Violating the War Powers Act: Illegal Means for Illegal Ends – The Center for Constitutional Rights Looks at the Constitution – PDF

Today, those who framed the Constitution would be dismayed by the erosion of the limitations they believed they were placing upon the nation’s war powers. They would see a nation involved in wars throughout the world. They would see a nation whose presidents frequently engage in war without the required congressional consent. Many of these wars are covert — hidden from the American people — but not from those who are the victims. And they would see a nation that engaged in wars of aggression, wars contrary to the fundamental laws of civilization as embo­died in international law.

Today, we have reached the point in this country where the president feels no shame in asserting that he and not the Congress has the power to commit this nation to war. This is quickly becoming President Reagan’s defense to the Iran-contragate scandal. He now asserts that the Boland Amendment, restricting involvement in the war against Nicaragua, can­not control the president and that he can continue the war in the interest of protecting national security. Reagan is not the first president to make such an assertion; he is only the latest. President Truman did the same to justify the intervention in Korea as did President Johnson in Viet Nam.

Such assertions of presidential authority are directly contrary to the writ­ten Constitution and the clear intention of the framers. The framers considered congressional consent indispensable before this nation could go to war. Congressional consent helps to insure that wars are fought with the approval of the American people. Presidential war-making is danger­ous to both us and to the peoples of the world. At a time when Attorney General Meese wants to interpret the Constitution as it was written 200 years ago, this presidential claim is especially spurious.

The Constitution could not be clearer on who has the war power. Con­gress is given the power to declare war, grant letters of marque and reprisal, raise, support and regulate the armed forces and organize the militia. The president is only named as the Commander-in-Chief and given the power to commission officers. Thus he can conduct wars that are authorized or declared by Congress, but he has no power to start or continue wars without congressional approval.

The drafting of the war powers clause of the Constitution confirms the limited nature of the president’s role. The framers considered the war powers to be extremely dangerous. War is costly both in people and money. More importantly, the U.S. was small and weak and therefore had a strong reason for keeping the peace and remaining neutral. The framers believed that Congress would be less likely to get the Nation into war than a president who might do so because of personal ambition. Requiring both houses of Congress to agree on war would make going to war more difficult; as George Mason, one of the framers stated, he was “for clog­ging rather than facilitating war, (but) for facilitating peace.” Congressional consent would also help ensure that the Ameri­can people were involved in the decision to wage war. The only exception to the requirement that the Con­gress initiate war is the president’s authority to repel sudden attacks — an obvious need when Congress would have no time to meet.

Sadly, the Constitutional limitations on presidential war-making have had little efficacy since World War II and the Korean War. Congress has abdicated its respon­sibility to control the war power. It has permitted presi­dential wars whether against Viet Nam or more recently the invasion and conquest of Grenada. It has given the CIA a blank check to fight secret wars throughout the world. At present there may be as many as 50 secret CIA armed covert actions happening world-wide. Some of these have been exposed, such as the efforts to support the rebels in Afghanistan, Angola, Cambodia, El Salva­dor and, of course Nicaragua. Others are less well-known, and include operations in Ethiopia, Chad and Guatemala. All of these operations are being run con­trary to the explicit requirements of the Constitution.

After the Viet Nam war Congress made some effort to control the war powers of the president, but the effort was a lame one. Congress passed the War Powers Reso­lution (WPR) and the Hughes-Ryan Amendment which supposedly gave it some power over the CIA. The WPR accepted the premise that the president could engage in armed actions or limited wars, those of less than 60 days without Congressional consent. Presidents have taken full advantage of this whether against Grenada or in coups to overthrow governments. Moreover once a president starts a war, the United States’ prestige is committed and congressional consent is easier to obtain. Even with such a porous law, presidents have refused to obey its mandates. No president, neither Carter, nor Ford, nor Reagan, has complied with its reporting requirements. All have asserted their power to act des­pite the will of Congress.

The Hughes-Ryan Amendment is of little additional help. It requires the president to report covert opera­tions to certain committees of the Congress. The committees neither approve nor disapprove the operations; they merely receive a report. Even this minimal require­ment is breached by the president and the CIA. Recently, the CIA failed to report its involvement in the mining of the Nicaraguan harbors, the bombing of Nicaragua’s oil storage tanks and the preparation of the assassination manual.

Frequently in discussions and in lawsuits it is argued that the Congress ought to reassert its power over war-making and that the wars the United States is presently fighting are illegal in that they violate the constitutional separa­tion of powers. These arguments are rarely pervasive except when there is profound disagreement within the ruling elites regarding a particular policy. There appears to be a real reluctance by the Congress to enforce its constitutional powers.

We must ask ourselves why the restrictions on presidential war-making have become meaningless? Why does the Congress refuse to clip the wings of a president, even of one as weakened as President Reagan? Is it merely that presidents are evil and want power or that Congress is weak? It is neither. The lessening of the restraints on war-making corresponds to the rise of the United States as a world power which depends upon substantial control of the world’s resources for its wealth. To control 50% of the world’s wealth with only 6% of the population requires an aggressive military nation. Countries cannot be permitted to become independent, control their own resources and endanger U.S. economic and political hegemony.

Protesting congressional failure to control the war pow­ers is ineffective because Congress generally agrees with the president on his use of the war power. It sees no need to control it. Congress believes it is necessary to control vast amounts of the world’s-resources, prevent or roll back “communism” and permit free U.S. exploitation of the Third World. There is a consensus on this among the ruling elites of this country. As the editors of Monthly Review recently stated, this “global counter-revolutionary policy and role . . . have dominated every government since the Second World War.”

Thus while it is important, particularly at times when there are divisions in ruling elites, to stress the violations of the Constitution that presidential war-making involve, this alone is insufficient to stop or prevent wars. The deeper reasons for U.S. sponsored wars must be exposed. Until those are changed, constitutional violations will cause little stir in Washington and will be ineffective in preventing or slowing U.S. aggression.