The Grandstand or the Grand Stand




     Many in the US Congress are up in arms over executive actions in the war.  The executive branch claims its actions are consistent with constitutional authority while the legislative branch argues these actions are inconsistent with both statutory law and the constitution.  These are serious charges, the truth of which is difficult to determine in the absence of positive action on the part of the legislature to clarify some very basic issues.  In the absence of positive action on the part of congress to provide this clarity, their protestations bear a much greater resemblance to political grandstanding than to taking a grand stand on principle.


     The first bit of ambiguity is that relating to the scope of the war, a war in which the executive is acting with the express authorization of the congress.  This authorization is contained in Joint Resolution 23 of the 107th Congress, which states "That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or who harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." The Judicial Branch's views of executive actions pursuant to express congressional authorization such as above are guided by the strongest of presumptions and the widest latitude of judicial interpretation.  The Congress has granted war powers.  The President has repeatedly stated his understanding of the congressional authorization as relevant to a generational struggle against terrorism.  The nexus argument for the war, that it was intentionally a limited authorization specific to Al Qaida, has been proposed by some but never specifically clarified by Congress in regards to presently affiliated movements.  In the absence of such Congressional clarification, the executive has clearly and repeatedly laid out its understanding that this war is against terrorism and all its perpetrators, to include Al Qaida affiliated movements wherever they may be.  Nothing can be more clear than the executive's understanding of its authorization.  Additionally, we have been prosecuting just such a war for some time now, with continued congressional appropriations and no additional clarification.  To believe that Congress is unaware of what is going on is incredulous as it as been written about repeatedly in the open press as well as clearly articulated by the executive and reported, as required by statute, to congress.  As Justice Robert Jackson stated in the '40's during the Roosevelt administration, "…if we review and approve, that passing incident becomes the doctrine of the Constitution."  Additionally, to talk about the war in Afghanistan and the war in Iraq as if these were the exclusive combat areas is, if not misleading, then clearly misinformed as this is clearly a war of worldwide scope, the terrorist network being unbound by neat geographic lines.  


     The grandstanding is reaching new heights with the protests against wiretapping.  The president has clearly stated that he acted outside the bounds of the FISA statute but within the bonds of his constitutional authority as the commander in chief in time of war, which war has the implicit and explicit consent of the congress.  If the congress disagrees with this premise, the onus is upon them to clearly articulate the limits on the means, methods, targets, ends, and timing and scope limitations of their authorization.  This they have not done and still refuse to do, yet they repeatedly lambaste the executive for its exercise of authority in what it claims, as it must, the executive prerogative to act in the national interest against a clear and present danger to our country.  The president has repeatedly fulfilled his responsibility to lay his actions bare before the congress specifically, having informed that body of his authorizations, and the people in general prior to unauthorized disclosure of classified operations, and specifically as far as prudence allows after that disclosure.  In the absence of concrete congressional action, their protestations not only appear but are political grandstanding rather than the taking of a grand stand on principle. 


     All this is not to say that the war as defined by the executive, and the implications for this definition, are the right course.  We must weigh very carefully a course that puts this country on a generational war footing against the implications of the impact of this on our underlying principles of government and society.  What it does say, however, is that the onus for action is now squarely on the congress.  Such action does not lay in stump speeches calculated to win points in the next election.  This is a serious issue and deserves serious and well thought out consideration.  Additionally, it is improbable that such considerations will be addressed by judicial action as they deal with practical social impacts and not the law per se, the juridical considerations clearly favoring executive actions and authority in foreign affairs in the absence of congressional clarifications of specific authorizations. 


     All of the spot appearances and bellicose protestations tell us nothing of congressional intent in the AUMF of 2001 under which the GWOT is being prosecuted.  Without further, concrete congressional action, it can only be gathered that these tirades really are nothing more than grandstanding.  The president has made a grand stand on principle, both constitutional and moral.  Perhaps he is incorrect in certain aspects, but this will never be determined until either the congress acts or history speaks.  If congress truly believes that this speech will be of the disastrous consequences of our actions, then their grandstanding without taking a stand is the proximate cause of our future harm.  Either they should act positively to clarify their intent or to support the cause which they authorized and which our national treasures are being sacrificed to achieve while they concurrently undermine the effort through unauthorized disclosures and disunity.  To disagree is more than alright, but put up or shut up.