Ramblings 

Allan C. Brownfeld

       Allan C. Brownfeld covers Washington, D.C.

What Ever Happened to the Congressional War-Making Power?

      The war in Iraq was not declared by Congress, nor was that in Korea or Vietnam, Panama, Haiti, Grenada or Somalia. In recent years, Congress has relinquished more authority than ever before over the nation’s foreign policy. The only formal debate on Iraq took place last October, when Congress granted the president the authority to use force in Iraq if and when he decided that was necessary.

      During that debate, Senator Robert Byrd (D-WV) said that,

The president is hoping to secure power under the Constitution that no president has ever claimed before. He wants the power to launch this nation into war without provocation and without clear evidence of an imminent attack.

      Throughout most of U.S. history, both Congress and the president understood that decisions in foreign policy were different from those in domestic issues and were the province of the executive, unless the Constitution made a clear exception.

      Conservatives who repeatedly speak of the necessity to consult the “original intent” of the framers of the Constitution seem less concerned with the war-making power, it seems, particularly when the executive is in the hands of those they consider their friend.

      The Constitution reserves to Congress alone the power to declare war, despite its naming the president as commander in chief of the armed forces.

      In Federalist No. 69, Alexander Hamilton notes that the president’s authority

. . . would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. . . . While that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies, all which, by the Constitution under consideration appertain to the legislature.

      The older commentators and court decisions had no doubt about where the war power was lodged. The remarks of Professor Charles W. Bacon in the once well-known textbook, The American Plan of Government, are typical of the traditional understanding:

The framers of the Constitution turned over an ample measure of the powers of war to Congress because Representatives and Senators are delegates of the People and States of the United States whose commercial interests must be staked upon the issue of every conflict. The People pay the bill. Therefore, their representatives in Congress are of right the proper persons to control military affairs.

      According to the decision in the case of Perkins vs. Rogers,

The war making power is, by the Constitution, vested in Congress and . . . the President has no power to declare war or conclude peace except as he may be empowered by Congress.  

      In an early draft of the Constitution, the enabling phrase read “To make war” rather than “To declare war.” James Madison and Elbridge Gerry made the motion to change “make” to “declare.” They explained that their purpose was to give “the Executive the power to repel sudden attacks”; and Gerry, in order to dispel any possible misunderstanding, declared that he “never expected to hear, in a republic, a motion to empower the Executive alone to declare war.” There was no dissent from George Mason’s assertion that he “was against giving the power of war to the Executive, because not safely to be trusted with it.” Connecticut’s delegates, Roger Sherman and Oliver Ellsworth, inclined at first against the change from “make” to “declare,” because, though they agreed that the executive, as commander, would properly act to repel invasion, they wished to be sure that the general war power granted specifically to Congress should not be “narrowed.” Rufus King explained that “make” war might be understood to mean “conduct” it, “which was an Executive function.” With these clarifications, which were the sense of the assembly, Connecticut’s objections were withdrawn.

      Louis Fisher, a senior specialist in separation of powers at the Congressional Research Service of the Library of Congress and author of Presidential War Power, states:

From 1789 to 1950, Congress either declared or authorized all major wars. Members of Congress understood that the Constitution vests in Congress, not the president, the decision to take the country from a state of peace to a state of war. The last half-century has witnessed presidential wars, including President Truman going to war against North Korea and President Clinton using military force against Yugoslavia, with neither president seeking authority from Congress.

      Indeed, in more than 200 years and more than 100 U.S. military engagements, Congress has formally declared only five wars—the War of 1812, the Mexican-American War (1846), the Spanish-American War (1898), World War I (1917) and World War II (1941).

      Enactment of the War Powers Act in 1973 marked a major turning point in the constitutional role of Congress concerning the sending of U.S. armed forces to war. The act, generally considered the apex of congressional reassertion in national security, actually broadened the scope of independent presidential power. The act allows the president to go to war without congressional authorization for at least 60 days but requires further authorization beyond that.

      Boston University Professor Angelo Codevilla, a former U.S. naval officer who studies defense and strategic issues, says that,

The War Powers Act is a cowardly measure on the part of members of Congress who wish to evade their unambiguous responsibility under the Constitution. . . . It concedes, among other things, that the president may start a war. He may not. It places Congress in the position of receiving a report, a passive, non-responsive role. It allows members of Congress to make an ex post facto judgment on a war—cheer if public opinion supports it or pile on if it opposes. It is an invasion of the president’s powers as commander in chief. The Constitution does not oblige him to report anything to Congress other than the State of Union.

