How the United States Became a Prisoner of War and Congress Went MIA

By Andrew Bacevich, the author of America’s War for the Greater Middle East: A Military History, which has just been published by Random House. Originally published at TomDispatch

Let’s face it: in times of war, the Constitution tends to take a beating. With the safety or survival of the nation said to be at risk, the basic law of the land — otherwise considered sacrosanct — becomes nonbinding, subject to being waived at the whim of government authorities who are impatient, scared, panicky, or just plain pissed off.

The examples are legion.  During the Civil War, Abraham Lincoln arbitrarily suspended the writ of habeas corpus and ignored court orders that took issue with his authority to do so. After U.S. entry into World War I, the administration of Woodrow Wilson mounted a comprehensive effort to crush dissent, shutting down anti-war publications in complete disregard of the First Amendment. Amid the hysteria triggered by Pearl Harbor, Franklin Roosevelt issued an executive order consigning to concentration camps more than 100,000 Japanese-Americans, many of them native-born citizens. Asked in 1944 to review this gross violation of due process, the Supreme Court endorsed the government’s action by a 6-3 vote. 

More often than not, the passing of the emergency induces second thoughts and even remorse. The further into the past a particular war recedes, the more dubious the wartime arguments for violating the Constitution appear. Americans thereby take comfort in the “lessons learned” that will presumably prohibit any future recurrence of such folly.

Even so, the onset of the next war finds the Constitution once more being ill-treated.  We don’t repeat past transgressions, of course.  Instead, we devise new ones.  So it has been during the ongoing post-9/11 period of protracted war.

During the presidency of George W. Bush, the United States embraced torture as an instrument of policy in clear violation of the Eighth Amendment prohibiting cruel and unusual punishment.  Bush’s successor, Barack Obama, ordered the extrajudicial killing of an American citizen, a death by drone that was visibly in disregard of the Fifth and Fourteenth Amendments.  Both administrations — Bush’s with gusto, Obama’s with evident regret — imprisoned individuals for years on end without charge and without anything remotely approximating the “speedy and public trial, by an impartial jury” guaranteed by the Sixth Amendment.  Should the present state of hostilities ever end, we can no doubt expect Guantánamo to become yet another source of “lessons learned” for future generations of rueful Americans.

Congress on the Sidelines

Yet one particular check-and-balance constitutional proviso now appears exempt from this recurring phenomenon of disregard followed by professions of dismay, embarrassment, and “never again-ism” once the military emergency passes.  I mean, of course, Article I, section 8 of the Constitution, which assigns to Congress the authority “to declare war” and still stands as testimony to the genius of those who drafted it.  There can be no question that the responsibility for deciding when and whether the United States should fight resides with the legislative branch, not the executive, and that this was manifestly the intent of the Framers.

On parchment at least, the division of labor appears straightforward.  The president’s designation as commander-in-chief of the armed forces in no way implies a blanket authorization to employ those forces however he sees fit or anything faintly like it.  Quite the contrary: legitimizing presidential command requires explicit congressional sanction.

Actual practice has evolved into something altogether different.  The portion of Article I, Section 8, cited above has become a dead letter, about as operative as blue laws still on the books in some American cities and towns that purport to regulate Sabbath day activities.  Superseding the written text is an unwritten counterpart that goes something like this: with legislators largely consigned to the status of observers, presidents pretty much wage war whenever, wherever, and however they see fit.  Whether the result qualifies as usurpation or forfeiture is one of those chicken-and-egg questions that’s interesting but practically speaking beside the point.

This is by no means a recent development.  It has a history.  In the summer of 1950, when President Harry Truman decided that a U.N. Security Council resolution provided sufficient warrant for him to order U.S. forces to fight in Korea, congressional war powers took a hit from which they would never recover.

Congress soon thereafter bought into the notion, fashionable during the Cold War, that formal declarations of hostilities had become passé.  Waging the “long twilight struggle” ostensibly required deference to the commander-in-chief on all matters related to national security.  To sustain the pretense that it still retained some relevance, Congress took to issuing what were essentially permission slips, granting presidents maximum freedom of action to do whatever they might decide needed to be done in response to the latest perceived crisis. 

