At a joint press conference on the morning of July 18, outside the Capitol, Congressman Walter Jones (R-NC) and Congresswoman Tulsi Gabbard (D-HI) announced that they have introduced legislation that would define “presidential wars” as those not declared by Congress under Article I section 8 of the US Constitution as an impeachable “high crime and misdemeanor.”
The resolution, HR 922, which has been referred to the House Judiciary Committee, would “prohibit the President from making the United States a co-belligerent in an ongoing war without a congressional declaration under the Declare War Clause” and goes on to define a state of co-belligerency as one in which the United States “substantially supplies war materials, military troops, trainers, or advisers, military intelligence, financial support or their equivalent in association, cooperation, assistance, or common cause with another belligerent.”
At the press conference, Gabbard said the bill is necessary because “our country continues to remain in a state of perpetual war at a great cost to the American people and to the innocent civilians around the world who are affected by these wars, with no declaration of war by Congress and no say by the American people.”
On Wednesday, I spoke with constitutional attorney Bruce Fein, who drafted the Jones/Gabbard legislation. This interview has been edited for length and clarity.
James Carden: Mr. Fein, you are a constitutional lawyer who served as an associate deputy attorney general in the Reagan administration. And I know you write frequently on constitutional and foreign policy for The American Conservative, among other publications. What prompted you to take the issue of presidential wars on? Where does your interest stem from?
Bruce Fein: I am keenly interested in war for manifold reasons. War makes what is customarily first-degree murder legal, i.e., intentional killing not in self-defense. War violates the cornerstone precept of civilization: It is better to risk being the victim of injustice than to be complicit in it. War migrates a nation’s collective genius from production to destruction. War squanders vast sums better spent on infrastructure and education in civics indispensable to discharging the obligations of citizens in a republic. The first casualties of war are the rule of law and truth. As Cicero observed, in time of war the law is silent. War gives birth to a surveillance state and the crippling of privacy protected by the Fourth Amendment under a national-security banner. War replaces transparency with secrecy inconsistent with government by the consent of the governed and congressional oversight of the executive. War destroys the Constitution’s separation of powers—a structural Bill of Rights—by entrusting limitless power to the president. If the American people and Congress neglect to terminate and sanction presidential wars, the American republic will crumble like the Roman Colosseum and the sacrifices and hardships of Valley Forge, Cemetery Ridge, and Omaha Beach shall have been in vain. At present, the United States is engaged in nine unconstitutional presidential wars in Libya, Somalia, Yemen, Pakistan, Iraq, Afghanistan, Syria, and against Al Qaeda and ISIS.