Commanders in Chief and the Defense of the Republic
By Paul FinkelmanNovember 15, 2016
Waging War by David J. Barron
All of this combat has been conducted without a declaration of war or even much debate in Congress. The Authorization of the Use of Military Force (AUMF) of 2001 vaguely gave President George W. Bush the power to conduct warfare with impunity in Afghanistan, and a second AUMF in 2002, provided similar vague support for invading Iraq. Unimpeded by Congressional restrictions, Bush used this Authorization to allow torture, to try civilians in military courts, and to evade applying the Geneva Convention to prisoners of war. Waging War by Judge David J. Barron of the First Circuit Court of Appeals stems from these excesses — and the ensuing frustrations of the Obama administration in trying to clean up the mess and end the seemingly endless cycle of violence that plagues the Middle East.
Focusing on military action, military policy, and most of all, presidential authority, Barron offers a history of the relationship between the president as commander in chief and Congress. Only by looking at developments since the American Revolution, Barron asserts, can we understand this relationship and competently choose each new commander in chief.
Barron argues that presidents should conduct wars in cooperation with Congress and “that for most of our history our presidents have chosen not to assert a sweeping power to run the wars in which they have led the country however they have seen fit.” The author cheers the idea that “presidents have time and again recognized the danger to themselves — and to our constitutional system of checks and balances — that inheres in the idea that decisions about the conduct of war are theirs alone to make.” This is certainly a political and constitutional ideal that many Americans embrace. But whether this statement — Barron’s thesis — is actually supported by the evidence is less clear.
An alternative lesson of history, one that Barron ignores, is that while most presidents have exercised their role as commander in chief with the help and support of Congress, they have sought to minimize the level of interference from meddling legislators. Moreover, a number of presidents in the modern era have sought to conduct wars with little or no input from Congress. Much of Barron’s story, whether he wants to admit it or not, is about how presidents have ignored Congress, circumvented Congress, or gained Congressional support by cajoling, threatening, or outright lying to Congress.
Barron does not explore this as he might.
He does not, for example, even mention (much less discuss) Lyndon Johnson’s bald-faced lies about the Gulf of Tonkin incident, which led to the ramping up of the Vietnam War and ultimately the death of more than 50,000 Americans. Indeed, there is absolutely no discussion in this book of LBJ’s war. It is hard to imagine how Barron could write a book on presidential war powers and their relations to Congress without a significant discussion of the misleading information, outright lies, and widening “credibility gap” of the Johnson years. All of this is laid out in the Pentagon Papers, which Barron mentions only once and never discusses. He also fails to discuss the Kennedy administration or the Johnson administration — his chapter on Indochina begins in 1970, as if nothing happened before then, and, as if by magic, a half-million American troops ended up in Vietnam. He mentions the Bay of Pigs only in the context of Arthur Schlesinger’s book The Imperial Presidency, published in 1973. An analysis of this jingoistic enterprise begun by Eisenhower and continued by Kennedy would illustrate the counter-story: that presidents often act as commander in chief without any consultation with Congress. Similarly, Barron never mentions or discusses Johnson’s invasion of the Dominican Republic. Even more astounding, he never discusses the utter dishonesty of the second Bush administration’s false claims (based on manipulated data) that Saddam Hussein had weapons of mass destruction.
All of these omissions, in just the modern period, undermine the analysis and argument of the book. They furthermore illustrate that in many instances presidents have shared “the conduct of the war” with Congress, not because they wanted interference from the legislature, but because it was good politics to do so.
Barron applauds Justice Robert Jackson’s position in the Steel Seizure case that the president does not have “an absolute power to fight a war on his own terms,” and endorses Jackson’s view that such an idea of presidential power is “dangerous” and thus one that “past presidents had consistently shied away from.” Barron chastises President George W. Bush (but not Lyndon Johnson) for interpreting “the signals from the past very differently” — although he does not discuss the false claims Bush used to justify the Iraq War. Barron argues that “the idea that the president is really not bound by Congress in war runs against the grain of history.” As we debate the use of drones in the Middle East or Afghanistan, airpower over Libya, intervention (or non-intervention) in Syria, or what can only be described as our “quasi-war” against ISIL, Barron argues that we need to understand “the centuries-long history of prior fights between Congress and the Commander in Chief over the conduct of war.”
