hall and call a town meeting to issue a warrant before the felon could be arrested.” Although this undermined the balance of powers designed in the Constitution, Senate passed this bill in 1946.

In 1950, North Korea invaded South Korea and the UN Security Council ordered a stop to the invasion. North Korea ignored the UN order and pursued its invasion. The next day, Truman, FDR’s successor, deployed troops in a “peace keeping” mission. Truman’s action “clearly broke the latter [Constitutional] law in three areas.” In calling for military engagement, Truman slapped Congress in the face. And Congress did little to uphold the Constitutional law or to maintain its sole authority.

This shift in the balance in powers has persisted from that moment on.

“In fact, not a single president since Franklin Roosevelt has gone before Congress to seek a declaration of war, while the nation has been engaged in wars -- big and small -- in every decade since the end of World War II. And with rare exceptions, Congress has tagged along, offering blank-check authorizations or after-the-fact approvals of unilateral executive branch war making.”

Vietnam -- Quagmire Lost

By the time the U.S. enters into “conflict” with North Vietnam, the clear and routine pattern emerges. The president, in the case of Vietnam, President Eisenhower in 1954, takes the initiative to deploy troops into combat without informing Congress or much less asking for authorization. Once the military is mobilized in a foreign country, the president justifies their mission as anything other than a war. In the case of Vietnam, Eisenhower, J.F. Kennedy, and L.B. Johnson, all called the war a “conflict” or a “peace keeping mission.”

Irons reveals this pattern of how presidents aggrandize their powers from as early as Polk in the Mexican-American War, to the Vietnam war and beyond, but he does not elaborate any analysis as to why this evolution toward an imperial presidency occurred or why Congress abdicated its Constitutional responsibility to limit the president’s authority to engage military forces. “Eisenhower violated the terms of the Geneva Accords, which permitted the United States to station 685 military advisers in South Vietnam. Without informing Congress, much less getting it approval, Eisenhower sent several thousand troops …engaging in combat.”

As early as 1845, Congress begins to act as a rubber stamp for the president’s deployment of military forces. The author argues repeatedly and somewhat superficially that the reason why Congress always provides the president with a blank-check approach to military adventures lies in public outrage and call for retribution for an initial attack. Economic interests in either territory or natural resources or both also persuade Congress to acquiesce to the president’s military adventures. Economic expansion and growth has often proved in history as the great motivator for imperialism.

Often the federal government’s public relations (propaganda) machinery often influences public opinion and outraged calls to military action. But in the case of Vietnam, as in Korea, theoretical doctrines tend to induce fears in the general public about some potential enemy gaining power and territory. This is the basis for Truman’s doctrine to push back all encroaching communism which leads to the “domino theory” by which policy makers call for military action to ward off the spread of any potentially hostile regimes in “strategic areas.” Korea and Vietnam both serve as example of the application of the Truman doctrine which is backed by the popular desire to expand the American brand of capitalism.

The French had colonized Indochina, Vietnam and other nearby regions, for its natural resources of rubber, tin, and some petroleum. When faced with rising violent opposition, the French decided to pull out of their colonies, and the U.S. took over the so-called “policing” of the regions with the same interests in the natural resources and in addition to the fear of communism’s spread. Ho Chi Minh, a Communist, fought off the French and inspired a popular rebellion against the right-wing, U.S. supported Dictator Diem. This popular insurgency fueled the fires of one of America’s worst military quagmires.

The war continued on for more than seven years and through Eisenhower, JFK, Johnson, and Nixon. Johnson used the war in order to gain reelection after he served briefly as president when JFK’s assassination. Although the attack on the U.S. destroyer Maddox in the Tonkin Bay most likely was provoked, like the initial conflict that sparked the Mexican-American War, it ignited public outrage and continued support for the war. As a wartime president, Johnson’s popularity rose and assured his reelection. As both President Bushes would again show, a president, once engaged in conflict in a foreign conflict, can expect to keep his job.

“Bush [Sr.] began by doubling the military force in the Gulf region, to some 500,000 troops. Elizabeth Drew, an experienced Washington reporter for the New Yorker, wrote that Bush’s top strategist, John Sununu, ‘was telling people that a short successful war would be pure political gold to the President and would guarantee his re-election in 1992”

Iraq -- A Vague and Undefined, Preemptive War Declared

After the 9/11 attack, President G.W. Bush met with congressional leaders, telling them about his plans to retaliate against al-Queda “but also advising them that the broader war on terror would continue indefinitely.” In hind-sight now, after the invasion and chaotic occupation of Iraq, Bush was also using the 9/11 attack as an opportunity to seize power by obtaining an undefined war against no particular nation. Against the advice of senior Congressmen and Senators, Bush pushed to obtain authorization to launch a war “to deter and pre-empt any future acts of terrorism or aggression against the United States.”

In light of the Downing Street Memo, we know that Bush had planned another, more complete attack on Iraq for the obvious interests in the oil reserves there. The broad language in the resolution he proposed to Congress enabled him at least to attempt to establish a stronghold in the Middle East in the form of a U.S. occupied state. “Even before the regime change in Afphanistan, Bush focused the massive resources of the imperial presidency on a bigger target, Saddam Hussein.”

However, Irons does not bother to refer to the Downing Street Memo, he analyzes a more revealing document which Bush Sr.’s cabinet members, all hawks, had compiled while in exile during the Clinton presidency, working in neo-conservative think-tanks. Rumsfeld, Wolfowitz, Cheney, and others presented the Defense Plan Guidance document to Bush Jr. long before he came to office. The DPG set the foundation for what would become Bush Jr.’s Doctrine, a manifesto for U.S. world dominance by military force and by economic power. The document describes, among other explicitly imperial ambitions, the use of pre-emptive military deployment when needed to overthrow any country that poses a potential threat to the U.S. hegemony.

Evidence surfaced to show that the Bush Administration had “fixed” intelligence documents to server their own ambitions to invade Iraq. The 9/11 Commission concluded that Bush’s justifications to invade Iraq were false. Contrary to Bush’s claims, in fact, Iraq had not illegal weapons, no weapons of mass destruction, and no links with terrorist organizations.

Nevertheless, “having misled the American people and stampeded them to war, this Administration must now attempt to sustain a policy predicated on falsehoods.” Irons points out that on 2 November 2004, despite the solid proof that President Bush had lied to the American people and to Congress, a majority of voters ignored the evidence of lies about Iraq and reelected G.W.Bush.

Why has U.S. Democracy Begun to Show Serious Weaknesses?

The author points out that the mainstream media press reported the White House’s claims uncritically, leading the American public on to believe what the Bush Administration wanted everyone to swallow. Likewise Congress did not assume its constitutional responsibility in making the decisions about military conflict. The Constitution states clearly that Congress holds the sole authority to decide when the U.S. can or should engage in military conflict or war. The president has NO right to decide to engage in military battle other than to repel invasion. However, Congress shrugs its own responsibility. One might also point to the U.S. educational system that results in a gullible public unable to think critically about civil responsibilities or politics or in many other areas.