CHAPTER 1 HISTORY OF WAR POWERS: USE AND MISUSE 1.1: INTRODUCTION In a previous paper written for Professor Geoffrey Hazard (“Much Yoo About Nothing”), I discussed legal heavyweight John Yoo and how the U.S. justifies the “war- like” actions of its Government. I argued that the Bush Administration will be remembered not only for its blunder of invading Iraq and failure to find Weapons of Mass Destruction, but also for its redefinition of the declaration of war1 and “torture.”2 I explored how the language used to describe war-making and military activities has been manipulated and reinterpreted to the point where it permits the illegal declaration of war. This chapter seeks to answer what are the limits to the president’s power to commit U.S. military forces to foreign conflicts and whether Congress has the ability to curtail the exercise of that executive power? As part of 1 Draft Memorandum from John Yoo, Deputy Assistant Att'y Gen., Office of Legal Counsel, and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, to William J. Haynes II, Gen. Counsel, U.S. Dep't of Def. (Jan. 9, 2002), in The Torture Papers, (regarding the "Application of Treaties and Laws to al Qaeda and Taliban Detainees"). See also John Yoo, War by Other Means: An Insider's Account of the War on Terror 118-21 (2006); see also Stephen Holmes, John Yoo's Tortured Logic, Nation, May 1, 2006, at 31, 38 (book review) ("By claiming that the Framers themselves would have been perfectly happy with unchecked presidential power, [they] encourage people to believe in the deep fidelity of a constitutionally unleashed President to an ideal America that was always meant to be."). 2 John Yoo states: "[A] declaration of war served the purpose of notifying the enemy, allies, neutrals, and one's own citizens of a change in the state of relations between one nation and another. In none of these situations did a declaration of war serve as a vehicle for domestically deciding on or authorizing a war." See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 196- 241 (1996). Yoo also claims "[T]he Declare War Clause gives Congress the power to 'declare' whether ... a certain state of affairs legally constitutes a war, which then gives it the authority to enact wartime regulations of individual persons and property both within and outside the United States." See John C. Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, at 332 (2005). 1 the checks and balances the U.S. established during the birth of the nation, the framers of the Constitution set aside specific military-related responsibilities for the executive and legislative branches in order to force them to share the power to wage war. Throughout history, several key events have revealed where and with whom these imbalances lie. During the Cold War and the Korean War, Harry S. Truman began a presidential trend to exercise executive power to conduct military operations without seeking the authorization of Congress. Wars of this century are unlike any of the wars during the time of the Framers. The threat of communism changed the way Americans thought about combat, followed by the more recent dramatic changes of 9/11, asymmetric warfare, terrorism, and nuclear weapons. Thus, we should find that contemporary conflicts have changed the way the U.S. perceives its enemies, as well as the system of checks and balances that regulate the way those enemies are fought. The first section of this chapter will discuss the early treatment of the issue of war powers as viewed by the Founding Fathers, followed by a section on how the presidents and Congress exercised war powers during the Korean, Vietnam, and Iraq wars, as well as the more recent intervention in Libya. This discussion will examine the legal justifications offered for presidential action during conflict and how presidential and congressional behavior has evolved as a result of legal and historical precedent. This chapter will examine four significant historical examples where presidents have used executive power to deploy U.S. military forces overseas without seeking prior approval of Congress. Through the presidential actions and congressional responses to Korea, Vietnam, Iraq, and Libya, we can examine the ways in which presidents have circumvented the congressional authority to declare war. By beginning with a comparison with the early history of the country and the Founding Fathers, we can follow the evolution of the use of those powers. And by looking to examples of the ways in which Congress has used its own power to deflect presidential power, we can see the effectiveness of the checks and balances as they currently exist. Finally, this chapter will discuss what constitutional and legal precedents presidents have used to justify the exercise of their power, as well as the congressional rights and responsibilities to declare war and regulate combat activities. 