At one level, Barron is totally correct. History shows that presidents usually cannot successfully conduct wars without the support of Congress, and to attempt to do so for any length of time is foolish and dangerous. Lyndon Johnson’s failures in Vietnam surely taught us that, and it would have been useful for Barron to contemplate them. The debacle of the Bush wars underscores this.
But we also know that many presidents have often acted in the national interest without waiting for Congressional support, or even acted in the face of hostile legislation and vigorous Congressional opposition. It is with some irony that Barron’s best chapter is his superb discussion of Franklin D. Roosevelt’s 1940 exchange of 50 American destroyers for Great Britain’s bases in the Caribbean without Congressional approval and in the face of numerous congressional acts that seemed to make this deal illegal. Barron describes the deft maneuvering of Robert Jackson (one of the author’s heroes), Benjamin Cohen, and other administration lawyers in developing a theory that would allow them to accomplish precisely what Congress did not want them to. He also describes the work of Justice Felix Frankfurter, who helped shape the legal theory that allowed the transfer of ships to take place, while leaving out any discussion of the utter impropriety of a sitting Supreme Court Justice meddling in political affairs.
These acts by FDR and his team were high minded and surely helped save the world from Nazi tyranny. Only after this deal had been struck was FDR able to get Congress to change the neutrality laws, adopt the lend-lease program, and free the president to prepare the nation for war. This story is suggestive of how cumbersome Congress can be in times of real crisis, and how a strong chief executive maneuvered around Congress to get an important job done. This story illustrates that at some times an aggressive and creative commander in chief has been the key to the nation’s survival.
Most Americans — except perhaps those who have actually occupied the Oval Office — probably agree, at least in theory, that in a democracy the legislature must participate in the process of war-making. Furthermore, it is impossible to see how a president could ever unilaterally conduct a war without input from Congress, given its critical role of raising money through taxation and of spending it through legislation. At the same time, however, in a world of instant news and instant warfare, we know that the president might have to put on his commander in chief hat at any given moment, without Congressional approval. The president is never far away from a military officer carrying the “nuclear football.” In our modern world, presidents may inevitably face the possibility of acting as commander in chief well before Congress can take any action. Moreover, as the destroyers for bases deal shows, sometimes even in a slow-moving crisis, successful presidents have had to either act without Congressional authority or work around federal statutes.
Ironically, three of our greatest presidents — Washington, Lincoln, and FDR — in part gained greatness precisely because in moments of crisis they were willing and able to act without Congressional authority or support, and were then able to subsequently convince Congress to go along with their actions. The story of FDR and the naval ships illustrates this. Washington famously, without consulting Congress — much less waiting for legislation — led the army himself to suppress the Whiskey Rebellion. He was equally forceful, and wise, in not insisting on hangings or even harsh jail sentences for the disgruntled farmers and backwoodsmen who had resisted paying taxes and wanted to make war on the United States. Without consulting Congress, Washington even pardoned two men sentenced to death for treason.
Similarly, long before there was a nuclear football, President Lincoln faced the possibility of conducting a war without Congressional authority or support. In 1861, when Southern traitors attacked the United States army stationed at Fort Sumter, President Lincoln responded immediately, calling on all loyal states to send militia regiments to Washington to protect the capital from a gathering enemy. In an age of relatively slow communication (telegraph) and sometimes ponderously slow travel (even with railroads), Lincoln could not wait until members of Congress — which was not in session at the time — came to Washington to consider the fate of the nation as it was being attacked by rebellious traitors. The Constitution provided for the suspension of the writ of habeas corpus in times of “rebellion,” and Lincoln wisely, correctly, and, I would argue, constitutionally, invoked that clause to suspend habeas corpus along the railroad lines from Washington to Philadelphia. Only Lincoln’s forceful actions prevented pro-Confederate domestic terrorists like John Merryman in Maryland from destroying railroad tracks and bridges, which would have effectively cut Washington off from the rest of the nation and also prevented Congress from meeting.
