Who gets to decide when and where the United States uses its Warpower?
The man or woman who goes to Washington from your district or state.
The Senators and the House Member who will be returning someday to your community,
probably in search of campaign funds, volunteers and re-election from you.
Not the President sitting in splendid isolation in the White House.
The decision to put the entire country at risk of war should be made by the People, through their elected representatives:
without a prior Declaration from Congress.
For the past 60 years, the United States has been taken to war by the President. The legal formula to evade the Constitution is called an "Authorization to Use Military Force" (AUMF). The Congress passes a statute seeming to give authority to the President to make the decision, as he determines.
Two former Secretaries of State, under both a Republican and a Democratic President, have co-chaired a committee to give the executive even more power to uniliaterally utilize the military, without input from Congress or ratification by the People, see Baker-Christopher Proposal of 2008 Violates the Constitutional Requirement that Congress Declare War.
Since June 1, 1787, it has been part of the foundation of democracy in the United States of America that Congress, at least partially beholding to the voters, not have the Constitutional power to give the President authority to make the determination to take the nation to war.* Letting the President order our military into action against a country that has not attacked us first is contrary to the text of the Constitution, the intent behind those words as expressed in the Records of the Constitutional Convention, early practice under the Constitution, and common sense. The President and the President's lawyers should know that. Perhaps, since Presidents have enjoyed taking and using the power of the AUMF for sixty years, it would help them to be reminded about what the Constitution says and means.
What made sense from 1774 to 1787 makes sense today. People have not changed much since the time of Thomas Paine and geo-politics has not changed much (for example, the US was filled by terror and surrounded by enemy armies in the founding-era).
What has changed since the 18th century is the rapidity of destruction through modern technology, which makes it even more important to rein in the dog of war pending deliberation and achievement of consensus among our elected representatives.
The decision to go to war can still have such devastating effects that it should be made by all of the nation's elected representatives. Recently, a lawsuit was appealed all the way to the Supreme Court. A soldier who fought in and survived the initial invasion of Baghdad, two mothers of grown sons who are soldiers, and an established peace organization which usually works for nuclear disarmament, sued the President of the United States of America for - without a prior Declaration of War from Congress - using the position of Commander-in-Chief to order the military into action against Iraq, a country that did not attack us first. The relief requested by Plaintiffs was simply for the Court to explain to the President "what the law is" in Art. I, Sect. 8, Cl. 11 of the Constitution. (Marshall)
Soldiers, mothers and other relatives of soldiers, people with medical training or experience, voters and organizations that represent them should be aware of this lawsuit, when another President tries to unilaterally (without Congress) make the decision to embroil the whole nation in war.
When that happens - when a President orders the military into action without a prior Declaration from Congress directing the President to use the nation's resources for war against a particular enemy - there may be those who question the patriotism of those who question authority. Take courage from the Secretary of Defense who, in the midst of two wars, told West Point graduates that "The hardest thing you may ever be called upon to do is stand alone among your peers and superior officers." (The Wall Street Journal, May 23, 2009, http://online.wsj.com/article/SB124309348312949927.html, last visited March 31, 2011 / cached).
Details, including all of the documents that have been filed in the District Court, the 3rd Circuit Court of Appeals, and the Supreme Court plus insights about the way the case looked to this reporter at various points in time, are available on this website at www.warpower.us/casedocs.htm
* The Constitution is not a suicide pact. It does give the President power to repel sudden attacks, put down insurrections, thwart invasions, enforce Federal law, and quell domestic violence.
Marshall: In Marbury v. Madison, 5 U.S. 137, 176-178 (1803) Chief Justice John Marshall wrote:
“Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void….
“This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of ….
“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."
© 2008, 2009, 2010, 2011 Steven M. Blumrosen