March 24, 2006
By John Yoo
Critics of the war on terrorism and the war in Iraq charge that
President Bush has infringed on the Constitution. They say it's up
to Congress to approve the course of the Iraq War, the
interrogation policies at the Guantanamo Bay base and the wiretap
surveillance by the National Security Agency.
Yet this view misreads the Constitution's allocation of war-making
powers between the executive and legislative branches. As
commander-in-chief and chief executive, the president has broad
constitutional authority -- indeed, a duty to protect the nation
from foreign attack. He requires no approval to take the nation to
war if it's attacked.
The framers of the Constitution designed the presidency to wield
power quickly and decisively. As they understood it, Congress could
counter presidential decisions in foreign affairs through its
powers over funding or domestic legislation.
A state of war doesn't mean that checks and balances don't exist,
only that Congress usually allows the president to act alone
because it agrees with executive policy or lacks the political will
to use its own constitutional powers.
Much of the confusion concerns the provision in Article I, Section
8 of the Constitution, which says that Congress alone has the power
to declare war. In fact, a comprehensive reading of the text and
structure of the Constitution demonstrates that it doesn't mandate
a specific process for waging war.
James Madison insisted on the phrase "declare war" versus "make
war" because he wanted presidents to have the flexibility to repel
sudden attacks. In fact, the Constitution distinguishes between
"declaring war," "engaging in war" (Article I, Section 10, Clause
3) and "levying war" (Article III, Section 3, Clause 1).
In short, to declare war isn't the same as to start fighting a
war. Congress has declared war just five times in its history. And
only one of them, the War of 1812, constituted an affirmative
declaration of war. The other four -- the Mexican-American War, the
Spanish-American War, World War I and World War II -- merely
declared the prior existence of a state of war.
Earlier in American history, a declaration of war had the
practical effect of getting Congress on board to fund the building
of an army to prosecute the war. Today, we have a large fighting
force at the ready, and the main effect of declaring war would be
to alter legal relationships between subjects of warring nations
and to trigger certain rights, privileges and protections under the
laws of war.
Declarations provide the legal grounds for war and the opportunity
for enemy nations to make amends and, thereby, avoid the scourge of
The power to declare war is not a check on executive power to
engage in hostilities. It's designed to address these legal issues
and others in times of conflict.
It serves notice to the enemy's allies that they could be viewed
as co-belligerents and that their shipping is subject to capture.
It means our citizens could be prosecuted for dealing with the
enemy, that internment or expulsion of enemy aliens is possible and
that diplomatic relations have been cut off.
Once we're at war, the Constitution leaves the means of how the
war is prosecuted almost entirely in the president's hands. Still,
this power isn't absolute, and Congress retains a critical check on
it -- the power to defund initiatives with which it doesn't
As for the question of the NSA's wiretapping program, Richard
Posner, a federal judge, says that, of course, a president's
inherent wartime authority as commander-in-chief encompasses using
a range of intelligence-gathering techniques.
In an era of terrorism, rogue nations and weapons of mass
destruction, it's imperative to get correct answers to questions
concerning foreign-policy authority.
But we should look skeptically at claims that radical changes in
the way we make or declare war would solve our problems -- even
those stemming from poor judgment, unforeseen circumstances and bad
John Yoo, a law professor at the University of California,
Berkeley, is a contributor to "The Heritage Guide to the
First Appeared in the (Riverside) Press Enterprise
Critics of the war on terrorism and the war in Iraq charge that President Bush has infringed on the Constitution. They say it's up to Congress to approve the course of the Iraq War, the interrogation policies at the Guantanamo Bay base and the wiretap surveillance by the National Security Agency.
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