      Congress has largely abdicated its responsibility. In 1964, three days after an attack, which now is being questioned by many experts, on U.S. patrol boats near the coast of Vietnam, Congress passed the Gulf of Tonkin Resolution giving President Lyndon Johnson the authority to use “all necessary measures” to “prevent further aggression” in Southeast Asia. This set no limits on what the president could do, where he could use force or for how long.

      Presidential historian Robert Dallek of Boston University says that, “Lyndon Johnson was very happy about that resolution, saying ‘It’s Just like Grandma’s nightshirt. It covers everything.’”

      As the war in Iraq proceeded, there has been no shortage of debate—but it has taken place outside of the Congress, which preferred to concern itself with spending, medical malpractice, partial-birth abortion and a host of other questions.

      “The major vehicle for debate has been the cable talk shows,” said Norman Ornstein, a resident scholar at the American Enterprise Institute.

The idea that Congress is discussing gynecology while we are hours away from a war that could reshape the face of the international world order is just bizarre.

      Discussing the lack of debate over the Iraq war, columnist Stephen Fidler, writing in The Financial Times, provides this assessment:

What debate there has been has taken place outside the Senate and House of Representatives, in stark contrast to the passionate debate there in September 1940 and to the robust exchange in the U.K. parliament. To judge by the way Republicans turned on him, you would think Tom Daschle had burned the Stars and Stripes and danced on it. Instead, all the leader of the Democratic Party in the Senate did was criticize the Bush administration’s handling of diplomacy over Iraq. . . . The response was immediate. Sen. Daschle was accused of “blaming America first” by the Republican National Committee. . . . The exchange exemplifies the U.S. debate on the war in Iraq: criticism of any aspect of policy is condemned as anti-American.

      When he was chairman of the Senate Foreign Relations Committee, Senator J. William Fulbright (D-AR) declared that,

The notion that the authority to commit the United States to war is an executive prerogative, or even a divided or uncertain one, is one which has grown up only in recent decades. The framers of the Constitution were neither uncertain nor ambiguous in the determination to vest the war power exclusively in the Congress.

      In a letter to James Madison written in 1789, Thomas Jefferson wrote:

We have already given in example one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay.

      The Supreme Court has also declared in clear language that the power to initiate war is an exclusively congressional one. On the “Prize Cases” of 1862, the Supreme Court said:

By the Constitution, Congress alone has the power to declare a national or foreign war. . . . The Constitution confers on the President the whole Executive power. . . . He is Commander-in-Chief of the Army and Navy of the United States. . . . He has no power to initiate or declare a war either against a foreign nation or a domestic state.

      In recent years, presidents of both parties have not only committed the country to war without congressional authorization, but openly asserted their right to do so. A number of their predecessors in the late 19th and early 20th centuries also usurped the war powers of Congress, but on a small scale and without openly asserting their right to do so.

      Early presidents explicitly acknowledged the exclusive war powers of Congress. President Madison, for example, who had been one of the principal framers of the Constitution, sent a message to Congress on June 11, 1812, in which, after recounting the depredations of British ships on American commerce in the Atlantic, he referred the matter to Congress in these words:

Whether the United States shall continue passive under these progressive usurpations and these accumulating wrongs, or opposing force to force in defense of their national rights, shall commit a just cause into the hands of the Almighty disposer of events, avoiding all connections which might entangle it in the contests or views of other powers, and preserving a constant readiness to concur in an honorable reestablishment of peace and friendship, is a solemn question which the Constitution wisely confides to the legislative department of Government.

      Daniel Webster, who served as secretary of state in the early 1850s and was one of the great constitutional lawyers, wrote on July 14, 1851:

In the first place, I have to say that the warmaking power in this Government rests entirely in Congress; and that the President can authorize belligerent operations only in the cases expressly provided for the Constitution and the laws.

      In his concurring opinion in the case of Youngstown v. Sawyer, Justice Jackson, replying to the assertion of Solicitor General Perlman that the American troops in Korea “were sent into the field by an exercise of the president’s constitutional powers,” said:

I cannot foresee all that it might entail if the Court should endorse the argument. Nothing in our Constitution is plainer that that declaration of war is entrusted to Congress.