2 1.2: EARLY HISTORY OF THE USE OF WAR POWERS In the discussion of the early history of war powers, I will do my best to avoid “law office history”3 in which quotations are “torn out of context and inserted where they appear useful to a legal argument”4 or relying on “a few selective quotes from famous Framers at the Philadelphia Convention.”5 For some time before the Constitution was drafted and the U.S. won its independence, Americans understood that commencing war was for all intents and purposes, “declaring” war. In 1756, after King George II had already formally declared war on the French, he sent Major George Washington to carry out the attack. At that time, George Washington was concerned with how exactly the declaration of war was to be carried out.6 The message he received from the Virginia Lieutenant Governor, Robert Dinwiddie (a servant of the Crown), was essentially that if Washington commenced warfare, he would be “declaring” war.7 There are several other instances in the early history of the United States where claims were made that the “invasion of property, among all Nations, is...a declaration of war”8 or “cutting off the head is looked upon by those who are acquainted with the customs of Indians as a declaration of war.”9 The first Commanders in Chief of the United States were fully aware of the fact that the Constitution did not 3 John Yoo, “Clio at War: The Misuse of History in the War Powers Debate.” 70 U. COLO. L. REV. 1169, 1174 (1999). 4Id. 5Id. 6Letter from George Washington to Robert Dinwiddie (Aug. 14, 1756), American Memory from the Library of Congress. http://rs6.loc.gov/ammem/gwhtml/gwseries2.html (select Letter Book 3 for copy of letter). 7 Letter from Robert Dinwiddie to George Washington (Aug. 21, 1756), American Memory from the Library of Congress. http://www.loc.gov/fedsearch/metasearch/?cclquery=Robert+Dinwid die#query=(Robert%20Dinwiddie)&filter=pz:id=lcweb|ammem|catalog |ppoc|thomas 8Junius Americanus (pseudonym), Address to General Gage (May 29, 1775), American Archives, Documents of the American Revolution. http://colet.uchicago.edu/cgibin/amarch/getdoc.pl?/projects/art flb/databases/efts/AmArch/IMAGE/.3187 9George H. Bray III, Scalping During the French and Indian War, Archiving Early America. http://www.earlyamerica.com/review/1998/scalping.html 3 permit them to wage war unilaterally.10 Some of these first leaders went so far as to believe that even when another nation had declared war upon the United States, that even then the Presidents believed they needed Congressional approval. First U.S. President, George Washington, faced two such offensives from Indian nations, and he firmly held that Congress had to authorize offensive actions against these nations: "The constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken” against the “refractory part of the Creek nation . until after [Congress] shall have deliberated upon the subject, and authorized such a measure,” he observed.11 George Washington was very clear in his deference to Congress on the issue of war powers. George Washington's War Secretary Henry Knox wrote to the President that “[a]ll measures of an offensive nature (against the Cherokee tribes) be restrained until the meeting of Congress, to whom belong the powers of war.”12 Knox claimed that Secretary of State, Thomas Jefferson and Treasury Secretary, Alexander Hamilton, unanimously agreed,13 but Knox may have been overstating the views of Washington's cabinet.14 10Yoo's classification as a “textualist” is said to be inspired by Justice Scalia's views on statutory and constitutional interpretation. See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, is A Matter of Interpretation: Federal Courts and the Law 3, 22-23 (Amy Gutmann ed., 1997) ("The text is the law, and it is the text that must be observed. I agree with Justice Holmes[] ...: 'We do not inquire what the legislature meant; we ask only what the statute means."'). 11Letter from George Washington to William Moultrie (Aug. 28, 1793), in The Writings of George Washington 366, 367 (Jared Sparks ed., Boston, Little, Brown, & Co. 1855), available at http://rs6.loc.gov/cgibin/query/r?ammem/mgw:@field(DOCID+@lit(g w330067)) 12Letter from Henry Knox to George Washington (Oct. 9, 1792), in The Papers of George Washington: Presidential Series, Presidential Series 212 (Mark A. Mastromarino ed., 1996). 13 Id. 14See Lucius Crassus. Not all