John Whitehead's Commentary
Does Bush Have the Authority to Wage War on Iraq?
"The Congress shall have Power to...declare War..."
Article I, Section VIII
U.S. Constitution
Years from now, historians may refer to the "Bush Doctrine" in much the same way that they talk about the Monroe or Truman Doctrines. But will they hold it in the same esteem?
President James Monroe, faced with the possible threat of Europe colonizing countries in the western hemisphere, declared the U.S. the protector of independent nations in the Americas. Following the end of WWII, President Harry S. Truman issued a policy of foreign aid intended to challenge Soviet ambitions throughout the world.
However, unlike the attempts of Bush's predecessors to serve American interests by defending or aiding foreign interests, the so-called "doctrine" being proposed by the Bush Administration employs the very opposite strategy. It suggests that whatever foreign nation does not stand with the U.S. must, by default, stand against us. The critical corollary to this doctrine insists that President Bush, acting in preemptive self-defense of his country, has a right to use force-that is, declare war-on a potentially aggressive foreign nation. For the present time, Iraq seems to fit the bill for the Bush Administration's purposes.
Yet while Congress debates the issue and Americans find themselves being inexorably drawn into what seems like an inevitable war against Iraq, the question remains: Does President Bush even have the authority to declare war against a foreign nation? The answer to the question is rooted in our nation's past, in its reasons for declaring itself independent of Great Britain, and in the document our founding fathers forged as a rule of law to ensure our future allegiance to the principles of democracy, equality, and justice for all.
Distrustful of the British king's power to declare war and raise fleets and armies, the framers of the U.S. Constitution intended to ensure that Congress alone should have the power to initiate military action against other nations, while at the same time making the president commander-in-chief. As James Madison opined, "Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded." Thus Article 1, Section 8 of our U.S. Constitution grants Congress-not the president-the power "[t]o declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."
However, the Constitution does grant the president the authority to act without the approval of Congress only when it is in self-defense. For instance, if the president were to learn that terrorists had a nuclear bomb on an Iraqi-flagged ship in the Atlantic intending to detonate it in a U.S. port, the president might have the authority to act against that ship in anticipatory self-defense without seeking Congress's approval. Obviously, the president would be better suited to address such an emergency than would the whole Congress.
Attempts have been made over time to weaken or redefine the Constitution's definitive statement of who can and cannot make a declaration of war. For example, in 1973, Congress passed the War Powers Resolution, which gives a president the authority to wage war abroad for 60 days without congressional approval. It is questionable whether this act, if challenged, would hold up to constitutional muster.
Seemingly yet another way to get around the Constitution, the "Bush Doctrine" of "preemptive self-defense," at least as applied to Iraq, is exactly the type of military action the framers intended to be the decision of Congress, not the president. Even the knowledge that Iraq might be accruing weapons of mass destruction at the present time (several other world powers share this distinction, including the U.S., China, India, Israel, Russia and the U.K.), there is no indication that Iraq poses an immediate threat to the U.S., let alone a threat greater than that presented by any other rogue nation.
Certainly, the framers never intended that a president, acting independent of Congress, have the power to invade another country and overthrow its government merely on the basis of potential threats. The framers did not believe in placing the decision to commit troops and finances to war in "a single man," but rather through the "deliberative process in Congress." In this way, "nothing but our national interest can draw us into war."
As the past has clearly shown, when we wage undeclared war-as we did in Vietnam-we can be assured that the result will be immeasurable loss, regret and a nation divided. And for President Bush to request an exception to the rule of law under which this nation operates is to ignore our Constitution. Perhaps it is not so much a disregard of constitutional principles as it is a lack of knowledge about them. But the question of war is too grave to rest on a matter of ignorance or opinion. The duty of the president of the United States of America is not to carry out his own objectives but to lead and serve the American people while upholding the Constitution.
When it comes right down to it, if it does become necessary for the U.S. to wage war against Iraq, it will not be Bush's war. Nor will it be Saddam Hussein's war. It will be the American people's war. And as representatives of the people, it is up to Congress to decide what must be done-because it will be the American people who pay the price, for good or ill. We must remember that because of the human and financial costs of war, it should only be declared "by the authority of the people, whose toil and treasure are to support its burdens." As such, it is the duty of Congress, not the president, to make this decision.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He can be contacted at johnw@rutherford.org.
