Determining the Use of Force

Introduction

After the Fall of Communism and the amicable conclusion of the Cold War in 1990, America has been woken up to the glaring reality of terrorism and Jihadist Islam which have been normally underpinned by anti-Americanism. More specifically, the September 11^th Attacks against the US is known to be clearly the turning point of US foreign policy, specifically in regards to the use of diplomacy and the use of force. With the changes that have been made to mete out anti-Americanism and the threat of terrorism, modalities have become always subject to debates in relation to the authority that should have the power to declare war and to sanction the use of military force as a form of intervention in international relations. While others have waxed polemical that such powers are too immense and sacrosanct to be left at the whims of an individual, the President of the United States, counterarguments are still rife and formidable and in support of the maintenance of the status quo that the power to declare the use of military force be retained in the office of the Head of the US Executive, the President.

Position Statement

A critical look at the underpinnings of international relations and the dynamics of American politics nevertheless point out clearly that the transfer of the power to determine the use of military force from the President to the House of Representatives (Legislature) would be counterproductive and the beginning of a journey down the primrose path to America under siege and constant danger. Simply put, this power to determine the use of military force should lie with the President.  The reasons that necessitate the maintenance of the status quo are divulged on, forthwith.

Indeed, at the moment, the power to declare the use of military force constitutionally rests squarely with the president as seen in the War Power Resolution, Pub L. Number 93-148, Stat 555 (of 1973). The same is codified at USC §§ 1541-44, the WPR. This is seen to be in joint resolution with the Congress Pub L. Number 107-40, 115 Stat 224 (of 2001) which was passed on September 14^th, 2001. In respect to this, the President enjoys the constitutional power to retaliate against a person, an organization or a state that is involved in the meting out of a terrorist onslaught against the United States, or one that harbors or supports terrorism against the US.

By extension, the President is also abler to deploy military force preemptively against terrorist organizations and states that facilitate terrorism whether these states can be linked to particular terrorist attacks of September 11^th, that notwithstanding. The crux of the matter herein is that at the moment, the US, her body politic, foreign interests and allies are always in the constant and imminent threat of militant Islam and terrorism. Devolving the power to declare the use of military force to the House of Representatives is likely to highly derail the decision making process. This is due to the fact that in the legislature, a motion has to pass through the floor before it is ratified. The protraction of this process during military crisis is likely to expose the soft underbelly of the US to antagonists and enemy combatants. This situation is graver when one considers the fact that issues that arise in the Congress are normally debated having the potency to divide the Congress and to greatly affect the consciousness of the public (Abramowitz, 75).

The above situation is exemplified in the 1990 Gulf War crisis. During this time, the events in the Persian Gulf made the public overtly polarized and shaped the opinion of the elite on the use of force and its declaration. Despite the fact that consensus did much abound on the need of the US to respond to Iraq's aggressive tendencies, widespread debates also remained extant on the most proper form of response that was to be adopted towards Iraq. The magnitude of this development is seen in the fact no sooner had the then President George Bush and the Congress skirmished on the need to for securing congressional approval of the deployment of US troops and the use of military force into Iraq, than the matter spilt over into the general public, in form of debate on how to react to the actions being taken by Iraq on one hand.

On the other hand, the ability to affect the consciousness of the public is a development that is known to be counterproductive on several fronts. On the first front, the letting out of a high profile and secretive matter such as military intervention into the public domains is that accessing military tactics to be employed by both the legal and illegal enemy combatant becomes very easy and feasible. This will definitely allow the enemy combatant to regroup, seek reinforcements, and draw out better strategies to counter the US or any other country faced by this case. On the second front, such a matter reaching the public may divide the public as there are some who are likely to herald the move as others vehemently oppose the same.

On the third count, the public being privy to such high profile matters such as impending use of military force is likely to only elicit an impasse. While government officials and the President's advisors are likely to see military intervention and the declaration of the use of force as inevitable while citing the need to protect the US, her citizens, interests and allies, civil movements mostly in the form of pressure and interest groups, the civil and human rights bodies together with lobbyists, are likely to polarize the entire body, citing the move towards invasion as an affront to human rights, freedoms and dignity (Sofaer, 34).

The need to leave the power to declare the use of force on the President as the Commander in Chief is also complemented by the urgent and impromptu sense with the enemy forces strike. Devolving this power to the legislature is to leave the US in a situation whereby the army is not able to respond to national emergencies which may be brought about by the sudden and unforeseen attacks on the territory and citizens of the US.

At the same time, it is important to note between that the need to let the power to declare the use of military force rest on the President and the legislature is a matter that is underpinned by the need for security- not politics and its principles such as the balance of power and separation of power. As seen in the Federalist No. 23, 122 by Alexander Hamilton, the President's constitutional power to defend America and he citizens' lives must be interpreted and appreciated in the light of the Founding Fathers' clear intention of creating a federal government which was "vested with all the powers necessary to the complete the execution of its trust." Foremost and the most chief, among the objectives that were committed to that trust by the US constitution is the security of the American nation.

To the effect of the above standpoint, it is important that those calling for the abrogation of the powers of the President as the Commander in Chief must appreciate that the main underpinning in this case is that "the circumstance which may affect public safety are irreducible within certain determinable limits, and that in this respect, it is important to admit that as a necessary consequence, there can be no limitations of this authority; with this authority being mainly geared towards providing defense and protection of the American community, in any matter that is essential to its efficiency" (Glennon, 84).   

Another area in which the pro-Congress polemicists err in arguing that Article II Section 2 vests sole power to declare war on the Congress to decide whether to make war is in the misreading and misinterpretation of the constitution. These forget that declaring war is not synonymous with making war. It is not in doubt that the deployment of the military force is in nature executive as has been conventionally regarded, hitherto.

Conclusion Statement

In respect to all these above, it is only correct in all respects to maintain the fact that the power to declare war rests squarely with the President. The flipside of this affair is that depriving the President of the power to make decision when to use military force or intervention would be tantamount to an attempt at disrupting the most basic constitutional framework of the American foreign relations. From the very inception of America as a republic, the vesting of the treaty powers on the Commander-in-Chief and the executive branch which he leads has rested with the President's plenary control over matters that pertain to the conduct of foreign relations. It is against this backdrop that Thomas Jefferson as the Secretary of State pointed out that the US constitution divides the powers of the government into three, with the executive having its powers vested in the President, so that by the Senate, he submits special articles of it to a negative.