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The Conduct of War By: Henry Mark Holzer
FrontPageMagazine.com | Friday, February 09, 2007

Recently, President George W. Bush—constitutional Commander-in-Chief of the military forces of the United States —stated what should be obvious to anyone who has not failed Civics 101: Mr. Bush is the “decision-maker” on issues of war.  Period!

Yet the strutting, runaway Democrat-controlled Congress, especially the Senate, with more than a few opportunistic Republicans on board—lacking the courage of their partisanship to defund the war— has been trying to engineer a “non-binding resolution” that would micromanage the President’s conduct of the Iraq War by tinkering with his movement of troops.

The Democrat and fellow-traveling Republican proposals oppose the President’s deployment of the United States military.  They want an unequivocal statement of opposition to the President’s intended increase in troops or, as a “compromise,” a series of “benchmarks” or “goals” that must be met—in effect, hoops through which the Commander-in-Chief must jump through at the behest of the legislative branch.

I have recently written that “[w]hile Article I of the Constitution provides that Congress has the power to ‘declare War,’ to ‘raise and support Armies,’ and to ‘provide and maintain a Navy,’ Article II provides that the ‘executive Power shall be vested in a President of the United States,’ who ‘shall be Commander in Chief of the Army and Navy of the United States.’”


I added that “[t]he Constitution’s text is clear regarding the division of war powers: Congress can, if it wishes, declare war, and can fund or not fund, military operations.  But it is the President who commands that military. 


Just in my lifetime, it was President Franklin Delano Roosevelt as Commander-in-Chief, not some committee of Congress, who abandoned the Philippine Islands after Pearl Harbor, who declined to open the “second front” invasion of mainland Europe until he was ready, and who insisted on “unconditional surrender” of the German and Japanese armies.  As a matter of fact, President Roosevelt, on his own, created a virtually parallel (albeit infinitely smaller) army alongside the regular military forces of the United States.  It was called the Office of Strategic Services, the OSS.


President Truman dropped two atomic bombs on Japan, and stymied the Soviet Union with the Berlin Airlift (which lasted one year). He didn’t ask Congress’s permission.


President Eisenhower let it be known that unless the Chinese Communist threw in the towel, the use of nuclear weapons was on the table.  He didn’t ask Congress’s permission.


President Kennedy invaded Cuba (before he cut and run, leaving the attackers stranded on the beach).  He didn’t ask Congress’s permission.


President Johnson put troops into the Dominican Republic.  He didn’t ask Congress’s permission.


All of these actions were, or would be, military in nature, and Congress did not—indeed, dared not!!—meddle with these Commander-in-Chief decisions, nor any of the countless others these five Presidents made and implemented with raw presidential power. 

Today, however, we have a gaggle of frustrated federal legislators flailing furiously in an attempt to work their will on the Commander-in Chief, conveniently forgetting that some five years ago they themselves enacted the binding Joint Resolution “Authorization for Use of Military Force” (AUMF).

Beyond even President Bush’s power as Commander-in-Chief, the AUMF recited that its purpose was “[t]o authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States,” that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States,” and that accordingly “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.”  (Emphasis added.)

Thus did the Joint Resolution expressly delegate to the President alone the discretion to run the Iraq War.  (Not that it had to.  See “President Bush Has the Power to Attack Iran,” at http://www.henrymarkholzer.citymax.com/miscellaneous.html.)

Given the textual powers of the President under Article II, the unquestioned use of those powers by past Presidents, and the AUMF, we have every right to expect that the Supreme Court will let Mr. Bush run the Iraq War (for better or worse) the way he sees fit.

But maybe not.

The Supreme Court has already held that enemy combatants are entitled to contest their status, to sue in American courts, to due process of law, to seek habeas corpus relief anywhere in the United States, and to be tried by military commissions only if they are approved by Congress (as they now have been, in the Military Commissions Act of 2006).

These arrogant judicial incursions into the war power of the Commander-in-Chief are not  passing aberrations.  They reflect a belief by some justices of the Supreme Court that the judiciary has a policy role to play in the President’s conduct of war.  Regrettably, this belief is shared by at least a majority of the House and Senate.

Of all the justices on the Supreme Court of the United States, only Clarence Thomas fully understands that neither Congress nor the courts have an allowable constitutional role in micromanaging this or any President’s conduct of war.

In Hamdan v. Rumsfeld, the case in which other justices held illegal the President’s military commissions, Thomas wrote that the Court’s opinion “openly flouts our [the judiciary’s] well-established duty to respect the Executive’s judgment in matters of military operations and foreign affairs. The Court’s evident belief that it is qualified to pass on the ‘military necessity’ . . . of the Commander in Chief’s decision to employ a particular form of force against our enemies is so antithetical to our constitutional structure that it simply cannot go unanswered.” (Emphasis added.)

Thomas then followed with an explanation of each branch of government’s role in the “conduct of war,” and then “emphasize[d] the complete congressional sanction of the President’s exercise of his commander-in-chief authority to conduct the present war.”  Because of that, Thomas argued, the Court’s duty to “defer to the Executive’s military and foreign policy judgment is at its zenith; it does not countenance the kind of second-guessing the Court repeatedly engages in today.” Thomas reminded Justice Stevens and the other members of the Court what, in the previous term’s terrorist case, Hamdi v. Rumsfeld, Thomas had said in dissent about military and foreign policy judgments.  They

are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.

The balance of Thomas’s dissent in Hamdan was devoted to a rebuttal of each of Stevens’s points, culminating near the end with the following statement.  Although it’s lengthy, because Thomas is alone in correctly viewing the Commander-in-Chief power under Article II, his statement needs to be quoted nearly in full.

Today a plurality of this Court would hold that conspiracy to massacre innocent civilians does not violate the laws of war. This determination is unsustainable. The judgment of the political branches [Congress and the President] that Hamdan, and others like him, must be held accountable before military commissions for their involvement with and membership in an unlawful organization dedicated to inflicting massive civilian casualties is supported by virtually every relevant authority, including all of the authorities invoked by the plurality today. It is also supported by the nature of the present conflict. We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers. But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the U. S. S. Cole, and the attacks of September 11—even if their plots are advanced to the very brink of fulfillment—our military cannot charge those criminals with any offense against the laws of war. Instead, our troops must catch the terrorists “red handed” . . . in the midst of the attack itself, in order to bring them to justice. Not only is this conclusion fundamentally inconsistent with the cardinal principal of the law of war, namely protecting non-combatants, but it would sorely hamper the President’s ability to confront and defeat a new and deadly enemy.

After seeing the plurality overturn longstanding precedents in order to seize jurisdiction over this case [see Justice Scalia’s dissent] . . . it is no surprise to see them go on to overrule one after another of the President’s judgments pertaining to the conduct of an ongoing war. Those Justices who today disregard the commander-in-chief’s wartime decisions, only 10 days ago [in another end-of-the-term case]deferred to the judgment of the Corps of Engineers with regard to a matter much more within the competence of lawyers, upholding that agency’s wildly implausible conclusion that a storm drain is a tributary of the waters of the United States. * * * It goes without saying that there is much more at stake here than storm drains. The plurality’s willingness to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous. (Emphasis added.)

“Dangerous,” when it comes to over five-hundred politician-legislators and several unelected Supreme Court justices running a war, is an gross understatement. 

A more apt, and much scarier, word is suicidal.

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Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.

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