If reasoning logically from your premise leads to a bad conclusion, you might want to rethink your premise. That rule of thumb occurred to me while reading John Guardiano’s argument, which taken to its logical conclusion suggests that the Indian Wars justify virtually unlimited presidential war-making powers as long as the president can somehow relate the intervention to terrorism against the international frontier.
The Indian Wars were a constitutional gray area because you could plausibly argue that they were efforts to protect American lives and property on what was frequently being asserted as American territory. Or could you plausibly argue that these were fights against hostile foreign powers, which is how our government often related to the Indian tribes, and that they were not always defensive in nature. The first interpretation lends itself to presidential action under the commander-in-chief power; the second suggests congressional authorization might be in order.
Al-Qaeda and other terrorist organizations are similar to Indian tribes in that they attack U.S. territory here on American soil. Some of these terrorists are here planning future attacks. Others attack U.S. interests overseas and do all their planning abroad. I do think the president has power to prevent and respond to attacks, even when that includes strikes in foreign countries.
However, that does not mean that the president has the unilateral authority to invade sovereign countries to overthrow and replace their governments, and in some cases occupy these countries indefinitely, based on nebulous connections to terror or theories about how this could impact the war on terror. In Libya, for example, some of the people we are fighting on behalf of were once affiliated with terrorist networks that fought U.S. soldiers in Iraq. The Bush administration announced that the government we are now fighting against cooperated with us in the war on terror. The president just gets to pick which war we fight by wrapping it up in the broader war on terror?
What about wars we enter against countries that are no longer practicing terrorism against us in order to influence the behavior of terror-supporting nations? Some would say that what we do in Libya will deter or destabilize Iran and Syria. Perhaps. But should a single man be allowed to commit our whole country to these theories? What if the theory is wrong? What if our actions in Libya cause Iran to redouble its efforts to obtain a nuclear weapon in the belief that it is the only way for Tehran to protect itself against regime change?
The amount of power this would confer upon the president, leaving only the blunt instruments of defunding and impeachment as possible checks, is impossible to square with the Constitution.
