The power of Congress to declare war is a constitutional mandate under Article I, Section 8, Clause 11, which state that Congress has the power, “ To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water ” (Legal Information Institute, n.d.). The 2001 congressional resolution, vested in the president the constitutional power to direct the military under Article II, Section 2. The issue of contention in the manner President George W. Bush executed the powers of the congressional resolution is whether such a law vested in the president the power to direct the purge against terrorists and terror groups without oversight by Congress. The constitutional provisions on the declaration of war call for cooperation between the president and Congress regarding activities of the military (Legal Information Institute, n.d.). Congress oversees the funding and declares operations, and the president directs it in their capacity as commander in chief of the armed forces. In so doing, it establishes a framework for checking the excesses by the executive and the president ( Kriner & Schickler , 2016). Therefore, the engagement of President George W. Bush in the war against terrorism without express consent from Congress drew substantial concerns about the limits of power of the president and Congress.
The debate on the power the president possesses is perpetual in American history. Different factions express conflicting views on the limits of the presidential powers, and those granted to the holder of the office by the constitution (Legal Information Institute, n.d.). Among the issues of debate, is the presidential authority to use the military without congressional express consent or oversight. The War Powers Resolution and the Joint Resolution passed by Congress acknowledged the executive power of the president to wage war on terrorism in its entirety (107 th Congress, 2001). The resolutions served to highlight the constitutionality of the presidential powers to deploy the military against suspected terrorists who pose threats to the US and its citizens both locally and internationally. However, it had its limits. On the applicability of other requirements, the resolutions states, “ Nothing in this resolution supersedes any requirement of the War Powers Resolution ” (107 th Congress, 2001). The War Powers Resolution of 1973 sought to check potential abuse of the presidential powers in committing the US military by introducing consent by Congress as a requirement. It is evident that the existence of these resolutions failed to eradicate the very issue of power wars that led to their passage.
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President Bush’s doctrine claiming the war on non-state actors and their supporters (states) was a preemptive strategy to eliminate potential attacks against the US and its citizens continues to attract immense criticism. The September 11 attacks triggered a cascade of events that culminated in the US sanctioning military action against Iraq and Afghanistan. Bush’s administration asserted that the purge targeted terrorists and their supporters, but accounts of the subsequent events paint the grim reality ( Paust, 2001). The international law and the US Constitutional law permitted the use of military force against Osama and his followers. However, Paust (2001) notes that Bush might have overstepped his presidential powers as per the UN conventions on the use of force against state and non-state actors. Paust noted that Bush exploited the loophole in the congressional resolution and the UN Charter to circumvent the specifics of preemptive and retaliatory attacks as defined under the articles on the use of military force. The observation drawn from the above information centers on the high likelihood of Bush committing infringements by citing the approval of the presidential powers by Congress.
The resolution by Congress authorizes the president to use all necessary and appropriate force (107 th Congress, 2001). There is no clarity on what constitutes necessary and appropriate force. For instance, it remains uncertain whether the decision by the Pentagon to make Bush uncountable for the indefinite detention and surveillance programs qualified as an approved practice under the resolution. It is possible to contend the separability of detention and surveillance from the use of military force, but such programs are known to cause substantial violations of the law and human rights. The use of indefinite detention and surveillance against suspected terrorist, their followers, and supported by President Bush, as part of the preemptive and retaliatory military action without consent by Congress raised pertinent questions. Howell and Pevehouse (2005) observed that questions that linger on the issue revolve around the powers of Congress to stop the president from exercising unilateral use of military force. The observation leads to the conclusion that blaming the president solely for surpassing Congress is unjustified because they acted within the obscure parameters of the constitutional powers and Congress consent to declare war on terror and terrorists.
The use of unorthodox activities in dealing with suspected terrorists was an overreach of the presidential powers. However, it is worth noting that the subsequent events by the Bush administration were consequences of Congress and the Pentagon’s greenlights to the president to use all means at his disposal to win the war against terrorism. Indefinite detention, torture, and surveillance all fall under the use of force, which Congress ratified in the Joint Resolution. The conflict in Bush’s actions stems from the specifics of the War Powers Resolution that gives Congress the role of oversight the executive. At the time, the dynamics at play varied substantially. According to Howell and Pevehouse (2005), while Congress is a primary stakeholder in foreign policy involving military excursions, the president retains considerable discretion to use military force as they deem fit. Kassop (2003) noted that Bush pronounced the September 11 attacks as acts of war. The response by the executive was to initiate the promulgation of diverse policies on domestic and foreign issues to protect the US from further similar attacks. The Joint Resolution was an outcome of Bush’s efforts to seek passage of legislation hat transferred new powers to the executive. The event that unfolded following the attacks suggests the president acted within the constitutional powers vested on him with approval by Congress.
