The Congressional role in warfare

By now in reading my past works on the actual control of the military and Amendment II, the limits of Executive power and where the rights of the individual are actually to be considered, and a speculative look at how Congress also has *other* warmaking powers, one might come to the conclusion that something just isn't right in American politics. And one would be correct, but this is due to how the world has changed and this country has expanded since its founding.

When the United States fought the Civil War, it was to defend the idea of a United People represented through their respective State and Federal governments to remain united. When a state joins the Union, it is a compact between the people's to act responsibly for the consideration of the entire Union and all those within it. That is the dedication to signing onto the idea that the People have the rights and that Governments are delegated some rights and powers to help govern the country for the good of everyone. Actual and real power and authority was essentially a States affair and State capitols were the center of power in the Union up until the period prior to the Second World War.

The inter-war years saw the rising of Socialist States, both Communist and National Socialist, that used an overarching governmental structure to control all aspects of civilian life. The United States attempted some programs similar to those being used in the Soviet Union, Germany and Italy, but the Republican structure of the country and its Constitution prevented any real attempt of the Federal government to hold power over the People. The coming of World War II saw mass mobilization and the Federal government exercising broad powers to use the economy to allow the nation to survive and actually win that conflict or help win in many areas.

The unfortunate side-effect is that many people saw the Federal government as a source for *good* in the country. The Federal government did not step back into its traditional role because the Cold War required a large and dedicated military structure to keep threats from this country at bay. As Congress realized its power of taxation the Federal government grew and Congress decided that it could expand its mandate to 'promote the general welfare' by Federal programs. Suddenly, social problems, which had been the domain of the individual States were moved into a National arena. Congress expanded its purview via its commerce powers and civil rights legislation, both of which increased the power of the Federal government.

Today, that increased expansion of powers has made purely intrastate affairs come under the purview of this Congressional power, such as the Gonzalez (Ashcroft) v Raich. By allowing that local and intra-state growth of a controlled substance was impacting the national market price of that substance, Congress had power over such things, the Supreme Court has basically legitimized an entire class of power that is not in the Constitution to the point where Congress could pass a law about a son or daughter doing yardwork impacting the national market for landscaping companies and prohibiting it. Or, to keep it closer to its original realm, prohibiting sexual activities by married couples as it was negatively impacting the prostitution market across states. The underlying reasoning is untenable, but once it is overturned an entire class of Federal laws will need to be re-examined, including using taxation to bring in the Controlled Substances Act and previous similar laws.

On the negative side, the Second World War, by being a large State-to-State conflict basically run from the Executive, made Congress flaccid to its own warmaking powers. This can be seen as the natural outgrowth of State power in the world, as Nation States regularized activities, borders and international agreements. By the time the Second World War rolled around, the opposition was pretty much self-defined and required a national effort by the Union to combat it via conventional means with Federal armed forces. This idea lives on to this day, and Congress has totally abdicated its asymmetrical warpowers and no longer even tries to exercise them. Unfortunately the Union is now in desperate need of fighting an asymmetrical war, especially on the economic and commerce fronts above and beyond normal law enforcement. Opponents that use multiple front organizations, from charities to NGOs to 'paper companies', to move personnel and material from place to place can no longer be the sole realm of Executive law enforcement. That attitude led to 9/11 and even with a hefty dose of the Federal Military is not enough to get the job done. Nation building, while necessary, is not sufficient to this task, either.

While the Letters of Marque and Reprisals language may appear ancient, and the Executive asserts that sole power to wage declared war belongs to the Executive, I believe that they have overlooked the nature of asymmetrical warfare. As the United States is *not* a signatory to the 1856 Declaration of Paris outlawing Privateers, the Congress can very well do so. These would be individuals or companies seeking warrants to seize goods being shipped by certain parties without respect to the transporter's national origin. I suspect using such for trivial goods (handweapons, food, medication) would be difficult, but for larger things like actual shipping vessels, aircraft, ground transport or holding facilities that are owned or fronted to terrorist organizations, Congress would be on firmer ground. Congress can stipulate that the company or individual have evidential proof of the connections and goods and that such be available to it for inspection. However, necessary language to prevent this information moving to the Executive so that Federal action be taken against this would be necessary due to the time and monetary investment put forth by the individuals and companies involved. Indeed, Congress would be liable to pay over the full expense of the research *and* the commission based on an estoppel and breach of faith and contract. More risk to the individual and company could be done for a demonstration of evidence after-action, and such an individual or company may be held liable under international trade laws. But, those companies could only be charged in the US under the Supreme Court, and if sufficient evidence and good faith upholding of fulfilling the warrant is demonstrated, those bringing the case would be hard pressed to recover damages. While trying in other courts would cause some problems to the company or individual, they would have to make that assessment of risk on their own for the activities involved.

Personally I find it particularly damning that Congress no longer recognizes this power nor exercises it in the modern age. In this era of using asymmetrical means to achieve ends, the response needs be asymmetrical on all fronts: political, military and economic. The Executive through CinC, law enforcement and Head of State capabilities holds a fair hand in this, but in going after international commerce it is particularly hamstrung as that is the sole power of Congress. If Congress were serious about putting real teeth into the fight against Transnational Terrorist Organizations, it would either properly fund asymmetrical branches for fighting on the economic front within the Federal government, or take a direct hand by authorizing individuals and companies to do so under its direct supervision. As it is this fight is being done on the cheap using a peacetime economy, which, while huge, is not properly dedicated to bringing down Transnational Terrorist Organizations.

Wherefore art thou, Congress?

Busy pulling wool over the public's eyes with show hearings?

Or herding together like sheep *hoping* another wolf does not lurk nearby?

No one in this Congress will get my vote ever again so long as the wool is upon them.