STATEMENT OF BRUCE FEIN

BEFORE THE HOUSE FOREIGN AFFAIRS SUBCOMMITTEE ON INTERNATIONAL ORGANIZATIONS, HUMAN RIGHTS, AND OVERSIGHT

RE: WAR POWERS IN THE

21^ST CENTURY: THE CONSTITUTIONAL PERSPECTIVE

APRIL 10, 2008

Dear Mr. Chairman and Members of the Subcommittee:

I welcome the opportunity to share my views on the Constitution’s distribution of war powers in the 21^st century or otherwise. In particular, I will focus my attention on the interaction between Congress, the President, and the judiciary in decisions to send the United States military into combat against either state or non-state actors like Al Qaeda. I will also examine the relatively pellucid intent of the Founding Fathers to entrust to Congress decisions over war because they feared the President would be inclined towards adventurism fueled by concocted dangers to aggrandize executive power. I conclude that the Constitution assigns ultimate authority over war to the Congress if it chooses to exercise the responsibility; that the Supreme Court would enforce congressional restraints on the President’s power to employ the military in combat, for example, prohibiting the expenditure of any funds to invade Iran or bomb its nuclear facilities; and, that the President’s defiance of a congressional war limitation should expose him to impeachment for high crimes and misdemeanors. I also believe that H.J. Res. 53 sponsored by Congressman Walter Jones is the correct constitutional and prudential framework for the exercise of war powers.

I. Original Intent

The Founding Fathers intended that Congress make decisions to initiate military hostilities against a foreign nation. The President was confined to waging wars authorized by Congress; and, to repel sudden attacks without awaiting congressional authorization when time was of the essence. The Constitution is not a suicide pact. After Pearl Harbor, Congress voted to recognize a state of war created by Japan and authorized the President to respond with military force. President Franklin D. Roosevelt did not claim unilateral authority to respond even though the death toll approximated 9/11.

Authoritative quotations to support the original understanding that the authority to initiate war measures lies exclusively with Congress are endless. Only a few will be supplied as a concession to the shortness of life. James Madison, father of the Constitution, declared that, “The executive has no right, in any case, to decide the question whether there is or is not cause for declaring war.” James Wilson, an influential voice at the Constitutional Convention and later Justice of the United States Supreme Court, echoed: “It will not be in the power of a single man, or single body of men, to involve us in [war]….” Alexander Hamilton, the loudest voice for a muscular executive, belittled the Commander-in-Chief power of the President as follows: “It would amount to nothing more than supreme command and direction of the military and naval forces, as first general and admiral of the confederacy; While that of the British king extends to declaring war and to the raising and regulation of fleets and armies.”

The original intent of the Founding Fathers over war found expression in the Constitution’s text in three separate provisions. Congress is expressly authorized to declare war. Congress is entrusted with the power of the purse, which prevents the President from sending a single soldier into combat unless supported by a congressional appropriation. And Congress is crowned with power to enact laws “necessary and proper” for the execution of every power, including the war power, vested by the Constitution in any department or agency thereof, including the White House. In the nation’s early semi-war with France, Congress limited President John Adams’ authority to seize ships to vessels departing to French ports, but not to ships leaving France. The limitation was upheld by the Supreme Court speaking through Founding Father John Marshall in Little v. Barreme (1804). Chief Justice had earlier written for a unanimous Court in Talbot v. Seeman (1801): “The whole powers of war being by the Constitution of the United States invested in Congress, the acts of that body can alone be resorted to as our guides in this inquiry [into the application of the laws of war].”

The Founding Fathers knew more about human nature and abuses of government power than any other constitutional architects in the history of mankind. The reasons they elaborated for seeking to construct a steel fence around the President’s authority to initiate military combat remain more forceful today than at the time of the founding. At present, the United States is the globe’s sole superpower. The President’s temptation to initiate combat against any foreign country is at its high-water mark because the threat of serious retaliation but from Russia or China is slim. In contrast, in 1787, the United States ability to project military power abroad was inconsequential. The temptation for the President to initiate war against foreign nations was comparatively slight because the probable immediate and adverse consequences were daunting. It speaks volumes that Congress, not President Madison, hurried the nation into the War of 1812 against the British.

The incentives for the President to inflate danger to justify resort to war are manifold were amplified by James Madison in 1793—wisdom that has been confirmed by the ages: “In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Besides the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man; not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war, physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. In war, honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered; and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace.

“Hence is has grown into an axiom that the executive is the department of power most distinguished by its propensity to war: hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence.”

Madison omitted an additional irresistible presidential motivation to war: to elicit immediate patriotic support to boost his political standing.

In the United States, President James K. Polk lied about the deaths of American soldiers at the hands of Mexico to justify the Mexican-American War. President Roosevelt lied about Nazi submarine attacks on American vessels in hopes of hurrying the nation into World War II. President Lyndon Johnson lied about North Vietnamese attacks on two navy destroyers to obtain congressional enactment of the Gulf of Tonkin resolution. President George W. Bush lied about weapons of mass destruction in Iraq to justify invasion and a seemingly endless United States occupation. President Bush has similarly exaggerated the danger of Al Qaeda logarithmically to the equivalent of Lenin, Stalin, Trotsky, Hitler, Hirohito, and Mussolini to justify perpetual warfare against international terrorism. Since 9/11, there have been approximately 150,000 murders in the United States without provoking cries of hurling the military into combat against would-be murderers. Madison admonished that, “No nation could preserve its freedom in the midst of continual warfare.”

