War Is Too Tragic for Weak Balance of Powers

Two weeks ago, I wrote a column on how President Obama, as with some presidents in the past, fired military generals who tried to end run his civilian authority in Iraq and Afghanistan. That is just one of the areas where our Constitution chose to spread around the responsibility for waging war to two branches of government and to keep the war-making decisions in the hands of government civilians.

As much as I am glad that some of our former presidents fought to keep the generals from pushing them into war decisions through intemperate leaks of misinformation to the media, I can also see presidents and the executive branch have been leaching away the power to declare war from the Congress. The last time the Congress used their full constitutional power to declare war was World War II. After that, war or “armed conflict” got messier and more complicated, and the Congress allowed presidents to take more of their power away in Korea and Vietnam instead of finding ways to adapt to the new world and still keep their very exclusive power to declare war.

Some of these presidents have purposely mislead Congress before and after the Congress, disturbed by the overreach of presidents in the Vietnam “conflict,” passed the War Powers Act in 1973 overriding President Nixon's veto. This law was an attempt by Congress to insert some control of when we go to war, but also continued to grant the president part of their power to say when we go to war. The Congressional Research Service recently issued a report on the issues of the War Powers Act and they describe the power of the act as it was intended when it was passed:

The War Powers Resolution (WPR) states that the President's powers as Commander in Chief to introduce U.S. forces into hostilities or imminent hostilities are exercised only pursuant to (1) a declaration of war; (2) specific statutory authorization; or (3) a national emergency created by an attack on the United States or its forces. It requires the President in every possible instance to consult with Congress before introducing American Armed Forces into hostilities or imminent hostilities unless there has been a declaration of war or other specific congressional authorization.

It also requires the President to report to Congress any introduction of forces into hostilities or imminent hostilities, Section 4(a)(1); into foreign territory while equipped for combat, Section 4(a)(2); or in numbers which substantially enlarge U.S. forces equipped for combat already in a foreign nation, Section 4(a)(3). Once a report is submitted “or required to be submitted” under Section 4(a)(1), Congress must authorize the use of forces within 60 to 90 days or the forces must be withdrawn … It is important to note that since the War Powers Resolution's enactment over President Nixon's veto in 1973, every President has taken the position that it is an unconstitutional infringement by the Congress on the President's authority as Commander in Chief. The courts have not directly addressed this question.

Note the last two paragraphs above where “every President has taken the position that it is an unconstitutional infringement by the Congress on the President's authority as Commander in Chief” and “The courts have not directly addressed this question.”

Between decades of legal murkiness and the increasingly complex and fast-moving conflicts around the world, the power for Congress to declare war is nothing like our founders envisioned when they fashioned the Constitution in past times of slow-moving communications and large wars between nations. The legal mess is a huge impediment to putting the powers back into balance, but I would like to illustrate just how damaging it can be to this country not to have the Congress insert their constitutional powers.

Many people know that Daniel Ellsberg was responsible, in the late 1960s, for leaking a highly classified history of the emergence of the Vietnam War, known as the Pentagon Papers, that showed the lies and misleading facts used by past presidents to justify the war. He almost went to jail for life to expose these deceits to the American public. But what many don't know is that he was involved in the same deceptions at the very beginning of the Vietnam War while working at the Pentagon.

Ellsberg was a Marine and a gung-ho, cold-war warrior analyst early in his career and landed a job in the Pentagon to analyze cables coming from hot spots around the world.

When President Johnson went to Congress to pass the Gulf of Tonkin resolution, he reported that North Vietnam had fired twice on US Navy ships in two “unprovoked” attacks. In fact, on August 2, 1964, our Navy ship had been checking North Vietnamese signals along their sea borders by breeching the borders and were fired upon. Two days later, another US ship claimed that it was being fired upon by North Vietnamese torpedoes, but it soon became clear that the radar operator was seeing ghost images on his screen.

