Wartime Powers Without a War

The main argument the Bush administration is using for its creation of military tribunals, its secret detentions and its other draconian crackdowns since Sept. 11 is that the United States is at war. Sure--except that we’re not.

Our soldiers are fighting overseas. We feel as though we’re at war at home. But we’re not at war under the U.S. Constitution because Congress hasn’t declared war.

And without a congressional declaration of war, the military tribunals and the other extraordinary measures the Bush administration has adopted by executive order cannot be justified.

Earlier this year, when Atty. Gen. John Ashcroft decided that the 2nd Amendment protects private gun ownership, he proclaimed his belief in strict construction of the Constitution and an examination of the “original intent” of the framers who drafted it.

Maybe Ashcroft should read again what the Constitution says about war: “The Congress shall have power ... to declare war ... and make rules concerning captures on land and water.”

Ashcroft, it appears, talks about “strict construction” and “original intent” only when it suits him.

Of course, Congress hasn’t formally declared war against anyone since World War II. Since that time, the United States has engaged in military conflicts in Korea, Vietnam, the Persian Gulf and elsewhere. Let’s say for the sake of argument that it may be too late to insist the president needs a formal declaration of war before he sends U.S troops into combat overseas. Yet none of the so-called “police actions” since World War II has been accompanied by the sort of measures we are now witnessing.

The one modern example the administration has repeatedly pointed to as justification for its actions was President Roosevelt’s creation of special military courts to try Nazi saboteurs in the United States during World War II. In that case, however, Roosevelt was acting with the benefit of a formal congressional declaration of war.

The Bush administration seems to realize the questionable nature of the way it uses war as the rationale for its executive actions. That’s why its public statements are worded in such curious ways. “We’re at war. The enemy has declared war on us,” President Bush said last week.

In other words, he seemed to be saying, maybe we don’t have to declare war, if someone else does.

Why not ask Congress for a declaration of war?

The argument is sometimes made that it’s not clear what entity we should declare war against. Still, Congress could simply declare that a state of war exists, or it could declare war against the Al Qaeda network. The Constitution doesn’t specify that a declaration of war must be against a country. Or Congress could declare war against the Taliban regime for sheltering Al Qaeda.

At the least, a formal congressional declaration of war would help to limit the damaging fallout at home and abroad caused by the Bush administration’s actions. From now on, whenever American diplomats complain to, say, China about secret detentions or trials, China, may answer that the U.S. has done likewise. Inside this country, whenever there is some egregious crime--a mass murder, for example--there could be public pressure to limit rights to a lawyer or to a public trial, just as the United States is doing in its anti-terrorist campaign.

We should be able to answer these claims by saying that these extraordinary infringements on individual rights cannot be justified without a formal declaration of war.

Congress is allowing the president to assume authority never envisioned in the Constitution.

The real culprits are the Republican leaders: House Speaker Dennis Hastert and Senate Minority Leader Trent Lott. They’re the ones who should be standing up for Congress and making sure it plays its proper role.

The Democrats can’t take the lead on this issue because their arguments would be dismissed as partisan.

The polls show that the public supports Bush’s actions, at least so far. But on issues like this, polls don’t mean anything.

Ordinary people don’t lose their jobs because of what they tell pollsters. Members of Congress, by contrast, can be held accountable. That’s precisely why the Constitution gave Congress the power to declare war.

If the president is going to assume extraordinary domestic powers based upon a wartime rationale, then he should ask for a declaration of war. Congress ought to insist.

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Jim Mann, a former Times columnist, is a senior writer-in-residence at the Center for Strategic and International Studies.