The president’s actions show consistency with the dynamics governing the relationship between the executive branch and the legislative bodies at different times. According to Bolton and Thrower (2016), the executive and Congress show manifest ideological divergence in times of conflict. During highly tense times, including war, Congress has little capacity to constrain the executive, which gives the president the leeway to issue more executive orders. Such is the case that manifested in the implementation of the indefinite detention and surveillance programs. On the contrary, periods of high legislative capacity tend to create friction between the executive and Congress, resulting in few executive orders due to opposition to the president’s agenda by Congress ( Bolton & Thrower, 2016). Such institutional dynamics favor the executive and the president during highly emotive periods, such as in the aftermath of the September 11 attacks, because it unites different institutions in the quest for a common goal. From this perspective, one can contend that President Bush exploited the lapse in the law and shifting institutional dynamics to overstretch his presidential powers beyond Congress oversight.
The 2001 Joint Resolution by Congress set the precedent for overreach of presidential powers by President Bush. The resolution states, “ Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States ” (107 th Congerss, 2002). The resolution does not set forth the limits for such constitutional powers. It is arguable that the loophole in the resolution is responsible for the subsequent decision by the Pentagon to accord the president the previleges to use extreme measures to attin the primary goal of the resolution. A revisit of the UN Charter on the use of force revelas that despite the US constitutional law giving the president legitimate claim over the use of force, the practice is inconsistent with the provisions of the charter under article 2(4) or articl 51 (Paust, 2001). Nevertheless, Bush’s justification of his approach to fighting terrorists may stem from the “ the majority opinion of the International Court of Justice in Nicaragua v. United States ” (Paust, 2001, p. 541). The decision contended that a state that sends a group of militants of whatever caliber to carry out armed activites against another commits the offense of actual armed attack, which attracts retaliatory action. There is no clarity on the limits of such retaliatory actions, a situation complicated by the supposed preemptive strategy on which Bush idenfinite detention and surveillance programs centers on. Through the resolution that recognized the constitutionality of the presidential powers to protect the US, Congress lost the mandate to dicate which self-defense strategy the president was to adopt. By expanding the presidential powers, Congress lost its oversight authority concerning details of the operation, which the president retain autonomy of. The information reviewed indictates Congress shot itself on the foot when it passed the 2001 Joint Resolution that gave the president the leeway to implement programs he deemed necessary and appropriate in accordance to the provision of the resolution.
In conclusion, it is important to reiterate that the allegations on the overreach of the presidential powers by Bush are factual. However, laying the blame solely on Bush’s fee is harsh because his actions were consistent with the laws enacted at the time to address the imminent threats from terrorists. Congress expressly granted the president constitutional powers to use force as he deemed necessary and appropriate. In addition, the president retains substantial control of how to use such force. While Congress performs the role of oversighting the executive in matters of military deployment, it could not exert its influence to stop Bush from overstepping his mandate in executing the war against terror.
References
107 th Congress (2001). Public Law 107–40 - Joint Resolution. Congressional Record, Vol. 147 . https://www.congress.gov/107/plaws/publ40/PLAW-107publ40.pdf
Bolton, A., & Thrower, S. (2016). Legislative capacity and executive unilateralism. American Journal of Political Science , 60 (3), 649-663. https://doi.org/10.1111/ajps.12190
Howell, W. G., & Pevehouse, J. C. (2005). Presidents, Congress, and the use of force. International Organization , 209-232. https://www.jstor.org/stable/3877883
Kassop, N. (2003). The war power and its limits. Presidential Studies Quarterly , 33 (3), 509-529. https://doi.org/10.1111/1741-5705.00004
Kriner, D. L., & Schickler, E. (2016). Investigating the president: Congressional checks on presidential power . Princeton University Press.
Legal Information Institute. (n.d). War powers. Cornell Law School. https://www.law.cornell.edu/constitution/articlei#section8
Paust, J. J. (2001). Use of armed force against terrorists in Afghanistan, Iraq, and Beyond. Cornell Int'l LJ , 35 , 533.
