Balkinization  

Friday, May 03, 2013

Announcing Long Wars and the Constitution

Stephen Griffin


Books seem to be busting out all over Balkinization and I certainly recommend the ones listed on the right of your screen.  My purpose in writing this and perhaps another post is to highlight the imminent publication (May 13, according to Harvard UP and Amazon) of my Long Wars and the Constitution, a full-scale analysis and history of presidential war power since 1945, the first such analysis to appear in many years.  Although I have something to say about what happened prior to World War II, especially with respect to the eighteenth century, in understanding the situation we face in contemporary times, I think it is most critical to reach an understanding of what happened in the Cold War, our last “long” war.
Books on war powers face some challenges.  In my experience, the general debate over war powers since Vietnam is fairly salient.  I can’t count the number of times non-lawyers as well as well-informed law professors have asked me, for example, “Whatever happened to declarations of war?”  War powers is a freighted subject and people understandably tend to have strong opinions.

So let me describe the approach of the book by drawing some contrasts with arguments and positions you may be familiar with.  For instance, although I argue there is little doubt contemporary presidents have departed from the historical meaning of the Constitution, I do not think there is a way to return to the practices that prevailed in the early republic.  So whatever problems we may have, there is no meaningful eighteenth century fix, any more than we could recreate an eighteenth century military.  I do not mean to say that there are no solutions.  Rather, there are no solutions that anyone in the eighteenth century would find familiar.
I also reject what might be called the “presumption of equal relevance” – the idea that each use of presidential war power, especially in the nineteenth century, is equally relevant to the circumstances we face today.  I largely agree with the “1950 thesis” that Truman’s commitment of troops to Korea without authorization from Congress marked a sharp break in our constitutional tradition.  But the crucial point is not so much the power Truman asserted but rather that he had new state capacities and resources available to him (and all post-World War II presidents) that were not available to prior presidents.  The critical variable of state capacity has been mostly ignored in previous studies of presidential war powers.  Once we take it into account, it will alter our perspective and understanding of the use of war powers since 1945. 

Presidents have often been taken to task for their exercise of war powers and their stance has been described as “imperial.”  To some extent, I argue that the situation is actually worse than it has been perceived, especially by legal scholars (and especially by those who have served in the executive branch).  In saying this, it is important to understand that while I review all significant executive branch war powers opinions since 1950, to understand presidential power we have to concentrate first and foremost on the actions and perspective of presidents, not their able lawyers.  At the same time, I urge a bit more sympathy for presidents than has usually been on display in the war powers debate.  From a presidential point of view, they have not so much been exercising “war powers” as advancing the foreign policy and defending the national security of the United States.  Presidents have had many reasons for thinking this is exactly what the public and the other branches of government expect them to do.  But presidents have advanced foreign policy in a context in which they have the military capacity to intervene almost anywhere in the world on a round the clock basis.  Assessments of the threats facing the U.S. combined with this capacity have led presidents to believe they have much broader war powers than legal scholars typically assume.  I thus maintain that presidential claims of power should be inferred from their foreign policy and national security goals rather than from occasional lawyerly statements.

These preliminary points clear some ground.  But now let’s reconsider what the war powers debate is really about.  Following the oft-heard query on declarations of war, one might assume is about the many instances in which presidents have committed the country to major wars without authorization from Congress.  Yet in many respects, ever since Truman as a matter of fact, we have been living in an age of “AUMFs” – legislative permissions for war which are perfectly valid even by the stringent standards of the War Powers Resolution.  So has this made everyone happy with presidential decisions for war?  Are we all pleased with the process that has led to war and the outcomes we have obtained?  No!  That’s because the real and constitutional issue is elsewhere.  From my point of view, the most original contribution of the book is to move the debate from the bare question of congressional authorization to a more substantive concern with the process of executive decisionmaking.  Long Wars and the Constitution is the most thorough treatment of presidential decisions for war by a legal scholar (for a historical treatment, see the excellent aptly named book by Gary Hess, Presidential Decisions for War).
I realized midway through the project that the real issue is that while congressional authorizations have been sought (or tolerated) by presidents, no post-1945 president, perhaps with the exception of Eisenhower, has ever believed they were constitutionally required.  From this belief, policy consequences flow.  From a presidential point of view, admitting a constitutional requirement would constitute an unacceptable limit on their authority to conduct foreign policy and protect national security.  Presidents know they will be held solely responsible if there is an attack on the United States.  To them, and logically enough, sole responsibility implies sole authority.  This means that executive branch decisionmaking is not and has not been based on the premise that Congress can truly say no.  In the legal debate over war powers, this is exemplified by the executive branch’s inability to come up with a persuasive interpretation of the “declare war” clause.  To the president’s lawyers, whatever this clause means, it cannot constitute a meaningful limit on the president’s ability to be “the decider.”  To admit this would necessarily deprive the president of a crucial element of the authority he needs to protect the country and thus fulfill his sole responsibility.

