A War Powers Quandary

Under the Constitution, the state of war carries enormous significance. It allows a president to do things that he could not do in peacetime. The Supreme Court has allowed even the internment of Japanese Americans in World War II under the constitutional wartime powers of a president.

It is this state of war that is being used now to justify such extreme measures as the new military tribunal. In a time of war, the executive branch assumes a dominant role among the branches. This expansion of executive authority is tolerated because it is viewed as temporary and necessary.

But what if the powers are temporary but the war is permanent?

As the administration moves to the next phase of this “war,” it is becoming clear that we are dealing with a curious constitutional animal: a war that has no finite enemy or obvious point of conclusion.

Because of the ambiguous wording of the war powers resolution by Congress, we have an almost Zen-like question of constitutional law: If a war is undeclared and the enemy is undefined, how will we know that we have won and the war is over?

As President Bush recently stated, Afghanistan is merely “the first theater of this long war.”

No one should seriously question our course of action, but we need to agree on the basis for those actions.

Yet, as the B-52 vapor trails fade over Afghanistan, it may be time to clarify the constitutional status of this war.

If we are at war with terrorism in a constitutional sense, the president’s status as a wartime commander in chief would become an almost permanent condition, a situation not anticipated by the framers.

The Constitution requires Congress to declare a war and, in the process, to define both our enemies and our objectives in taking up arms. It is with this exclusive authority that Congress moves a nation from a state of peace to a state of war.

Conversely, once declared, a president has sole authority to determine when the state of war ends and peace begins.

This point is usually easy to discern. Most wars have ended with a formal surrender, and often the Senate must vote on a treaty that is part of the war’s terms of conclusion.

In a war against terrorism, there is unlikely to be a point when the administration will feel comfortable declaring final victory over terrorism. No president will counsel that we can return to our “peacetime” status because of some lull in attacks or decisive body count of terrorist leaders.

None of this is to suggest that we end or even diminish our efforts. To the contrary, it is not our course of action but the foundation for those actions that should be better defined.

Under the Constitution, the state of war is not defined by the means used by a president or the threat faced by the nation. Indeed, a president has the inherent authority to kill terrorists, destroy training camps and even commit troops to battle without initial authorization or formal declaration from Congress.

Moreover, the steps that the administration is taking in this new phase are identical in kind to those actions by previous administrations in peacetime--albeit with less resolve than Bush.

Previous presidents have ordered the assassination of terrorists, the kidnapping of criminal defendants and the bombing of military and terrorist bases.

It is dangerous to treat an ambiguous resolution of Congress as the functional equivalent of a declaration of war. Such precedent would allow for tremendous abuse in future administrations, allowing a war to drift from country to country without any formal declaration.

As we saw in the Korean War and the Vietnam War, Congress often does not sweat the specifics on the basis for military actions. There is a “close enough for jazz” mentality in the drafting of resolutions for war.

While Congress will debate the language of a dairy subsidy bill for months, the basis and language used for a war often are a mere afterthought. However, it is not political consensus but constitutional clarity that is needed to bring this “war” to a just end.