IN THE NEWS
The ongoing discussion of the Department of Defense "torture memo" leaked to The Wall Street Journal confirms fears I've expressed earlier on this blog. If there is an original sin, a fundamental mistake, a central corruption whose stain has spread into other areas, it was the Republicans willingness--and in many cases, eagerness--to ignore the Constitution's clear requirements on warmaking. Most fundamentally, if we are in the midst of a major war, we should have a declaration of war. Otherwise, we have no way of knowing whom we're fighting, why, and when we're done. The "spreading stain" this refusal to honor this part of the Constitution is the ongoing corruption of the rule of law in general. If you're willing to ignore something as fundamental as the requirement to declare war, what other parts of the Constitution, or laws that spring from it, are you willing to break?
As I argued earlier, the Cold War distorted our sense of how the Constitution should work. A uniquely dangerous situation existed, in which the very existence of the nation could end in hours or minutes, that required some creative thinking about how best to handle that risk. The fear was the chain of events that could be set into motion by a declaration of war. If the United States became involved in a regional conflict...And if the Soviets also became involved...And the United States "planted the flag" by declaring war against the Soviets' ally...And if the Soviets then felt that we had de facto declared war on them...The escalation spiral could easily end in nuclear annihilation. Compromises like The War Powers Act were supposed to be temporary measures, however, designed to give Congress some echo of its formal constitutional role without the unintended calamity that a declaration of war could trigger. Congress still retained other explicit Constitutional controls over warmaking, such as the federal pursestrings and treaty ratification. Even if wars weren't declared between 1945 and 1989, the Cold War still respected the Constitutional sharing of powers in all other ways.
If that respect for the Constitution persevered at a time when billions of people could die in minutes, it certainly should exist now. (As frightening as nuclear terrorism might be, it hasn't happened yet, and there are no "ticking bombs.") Since the nuclear escalation spiral no longer exists, the US government should formally declare war in major conflicts without even questioning the necessity of using that Constitutional instrument. However, I fear, the Cold War lasted long enough that American political culture became far too deformed about warmaking, so that the idea of declaring war is now itself unthinkable.
Declarations of war are vital tools. They tell us whom we're fighting, why were expending our blood and treasure, and when we think we're done. Congress has the power to declare war (an explicit check on the risks of a military dictatorship), as well as other powers it can (and should) exercise during the beginning, duration, and conclusion of a war. On occasion, this system can be messy, but the Framers felt quite strongly that it would simultaneously manufacture the best decisions possible (especially given the number of self-correcting mechanisms) and preserve liberty.
There is no Presidentprinzip like the nasty fiction described in The Memo. The White House does not have privileges; it has shared powers. It does not, therefore, have any privilege, on its own, to decide what really threatens us, how much, for how long, and how many Constitutional articles, laws, and treaties it needs to suspend along the way. It cannot do all this in secret, concealing from both the public and Congress vital information about our enemies. Nor does it have the privilege to hide the information needed to judge how well we're doing at defeating them. (Excessive secrecy usually hides incompetence or corruption, not vital national interests.)
The Memo is another manifestation of the original sin I've described here. The fact that no one in the Bush Administration or the Congressional Republican leadership has indisputably and loudly condemned it, is deeply disturbing.
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