[From The New Republic, January 29, 1972]

THE RIGHT TO MAKE WAR

(By Eugene G. Windchy)*

Last week Alexander M. Bickel discussed the need to limit the President's ability to make war, and he remarked that the Senate is very likely to pass a war powers bill designed to do that. The bill, which recently was approved 13-0 by the Foreign Relations Committee, recognizes a Presidential right to repel attack, and to forestall the imminent threat of attack, but it requires that the President obtain permission from Congress in order to continue hostilities longer than 30 days. The principal author of the war powers bill, Senator Jacob K. Javits, says that legislation of this kind might have prevented the incremental involvement that led to full-scale war in Indochina. The Nixon administration opposes the bill and, apparently, any attempt to limit its ability to make war. Its representatives complain that the proposed restrictions would "narrow the power given the President by the Constitution." A basic question, therefore, is whether the President does have a constitutional right to make war and, if so, under what circumstances.

During 16 of the last 23 years, American Presidents have been waging undeclared wars. In the case of the Korean War, President Harry S. Truman's decision appeared to be the product of emergencythe quick response to aggression. As we shall see later, it was more than that. In the case of the Indochina war, a gradual escalation was obscured by official secrecy, and then facilitated suddenly by the Tonkin Gulf resolution. That resolution has been repealed for more than a year, but the same war continues, hanging legally in midair, supported by an extrapolation of the Constitution known as the President's "inherent" power to commit Armed Forces to conflict. But even before the Tonkin resolution came under heavy fire, the State Department was busy refurbishing the executive branch's claim to an independent, constitutional right to make war. In a memorandum of March 4, 1966, that claim was stated concisely by Leonard C. Meeker, legal adviser to the State Department:

Under the Constitution, the President, in addition to being Chief Executive, is Commander in Chief of the Army and Navy. He holds the prime responsibility for the conduct of United States foreign relations. These duties carry very broad powers, including the power to deploy American forces abroad and commit them to military operations when the President deems such action necessary to maintain the security and defense of the United States.

To prove his point, the legal adviser appealed to precedents back to the earliest days of the Republic:

Since the Constitution was adopted there have been at least 125 instances in which the President has ordered the armed forces to take action or maintain positions abroad without obtaining prior congressional authorization, starting with

*Author of Tonkin Gulf, contributed an analysis of the Pentagon Papers to The New Republic of Aug. 7 and 14.

the "undeclared war" with France (1798-1800). For example, President Truman ordered 250,000 troops to Korea during the Korean war of the early 1950s. President Eisenhower dispatched 14,000 troops to Lebanon in 1958.

The present Secretary of State, Mr. Rogers, adds that the "constitutional process so wisely conceived by the Founding Fathers has worked. well throughout our history." The secretary met with the Foreign Relations Committee to testify against war powers legislation; he preferred to delay any new arrangements until "after the passions of Vietnam have faded into the past. . . ." He reminded Senators that the judicial system does not like to entertain a challenge to the President's ability to make war. Indeed, the Supreme Court has refused to do so, in the case of Indochina, even when prodded by the Massachusetts legislature.

"America is in the midst of a grave constitutional crisis," the committee was warned by Alpheus T. Mason, an eminent authority on constitutional law. Mason favored trying to rein in the Chief Executive. Another scholar on that side of the fence was Henry Steele Commager, the distinguished professor of American history. In the 1950's Professor Commager defended President Truman's war as sanctioned by law and history. He now feels that the abuse of Executive power subverts political institutions at home and threatens the peace abroad. "We find ourselves turning into a military society," Commager told the committee. However, the legal scholar John Norton Moore argued that the proposed restrictions were of doubtful constitutionality.

According to Secretary Rogers, the "electorate is the ultimate restraint." The individual citizen might be able to decide the issue at the ballot box, if he ever gets a clear choice. But what kind of guidance will the citizen receive? The Nation's political leaders are divided, and so is the academic community. For at least 20 years the doctrine of the President's inherent warmaking power has been supported by many scholars specializing in constitutional law, American history, international relations, and political science. This has been the sophisticated, modern view, reflecting a deeply held belief that the President needed extraordinary powers on the international scene and should have them. Because of the war in Indochina and its attendant domestic evils, however, some of our political and intellectual leaders are beginning to reexamine their position. It is my contention that the executive branch's appeal to historical precedent is not so valid as it has seemed.