Thus, some of Barron’s book, including his chapter on FDR and the destroyer-for-bases trade, undermine his thesis — as does his failure to look at certain important instances of presidential action, like the Whiskey Rebellion, or offer a significant discussion of various critical events, such as the secession crisis and the Emancipation Proclamation. All of these offer important counter-examples to Barron’s thesis that he should have addressed. In a time of great crisis, the president alone may have to act to defend the Constitution and preserve the nation. Unfortunately, Barron fails to address this unique role.
He might have compared and contrasted issues like Emancipation or suppressing terrorism at the beginning of the Civil War with less noble acts such as Johnson’s lies about the Gulf of Tonkin incident or Bush’s fabricated claims about weapons of mass destruction. This would have led to a more complicated, more sophisticated, more nuanced, and ultimately more important book. But it also would have forced Barron to rethink some of his arguments and his thesis.
The many omissions in Barron’s history — some I have already noted and others I will discuss below — are compounded by the book’s incredible sloppiness. Barron severely undermines his own credibility and his arguments throughout the book with a history that is often factually wrong to the point of being useless or misleading. Some of his mistakes are simply stupid — such as his incorrect assertion that Charles Evans Hughes resigned as chief justice to run against Wilson in 1916 (he was actually an associate justice). Others, as I will note are more complex and important. But the small mistakes (and there are many throughout the book) make the entire enterprise doubtful. If the author can’t sweat the little things, how can we trust him to get the big things right?
Barron begins on shaky ground when he writes about George Washington as “commander in chief” during the Revolution. Washington was actually the general in chief — never the “commander in chief” in the way that a civilian president is. As general in chief, Washington was fully under the control of Congress, which could have demoted him or removed him from command at any time and replaced him with another general. This is hardly analogous to a president, who does not serve at the pleasure of Congress. Rather, the history of Washington shows how a general in the field was under the direction of his superior civilian commander (in this case, Congress), and properly obeyed that authority. It is emphatically not an example of an independent civilian commander in chief (the president under the Constitution) sparring with Congress, which is the subject of this book.
Beyond this poor analogy and model, Barron gets lost in the history of the Revolution. Thus he describes Washington’s retreat from New York City in September 1776 by telling us that “Washington [had] begun to lead his men from Manhattan and across the icy waters of the Delaware.” The Delaware River is nowhere near New York City. It separates New Jersey from Pennsylvania about 70 miles west of New York City, but apparently Judge Barron does not know this. Washington actually left New York for Westchester County by crossing the Harlem River. He then fought (and lost) the Battle of White Plains before moving on to New Jersey by crossing the Hudson — not the Delaware. He made these crossings in September and October when neither river had any ice. Seeking to be dramatic, and no doubt trying to evoke patriotism, Barron tells us Washington’s retreat was “the beginning of a hellish journey that would take the troops across the Delaware River and on to Valley Forge.” I suppose that that is technically true, but only in the weirdest of ways. Washington left New York City in September 1776; fifteen months later, in December 1777, he went to Valley Forge. Anyone with even the slightest knowledge of US history or geography would read this and wonder, as I did, what Barron is actually talking about.
Even when you are writing a mega-history of a subject, it is important to get your dates and rivers straight. To be blunt: It is hard to seriously accept arguments based on history when the author continuously makes elementary mistakes in his history — confusing events, chronology, and facts — and can’t even read a map. One aspect of writing history is that it is important to actually get your facts (and your geography) right. Barron does not seem either to know this or care about it. Some of his factual errors are, as mentioned above, simply silly and not particularly meaningful, but they do indicate an incredible sloppiness in scholarship and make much of the book suspect. Others are far more serious because Barron predicates his argument and his analysis on incorrect facts, chronology, and geography. Here are a few examples.