The second attack happened on August 4, 1964, Ellsberg's first day on the job in the Pentagon. As he describes in his excellent book, “Secrets,” he first thought that the second attack was real, but then reports keep coming in that the commander was unsure that they were really under attack. But the Johnson White House wanted an excuse to escalate the war, gave assurances that this second attack was real and insisted that the Congress needed to give Johnson a resolution to cover his retaliation. Ellsberg wrote, “By midnight on the fourth, or within a day or two, I knew that each one of these assurances were false.”

He described how the deception was passed on to the public and even the classified reports to the Congress:

In my new job I was reading the daily transcripts of this secret testimony, and at the same time I was learning from cables, reports, and discussions in the Pentagon the background that gave the lie to virtually everything told both to the public and, more elaborately, to the Congress in secret session….

The contrast between what the senators had been told by the secretaries in a secret joint session of the Senate Foreign Relations and Armed Services committees, as I read the testimony, and what I soon knew as a first-week staffer in the Pentagon was striking.

Johnson was in election mode, running against Sen. Barry Goldwater, who wanted to escalate the war, and Johnson criticized him for war mongering. These Gulf of Tonkin incidences gave Johnson the excuse to escalate the war out of “necessity.”

Ellsberg told me one day over lunch that not blowing the whistle on the Gulf of Tonkin deception was one of the biggest mistakes of his life. He believes that he might have been able to expose the dishonesty and possibly thwart the rush to war, thus saving thousands of US and Vietnamese lives. But even though he was greatly disturbed by what he saw, it was his first week on the job and he felt that he was an insider, which made it harder to do the right thing:

Once I was inside the government, my awareness on how easily and pervasively Congress, the public, and journalists were fooled and misled contributed to a lack of respect for them and their potential contribution to better policy. That in turn made it easier to accept, to participate in, to keep quiet about practices of secrecy and deception that fooled them further and kept them ignorant of the real issues that were occupying and dividing inside policy makers. Their resulting ignorance made it all the more obvious that they must leave these problems to us.

Later in the 1960s, Ellsberg, at great risk to himself and his freedom, came around to the immensity of lies and loss of life due to this war and decided that, morally, he had to do something about it. His turning moment came when he saw young protesters willing to go to jail rather than be drafted into a war that they thought was immoral. He knew that the Pentagon Papers would tell the story of the deceptions, so he surreptitiously copied the classified history, tried to give it to some hesitant members of Congress and then finally realized that he had to give it to the press.

Ellsberg's Gulf of Tonkin experience is hauntingly similar to the deceptions used by President George W Bush to get the US to rush to war with Iraq, under the lies that they, along with al-Qaeda, were responsible for the attacks on 9/11. This shows that the Congress, even though they did take a vote under the weak War Powers Act, were politically timid and feared looking soft on defense. They did not do their full checks and balances in making sure that they weren't being lied to. And parts of the media, looking for the excitement of covering a war, also were beating the war drums with false information. Our founders expected the Congress to be a much better balance to presidents who overzealously march us into disastrous wars.

Congress does also have the power of the purse to stop a war or military action, as they tried with Vietnam and attempts to restrict the backing of the contras in their conflict in Nicaragua. However, because of foreign policy political fights and defense contractor contributions, too many members of Congress were concerned that they would look weak on defense and felt politically vulnerable if they restricted any military money, especially for the troops.

The solution for what ails the War Powers Act is not something that will be easy to solve legally or politically. The Congress and the executive branch will be fighting it out with legislation and executive directives and possibly even in the courts. But one of the underlying tribulations that impairs Congress from standing up to the president and reclaiming their power to declare war is the size and influence of the Pentagon budget on the political process. The $600-billion-plus yearly budget and trillion-dollar wars permeate all aspects of our politics, jobs and elections as everyone in Washington maneuvers to get a piece of the pie and justify the world's largest defense budget. We have also allowed major parts of waging war to be outsourced to a war service industry that now has the money and lobbying power to get us into another war or conflict to feed their now bloated ranks. As long as political money and self-dealing on the part of our public servants feeds off the Pentagon budget, the delicate checks and balances our founders devised to keep us out of ruinous wars will be as bastardized by money as our election cycles.