Yet from the start of our development under the Constitution, Presidents have sent troops into battle without declarations of war. This has occurred quite regularly since Thomas Jefferson dispatched marines against the Barbary pirates.* Moreover, of the conflicts known to us as “wars,” three of the four most costly—measured by both life and money—have been undeclared: the Civil War, the Korean War, and now Vietnam. Had war begun in October 1962, its aftermath, perforce, would also have been undeclared.
The Civil War began, in Northern eyes, as a rebellion. In 1861, when South Carolina seized Fort Sumter, Congress was out of session with its Southerners beyond recall. Korea and Vietnam, however, are another matter: both were foreign wars and both began when Congress was in session. In 1950 and in 1965 the Presidents concerned did not apply to Congress. Instead they used their own command authority to send forces into war without a declaration. So did Nixon when our forces crossed the border of Cambodia. So would Kennedy have done, it seems, had there been a third week of crisis over Cuba.
Thirteen Days affords us many clues as to why modern Presidents have shied away from Congress in making decisions about war. One clue is secrecy. Before announcing the first step in his response, Kennedy could not disclose to anyone who lacked a rigid “need to know” what the U-2 had discovered. Had the discovery been widely known within the government, it would have leaked out. Had it leaked; the Administration’s diplomatic initiative, achieved by making a countermove when unmasking Soviet duplicity, would have been lost. As it turned out, this was perhaps the best kept secret in American history. But only barely. By Saturday, James Reston of the New York Times had the story. A phone call from the President to his editor was necessary to delay the story until after the White House announcement.
A second clue is flexibility. It took extraordinary care and subtlety to find the “right” first-step response to Soviet missiles. Equal care was needed to design that step so that it signaled our intention to the Soviets, specified clearly what we wanted of Khrushchev, and left Kennedy poised for the next round. In that process, he could not commit himself to anyone without forfeiting maneuver room in dealing with Khrushchev.
Third, flexibility is compounded by uncertainty. Soviet intentions were the riddle to be read. These did not declare themselves with any blinding light like the Japanese attack in 1941. Uncertainty is compounded by complexity. To marshall our own forces and deploy them, and control them, to persuade our allies; to inform a hundred other governments through the United Nations; to say enough, but not too much in public; meanwhile trying to communicate effectually with Moscow—all this was to load a staggering burden on men already encumbered by innumerable governmental tasks. Finally, everything is compounded by time. Everything had to be done almost at once, under the relentless pressure of contemporary technology. Dispatch was of the essence.
Taken together, these factors—above all, time—limit the number of men with whom the constitutional Commander in Chief can engage in meaningful consultation. To maximize the prospect of a wise and viable choice, some interests cannot be excluded. In the missile crisis the issue was pre-eminently a matter of defense and diplomacy; it depended throughout on the capability of our intelligence and posed the possibility of military action. As constituted, the Ex Comm assured representation of these interests. Natural parochialism, stemming from the governmental positions of these men, guaranteed that considerations of defense, diplomacy, intelligence, and military action would be voiced. But, potentially, the life of the nation was at stake. How was this interest represented? By the President himself, with aides of his own choosing, not least RFK.
Time made the presidential mind the only source available from which to draw politically legitimated judgments on what, broadly speaking, can be termed the political feasibilities of contemplated action vis-à-vis our world antagonists: judgments on where history was tending, what opponents could stand, what friends would take, what officials would enforce, what men in the street would tolerate—judgments on the balance of support, opposition, and indifference, at home and abroad.
Where was Congress? What about those other minds legitimated by election? They were out of play, except to have their leadership informed at the last moment. Earlier consultation offered nothing indispensable. Congress, to be sure, could add legitimacy, but of this the President conceived he had enough. As a nationally elective officer he was, himself, more representative than any single congressman or senator and no less representative than all of them together. Besides, command decisions rested constitutionally with his office, not theirs. So he decided first and told them after.
Precursors of those thirteen days were the four days, June 24–27, 1950, from the time the North Koreans crossed the border until we committed troops then occupying Japan. As Kennedy would do some twelve years later, President Truman called into almost continuous session the officials most concerned, foreshadowing the Ex Comm; with their advice he escalated step by step to match successive revelations of North Korean strength and South Korean weakness, sending in observers while appealing to the United Nations, neutralizing Formosa, committing air power, and last committing nearby ground forces. Like Kennedy, Truman informed the Congressional leadership of his command decisions, which were far more generally applauded at the moment than in Kennedy’s case. But Truman consciously forbore to seek Congressional action.
Given the necessity for timely choice, and the surrounding circumstances, Truman thought a declaration of war wholly inappropriate. Congressional action of that sort had last been taken in December 1941 against the Axis Powers. Nine years later it implied, both publicly and internationally, not limited hostilities, but rather total war pursued to enemy surrender. Also it implied no other termination than by peace treaty, with Senate ratification, or by resolution of the two houses of Congress. Truman was endeavoring to limit warfare, not to spread it, and to end it expeditiously. He wanted neither his constituents nor the United Nations, nor our allies, nor Moscow, nor Peking, nor—and not least—the Pentagon to view Korea in the guise of World War II. Troops were nearby in Japan. He had command authority to use them. He had four days to decide on their use. In these terms there could be no role for Congress as a partner in decision.
