War Time Presidential Power Presents Constitutional Dilemma

Some anti-war arguments make less sense than others.

Shortly after 9/11, critics began dismissing the notion that we should, or even could, be at war with terrorists. There’s no universally agreed-upon definition of terrorism, they argued. It’s not a traditional war with states, armies and objectives. Dealing with terrorists is a matter for law enforcement, diplomats and social workers, they insisted.

For the most part, these were baseless objections. There are people trying to kill us, and we must stop them. After 9/11 was followed by Madrid, London, Baghdad, Bali and a host of foiled plots here and overseas, no one can seriously doubt this is a war by any name -- which is why today hardly anyone seriously raises such nonsensical objections.

One objection, though, is more troubling -- and relevant. Wars, whether they’re announced by a congressional declaration (World War II) or are undeclared (the Korean War), have monumental constitutional implications.

During wartime, the constitution gives the president the power to fight with any resources Congress makes available. The executive is expected to do what it takes to protect the nation. That’s a problem, because presidents might abuse that power. They certainly have in the past.

Woodrow Wilson, Franklin Roosevelt, Lyndon Johnson and Richard Nixon all permitted abuses of power during wartime, including the collection of intelligence on political enemies who were in no way national security threats. And since the battle against global terrorists appears open-ended, with no defined field of combat, President Bush’s critics are afraid declaring war offers a recipe for the abuse of presidential power.

It appears an unsolvable dilemma. The Constitution says presidents need the freedom to defend the nation, but the nation needs to be reassured that presidents aren’t destroying the personal freedoms the Constitution guarantees.

Unlike the laughable debate over whether the war metaphor is appropriate to describe the world in which we live, the fear of the potential abuse of presidential power is a legitimate concern.

This problem is particularly important in protracted wars. The longer the war, the more desperate the country becomes to win. States become more authoritarian. They centralize decision-making. They curb liberties. They increase taxation. All in an effort to generate the power to win.

In the process, they may become a garrison state, destroying the civil society the state was created to protect, and, ironically, making the state less powerful. Slave states can’t generate as much will to win as free markets and open societies.

The challenge in an extended war is to sustain the things that make a nation strong. That means not just fighting the enemy, but preserving liberties. The challenge is make sure neither the terrorists nor the executive become a threat to the nation.

When President Bush rechristened the fight against terrorism during the State of the Union address as the “long war,” he got to the essence of the matter. What America has to do is prepare to fight and win a long war -- the right way.

It can be done; it has before. The nation managed to endure more than 40 years of struggle with the Soviet Union and in the end emerged victorious, free and powerful.

While presidents may need to take extraordinary measures to make the nation safe, as the war lengthens, as the nature of the threat and what needs to be done are better understood, the three branches of government should work together to find ways to ensure that legal protections are added that both allow them to continue to use appropriate tools to provide security and to ensure to safeguard civil liberties.

The Patriot Act offers a case in point. In the wake of 9/11, Congress and the administration decided the law was necessary and reasonable. Four years later, they revisited their decision. Some provisions were modified. Some additional oversight measures were added. And lawmakers reauthorized the law. That’s they way the system should work.

This is the same approach the president and the Congress should take to administer the National Security Agency’s surveillance program that intercepts communications between possible terrorists and U.S. persons.

No one can question that the president should have the means to intercept communications that might prevent a terrorist attack. But if the description of the NSA program provided by the administration is accurate, then current laws do not provide the means for efficient judicial and legislative oversight. Making the NSA surveillance program, like the Patriot Act, the right weapon for the long war will require the president and the Congress to work together.

They’ve done so before, and must again, to make all Americans safer and to safeguard our liberties over the long-term.

James Jay Carafano is senior fellow for homeland security at The Heritage Foundation, a leading Washington-based public policy institution.

James Jay Carafano is vice president of foreign and defense policy studies  The Heritage Foundation. Follow him on Twitter @JJCarafano.