After telling us (or not telling us) about the rivers Washington did and did not cross, Barron writes about Washington’s administration while, as I have noted, failing to discuss the military aspects of his terms, such as the Whiskey Rebellion. Barron then turns to John Adams and the major diplomatic crisis known as the “XYZ Affair.” He writes: “The bombshell known as the XYZ Affair — so named for the three secret and thus unnamed American envoys involved — severely undermined the Republican effort to check Adams.” The problem here is that “XYZ” was the code for three French officials — not the American diplomats. In history, as in baseball, you sometimes need a scorecard to know the players. Barron forgot to pick one up in the library, under basic US history. The three Frenchmen — Baron Jean-Conrad Hottinguer (X), Pierre Bellamy (Y), and Lucien Hauteval (Z) — demanded bribes from the very public US envoys, John Marshall (the future chief justice), Charles Cotesworth Pinckney (a future presidential candidate), and Elbridge Gerry (a future vice president). This is not a simple mistake. It is an indication that the author has very limited knowledge of United States history and has failed to do even the basic research necessary for a book like this (in desperation, he could have at least looked up the XYZ affair in Wikipedia!).
In other places, too numerous to catalog, Barron offers facts that are not true and analysis that is unreliable. He tells us that former president Jefferson “begged Madison not to put [Joseph] Story on the Court to fill the seat that came open just after the war [of 1812] began.” This claim is key to Barron’s discussion of events during the War of 1812. But, the seat Story took became vacant when Justice William Cushing died in September 1810, not during the War of 1812. Madison appointed Story on November 15, 1811, after a number of other men declined the position, eight months before the War of 1812 began (in June 1812) — not during the war as Barron thinks. It astounds me that a sitting federal judge and former Harvard law professor cannot figure out when the first great Harvard law professor, Joseph Story, went to the Supreme Court. Barron gets fundamental Supreme Court history wrong again when he tells us that in 1916 Woodrow Wilson ran against “the former chief justice, Charles Evans Hughes.” Alas, Hughes was an associate justice when he resigned to run for president, although he later would be put back on the Court as chief justice in 1930. Barron later tells us that Robert Jackson was “a brilliant man, and a self-taught one.” Barron clearly is a great fan of Jackson (as is this reviewer) and I suspect this inaccurate portrayal of Jackson’s legal education was designed to enhance Jackson’s stature — but once again Barron is mistaken. Jackson first learned law when he clerked for his uncle and then attended Albany Law School. He was a proud alumnus of Albany Law School and would have credited his uncle with helping him become a great lawyer. Brilliant he was; self-taught he was not.
Barron even misstates the issue in Dred Scott (we expect our judges and law professors to get cases right) by stating that the Court used “absolutist language in that case denying the right of all those in bondage ever to count as citizens.” Chief Justice Taney actually said that free blacks, even those who could vote and hold office in northern states like Massachusetts, could never be citizens of the United States. That is what made the decision so outrageous. No one would have batted an eye if the Court had only said that slaves were not citizens, because virtually all Americans accepted that fact. By inaccurately describing the holding, Barron misleads readers about President Buchanan’s vigorous support of the decision.
The forgoing might seem like nitpicking, but it is not. Barron wants to make a powerful argument about executive power and constitutional law that is entirely based on history, but if he can’t get simple facts correct, then can we trust any of his history? Two more complicated issues illustrate this dilemma.
In May 1861, General Benjamin Butler freed slaves running to his camp at Fortress Monroe as contrabands of war that could not be returned to their traitorous owners. The Lincoln administration upheld this position and by the end of the year more than 100,000 slaves from the Confederacy had gained their freedom by escaping to the US Army. This was an important example of presidential wartime authority that Barron should have examined with great care and in great detail. It was the prelude to the Emancipation Proclamation, which Barron also does not examine in detail. A careful discussion of both Butler’s acts (and the administration’s support for them) and the Emancipation Proclamation would, however, have undermined Barron’s thesis. In supporting Butler’s act and later freeing the slaves in the Confederacy, Lincoln acted without any Congressional authorization.
