Front Page















War Denial - November 26, 2001

By James L. Hirsen, J.D., Ph.D.
contributor to

Ever since 1793, when Hamilton and Madison engaged in their version of "Crossfire" about George Washington's extent of authority, the question of presidential war powers has vexed American leaders.

Today, the powers of the president are once again being discussed by the mainstream press and broadcast media. Journalists, television anchormen and anchorwomen, and talking heads across the country have seen fit to resurrect a phrase, coined by Arthur Schlesinger but seldom mentioned since the last time a Republican occupied the White House: "The Imperial Presidency."

It is noteworthy that the conventional press did not seem to consider presidential power to be of particular importance during the tenure of the previous administration. This despite the fact that President Bush's predecessor broke records for the most declarations of national emergency, the most assertions of executive privilege, the most number of pardons granted, the most recess appointments made and, arguably, the most questionable use of the military ever.

Now there seems to be a serious malady that is afflicting some members of the elite. It's called war denial.

Of course, most of us tend to deny reality to some degree when things get unpleasant. And war, by its very nature, is highly unpleasant. But in this case, some are flat out refusing to believe the facts, no matter how stark the evidence.

Terrorist organizations, and the nations that support them, have already declared war on our country. We have the battle scars from Ground Zero to prove it. We have endured the most serious military attack on our continental soil in history. Facing this reality and remembering it in its full detail is what will preserve us in the long run.

But some sufferers of war denial are trying to divert attention toward our country's shortcomings. They look to point fingers of blame at any targets other than the ones that are appropriate ­ namely, the actual perpetrators of the vicious killings.

Others are engaging in a pedantic exercise. With a literal bent toward the Constitution, some hold that because Congress has not declared war, the nation is not actually at war. Although recognition of the Constitution as the supreme law of the land is always preferable, Congress's failure to perform does not mean that what happened didn't happen.

A formal declaration of war has been repeatedly advocated in this column. But the lack of declaration can never alter the facts. This war's for real.

It's real in terms of U.S. and international law. Early decisions of the Supreme Court indicated that a de-facto state of war can exist between the United States and a foreign nation without a formal declaration of war by Congress.

When the Jefferson administration engaged in military action against the Barbary Pirates, Alexander Hamilton enunciated his view, that no declaration by Congress was necessary to allow the U.S. to seize Algerian vessels on the high seas.

Hamilton wrote that war "between two nations is completely produced by the act of one -it requires no concurrent act of the other. . . [W]hen a foreign nation declares, or openly and avowedly makes war upon the United States, they are then by the very fact, already at war, and any declaration on the part of Congress is nugatory: it is at least unnecessary."

For the last 20 years, the issue of the division of power between the president and the Congress, with respect to war, has been handled without a formal declaration through use of the War Powers Resolution.

The tug of war that the War Powers Resolution sought to address has been present for more than two decades ­ in our military actions in Asia, the Middle East, Africa, Central America and Europe. Presidents have submitted nearly 50 reports to Congress involving the resolution.

Its purpose is to set forth a framework for Congress and the president to follow when military action is necessary. Consultation with, authorization by, and reporting to Congress are the primary requirements of the resolution.

The founders already set up a framework in the Constitution when they specified that Congress has the power to declare war and the president has power as commander in chief.

Nevertheless, the War Powers Resolution is the manner in which our current leaders have chosen to authorize war power.

Four days after the attack that thrust us into war, both Houses of Congress, with only one dissenting vote, passed a resolution pursuant to the War Powers Resolution. It authorized the president to "use all necessary and appropriate force" against those who planned the attacks or helped the terrorists.

That grant was broad enough to be a de facto declaration of war.

Under international law, also, the United States is in a state of war, whether or not Congress has formally declared it.

The attacks of Sept. 11 were carried out by members of the Al-Qaeda terrorist network. The Taliban regime in Afghanistan and elsewhere gave support and sanctuary to this network, with the knowledge that Al-Qaeda planned to kill innocent American civilians.

The natural right of self-defense, present in our individual rights heritage, is also vested in sovereign nations under customary international law as well as the U.N. Charter.

So we are in a state of war, in law and actuality.

Sufferers of war denial would do well to pull their heads out of the sand and engage in a beneficial exercise: Take a deep breath and face the truth.

Reproduced with the permission of . All rights reserved

Copyright © 2001 -
James L. Hirsen, J.D., Ph.D.

All Rights Reserved