      It is ironic that many of those who now promote the idea of the executive’s right to take the country to war without a congressional declaration call themselves conservatives. Conservatives, traditionally, have been suspicious of unbridled executive power. The Congress, being closer to the people, and subject to their judgment at regular intervals, was viewed as the better repository of power. And the Constitution’s “original intent” clearly was that Congress would possess the power to declare war.

      As the debate over the merits of the war with Iraq recede, we would do well to debate the larger Constitutional question of how the United States should go to war. The public interest is hardly served by giving such power to one man alone, however virtuous he may be or however idealistic his international goals. The very suspicion of government power, it seems, has been abandoned by many of those who previously considered it a very basis of the political philosophy. They would do well to rediscover it.

Reconsidering Walter Duranty’s Pulitzer Prize—and Media Coverage of the Cold War

      Ukrainian officials and Ukrainian-Americans have begun a campaign to revoke the Pulitzer Prize awarded to New York Times correspondent Walter Duranty, who reported that a man-made famine that killed millions in the 1930s never happened.

      “It has become a world action,” said Tama Gallo, executive director of the Ukrainian Congress Committee of America, a New York-based group that began the effort to have the prestigious award to Walter Duranty in 1932 withdrawn.

      Duranty, who was the Times’ Moscow correspondent from 1921 to 1934, won the Pulitzer for a 1931 series of reports about Soviet dictator Josef Stalin’s five-year plans to reform the economy. His stories appeared in the Times just before the Ukrainian famine of 1932-1933, which left 5 million to 10 million dead. Western historians now generally agree that the famine was the result of Stalin’s industrialization effort and an attempt to break the will of the Ukrainian people.

      To ensure cities were fed. Stalin set impossibly high grain quotas for the Ukraine’s collectivized farmers and removed every other source of food available to them. Police monitored compliance throughout the countryside. Anyone found hiding grain was fatally shot.

      In the midst of the enforced famine, Walter Duranty visited the region and denied that starvation and death was rampant. In November, 1932, Duranty reported that “there is no famine or actual starvation nor is there likely to be.” When the famine became widely known in the West, and reported in his own paper and by his own colleagues, playing down rather than denial became his method. Still denying famine he spoke of “malnutrition,” “food shortages,” and “lowered resistance.”

      In the Times of August 23, 1933, Duranty wrote: “Any report of a famine in Russia is today an exaggeration of malignant propaganda,” and went on to declare:

The food shortage which has effected almost the whole population last year, and particularly the grain-producing provinces—that is, the Ukraine, the North Caucasus, the Lower Volga Region—has, however, caused heavy loss of life.

He estimated the deaths at nearly four times the usual rate. This usual rate would, in the regions named, “have been 1,000,000” and this was now in all probability “at least trebled.”

      In his important book about Soviet collectivization and the terror-famine of the 1930s, The Harvest of Sorrow, Robert Conquest declares that Duranty’s

. . . admission of two million extra deaths was made to appear regrettable, but not overwhelmingly important and not amounting to “famine.” Moreover, he blamed it in part on the “flight of some peasants and the passive resistance of others.” . . . Duranty blamed famine stories on émigrés, encouraged by the rise of Hitler, and spoke of “the famine stories then current in Berlin, Riga, Vienna, and other places, where elements hostile to the Soviet Union were making an eleventh-hour attempt to avert American recognition by picturing the Soviet Union as a land of ruin and despair.

      What Americans got was not the truth—but false reporting. Its influence was widespread. What Walter Duranty got was the highest honor in journalism—the Pulitzer Prize for 1932, complimenting him for “dispassionate, interpretive reporting of the news from Russia.” The citation declared the Duranty’s dispatches—which the world now knows to have been false—were “marked by scholarship, profundity, impartiality, sound judgment, and exceptional clarity.”

      Walter Duranty was only one of many correspondents and writers in the 1920s and 1930s who fed their readers in the West a steady diet of disinformation about the Soviet Union. Louis Fischer, who wrote for the Nation magazine, was also reluctant to tell his readers about the flaws in Soviet society. He, too, glossed over the searing famine of 1932-33. He once referred to what we now know as the “Gulags” as “a vast industrial organization and a big educational institution.” In 1936, he informed his readers that the new Stalin Constitution showed that the dictatorship was “voluntarily abdicating” in favor of democracy.