Truman might have made Congress a ratifier of decision. On the fifth day or the sixth he might have sought a resolution of support. In the prevailing climate there is no doubt that he could have got it. He chose not to do so, lest it blur for his successors the command authority at their disposal. Instead he pointed to the United Nations under Senate-approved treaty, justified his action by a United Nations resolution, and asked Congress for the money and controls to prosecute the war. Congress complied. As the fighting dragged on after Chinese intervention, however, Truman paid a heavy political price for failing to make Congress share his June decision. This became “Truman’s war.” To it can be attributed the defeat of Truman’s party in the 1952 elections and the Presidency of Dwight D. Eisenhower.
Conscious of this cost to Truman, the Eisenhower Administration devised a protective means of pre-associating Congress with command decision, the “Quemoy-Matsu” formula, which Speaker of the House Sam Rayburn characterized at the time as a “blank check.” This was a Congressional resolution covering a given geographic area, which authorized the President to do no more than he had constitutional authority to do: employ armed force if circumstances should warrant. As pioneered by Eisenhower, this formula required first such tension in the area that patriotic congressmen could not refuse, and second such good fortune that the future use of force, if any, was short-lived. Eisenhower twice employed the formula, meeting both requirements, once off the China coast, once in the Middle East. It remained for Lyndon Johnson to employ it in Vietnam.
Of these requirements, Vietnam met the first but missed the second. A naval incident off North Vietnam sufficed for the Tonkin Gulf Resolution, but the use of force proved not to be short-lived. After Americanization of the Vietnam War in the first
seven months of 1965, Johnson could have had Congress ratify his decision. Like Truman, he refused. To do so would have meant public acknowledgment that we had entered upon large-scale hostilities likely to last several years. This would have precluded a low-posture, low-visibility approach; it would have precipitated sharp divisions between “hawks” and “doves,” subjecting the war effort to intense pressures from each. Moreover, proclamation of sustained hostilities, accompanied by calls for troops and taxes, almost certainly would have delayed or set aside Congressional action on the legislative program for the “Great Society.”
As months of war turned into years, however, the President stood alone, a lightning rod for dissent. Having never committed themselves to an American war in Vietnam, members of the Senate and House felt free to attack “Johnson’s war.” Formally, the Tonkin Gulf Resolution of 1964 may have covered the President’s course. Politically, it was a flimsy shield. In considering it initially, the Senate had rejected an amendment stating that Congress did not endorse “extension of the present conflict”; this followed Senator Fulbright’s assurance that such an amendment was needless. At the time, President Johnson was opening his campaign for election—against the Republican candidate Barry Goldwater—with word that “American boys should not do the fighting for Asian boys.”
Thereafter, once the war had expanded, Congressional disillusion was fueled by a feeling of having been duped. When senators became President Johnson’s critics, they tended to attack him sharply and bitterly. Attacks by congressmen helped to legitimate dissent in the country, encouraging others, especially in universities and the media. Moreover, the character of Congressional criticism gave some credibility to charges that the war was not only senseless and immoral, but also illegal. In the end, Johnson’s fate, politically, somewhat resembled Truman’s.
What does this reading of the recent past suggest about division of warmaking powers between President and Congress? For a nuclear crisis it is hard to fault the balance struck in 1962, tipped all the way toward the President in an Ex Comm. Secrecy, flexibility, uncertainty, and urgency—each alone makes a strong argument. Representation for essential interests underlines it. Together these impel the view that when a nuclear exchange impends, formal Congressional participation is not only inconvenient, but impracticable. In the missile crisis, if presidential decision had escalated to nuclear war, Congressional ratification would have been a mockery, or moot. Here the President is, and probably remains, the nation’s Final Arbiter.
But does this logic carry over into warfare of a limited sort, nonnuclear by definition? If not, how are distinctions to be drawn, and how enforced?
It is easy to see why recent Presidents have kept away from Congress, acting on their own responsibility, at such times as June 1950, or July 1965—or April 1970. Indeed their reasons resemble those affecting President Kennedy in October 1962. Many decisions must be made in secret. Congress is notoriously leaky. Skillful bargaining with the antagonist (or even one’s allies) requires flexibility. Congressional enactments are not readily amended on short notice. In limited warfare the geography, the weaponry, the scale, and the intensity are all subject to bargaining, overt or tacit. So is termination. A war declared by Congress cannot formally be ended without further act of Congress. And while Americans are more accustomed now than in Korean days to draw distinctions among “wars,” the fear of 1950 that an invocation of formalities associated last with World War II might signal an unlimited intent to citizens at home—or governments abroad—still weighed upon the White House as recently as 1965.
