I am deeply concerned about reports that the
President is preparing to order acts of war against the government of
Syria without congressional authorization.
The
Constitution clearly and unmistakably vests Congress with the sole
prerogative “to declare war.” The President’s authority as
Commander-in-Chief to order a military attack on a foreign government is
implicitly limited by the Constitution to repelling an attack and
explicitly limited under the War Powers Resolution to: “(1) a
declaration of war, (2) specific statutory authorization, or (3) a
national emergency created by attack upon the United States, its
territories or possessions, or its armed forces.” Unless one of these
conditions is present, the decision must be made by Congress and not by
the President.
Nor does our participation in NATO
allow the President to order an unprovoked act of war. The North
Atlantic Treaty clearly requires troops under NATO command to be
deployed in accordance with their country’s constitutional provisions.
The War Powers Resolution clearly states that the President’s power to
engage United States Armed Forces in hostilities “shall not be inferred
…from any treaty heretofore or hereafter ratified unless such treaty is
implemented by legislation specifically authorizing the introduction of
United States Armed Forces into hostilities…”
Nor
does the United Nations Participation Act of 1945 authorize the
President to commit U.S. Armed Forces to combat in pursuit of United
Nations directives without congressional approval.
The
authors of the Constitution were explicit on this point. Madison said,
“In no part of the Constitution is more wisdom to be found, than in the
clause which confides the question of war or peace to the legislature,
and not to the executive department… …Those who are to conduct a war
cannot in the nature of things, be proper or safe judges whether a war
ought to be commenced, continued, or concluded.”
In
Federalist 69, Alexander Hamilton drew a sharp distinction between the
American President’s authority as Commander in Chief, which he said
“would amount to nothing more than the supreme command and direction of
the military and naval forces” and that of the British king who could
actually declare war.
Indeed, it is reported that
the British Prime Minister has called Parliament into special session
to consider the question. How ironic it would be if the British
government were to act with the authorization of Parliament but the
American government acted on the unilateral decision of one man.
War
is not a one-sided act that can be turned on and off with Congressional
funding. Once any nation commits an act of war against another, from
that moment it is at war -- inextricably embroiled and entangled with an
aggrieved and belligerent government and its allies that have casus
belli to prosecute hostilities regardless of what Congress then decides.
If
there are facts that compel us to take such a course, let those facts
be laid before Congress and let Congress fulfill its rightful
constitutional role on the most momentous decision any government can
make.