When the Secretary of State appealed to the memory of the Founding Fathers, he raised a question that scholars testifying in favor of legislation were eager to deal with: What did the writers of the Constitution mean to do when they designated the President Commander in Chief but gave Congress the power to declare war? An abundance of 18th century documents, including the Federalist and James Madison's Journal of the Constitutional Convention, reflect the Founding Fathers' abhorrence of giving the war power to any individual person. One of the most oppressive of kingly customs had been the arbitrary, even frivolous, use of armed force, followed by the demand that everybody support the conflict as his patriotic duty. Power itself was a corrupting influence, the Founding Fathers agreed. They decided that one way to prevent harm would be to separate powers. Thus the Government was established in three branches: legislative, executive, and judicial. The Executive, true to the spirit of his office, was to

be Commander in Chief of the Armed Forces; but he was not to initiate war. That was to be the prerogative of the legislative branch, which, hopefully, might debate the matter until the source of conflict would fade away. Quite seriously, in part the arrangement was intended to "clog" the process of going to war.

According to Madison's Journal, delegates to the Constitutional Convention discussed giving Congress the power to "make" war, but finally settled on the term "declare" war. That left the President power to repel sudden attack. It was assumed that, as soon as possible, the President would obtain congressional authorization for further hostilities, if such were needed.

Now what about the problem of undeclared war? That came up during the administration of the second President, John Adams. France, because of a grudge against the United States, set privateers to raiding American commerce on the oceans; and so in 1798-contrary to what Leonard Meeker said in his memorandum-the Congress authorized President Adams to protect American shipping. The Navy Department was founded at the same time. It is true that no formal war was declared. Deliberately, conflict was limited to naval hostilities, and it became known as the Quasi-War. A peace treaty was signed in 1800. In the same year, by the way, the Supreme Court held that a state of war could exist in the absence of its declaration. Justice Samuel Chase used the term "limited war." He said, "Congress is empowered to declare a general war, or Congress may wage a limited war: limited in place, in objects, and in time." In short, there is nothing new about undeclared wars or limited wars, except the President's claim to authority for initiating them.

But what about the many other armed actions that are said to have been ordered by the President? An extremely important element in the war power controversy is a series of studies that show American Presidents making use of armed force on as many as 197 occasions. It will be recalled that Leonard Meeker told of 125 instances in which Presidents used armed force without obtaining prior congressional authorization. We already have dealt with one of Meeker's precedents, the Quasi-War. In a recent television debate, law professor Eugene Rostow, brother of economist Walt, told of 150 uses of armed force; and he declared that the warmaking relationship between the President and the Congress had remained "constant" since 1789. Professor

Commager, though he was testifying in favor of restrictive legislation, mentioned to the Foreign Relations Committee "100 to 110" uses of military power to "intervene outside the United States."

In examining various claims, I notice that there have been two principal sources of information: the State Department and, oddly enough, the World Peace Foundation.

In 1912, the days of rampant gunboat diplomacy, the State Department's legal office began publishing a series of memorandums titled "Right To Protect Citizens in Foreign Countries by Landing Forces." From the beginning these publications listed many instances of the President's making use of armed force. Apparently the chief purpose of the memorandums was to justify the American position internationally; they are touchy about accusations of intervening in local political affairs. However, the State Department also gave consideration to domestic law. Its lawyers decided that the President

was acting within his rights, and that Congress had only "doubtful” authority to control such uses of armed force since they did not amount to "acts of war." In 1941 somebody culled from the most recent memorandum 85 uses of armed force for "protection purposes,' and certain proadministration Senators found the list helpful in justifying short-of-war measures to aid Britain: principally lend-lease and the dispatch of American troops to Iceland. Of course, the American citizens to be protected in Iceland were our own troops. Not only the logic of the argument but its scholarship was nothing to boast of. The initial use of armed force was given as President James Monroe's expelling of pirates from Spanish Florida in 1812, although James Madison was President in 1812 and the Florida expedition of that year did not have as its objective the expelling of pirates. (The seed of this confusion can be found in the 1912 study.)