Now what is important here is not the narrow legal implications of the president’s position, but what it means for policymaking.  Long Wars and the Constitution shows how deviating from the original constitutional order has led to poor executive branch decisionmaking in every major war, conventional and covert, after World War II.  Without the meaningful check provided by Congress and left to their own devices, presidents have been unable to marshal the resources of the executive branch to engage in effective war planning, decide on war aims and, in general, to make good decisions.  On this score, I argue at length that the evidence is quite striking and consistent.
As just implied, to gain a full picture of the inadequacies of presidential decision making, we must include all three dimensions in which presidents made these decisions – conventional, covert and nuclear.  Long Wars and the Constitution analyzes all three dimensions in which decisions for war were made after 1945.  Why is this important?  If anything, the presidential record looks better than it should because scholars have generally not joined together exceedingly dubious covert operations, such as the Bay of Pigs, with their policy consequences.  In the case of the Bay of Pigs, the consequences arguably included the Cuban missile crisis, the most serious nuclear confrontation of this era.

As I hope this brief account illustrates, my book tries to keep a number of elements in tension rather than sort presidential actions into neat normative boxes.  I'll have to leave possible solutions to a later post.  As a final note, Long Wars and the Constitution provides the first history of the war powers debate itself, a debate that has now been going on for decades.  You may recall Dick Cheney promoting his memoir by saying that it would cause heads all over Washington to explode.  Ok, my book will not make your head explode, figuratively or otherwise.  Still, if you are not very familiar with the history of war powers, it may just alter your perspective, not only on presidential power but on the history of our country post-1945.

 

Comments:

This is a sobering post for me as I think back about war during my lifetime (that began in 1930). I recall tthe Seinfeld episode on Tolstoy's "War and Peace," when Jerry mentioned to Elaine (who worked for a book publisher) that Tolstoy's original title was "War, What Is It Good For?" that Elaine believed and made reference to in her dealings with a Russian author her publisher boss was working with on a book on Tolstoy. This was only a sit-com episode but was a reminder: what is war good for?

Some recent posts at this Blog have brought into play McCulloch v. Maryland (1819) on the powers of Congress. CJ Marshall's opinion (unanimous) included this statement: "The power to tax is the power to destroy." In reflecting on Prof. Griffin's post and remembering Ike's "farewell address" in early 1961 warning of the influence of the military-industrial complex that perhaps Marshall's statement could be reversed: "The power to destroy is the power to tax." And the greater is the power to destroy, the greater (it seems) is the power to tax on the basis of national security. The Boston Marathon Bombings make us realize, once again, the threats internally, an event that took North Korea off the front pages. Now it's Syria, which has a connection to Iran and its nuclear threats. This is all happening in a world that is becoming more interdependent, which seems incompatible with war(s) all the time. Elaine's answer to the question of the "original" title for "War and Peace" was "Absolutely Nothing," which was a protest rock song (that I wasn't even aware of).
Here's a link to a 1969 video:

http://www.youtube.com/watch?v=01-2pNCZiNk

I watch "Mash" re-reuns. The humor masks the realities of war. But the military-industrial complex is here to stay, unless ....
 

