The President, Congress and Decisions to Employ Military Force - Essay Example

The President, Congress and Decisions to Employ Military force Of all the decisions made by the American Presidents, none are more serious than those involving a military option. Whether the President has the constitutional power to commit military force to missions short of all-out war unilaterally or whether he must seek congressional approval has been one the most contentious issues in the history of the Republic. Framers’ intent and the practical considerations involving use of the War Powers Resolution bring forth the case against congressional involvement in decisions to use military force short of full scale war. The Scales seem to point heavily in favour of presidential primacy as the most prudent and effective approach. Three Dimensions There are key theoretical and practical considerations that have shaped the historical development of the doctrine on ‘the use of force’ in the United States. The three dimensions are: An assessment of the intent of the framers’ of the Constitution concerning shared power; The congressional concern over executive power and the resultant problems in the War Powers Resolution; and The volatility of the executive approach to use of force decisions as devised by Weinberger et. al. An assessment of the intent of the framers’ of the Constitution concerning shared power It is clear that the Framers agreed that there should be no absolute seat of power. This was achieved by dividing power across the three separate branches of government. Framers were willing to trade military and diplomatic efficiency to preclude either branch from consolidating authority and achieving absolute power. Article I Section 8 states that congress” shall have power…to declare war.” Article II Section 2 states that “The President shall be the Commander-in-Chief.” Unfortunately matters are not so clear and straight forward. The authority of the president as commander-in-chief ought to exist without limitation, because it is impossible to foresee or to define the extent and variety of national exigencies. The political thinker Hugo Grotius noted that a declaration of war contained many legal functions unrelated to the use of armed force – legal aspects of war. In an 1800 opinion rendered in the Eliza case, the court acknowledged a difference between formal declared war and a more confined version. In the United States v Curtiss-Wright Export Corporation et.al. decision of 1936, the Court certified the authority of the president with respect to external affairs. It is further noted that on February 15, 1816, the Senate Committee on Foreign Relations reported that “The President is the constitutional representative of the United States with regard to foreign relations.” The evolution of the legal and political authorities by which the United States approaches war also would appear to be based these legal opinions. In sum, then, two matters seem settled. The Framers clearly acknowledged the broad legal aspects of a war declaration and as such granted this power only to the congress. On the other hand, they also recognized that there were occasions during peacetime when it was necessary to apply military force to realize national objectives. This power falls to the President as Commander-in-chief. The congressional concern over executive power and the resultant problems in the War Powers Resolution The War Powers Resolution was passed over Richard Nixon’s veto in 1973. Enacted after Vietnam, the resolution has been considered unconstitutional by every chief executive from Nixon to Bush. The resolution states that the constitutional power of the president as commander-in-chief to introduce armed forces into actual or potential hostilities is limited to situations where there is: 1. a declaration of war 2. specific statutory declaration, or 3. a national emergency created by attack upon the United States, its territories or possessions, or its armed forces. Proponents of the resolution point to creating a functioning partnership between the president and the congress. Opponents argue that is it practical on day-to-day basis that decision to use military force are to be made by the congress and the President. Because the primary reason for the existence of a military is deterrence. How effective is deterrent value when it can only be used as a result of a collective decision? Such a partnership will be viewed as a weakness, not strength. In any closest or partnerships there is disagreement. Who arbitrates disagreement between the functioning partners? Under the circumstances it would appear nobody does. There are three specific questions concerning the above – first, what constitutes “consult with congress”; second, while “introducing…into hostilities” is clear, how does one predict “imminent involvement?”; and third, what are conditions required for something to be “clearly indicated?”. There are operational considerations – first is “time”; second is “surprise” and the third is “security”. The volatility of the executive approach to use of force decisions as devised by Weinberger et. al Defense Secretary Weinberger outlined specific criteria - Six major tests to be applied - for the use of military force abroad in his National Press Club speech in 1984. The six tests can be described by their broad descriptions: vital interest, clear intention of winning, clear political and military objectives, reassessment and revaluation after force has been applied, assurance of support f congress and the people, and the last resort. Weinberger qualified and expanded each test, resulting in a much more detailed list. This list presented in a chronologically consistent order, includes: 1. The circumstances and occasion are vital to our national interests at the time of decision. 2. Use of force is a last resort. 3. Actions will be governed by clear political and military objectives, with supporting campaign strategies and adequately sized and equipped forces. 4. Force will be applied with a clear intent of winning. Available means will be matched to desired ends. 5. The decision should ideally have the support of the people and the congress. These will be based on candor and openness, and be marked by continuing dialogue. 6. Interests, objectives, strategies, and forces should be subjected to on-going reassessment and revaluation. Chairman of Joint Chief of Staff Colin Powell supported the concept of presenting a list of questions to be addressed in the decision process. In addition to Weinberger criteria, Powell called for an evaluation of costs and risks and consequences of military action. President Bush fined tuned both the above criteria to the need for judgment in using force and showed aversion to any fixed set of rules. Bush explained that force was not always the answer with vital interests but may be the answer with important interests. This reflects the willingness to commit force for missions not in the vital interest of the United States, but in general interests of humanity and thereby carrying their own unique importance. Persian Gulf War was the most significant event involving the use of force. Using the tests, which evolved after Weinberger and Bush speeches and Powell’s article, as analytical frame work provides remarkable correlation between compliance with the tests and overall success of the intervention – success being defined as meeting all political objectives. Conclusion Discussion of the Framers’ intent and the practical considerations involving use of the War Powers Resolution outline the case against congressional involvement in decisions to use military force short of full scale war. In deed it should be the president, as the Commander-in-chief, who decides whether or not to use military force as an instrument of foreign policy. References: Joseph R. Avella, The President, Congress and Decisions to Employ Military force, Read More