Barron’s discussion of this critical event is once again littered with incorrect facts and fatally flawed analysis. He writes that the slaves gained their freedom when they “sought refuge with General Benjamin Butler’s forces at Fort Monroe, near Baltimore.” Barron then notes that “the head of the army of the Potomac, General George McClellan, had made an opposite” decision with regard to fugitive slaves. Thus Barron implies that Butler was undermining his commander. In a book about military chains of command, this is surely an important matter. But McClellan was not in fact the “head” of the army of the Potomac (he would later hold that position). In early May 1861, he was commanding troops in Ohio (and what would later become West Virginia) and had no power or authority to control Butler’s actions.
The greater error here, however, is that Fortress Monroe (as it is correctly called) is not near Baltimore and not in fact in Maryland. It was (and still is) outside of Hampton, Virginia. This makes all the difference in the world. Butler was emancipating slaves in the Confederacy, who were being used by their owner, a Confederate colonel, to build fortifications. Butler thus considered the slaves contraband of war and then freed them. (Lincoln would later use this theory as the basis of the Emancipation Proclamation.) Both Secretary of War Cameron and President Lincoln later backed Butler’s action — the president happily joking about “Butler’s fugitive slave law.” Barron compounds his incorrect facts and confused analysis by asserting that Butler applied this rule “in border areas” — that is, in the loyal slave states like Maryland. But he did not — and Lincoln did not. Butler’s contraband policy only applied to the Confederacy, although later Congress would extend some aspects of it to the loyal slave states.
Barron later discusses General John C. Frémont’s attempt to free slaves in Missouri, which Lincoln countermanded, because Missouri had not seceded and thus slave property there was protected by the US Constitution. Barron ignores these Constitutional details and misconstrues the differences between what Butler did in the Confederate state of Virginia and what Frémont tried to do in the loyal state of Missouri. Barron compounds this by using a discussion of Lincoln’s anger with Frémont to argue that this was “a dispute over the president’s power to use military force to free the slaves.” It was not. The letter Barron quotes out of context was part of a discussion over whether Frémont’s illegal order would push Kentucky out of the Union (Lincoln believed it would) and the best way for Lincoln to countermand that order. This issue, which Barron does not understand, was whether the commander in chief could countermand an illegal order by a subordinate general. Lincoln did precisely that and no one in Congress thought the president had exceeded his authority.
Once again, Barron’s inability to actually understand the evidence he is using and the history he is writing undermines the arguments he wants to make. He baffles anyone familiar with this history and misleads less knowledgeable readers. Barron later notes that Frémont’s supporters were troubled when Lincoln countermanded the order, but nowhere does Barron explain the central constitutional issue that the national government could not take slaves (or other property) away from people within the United States, as Kentucky and Missouri were. His subsequent discussion of Emancipation is equally confusing because he spends pages outlining one senator’s opposition to the Confiscation Act of 1862 rather than explaining the complicated constitutional nuances of Lincoln’s unilateral act as commander in chief to end slavery in the entire Confederacy. Here is one of the monumental examples of the commander in chief acting without Congressional sanction to literally change the history of the United States. This event should have been central to a book on the power of the commander in chief to act without any direct Congressional support or even any consultation with Congress. But Barron does not delve into this history because, quite frankly, he seems to have no understanding of what is going on. If the author does not understand the Constitutional issues surrounding a commander in chief’s actions, how can he explain them in a book?
