The War Power in an Age of Terrorism: Debating Presidential Power

132 Pages·2017·4.34 MB·English

by  Michael A. Genovese

The Evolving American Presidency
Series Editor
Michael A. Genovese
Loyola Marymount University
Los Angeles, California
USA
This series is stimulated by the clash between the presidency as invented
and the presidency as it has developed. Over time, the presidency has
evolvedandgrowninpower,expectations,responsibilities,andauthority.
Addingtothepowerofthepresidencyhavebeenwars,crises,depressions,
industrialization. The importance and power of the modern presidency
makes understanding it so vital. How presidents resolve challenges and
paradoxesofhighexpectationswithlimitedconstitutionalresourcesisthe
central issue in modern governance and the central theme of this book
series.
More information aboutthisseries at
http://www.springer.com/series/14437
MichaelA.Genovese(cid:129)DavidGrayAdler
The War Power
in an Age
of Terrorism
Debating Presidential Power
Michael A.Genovese DavidGray Adler
Political Science President, Alturas Institute
Loyola MarymountUniversity Alturas, Idaho, USA
Los Angeles and
California Lecturer, University ofIdaho
USA CollegeofLaw,IdahoFalls,Idaho,USA
TheEvolvingAmericanPresidency
ISBN978-1-137-59353-5 ISBN978-1-137-57931-7(eBook)
DOI10.1057/978-1-137-57931-7
LibraryofCongressControlNumber:2016956866
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From Michael
Thisbookis dedicated to Gaby,who brought mepeace
From David
Thisbook isdedicated to Tally,who continues to amazeme
P A
REFACE AND CKNOWLEDGMENTS
In wartime, the Constitution needs all the friends it can get. The fog of
warcloudsourvision,andweoftenactbeforewethink.Orweactbefore
we have sufficient information. Thus, we often overreact, or rush to
judgment.
Such was the case in the aftermath of 9/11. In our effort to fight
terrorism,weoverstepped,puttingkeyconstitutionalguaranteesofrights
injeopardy.Wealsoembracedanuclear,imperialpresidency,andpolicies
that backfired on us, and unleashed a torrent of wicked problems from
which westill suffer.
To be fair, the people in the White House did not know if the initial
attackon9/11wasthebeginningofamoremassiveattack;theyoperated
in a world of uncertainty and confusion; and believed another major
assault on the United States might be imminent. Put yourself in their
shoes. Would you have acted in a measured, thoughtful way, fully con-
scious of protecting rights of citizens, or would you have been primarily
concernedwithpreventinganotherattackandsavingthelivesofcitizens?
Much ink has been spilled blaming, first, President Bush, and later
President Obama for their excessive zeal in fighting the threats of terror-
ism. We need not engage that argument, and assign blame. The concern
hereistolookafreshatthewarpowersintheUnitedStatesasweemerge
outof our post-9/11fog.
In an age of terrorism, does, should, can, our original constitutional
structure for declaring war still guide us? Is our eighteenth-century
Constitutionhopelesslyoutofdateforatwenty-first-centurysuperpower?
So let us revisit the founders of our system to glean insights into their
vii
viii PREFACEANDACKNOWLEDGMENTS
goals,seehowthatsystemoperatesinourworld,andask,“Shouldwestill
be guidedby theirmodel?”
There is no more important decision governments make than to
go to war. Asking citizens to risk their lives, committing the resources
of the nation, jeopardizing the very existence of the nation, is a
monumental decision fraught with consequences of the highest
magnitude.
How does the United States enter into war? Who decides? On what
basis? Within whatconfines?
This is a book about how we go to war. We present the ideal and
constitutional (the U.S. Congress authorizes war, either by a formal
declarationor byjoint resolution),andthe realandpolitical (mostoften,
the president merely acts, takingthe nation intowar).
Wewillalsolookatthehowthepost–September11,2001,waragainst
terrorism has placed new strains on the war powers, and how the United
States has respondedto thisnew threat.
Intheend,wewillarguethatatleastsincetheendofWorldWarII,the
war power has been hijacked by an Imperial Presidency, and often ceded
to the executive by a feckless Congress. Unfortunately, an untutored
American public has mistakenly attributed to the president the authority
to initiate war, an error that has been promoted by an equally untutored
press. For the sake of constitutionalism, the rule of law, the separation of
powers, and our system of checks and balances, we had better turn this
aroundand“getitright,”orelsethevitalityandintegrityofourconstitu-
tional republicare injeopardy.
The format of this book is to present an argument over the role of
constitutionalism and presidential power in an age of terrorism. One
author takes the position that the original war declaring power of
Congress needs to be updated to better suit a twenty-first-century super-
power.Theotherauthorbelievesthatwecanandshouldholdtruetothe
visionoftheFramers,andcontinuetoinvestinthepowertoauthorizewar
in the hands of the Congress. We present this friendly argument as a
vehicle for readers to make more thoughtful and informed decisions on
whoshall take the nationinto war.
Asyouwillsee,theauthorsdifferregardingjustwhatshouldbedone—if
anything—about the war powers in the United States. One author
(Genovese) argues that a twenty-first-century superpower needs a more
streamlined—modern—system of going to war. The other author (Adler)
PREFACEANDACKNOWLEDGMENTS ix
isastaunchdefenderoftheFramers’modelandarguesthatitsvaluesareas
compelling today as they were at the time of the framing of the
Constitution. If there is friendly disagreement, there is also a place where
the two authors agree. And it is in that area of agreement—retroactive
justification—thatbothauthorsfindcommongroundinacomplexworld.
OnemorethingwebothagreeonisthatweAmericanshaveyettotake
acold,hardlookatconstitutionalisminanageofterrorism.Wehopethis
booktakes usone stepcloser todoing justthat.
MichaelA.Genovesethanksthestudentswhohelpedmanagehimand
themanuscriptpreparation:JohnPickhaver,DaniJordan,andJakeWeitz,
who were always helpful, usually cheerful, and chronically hardworking.
David Gray Adler thanks hismany students andcolleagues over the years
atIdahoStateUniversityandtheUniversityofIdahoCollegeofLaw,for
listeningtohisviewsonthewarpower;theIdahoHumanitiesCouncilfor
generous support of this project; the Board of Directors of the Alturas
Institutefor theirenthusiasm,vision,encouragement, and support:Steve
Carr, Doug Oppenheimer, Clay Morgan, Barbara Morgan, Caroline
Heldman, Jeff Neiswanger, Mark Young, and Tim Hopkins; Kelli
Jenkins for her superb administrative skills, and Penni Englert, for her
wonderfulclerical assistance.
C
ONTENTS
1 WarandAmerican Democracy 1
Introduction 2
The Predicate 3
The Problem 5
Tamingthe American Prince 6
Inventinga Presidency 10
Defending theConstitution 18
The Ratification Debate 20
The Riseof PresidentialPower 24
EarlyPractice: TheWarPowers inAction 27
9/11:Everything Changed 34
Inter ArmaEnimSilent Leges orFullCircle and theReturn
of theKing 39
Revolution inPolicy 42
Things Change 46
The Presidency,ForeignPolicy, and War 48
The Power ofContext 49
2 Prescriptionsfor a NewAge 53
What to Do? 53
Constitutional Change 56
Old Winein NewBottlesJustWon’t Do: Rethinkingthe War
Powers inan Ageof Terrorism 58
xi