The World Peace Foundation made its historiographic contribution in 1945. At that time some advocates of establishing world peace were anxious about whether the United States could participate in United Nations peacekeeping actions without having to refer every decision to Congress for a declaration of war. A legal scholar and former Assistant Secretary of State, James Grafton Rogers, set these fears to rest. Rogers looked into the State Department's files and some standard academic histories, and came up with 149 "Military Operations of the United States Abroad." only 5 of the 149, said Rogers, represented "fully declared" wars. The World Peace Foundation published the Rogers study in a book titled "World Policing and the Constitution." Upon scrutiny, most of the military operations cited by James Grafton Rogers and the State Department are seen to have been minor peacekeeping jobs in primitive and war-torn areas. But some of the operations were formidable. In 1933 more than 3,000 armed Americans were stationed in China, under the sanction of treaties dating back to 1858. Still other uses of armed force could be described as inconsequential and even fatuous. James Grafton Rogers lists, for example, the 1842 landing in Mexico of Commodore T. A. C. Jones, who mistakenly thought war had come. The commodore "discovered peace, withdrew, and saluted." In 1870, according to Rogers, the U.S. Navy forced the U.S. consulate in Honolulu to lower its flag to half-staff in recognition of a royal death.

James Grafton Rogers' book was one of seminal significance. Prof. Edward S. Corwin, a well-known authority on constitutional_law, found it useful in defending the constitutionality of the Atlantic Pact, which committed the United States to the defense of Western Europe. In an article for the New York Times magazine of July 31, 1949, Professor Corwin referred to the James Grafton Rogers list of armed actions and said of it:

While inviting some pruning, the list demonstrates beyond peradventure the power of the President, as Chief Executive and Commander in Chief, to judge whether a situation requires the use of available forces to support American rights abroad and take action in accordance with that decision.

A year later President Truman took action in Korea, a nation with which we had no defense treaty, and the State Department Bulletin published an article in support of the President's legal position. The article quoted from James Grafton Rogers and other authorities. It also enumerated 85 previous "landings of American forces." This list had been taken from the Congressional Record of 1941; it omitted

Iceland and again told of President Monroe expelling freebooters in 1812. The Bulletin article justified the Korean intervention by saying that the United States "throughout its history" had "without congressional authorization, acted to prevent violent and unlawful acts in other states from depriving the United States and its nationals of the benefits of peace and security." The State Department now was justifying the legality of a full-scale war, and it was appealing to precedents which, according to its previous argument, did not amount to "acts of war." Perhaps the ordinary citizen can be forgiven for seeing that as a contradiction. (It could be argued that in 1950 neither the President nor the State Department used the term "war." The Korean intervention was called the Korean case, the Korean police action, and the Korean conflict. However, it was a war, as the State Department acknowledged in Meeker's 1966 memorandum.)

Both Professor Corwin's article and the State Department list published in 1950 carried a great deal of weight. A few years ago they still were being cited to me by students of political science as proof that President Johnson did not need any congressional resolution to fight in Indochina. Any writer who said otherwise, I heard, would "just get torn to pieces." Ruhl J. Bartlett, professor of history and political science at the Fletcher School of Law and Diplomacy, shared my impression that the historians were somewhat less convinced than the political scientists. Bartlett himself favored the legislative prerogative. As the Indochina war became the source of increasing anxiety, the State Department in 1967 bolstered the legal position of President Johnson by preparing a new, Texas-sized list of military precedents. The expanded study told of 137 "Armed Actions Taken by the United States Without a Declaration of War, 1789-1967." It plucked from James Grafton Rogers the abortive landing of Commodore Jones in Mexico, but carefully pruned out the Navy's lowering of the American flag in Hawaii. The new list was prepared not by the State Department's Legal Office but its Historical Studies Division. The document admitted that Presidents "occasionally" had sought congressional authorization for the use of armed force and that was an improvement; but it still exaggerated the degree of initiative exercised by the Presidency, especially during the time the Founding Fathers served in that office. Let us take a look at the earliest military actions cited by the 1967 study.

The newest official list begins with the Quasi-War of 1789-1800. Correctly, it notes that the American naval operations were authorized by Congress.

The second precedent is the struggle with Mediterranean raiders known as the war with Tripoli (1801-05). The official list says Congress passed "enabling acts during the conflict" but never declared war. What happened was that the piratical state of Tripoli declared war on the United States in order to loot our maritime shipping; President Thomas Jefferson dispatched naval vessels to protect the ships and their crews; and the American naval vessels refrained from conducting offensive operations until permission was received from Congress. Whether war was declared is a minor point. However, in looking up the legislation, I discovered that an act of the Seventh Congress mentioned "warfare" and a "state of war." The word "declare" was not used, for what that omission might be worth.