[iwar] [fc:With.the.U.S..under.attack,.Bush.is.free.to.respond.]

From: Fred Cohen (fc@all.net)
Date: 2001-09-18 08:17:24


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From: Fred Cohen <fc@all.net>
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Subject: [iwar] [fc:With.the.U.S..under.attack,.Bush.is.free.to.respond.]
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Weekly Standard
September 24, 2001
All The Power He Needs
With the U.S. under attack, Bush is free to respond.
By Terry Eastland
Has anyone noticed that we are not having a discussion about war powers? No
one is talking much about the War Powers Resolution, nor is anyone proposing
that President Bush may not initiate military action unless Congress
formally declares war. The almost complete silence on these matters
constitutes recognition that it was for such a time as this - when the
nation is under attack - that the Framers created the presidency. And it is
at this time that George W. Bush must become what he doubtless never
expected to be - a war president.
Passed in 1973 over President Nixon's veto, the War Powers Resolution marked
an attempt on the part of a Democratic Congress to control presidential
warmaking in the wake of the Vietnam war. Under the resolution, the
president may not introduce the military into hostile situations without (1)
a declaration of war, (2) specific statutory authorization, or (3) an attack
upon the United States or its armed forces.
Since Tuesday, of course, we have been in category (3), with the "acts of
war," as Bush called the attacks that day, occuring on our property and
being directed against our people and our military. (Note that American
Airlines flight 77 was steered into the Pentagon, not the Education
Department.) The fact that we are in category (3) explains why there is so
little talk about the War Powers Resolution.
The framers of the resolution included the "attack" exception to its
application because otherwise it would have been unconstitutional on its
face. Under the Constitution, the executive power includes the authority to
defend the nation. This was the understanding well expressed by a Framer
writing under the pseudonym "Marcus." Marcus was James Iredell, a future
Supreme Court justice, and he stated the common understanding in the form of
a question: "What sort of a government must that be, which, upon the most
certain intelligence that hostilities were meditated against it, could take
no method for its defense till after a formal declaration of war, or the
enemy's standard was actually upon the shore?"
That the "government," which is to say the president, has the inherent
authority to make war in the most compelling circumstance imaginable - when
the nation is about to be attacked or, as now, is under attack - has been
accepted ever since. Not even the framers of the War Powers Resolution dared
reject it.
The power to declare war is, of course, a legislative power, explicitly
provided for in Article I, Section 8 of the Constitution. Congress has
declared war five times: in 1812 (the War of 1812); 1846 (the
Mexican-American War); 1898 (the Spanish-American War); 1917 (World War I);
and 1941 (World War II). Since Tuesday there have been numerous calls for
Congress to declare war. But whatever the merits of doing that might be, no
one has said that the president may not make war against those responsible
for the "acts of war" unless Congress declares war. And the reason no one
has said that is the same reason the War Powers Resolution is not a major
topic: The executive power encompasses the authority to command the military
in the nation's defense. No statute - neither one declaring war nor one
merely "authorizing" the use of force - is needed to provide power the
president already has.
As it happened, on Friday by a vote of 98 to 0 the Senate did pass a
resolution authorizing the use of force against terrorists and the nations
that harbor them. The House was expected to follow suit over the weekend.
The president had asked for the resolution, but in doing so he made clear
that under the Constitution he already had sufficient authority to go to
war. The point of seeking the resolution was not legal but political - to
show the world that the American government is united in its resolve.
The burden of conducting the war is Bush's, and the interest all Americans
have in seeing him do well stems not from a desire to secure oil supplies,
engage in nation-building, or enforce international peace - to mention some
recent war goals - but to counter an evil that threatens us all. Indeed,
that mythical state of nature in which individual rights are insecure is no
longer so mythical: Any of us could have been among the thousands who were
murdered, and any of us might still be among those targeted the next time.
Years from now, the only question that will matter about Bush is how well he
performed as the war president that the events of September 11, 2001, so
plainly demanded.

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