By Bruce Fein – – Monday, September 15, 2014
The U.S. Constitution sharply disfavors war. It does so by entrusting exclusive authority for initiating war in Congress, the branch of government whose powers are diminished by military conflict.
War concentrates great powers in the presidency and wrenches the Constitution’s separation of powers and checks and balances. It crowns the president with secrecy, contracts, appointments, vast powers of surveillance and detention, and the authority to kill. Congress and the Supreme Court are marginalized like extras in a cinematic extravaganza. James Madison, father of the Constitution, elaborated:
“Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could preserve its freedom in the midst of continual warfare.”
War gave birth to concentration camps for Japanese American citizens in World War II, and to prosecutions for opposing the draft in World War I. Since 9/11, war has given birth to massive warrantless surveillance of the American people, indefinite detentions without accusation or trial, and the killings of American citizens on the president’s say-so alone.
During war, government transparency routinely bows to secrecy, which impairs government by the consent of the governed. Citizens cannot give consent to policies of which they are ignorant. It took Edward Snowden to inform the American people of the National Security Agency’s unprecedented collection of telephony metadata on the entire population without suspicion that any were implicated in crime or international terrorism. When sunshine was cast on the NSA’s surveillance program, the majority of the American people was alarmed and forced the president to curtail the program and Congress to debate remedial legislation. Secrecy also is the parent of folly, for example, the Bay of Pigs fiasco.
War cripples civil liberties. The Fourth Amendment right to be let alone, freedom of speech and freedom of press yield to claims of national security. Due process is compromised by military tribunals or the suspension of habeas corpus. Private contracts are frustrated, and open completion is displaced by sole source procurements.
War legalizes what is ordinarily first-degree murder. Killings are permitted without the justification of self-defense. No war can be fought without inflicting injustice. Inadvertent deaths or wounding of innocent civilians is inescapable.
The Constitution, thus, authorizes war only in response to actual or imminent attacks in order to maintain liberty as the center of our constitutional universe.
Alexis de Tocqueville observed in “Democracy in America”: “No protracted war can fail to endanger the freedom of a democratic country … War … must invariably and immeasurably increase the powers of civil government; it must almost compulsorily concentrate the direction of all men and the management of all things in the hands of the administration. If it does not lead to despotism by sudden violence, it prepares men for it more gently by their habits. All those who seek to destroy the liberties of a democratic nation ought to know that war is the surest and shortest means to accomplish it.”