In semi-retirement from the practice of law, I audited courses at a local university under a senior program. In 2003 in an international relations course, I became aware of the National Security Strategy of 2002 of Pres. George W. Bush. It stated in effect that America was #1 in the world economically, politically and militarily and that America would do what was necessary to maintain such #1 positions. Until then I had not been aware of a requirement that a President issue such a Strategy periodically. While I have not compared that many such Strategies, it seems that changes may be be minimal from President to President. But this may change. See Hans Binnendijk's NYTimes 3/24/13 essay "Rethinking U.S. Security Strategy" for perhaps some significant changes reflecting, inter alia, the economy.

Perhaps Prof. Griffin can address the role of Congress with respect to such a Strategy.
 

Over the history of the republic, both Congress and the President have limited declarations of war to conflicts with major nation states until the AUMF against al Qaeda and its allies. We engaged in decades of war with the Native American tribes and smaller nations without the benefit of declarations of war. Thus, there is no real difference with how the nation has treated small wars before and after WWII left the president with a large standing army.

Also, contrasting a declaration of war from an AUMF makes a distinction without a difference. Both are congressional permissions for the executive to use the military to wage war. The only effective difference is the term being used.

The only presidential prosecution of a major war against a nation state without congressional permission I can think of is the Korean War. Vietnam had the Tonkin Gulf Resolution, Iraq (I & II) and Afghanistan had AUMFs.

Is there really a problem here or a change after WWII?
 

Has our SALADISTA (FKA our yodeler) forgotten Grenada? (With audio, I could provide my rendition in tribute to Ronald Reagan achieving his C-I-C chops.)
 

Time for Shag to write his memoirs. Maybe, comments here are done in lieu of that.

Some time back, I read "War and Responsibility" by John Hart Ely (RIP). Might try reading that again.

Anyway, sounds like a good read. Amazon says it is due on 5/13.
 

Joe's reference to the late John Hart Ely's book recalled for me the following comment of mine at the Legal History Blog when Mary Dudziak ran it:

****
Shag from Brookline said...

Back in the early/mid 1970s John moved into the home to the rear of ours. My wife and I were invited to a party there that included other conlaw professors (including a young Henry Monaghan at nearby BU Law). It was a very pleasant time especially near the end when there were just a few of us drinking some good wine and talking law. I was in private practice and mentioned Thomas Reed Powell, my conlaw professor back in the fall of 1952 so that I could get into the flow of the discussion.

We invited John and his lovely wife for drinks a short time later. As the evening progressed, we started talking about music, especially jazz, when John said he played the saxophone. I brought out a C-melody saxophone that a client had given me and John demonstrated that he had not lost him [his] embrochure. That was quite a long and enjoyable evening.

John and his family, including their St. Bernard, left after what seemed only a year or so. I followed his career thereafter and was shocked by his early demise.

I think of him every once in a while, especially now with the extensive discourses on originalism versus living constitutionalism clogging the Internet. What might John have contributed to the discussions with his wisdom, charm and wit? Maybe I'll read this article on John and listen at the same time to the late Illinois Jacquet on tenor saxophone.
April 5, 2008 at 11:49:00 AM EDT

****

I still think of John occasionally.

But no memoirs for me, to protect the innocent, near innocent and the guilty (putting myself in the latter category): Kiss, but don't tell.

 

Frank Snepp's Op-Ed in today's LATimes "The Vietnam syndrome - Regarding Iraq and Afghanistan, are we telling ourselves - and believing - the same false story we told in 1975" focuses on what these wars left behind. The Vietnam healing took a long time and is not yet complete. With Syria and Iran exploding or about to explode, the healing of and from Iraq and Afghanistan will be prolonged. What will our upcoming National Security Strategy tell us - that we have to remain the King of the Hill?
 

You might consider the faithful execution of the Laws power and treaty-based authorizations for the use of armed force (especially since Truman -- and note, Truman did not have an AUMF) -- see
http://ssrn.com/abstract=2061835
This article in SSRN is especially useful re: the War Powers Resolution as well.
 

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"The power to destroy is the power to tax." And the greater is the power to destroy, the greater (it seems) is the power to tax on the basis of national security. The Boston Marathon Bombings make us realize, once again, the threats internally, an event that took North Korea off the front pages. Now it's Syria lol elo boosting
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