      So dominant was this type of reporting that it was difficult for the truth about the Soviet Union to penetrate much of the American press. Reporters such as Eugene Lyons and Freda Utley, both of whom started out as Soviet sympathizers, lost their entrée into those publications favored by the intelligentsia when they tried to tell what was really happening in Russia. Eugene Lyons has pointed out that writers who tried to portray the Soviet Union realistically during the 1930s were turned away by editors “with platitudes about not wishing to ‘attack Russia.’” Many found that they had to turn to the Hearst newspapers, which, says Lyons, were the only ones telling the truth about the Soviet Union.

      A decade later, in the late 1940s, China became the great battleground. The fashionable theme of journalists covering China was that the Nationalists led by Chiang Kai-shek were hopelessly corrupt and inefficient. Mao Tse-tung was portrayed as brilliant, incorruptible, efficient, loved by the masses—and not a Communist, but an agrarian reformer.

      After a steady dose of reporting which called Chiang a corrupt dictator and Mao a democrat and advocate of land reform, the U.S. indeed abandoned Chiang and the Communists came to power. Little was then written about the brutal tyranny which was imposed on the people of China. When Mao died in 1976, the New York Times devoted three pages to his obituary, but only a few lines alluded to his enormous crimes against the Chinese people. It has been estimated that Mao was responsible for the deaths of 30 million to 60 million people. The Times referred to the execution of

. . . a million to three million people, including landlords, nationalist agents, and others suspected of being “class enemies.”

      The Washington Post also devoted three pages to Mao, concluding,

Mao, the warrior, philosopher and ruler was the closest the modern world has seen to the god-heroes of antiquity.

The Post acknowledged that some 3 million persons had lost their lives in the 1950 “reign of terror,” but the only victims mentioned were “counter-revolutionaries.”

      Or consider the role Herbert Mathews, the renowned correspondent for the New York Times, played in presenting Fidel Castro as a democrat—not a Communist—and helping to bring him to power.

      Mathews helped Castro deceive the world concerning his program for Cuba. Castro told Mathews that he was out to restore constitutional government and democracy to Cuba, that he was not a Communist, and Mathews and the Times passed it on. What was ignored was the evidence that Castro was indeed a Marxist and had participated in the violent Communist-led riots in Bogota, Colombia in 1948.

      For many in American journalism, the romance with Castro continued long after his connection with the Soviet Union became clear and his repudiation of democracy was no longer subject to debate. Thus, Frank Mankiewicz, who served as head of National Public Radio, wrote a book about Cuba together with Kirby Jones entitled With Fidel: A Portrait of Castro and Cuba (1975). Castro is described in these terms:

. . . one of the most charming and entertaining men either of us had ever met. . . . Castro is personally overpowering, U.S. political writers would call it a simple case of charisma, but it is more than that. Political leaders often can be and are charismatic in a public sense, but rather normal in more private moments. Such is not the case with Fidel Castro. He remains one of the few truly electric personalities in a world in which his peers seem dull and pedestrian.

      At a meeting in Coral Gables, Florida in 1983, American journalists who covered Fidel Castro’s Cuban revolution in 1959 say that they misread Castro’s goals and political leanings at the time. “We put him where he is,” said ex-Time Magazine correspondent Jay Mallin, who was host of the reunion. “He was a figment of our imagination.” Sam Summerlin, a former Associated Press bureau chief in Havana and later president of the New York Times Syndication Company, said, “Now we are living it down.”

      Similar stories can be told about the media coverage of Vietnam, Nicaragua and other Cold War battlegrounds. While we cannot turn back the clock and correct erroneous reporting, we can see to it that those who were guilty of less than honest coverage not be awarded our highest journalistic prizes.

      With the 70-year anniversary of the famine being commemorated in an independent Ukraine, the movement to revoke Walter Duranty’s Pulitzer Prize has gained new momentum. In hearings recently in the Ukrainian parliament, demands were made that the prize be revoked.

      The government in Kiev is expected to ask the United Nations to recognize the famine as an act of genocide against the Ukrainian people.

      The New York Times itself has criticized Duranty’s reporting and points out that writers at the paper and elsewhere have discredited his coverage. Still, the Times has not asked that the prize be revoked. Catherine Mathis, vice president of corporate communications for the New York Times Company said,

The Pulitzer Board has reviewed the Duranty prize several times over the years, and the board has never seen fit to revoke it. . . . In that situation, the Times has not seen merit in trying to undo history.

      Setting the record straight, however, is hardly “undoing history.” It is never too late to tell the truth.     Ω