War Powers in the Age of Terror

Andrew Bacevich has an interesting op-ed in today’s NYT arguing that recent events demonstrate that Congress needs to take back more control of the war power.

War Powers in the Age of Terror

WHEN senators this month asked Secretary of State Condoleezza Rice about possible military action against Syria or Iran, she recited the administration’s standard response: all options remain “on the table.” Pressed on whether any such action might require congressional authorization, Ms. Rice demurred. “I don’t want to try and circumscribe presidential war powers,” she said, adding that “the president retains those powers in the war on terrorism and in the war in Iraq.”

Although Ms. Rice’s evasion exhausted the committee’s attention span, the war powers issue cries out for attention. In a post-9/11 world, what limits – if any – exist on the president’s authority to use force?

The Constitution addresses the matter with apparent clarity. Article I, Section 8 assigns to Congress the authority “to declare war.” After 1945, however, the perceived imperatives of waging the cold war all but nullified this provision. When it came to using force, presidents exercised wide discretion, ordering American troops into action and notifying Congress after the fact. The legislative branch no longer “declared” war; at most, it issued blank checks that the White House cashed at its convenience. Occasional efforts to constrain presidential freedom of action, like the Vietnam-inspired War Powers Resolution of 1973, accomplished little.

After 9/11, the Bush administration wasted little time in expanding executive prerogatives even further. Acting in his capacity as commander in chief, President Bush committed the nation to open-ended war on a global scale. Concluding that eradicating terrorism meant going permanently on the offensive, he promulgated a doctrine of preventive war. Finding that Saddam Hussein posed a clear and present danger, he moved to put this Bush Doctrine into effect in Iraq.


In the interests of national security, earlier generations endowed whoever happened to occupy the Oval Office with the authority to unleash Armageddon. The perceived urgency of the Soviet threat took precedence over constitutional scruples. Deterring yesterday’s enemy meant being able to wage war in an instant, with one man issuing the orders.

But defeating today’s jihadists, who are unlikely to be impressed by the prospect of incineration, requires a different strategy. Victory will come when we have deprived violent radical Islam of its claim to legitimacy. Incorporating military power into that effort will require prudence – we have seen the consequences that rashness can produce. Hardly less important, sustaining military commitments once undertaken will demand a national consensus, which existed after 9/11 but which the present administration has since squandered.

In the interests of national security today, we should curb presidential war-making powers. A hitherto compliant Congress must reclaim the institutional authority conferred upon it by the Constitution. When it comes to wars, the first responsibility of the legislative branch is not to support the commander in chief. It is to exercise independent judgment, an obligation that transcends party. Members of Congress who lack the wit or the moral courage to fulfill this obligation ought to be held accountable by voters.

While I have some quibbles with Bacevich–notably the fact that Congress acted affirmatively in giving President Bush near carte blanche to prosecute the global war on terror and then again for military action in Iraq–I agree that the automatic deference to the executive branch in general and the president in particular is problematic. In repelling a foreign invasion or taking immediate, decisive action in a crisis, we can not afford the time it takes for a legislative body to act. In dealing with quasi-permanent problems like Islamist terrorism, the legislature should indeed be involved.

Interestingly, although likely coincidentally, the NYT has a page 1 story that buttresses the need for checks and balances in warfighting:

Doubts Cast On Vietnam Incident, But Secret Study Stays Classified

The National Security Agency has kept secret since 2001 a finding by an agency historian that during the Tonkin Gulf episode, which helped precipitate the Vietnam War, N.S.A. officers deliberately distorted critical intelligence to cover up their mistakes, two people familiar with the historian’s work say.

The historian’s conclusion is the first serious accusation that communications intercepted by the N.S.A., the secretive eavesdropping and code-breaking agency, were falsified so that they made it look as if North Vietnam had attacked American destroyers on Aug. 4, 1964, two days after a previous clash. President Lyndon B. Johnson cited the supposed attack to persuade Congress to authorize broad military action in Vietnam, but most historians have concluded in recent years that there was no second attack.

The N.S.A. historian, Robert J. Hanyok, found a pattern of translation mistakes that went uncorrected, altered intercept times and selective citation of intelligence that persuaded him that midlevel agency officers had deliberately skewed the evidence. Mr. Hanyok concluded that they had done it not out of any political motive but to cover up earlier errors, and that top N.S.A. and defense officials and Johnson neither knew about nor condoned the deception.

Mr. Hanyok’s findings were published nearly five years ago in a classified in-house journal, and starting in 2002 he and other government historians argued that it should be made public. But their effort was rebuffed by higher-level agency policymakers, who by the next year were fearful that it might prompt uncomfortable comparisons with the flawed intelligence used to justify the war in Iraq, according to an intelligence official familiar with some internal discussions of the matter.


Both men said Mr. Hanyok believed the initial misinterpretation of North Vietnamese intercepts was probably an honest mistake. But after months of detective work in N.S.A.’s archives, he concluded that midlevel agency officials discovered the error almost immediately but covered it up and doctored documents so that they appeared to provide evidence of an attack. “Rather than come clean about their mistake, they helped launch the United States into a bloody war that would last for 10 years,” Mr. Aid said.

It seems that, regardless of era or party, total power over the national security apparatus is too much to entrust to any branch of government. In most cases, this is not out of any corruption or malice but simply fervent belief in a public policy direction that the administration thinks best for the nation.

FILED UNDER: Congress, National Security, Political Theory, Terrorism, US Constitution, , , , , , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Herb Ely says:

    The administration’s national security strategy includes the possibility of preemptive attack on terrorists. This attack could include nuclear weapons. This strategy raises questions about the just war criteria of last resort and legitimate authority. It also raises constitutional questions. Back on Oct. 7, I was pushing for the senate to ask Harriet Miersabout this. She might not have answered given that she was involved in the run-up to Operation Iraqi freedom. They should be addressed to Judge Alito.

  2. Anderson says:

    Too thoughtful for me to have noticed earlier, JJ. Good post that deserves attention.

    Especially since these are not dry dusty theories we’re hearing about. See this about Cheney’s new Scooter surrogate, David Addington:

    Even in a White House known for its dedication to conservative philosophy, Addington is known as an ideologue, an adherent of an obscure philosophy called the unitary executive theory that favors an extraordinarily powerful president.

    The unitary executive notion can be found in the torture memo. “In light of the president’s complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the president’s ultimate authority in these areas,” the memo said. Prohibitions on torture “must be construed as inapplicable to interrogations undertaken pursuant to his commander-in-chief authority. . . . Congress may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” The same would go for “federal officials acting pursuant to the president’s constitutional authority.”

    “The Framers understood the [commander in chief] clause as investing the president with the fullest range of power,” the memo said, including “the conduct of warfare and the defense of the nation unless expressly assigned in the Constitution to Congress.” That “sweeping grant” of power, it continued, is given because “national security decisions require the unity in purpose and energy in action that characterize the presidency rather than Congress.”

    I believe that such a theory is what led the Romans to elect those officials known as “dictators.”

  3. odograph says:

    I agree.

    In most cases, this is not out of any corruption or malice but simply fervent belief in a public policy direction that the administration thinks best for the nation.

    Actually this just makes it more dangerous.

    The most obvious factor is that when a “few” stack the deck for war, the decisionmaking gets reduced from the broad and informed (congressional) body it might have been, to those convinced few.

    Worse, the believers don’t have to make a reasonable case, they only need make an unreasonable one.

    Finally, there is a bit of an unfortunate selection factor … when you get a war from the kind of people who will basically lie, you basically get a liar’s war.