|MAP Member Opinion "Peace"|
The President's Path To War Powers
Rivaling A King
The framers of the Constitution knew only too well the frailty of human nature and the inherent danger of concentrating too much power in one individual. After all, it was the tyranny of the European monarchs that caused so many of them to flee their countries. That is why they bestowed on Congress, not the President, the power to declare war. And that has not changed. So, how did Bush gain so much power?
It all started when, after 9-11, Congress passed Joint Resolution 23 giving Bush the authorization to use "a necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided terrorist attacks that occurred on September 11, 2001", including nations who even harbor terrorists. The public strongly supported it and dissenters were viewed as "unpatriotic". "Either you are with us or you are with the terrorists, " said Bush. With the elections just ahead, Congress knuckled under and passed the resolution with only one dissenting vote, Barbara Lee [D-Ca].
Then, in October 2002, Congress pondered a second resolution that would give Bush authority to go after Iraq specifically. Only a few members of Congress spoke out against the resolution. Sen. Robert Byrd (D-Va) called it unconstitutional. Article I, Section 8 of the Constitution makes it clear, "Congress shall have Power ... To declare War....". No Congressional resolution can change the Constitution; only a Constitutional amendment can do that. And, no such amendment exists. Byrd said, "Nowhere in the Constitution is it written that the President has the authority to call forth the militia to preempt a perceived threat". Still, Congress actively acquiesced by quickly passing Joint Resolution 114.
Both resolutions explicitly pointed to the War Powers Act of 1973 for underpinning the President's legal authority. In truth, however, this Act was intended to reaffirm the Constitution - that Congress shall have the power to declare war. And though the Act did authorize the President to use military force in limited and specific circumstances, never could Congress cede its war powers to the President.
Nevertheless, the President marches to war as Congress mostly watches from the bleachers, mute, even though no connection between Iraq and 9-11 has been shown, nor is it clear Iraq is a threat to the United States, or any other country for that matter. It is being left to Bush to determine who is a threat to the U.S.
On February 13, 2003, six legislators and a few others decided to challenge the constitutionality of Bush's expanded war powers by filing a lawsuit in the Boston federal court. The plaintiffs claimed that Resolution 114 "did not specifically declare war and unlawfully ceded to the President the decision of whether or not to send this nation into war"and therefore, "a war against Iraq without a congressional declaration of war would be illegal and unconstitutional". U.S. District Judge Joseph Tauro dismissed the case saying there was no "clear, resolute conflict" between the executive and legislative branches to require a judge's intervention. The Constitutional question was never considered.
This left the Bush Administration with no apparent obstacles on its path to war. Not even the UN Security Council stands in the way. UN Resolution 1441 in effect affirms Resolutions 660, 678 and 687 passed in 1990 that authorizes - the power for any member State of the UN to use force against Iraq if it has not complied with the order to eliminate its weapons of mass destruction. With this, Bush does not really need a second resolution from the Security Council to attack Iraq, even though he would like to have it.
So this is what we have. Bush has craftily engineered war powers rivaling a king. Rumsfeld's statement, "we're in never ending war against terrorism" implies endless wars on nations. And history shows when great nations concentrate their resources to sustain military might around the world, it marks the beginning of their economic, political and social decay and eventual collapse. It's a nightmarish scenario - a path we should not follow. But the question is - where does the power lie that can turn it around?