In sum, it is crystal clear that the Constitution assigns exclusively to Congress decisions as to whether to initiate warfare. But under the Supreme Court’s ruling in INS v. Chada (1983), Congress may not use a legislative veto mechanism to force withdrawal of American troops from hostilities, as was attempted in the War Powers Resolution of 1973, section 5(c).

II. Historical Practice

In practice, no President has waged war without the express or tacit approval of Congress. Although Congress has officially declared war on only five occasions, no President has employed the military without money set aside for that purpose by Congress. The power of the purse is invincible because it requires affirmative action by Congress to enable the President to wage war. If Congress does nothing, the President is powerless. The President cannot veto inaction. Congress, moreover, knows how to handcuff the President. During the Vietnam War, Congress wielded the power of the purse to prevent its extension into Laos, Cambodia, and Thailand or a re-engagement in combat after the Paris Peace Accords of 1973. The Joint Resolution Continuing Appropriations for Fiscal Year 1974, for example, stipulated: “Notwithstanding any other provision of law, on or after August 15, 1973, no funds herein or heretofore appropriated may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Vietnam, South Vietnam, Laos or Cambodia.” The Clark Amendment ended funds for covert action in Angola in 1975; and, was repealed a decade later.

Regarding contemporary war issues confronting the nation, it is clear that Congress would be acting constitutionally if it prohibited the use of any funds to support the United States military in Iraq other than to execute a withdrawal consistent with the physical safety of United States military personnel. Ditto with regard to the expenditure funds of the United States in Afghanistan except to withdraw American troops. And it would be equally constitutional for Congress to prohibit the President from expending any monies of the United States to attack Iran militarily, including the bombing of its nuclear facilities.

In sum, Congress holds the constitutional authority through the power of the purse or otherwise to make every serious decision concerning the use of the military in combat operations. Moreover, the United States Supreme Court would be available to enforce power-of-the-purse limitations by injunctive relief, as was done in the preliminary stages of Schlesinger v. Holtzman (1973). A member of the military or the House of Senate as a body would have standing to challenge the President’s defiance of a military spending limitation. In addition, Congress could make violations of the Anti-Deficiency Act strict liability felonies punishable by up to five years imprisonment. And Congress might pass a concurrent resolution expressing the sense of Congress that a President’s violation of a congressional spending limitation on the use of the military in combat operations should be treated as an impeachable high crime and misdemeanor justifying the President’s trial and conviction in the Senate and removal from office.

III. Presidential Preemptive Wars

It might be argued that the President’s constitutional authority to repel sudden attacks should extend in modern times to preemptive warfare in the name of preventing an attack—even when Congress has explicitly prohibited funds for that purpose—because the world has shrunk geography and time through technological advances. The President should not be required to expose the nation to a second edition of 9/11 before responding to international danger. But the Constitution offers no support for unilateral presidential preemptive wars. If modern technology has changed the nature of war and international danger, then it is up to Congress to adapt to the change by authorizing preemptive wars with proper congressional guidelines. The broad power of Congress to delegate authority to the President in foreign affairs or national security has been repeatedly ratified by the Supreme Court.

IV. Bogus Superior Wisdom of the President in Choosing War

As noted above, Congress could constitutionally delegate its war powers to the President. Many urge that delegation on the errant belief that the President wisdom is superior to congressional wisdom in decisions to initiate war.

The President admittedly has access to secret intelligence that is not generally available to Congress. Further, only the President commands a national as opposed to a local constituency which avoids parochial distractions. The first advantage, however, is vastly overrated. Most strategic intelligence pivotal to deciding whether to initiate warfare is in the public domain. No spies were needed to discern Hitler’s intentions prior to his invasion of Poland. And history is inconclusive as to whether presidential initiatives for war have been superior to what might have occurred had Congress been in the driver’s seat. The Bay of Pigs invasion of Cuba proved a disaster. The Vietnam War proved a fiasco. The use of the military in combat in Lebanon and Somalia proved ill-conceived. The ongoing United States quagmires in Afghanistan and Iraq are undeniable. It is difficult to conceive of a greater folly than the Bush administration’s conviction that a people with a history of four thousand unbroken years of despotism and centuries of religious and ethnic antipathies could be transformed into a unified democratic nation overnight at the point of a bayonet. President’s repeatedly stumble in war for twofold reasons: intellectual endogamy; and, the incentive to initiate combat without cause to accumulate executive power and to boost immediate popularity. Congress is not infallible. Its Neutrality Acts during the 1930s may have been wrongheaded. But in deciding on war, the slowness of Congress is more often a virtue than a vice. It permits time to contemplate exit strategies and to assess the true nature of the asserted foreign threat. United States soldiers should not be required to risk that last full measure of devotion without a thorough vetting of all the alternatives and public discourse. That is a core feature of government by the consent of the governed.

V. What Should Be Done?

The Founding Fathers intended to create high hurdles for entry into war because of its threat to the maintenance of a Republic. James Madison lectured: “Of all the enemies of public liberty, war is perhaps the most to be dreaded because it comprises and develops the germs of every other.” He further amplified: “If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.” H. J. Res. 53 establishes the proper equilibrium of war powers between Congress, the President, and the Supreme Court. It should be enacted and strictly enforced. Congress should be highly skeptical of any claimed need to initiate warfare.

The greatest danger to any Republic is that it will fight too many wars, not too few. Just ask the Roman Senate which bowed to dictatorship in 44 B.C. amidst endless conflict and chaos.