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Commander in Chief

Posted Friday, March 25, 2011, at 6:19 PM



"The Congress shall have Power To ... declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water ..." Article I, United States Constitution.

"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States..." Article II, United States Constitution.

In their profound wisdom, our founders put virtually all government power in tension between two or more branches. Just as our Democratic friends howled at President Bush for his use of military force without a Congressional declaration of war, many of our Republican friends are howling at President Obama for our military intervention in Libya.

President Obama's use of military force in Libya without a Congressional declaration of war, without even the informed consent of Congress, is NOT a violation of his oath of office or a breech of the Constitution. There is only one Commander in Chief, not 435. Our founders, in their debates on the Constitution, were very aware of this point of tension between the branches. They were persuaded by the history of Rome in the efficacy of a single civilian military commander. Likewise, their proper fear of despotism and awareness of the fallibility of human nature checked that power with the Congress.

In 1975, President Ford signed the War Powers Act. This law was intended to restrict the powers of a President to wage war. It was a reaction to the collapse of popular support for the war in Vietnam.

This statute has never been tested in Court; however, it would likely be found unconstitutional. No one has any duty to abide by any unconstitutional law. Violating the War Powers Act is not a crime if it is unconstitutional, as every single President has declared since President Jimmy Carter. In any case, Congress already has the ultimate power to restrict a president's attempt to wage war; they can pass a law defunding it.

Unfortunately, Libya now represents an opportunity lost.

Toppling the government of an extremely important strategic ally, like Egypt, is a very risky proposition. A revolution should only be supported if it furthers American interests. In particular, if will lead to a government that is not only democratic, but is also friendly to us and at peace with Israel.

The revolution in Iran should have been supported, as it is virtually impossible for a government more antagonistic to us and our interests to take its place. Likewise, in the early days of the revolution in Libya, it appeared to be a genuinely popular uprising that did not appear likely to result in a less favorable government. However, as we dithered, the ordinary citizens had to get back to the business of supporting themselves and their families. Now, it appears that the revolutionaries are in part supported by Al Qaeda and in part are Al Qaeda and Iranian supported Islamists.

Now we are in a lose, lose, lose situation. If the revolution succeeds, Libya is likely to become another Afghanistan or Somalia, but with oil revenues; another Iran. If the revolution fails, Khadafi will retain the full power and resources of his state. He must feel bitterly betrayed by after voluntarily surrendering his weapons of mass destruction to the U.S., we then tried to depose him. He then has every reason to uses his power and resources to attack us, attack our interests, and fund our enemies. In the alternative, we could remain in a perpetual state of semi-hot (lukewarm?) war trying to keep both sides in a stalemate until Khadafi dies. In that case, with our military engaged on three fronts, how will we pose a credible threat to deter the hostility of others? There simply won't be the military resources to effectively respond to another threat.

Of all of people aware of the lessons of Vietnam, our President should be acutely aware of the importance of having a well-defined and attainable goal before committing American forces. Another lesson of Vietnam is that indecisiveness leads to opportunities forever lost as well as the loss of credibility in a world governed by the aggressive use of force. Perhaps the most important lesson of Vietnam is that wars should be run by generals as politicians inevitably put political gain over military advantage and turn conflicts into quagmires.

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One does not need a law degree to read the Constitution. Engaging in aerial bombardment of a sovereign nation is, by definition, an act of war. Therefore, the Constitution requires a declaration of war by Congress. It's really quite easy to understand. One only needs the ability to read and understand the English language. The sad fact that our leaders' ever increasing disregard of the Constitution since the end of WWII has resulted in an established pattern of ill advised military adventures throughout the world does not make those adventures legitimate. Mr Hear is right in one respect. Congress can use the power of the purse to restrict this type of misuse of executive power and should certainly do so. The President is the Commander in Chief, not the king! He does not have the Constitutional authority to commit our military to war without a declaration of same by the Congress, and calling acts of war by another name does not change the fact. Sorry Mr Hear, I believe you're wrong on this one.

-- Posted by Bob E on Tue, Mar 29, 2011, at 2:37 PM

Dear Bob

Literary you are right. The top dictionary definitions of War are:

"A conflict carried on by force of arms, as between nations or between parties within a nation; warfare, as by land, sea, or air. A state or period of armed hostility or active military operations: The two nations were at war with each other. A contest carried on by force of arms, as in a series of battles or campaigns."

If you are, as I suspect, someone who has served this nation in our armed forces, I thank you sincerely for your service. It is the dedication of you and the hundreds of thousands of others like you who have deterred those who would destroy us and destroyed those who have tried.

Our founders did not intend the Constitution to be difficult to read or to understand. That said, there were none among them who were not among the best and brightest of our new born nation. Moreover, they often disagreed with each other, sometimes bitterly.

While not a perfect way to understand the intended meaning of the various clauses of the Constitution, examining the conduct and statements of our founders is the best method we have.

Thomas Jefferson, a man instrumental in the writing of our Constitution, our third president, accepted the nations attitude of, "Millions for defense. Not a penny for tribute." when he dispatched the newly formed U.S. Marines with our infant navy to Tripoli to destroy the Moslems there who proclaimed that their holy book told them to subjugate the infidels. These people were known as the Barbary Pirates.

Congress did not declare war.

After PanAm 103, the U.S. Air Force bombed Libya. There was no declaration of war.

As Commander in Chief, the President can send our armed forces anywhere. This is inherently risky as they could come under fire at any point in time. Our military needs the ability to respond without waiting for congress.

Does this make things messy between the provisions for declaration of war and establishing the President as Commander in Chief? You bet it does! Our founders knew it would. They understood that they could not predict all possible events. More over, those who would represent our blossoming nation would need to have flexibility. But not unlimited flexibility.

I respect your disagreement with my point. Moreover, I cannot conclusively say you are necessarily wrong. Nevertheless, the genius of our Constitution lies in their faith that the governed, if given sufficient power, will minimize the abuses of their governors while at the same time giving those in power the ability to deal with the very messy reality of day to day life.

Therefore, the President does have the ability use the military without declaration of war, but only to a limited extent.

Thank you for sharing your opinion. I hope you will do it again!


-- Posted by Charles Hear on Tue, Mar 29, 2011, at 8:40 PM

You mention Thomas Jefferson in connection to the Constitution. He had relatively little to do with its construction compared to James Madison, who is generally felt to be the document's primary author. This is what HE said about the subject of war in a letter to 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."

Note the following as well: At the Constitutional Convention, Pierce Butler "was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the nation will support it." Butler's motion did not receive so much as a second.

I could go on and on, but will let the matter drop at this point. I do think a thorough reading of the history surrounding the development and ratification of the Constitution will lead one to understand that the Founding Fathers did not intend that the executive branch would have the authority to engage the country in war unilaterally.

-- Posted by Bob E on Wed, Mar 30, 2011, at 1:05 AM

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