Barron’s analysis of Woodrow Wilson’s road to war is equally troubling. He begins by arguing that Wilson won the 1916 election (against former “Chief Justice” Hughes) because women, who had “recently” gained the vote in the west, rallied to his slogan “He kept us out of war.” Barron is correct that between Wilson’s victory in the 1912 election and the 1916 election, women had gained the vote in six western states. But his analysis falters in the face of actual evidence. In 1912, Wilson had carried five of these states and in 1916 he carried the same five states again. In both years he lost the sixth state. Thus, there is not much evidence (if any) that the recently enfranchised women voters in the west had any impact on Wilson’s campaign. He won five western states without women in 1912 and he won the same five states with women’s votes in 1916. However, between 1912 and 1916, five Midwestern and eastern states had also enfranchised women. In 1912, Wilson had won four of these states, but in 1916 lost all five of them. If anything, we might argue that the enfranchisement of women hurt Wilson since he lost four states with the women’s vote that he had previously won.
From this analysis, Barron goes on to discuss how we entered the war. He describes Wilson’s important speech of January 22, 1917, reaffirming American neutrality. Barron explains (without any reference or citation) that Republicans criticized Wilson for taking this position “while German U-boats were regularly taking out cruise liners, some with American passengers on board.” The problem here is that Germany refrained from unrestricted submarine warfare between September 1915 and February 1917. Furthermore, after the sinking of the Lusitania in 1915, cruise liners ceased crossing the Atlantic. My guess is that Barron confused the Lusitania incident of 1915 with Germany’s resumption of unrestricted submarine warfare after Wilson’s speech — and then threw “cruise liners” into the mix because it sounded good. Whatever the explanation, once again, Barron predicates his analysis on false facts, wrong dates, and totally confused history.
Beyond these (and many other) errors, Barron fails to examine key moments in US history when unilateral presidential leadership — including the use of force or the threat of force — mattered. He makes no mention of the Nullification crisis and President Andrew Jackson’s threat to personally lead an army into South Carolina to hang the governor. He never discusses the Force Bill of 1833, authorizing presidential action to enforce laws, which Congress passed after Jackson said he would lead an army into South Carolina.
This omission is particularly important, because Barron should have discussed that law in his analysis of James Buchanan’s failure to protect the nation during the secession crisis. He argues that Buchanan could not act without congressional authorization, but fails to tell us that the Force Bill, which had never been repealed, might have been used to justify defending the nation from traitors. In that same discussion, he offers an apologetic defense of Buchanan for not acting to stop secession, but does not mention or examine, much less explain, why Buchanan allowed his Secretary of War to ship arms to southern militias at the very moment southern states were moving toward secession and planning to make war on the United States. Similarly, in discussing Buchanan’s reluctance to use the army to preserve the Union because he did not have Congressional approval, Barron fails to note, much less discuss, that without Congressional authorization Buchanan had previously sent the army to Kansas to make war on abolitionists (including murdering John Brown’s son in cold blood) as well as to Utah to suppress members of the Church of Jesus Christ of Latter-Day Saints in what is known as the Mormon War (1857–’58) or the Utah War. While Barron talks about our current adventures in Iraq and Afghanistan as our “longest war” he never mentions the Seminole Wars, which were fought intermittently for 40 years. Indeed, in a book about “waging war” that is over 400 pages, Barron manages to avoid mentioning any of the hundreds of battles, wars, and treaties involving Indians, which were directed by presidents sometimes with, and sometimes without, the consent of Congress.
In his acknowledgments, Judge Barron thanks his fellow lawyers at the office of legal counsel, his colleagues at Harvard Law School, his law students, and his literary agent. He does not thank any historians, apparently because he never sought their advice or suggestions, and his publisher, Simon & Schuster, apparently never sent the manuscript to any scholars for a critical reading. This would help explain why Waging War is in the end such a flawed and unsatisfactory book, which is too bad. The subject is worthy of a good book. Barron’s thesis may be partially right, and his goals surely admirable, but the history is far more complex and complicated than this persistently inaccurate book presents.
Paul Finkelman is the Ariel F. Sallows Visiting Professor of Human Rights Law at the University of Saskatchewan College of Law, and in January he will be the John E. Murray Visiting Professor of Law at the University of Pittsburgh School of Law.
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