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For someone who surrounded himself with lawyers who thought it was legal to crush children's testicles to extract information during enhanced interrogation [1],

• twoodfin 13y ago
  It's a sticky question how much Congress can restrain the President when executing his war powers. Obviously such an action is morally abhorrent, but some might argue that so is dropping an atomic bomb among a civilian population. Could Congress, had it been so inclined, have passed a law to prevent Truman from doing so? I don't know the answer, and I'm not sure you do either. Who we elect President matters. This is one reason why.
  • belorn 13y ago
    Don't congress need to actually declare war before the President gets to execute war powers? Congress hasn't declared war in ages.
    • twoodfin 13y ago
      It's well-established that Congress need not issue a formal declaration of war in order to authorize the President to use military force. Others here can probably speak better to why our Constitutional order evolved this way. My speculation has always been that many century-old laws are tangled up with special cases for times of formally declared war that are not suited to the era but too much trouble to excise.
      • Zigurd 13y ago
        Some would say that the lack of a formal structure of declaration of war, capitulation, occupation, and restoration of government is exactly what's been getting us in trouble and is a demonstration of what happens outside the bounds of legitimacy.
    • rayiner 13y ago
      The only thing the Constitution says about the subject is that "Congress shall have the power to... declare war." It doesn't give a specific format for an "official declaration of war" or anything like that. Congress hasn't declared an official war since World War II, but the actions in Iraq and Afghanistan were backed up by Congressional resolutions authorizing force against those regimes. Congress never declared war against Tripoli during the Barbary Wars (just 12 years after the signing of the Constitution) so at least historically it doesn't seem like the founding generation believed it necessary to pass some "official declaration of war" in order to signal Congress's approval for the President to execute war.
      • scotch_drinker 13y ago
        But previously, war meant some clear and present enemy like "Japan" or "Germany". Now the president has been given almost carte blanche access to fight a war on "Terror", a term so nebulous as to allow the president the right to do whatever he wants including spy on American citizens. While it's true Congress gave the president the ability to fight a War on Terror (or drugs or unicorns or whatever), it's the Congress who should be reining in that power when it gets out of hand. Instead they sit around and collect their checks. I'm not as worried about an "official declaration of war" since the Constitution isn't clear on that need. I do wish Congress would grow a set of balls and do what's necessary to rein in presidential power regarding a ridiculous war on something we can't even see, much less defeat.
        • rayiner 13y ago
          During the Iraq and Afghanistan wars, Congress authorized the use of force against the Iraqi government, and Al Qaeda and agents of Al Qaeda. I don't see how the latter is any more nebulous than Congress's authorization of force against the Barbary pirates in 1801.
          • scotch_drinker 13y ago
            I'm not talking about those wars. I'm talking about the War On Terror which was the genesis for spying on Americans. We don't have a war on Al Qaeda, we have a war on Terror. It doesn't get anymore nebulous than that. Neither Bush nor Obama would stand before the American People and say that the authorization of force in Iraq justified a sweeping surveillance program that includes American citizens. But the War on Terror enables them to do exactly that because of its murkiness. I don't blame either Bush or Obama for taking advantage of the power vacuum left by Congress in the War on Terror. I just wish Congress would take some of that power back.
  • scotch_drinker 13y ago
    The main difference is that in WWII, Congress gave the president the power to go to war through a declaration of war. In the war on whatever it is that might allow the president to spy on US citizens, Congress has practically abdicated its responsibility. Presidential power has grown significantly since Bush and continues to do so throughout the Obama terms. While that certainly proves your final point is true, I wish Congress would take back some of that power and just maybe, we'd be a little more free.
• rayiner 13y ago
  1) I'm pretty sure that never happened, it's just a hypothetical. 2) The hypothetical is needlessly dramatic. John Woo's point is that the U.S. courts cannot supervise the President's execution of a war on foreign soil, because the Constitution invests the President with sole power, as commander in chief, of how war is conducted. Crushing a child's testicles is a graphic example designed to invoke an emotional response, but it's logically indistinguishable from any other activity, no matter how minor or how egregious, if the premise is that the courts have no authority to second-guess how the President executes a war. And after all, is it really such a controversial concept? Very few people would argue that the President didn't have the authority to vaporize Hiroshima and Nagasaki with nuclear weapons, without consulting Congress and without being second-guessed by the courts. If he can do that, what's left?
  • dllthomas 13y ago
    1) It's a needlessly dramatic hypothetical, but it was chosen by the author of the paper not read into it (or, so far as I've found, prompted) by others. 2) There's a distinction between what the President can do when Congress and the courts have not spoken on a topic, and what the President can do when they have. Is it obvious that Congress could not, in principle, forbid the use of nuclear weapons? The government needs to be able to place checks on itself and especially on any individual within it. I would argue for similar reasons that constitutional protections continue to apply in wartime - the last clause in the Third Amendment is pretty toothless otherwise.
    • rayiner 13y ago
      There is a distinction between how Congress and the courts can check the President's power domestically, and how it can do so internationally. John Woo's point is that the courts cannot tell the President how to treat foreigners on foreign soil during war time. The Constitution continues to apply in war time, of course, but the Constitution is silent on the subject of interrogation methods for foreign soldiers. Moreover, while torture may be in contravention of a treaty, it is not necessarily the case that the courts may supervise every executive or Congressional action for conformance with treaty obligations. People like John Woo argue that the courts were not designed to be the preeminent branch. That is to say, they were not designed so they could second-guess every single action of the Congress or the Executive, even in domains like foreign policy where the Constitution conspicuously gives the President and Congress certain powers but none to the judiciary. John Woo thinks it's legal for the President to torture children (non-Americans on non-U.S. soil mind you) not because he thinks torturing children is morally justified in some way, but because he thinks that the voting public is the body that is empowered to impose consequences for such actions, not the un-elected judiciary.