Arguments like these led President Johnson to prosecute the Vietnam War at a substantial price, the price of foregoing “war powers,” constitutional and statutory. These confer on the White House vast authority in home-front spheres like economic mobilization, public order, news management. But during the Korean War the Supreme Court decided that these powers flowed only from wars declared by Congress. Rather than see Congress act, Johnson dispensed with the authority. President Nixon follows the same course. This suggests how strong the case appears, at least from the perspective of two Presidents.
Yet Vietnam’s cost, both human and material, and its duration, coupled with the absence of agreed success or even agreed purpose, has brought into being an opposed perspective, strongly espoused in the Senate, the more so as White House legitimacy has been subject to sustained attack from a variety of sources in the country. Not since Korea has there been so much discussion of the need, and of assorted means, to limit presidential freedom on the military side of foreign policy. And where President Truman was denounced for failing to employ more force, fight wider war, win “victory,” President Nixon’s sharpest critics take the opposite tack. So did President Johnson’s.
The current counterargument, opposing White House logic, is least of all a matter of form, much more a matter of substance. The issue is not literal adherence to the Constitution’s terms but rather functional equivalence for their intent, namely that the body of elected men on Capitol Hill share in White House decisions at the time warfare begins. The power of the purse does not suffice; withholding funds from forces in the field is not a practicable course for most elective politicians. What is wanted is a voice before those forces get committed beyond recall.
A number of devices aimed at “redressing the constitutional balance” have been proposed in Congress. These span a spectrum from requiring formal action to regularizing informal consultation. Specifically, recent proposals include: (1) a requirement of affirmative legislative action by both houses of Congress for any military hostilities extending beyond thirty days; (2) an option of legislative veto by either house of troop commitments overseas; (3) a statutory prohibition of American military action (or supply) in certain countries; (4) a requirement for presidential consultation, in advance of action, with a select group like the relevant committee chairmen and ranking minority members. Other proposals are sure to be forthcoming as the Vietnam War drags on.
From the perspective of the last twenty years, even the least of these proposals places an extraordinary constraint upon the President. But push back another ten years and all seems ordinary. The great divide is World War II. Right up until Pearl Harbor, Franklin Roosevelt was more constrained than any recent President. Witness the tortuous process by which he transferred fifty overage American destroyers to Great Britain after the fall of France.* No current proposal would seem able to do more than make a future President work as hard as he did in that instance.
Whether Presidents should now be so constrained, and if so how, are matters for judgment. The closer one looks at these proposals the more complicated are the issues to be judged. Issues come in at least six clusters. Everyone concerned has these to weigh:
First, what is the prospect for “good” decisions on war, or the avoidance of war, under the distribution of power and rules of the game envisaged by each proposal? Which proposals offer the highest probability for getting the nation into the wars one prefers we enter, and keeping us out of the wars he prefers we avoid? Obviously, Americans differ on this issue, some favoring World War II, Korea, and Vietnam alike, some wishing we had stayed out of all three, and many drawing distinctions among them.
It is well to recall that in 1812, and again in 1898, Congress rather than the President took the lead in forcing war upon the country. Indeed, the Spanish-American War might have been fought five years earlier had not President Cleveland made plain that he would not wage it even if Congress declared it.
Second, however one answers the first question “on the average,” what about the next case, say in Southeast Asia or the Middle East? Under each proposed realignment of power, what are the prospects for “appropriate” choice? Again, there is obvious disagreement among Americans on what may be appropriate.
Third, how does each proposal fare as a mechanism for resolving differences among Americans over the decision to enter war? What are its prospects for producing politically viable decisions about wa
r? Is the process one that most citizens recognize as legitimate for making such important decisions about issues on which the nation may be sharply divided?
Fourth, how will each proposed realignment affect the personal power of particular individuals now on the Washington scene? For those involved in making choices about these proposals, the importance of this consideration is clear. For those of us who watch from a distance, the effect of realignments on the influence of our political champions—and their opponents—is important.
Fifth, what is the likelihood of action on each proposal? At any given time, what seem to be prevailing attitudes in press and public? How strongly are these shared by whom in Congress? Where are they placed on which committes in which house? Who else is to be reached, by whom, and how? Legislation calls for successive majorities starting with subcommittees. Short of a tidal wave of public sentiment, one cannot count on legislative action without counting heads.
Finally, what of unintended side effects? These are the bane of constitutional reforms adopted to keep some contemporary problem from ever occurring again. The Twentieth Amendment is a classic case. In order to avoid, forevermore, the crisis that ensued in the four months from FDR’s election to inaugural, we so shortened the learning time for Presidents-elect as to invite fiascos like the Bay of Pigs.
These issues share a common characteristic. None is abstractly “constitutional”; all are concretely political. So are the causes of concern behind them. So will be the results. Politically these issues are alive as products of Vietnam, once “Johnson’s war,” now Nixon’s. Their resolution probably is bound up with its outcome. The connection is a matter partly of specifics, from Cambodian invasions to Laotian incursions to whatever next fuels Congressional opposition. More important for the longer run is memory, not in terms befitting a historian but in the looser terms of popular impression.
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