Article I, Section VIII
U.S. Constitution
Years from now, historians may refer to the "Bush Doctrine" in much the same way that they talk about the Monroe or Truman Doctrines. But will they hold it in the same esteem?
President James Monroe, faced with the possible threat of Europe colonizing countries in the western hemisphere, declared the U.S. the protector of independent nations in the Americas. Following the end of WWII, President Harry S. Truman issued a policy of foreign aid intended to challenge Soviet ambitions throughout the world.
However, unlike the attempts of Bush's predecessors to serve American interests by defending or aiding foreign interests, the so-called "doctrine" being proposed by the Bush Administration employs the very opposite strategy. It suggests that whatever foreign nation does not stand with the U.S. must, by default, stand against us. The critical corollary to this doctrine insists that President Bush, acting in preemptive self-defense of his country, has a right to use force-that is, declare war-on a potentially aggressive foreign nation. For the present time, Iraq seems to fit the bill for the Bush Administration's purposes.
Yet while Congress debates the issue and Americans find themselves being inexorably drawn into what seems like an inevitable war against Iraq, the question remains: Does President Bush even have the authority to declare war against a foreign nation? The answer to the question is rooted in our nation's past, in its reasons for declaring itself independent of Great Britain, and in the document our founding fathers forged as a rule of law to ensure our future allegiance to the principles of democracy, equality, and justice for all.
Distrustful of the British king's power to declare war and raise fleets and armies, the framers of the U.S. Constitution intended to ensure that Congress alone should have the power to initiate military action against other nations, while at the same time making the president commander-in-chief. As James Madison opined, "Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded." Thus Article 1, Section 8 of our U.S. Constitution grants Congress-not the president-the power "[t]o declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."
However, the Constitution does grant the president the authority to act without the approval of Congress only when it is in self-defense. For instance, if the president were to learn that terrorists had a nuclear bomb on an Iraqi-flagged ship in the Atlantic intending to detonate it in a U.S. port, the president might have the authority to act against that ship in anticipatory self-defense without seeking Congress's approval. Obviously, the president would be better suited to address such an emergency than would the whole Congress.
Attempts have been made over time to weaken or redefine the Constitution's definitive statement of who can and cannot make a declaration of war. For example, in 1973, Congress passed the War Powers Resolution, which gives a president the authority to wage war abroad for 60 days without congressional approval. It is questionable whether this act, if challenged, would hold up to constitutional muster.
Seemingly yet another way to get around the Constitution, the "Bush Doctrine" of "preemptive self-defense," at least as applied to Iraq, is exactly the type of military action the framers intended to be the decision of Congress, not the president. Even the knowledge that Iraq might be accruing weapons of mass destruction at the present time (several other world powers share this distinction, including the U.S., China, India, Israel, Russia and the U.K.), there is no indication that Iraq poses an immediate threat to the U.S., let alone a threat greater than that presented by any other rogue nation.
Certainly, the framers never intended that a president, acting independent of Congress, have the power to invade another country and overthrow its government merely on the basis of potential threats. The framers did not believe in placing the decision to commit troops and finances to war in "a single man," but rather through the "deliberative process in Congress." In this way, "nothing but our national interest can draw us into war."
As the past has clearly shown, when we wage undeclared war-as we did in Vietnam-we can be assured that the result will be immeasurable loss, regret and a nation divided. And for President Bush to request an exception to the rule of law under which this nation operates is to ignore our Constitution. Perhaps it is not so much a disregard of constitutional principles as it is a lack of knowledge about them. But the question of war is too grave to rest on a matter of ignorance or opinion. The duty of the president of the United States of America is not to carry out his own objectives but to lead and serve the American people while upholding the Constitution.
When it comes right down to it, if it does become necessary for the U.S. to wage war against Iraq, it will not be Bush's war. Nor will it be Saddam Hussein's war. It will be the American people's war. And as representatives of the people, it is up to Congress to decide what must be done-because it will be the American people who pay the price, for good or ill. We must remember that because of the human and financial costs of war, it should only be declared "by the authority of the people, whose toil and treasure are to support its burdens." As such, it is the duty of Congress, not the president, to make this decision.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He can be contacted at johnw@rutherford.org.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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