The Tonkin Gulf Resolution of 1964 offers a notable example.  With near unanimity, legislators urged President Lyndon Johnson “to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression” across the length and breadth of Southeast Asia.  Through the magic of presidential interpretation, a mandate to prevent aggression provided legal cover for an astonishingly brutal and aggressive war in Vietnam, as well as Cambodia and Laos.  Under the guise of repelling attacks on U.S. forces, Johnson and his successor, Richard Nixon, thrust millions of American troops into a war they could not win, even if more than 58,000 died trying.

To leap almost four decades ahead, think of the Authorization to Use Military Force (AUMF) that was passed by Congress in the immediate aftermath of 9/11 as the grandchild of the Tonkin Gulf Resolution.  This document required (directed, called upon, requested, invited, urged) President George W. Bush “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 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.”  In plain language: here’s a blank check; feel free to fill it in any way you like.

Forever War

As a practical matter, one specific individual — Osama bin Laden — had hatched the 9/11 plot.  A single organization — al-Qaeda — had conspired to pull it off.  And just one nation — backward, Taliban-controlled Afghanistan — had provided assistance, offering sanctuary to bin Laden and his henchmen.  Yet nearly 15 years later, the AUMF remains operative and has become the basis for military actions against innumerable individuals, organizations, and nations with no involvement whatsoever in the murderous events of September 11, 2001.

Consider the following less than comprehensive list of four developments, all of which occurred just within the last month and a half:

*In Yemen, a U.S. airstrike killed at least 50 individuals, said to be members of an Islamist organization that did not exist on 9/11.

*In Somalia, another U.S. airstrike killed a reported 150 militants, reputedly members of al-Shabab, a very nasty outfit, even if one with no real agenda beyond Somalia itself.

*In Syria, pursuant to the campaign of assassination that is the latest spin-off of the Iraq War, U.S. special operations forces bumped off the reputed “finance minister” of the Islamic State, another terror group that didn’t even exist in September 2001.

*In Libya, according to press reports, the Pentagon is again gearing up for “decisive military action” — that is, a new round of air strikes and special operations attacks to quell the disorder resulting from the U.S.-orchestrated air campaign that in 2011 destabilized that country. An airstrike conducted in late February gave a hint of what is to come: it killed approximately 50 Islamic State militants (and possibly two Serbian diplomatic captives).

Yemen, Somalia, Syria, and Libya share at least this in common: none of them, nor any of the groups targeted, had a hand in the 9/11 attacks.

Imagine if, within a matter of weeks, China were to launch raids into Vietnam, Thailand, and Taiwan, with punitive action against the Philippines in the offing.  Or if Russia, having given a swift kick to Ukraine, Georgia, and Azerbaijan, leaked its plans to teach Poland a lesson for mismanaging its internal affairs.  Were Chinese President Xi Jinping or Russian President Vladimir Putin to order such actions, the halls of Congress would ring with fierce denunciations.  Members of both houses would jostle for places in front of the TV cameras to condemn the perpetrators for recklessly violating international law and undermining the prospects for world peace.  Having no jurisdiction over the actions of other sovereign states, senators and representatives would break down the doors to seize the opportunity to get in their two cents worth.  No one would be able to stop them. Who does Xi think he is! How dare Putin!

Yet when an American president undertakes analogous actions over which the legislative branch does have jurisdiction, members of Congress either yawn or avert their eyes. 

In this regard, Republicans are especially egregious offenders.  On matters where President Obama is clearly acting in accordance with the Constitution — for example, in nominating someone to fill a vacancy on the Supreme Court — they spare no effort to thwart him, concocting bizarre arguments nowhere found in the Constitution to justify their obstructionism. Yet when this same president cites the 2001 AUMF as the basis for initiating hostilities hither and yon, something that is on the face of it not legal but ludicrous, they passively assent.

Indeed, when Obama in 2015 went so far as to ask Congress to pass a new AUMF addressing the specific threat posed by the Islamic State — that is, essentially rubberstamping the war he had already launched on his own in Syria and Iraq — the Republican leadership took no action.  Looking forward to the day when Obama departs office, Senator Mitch McConnell with his trademark hypocrisy worried aloud that a new AUMF might constrain his successor.  The next president will “have to clean up this mess, created by all of this passivity over the last eight years,” the majority leader remarked.  In that regard, “an authorization to use military force that ties the president’s hands behind his back is not something I would want to do.” The proper role of Congress was to get out of the way and give this commander-in-chief carte blanche so that the next one would enjoy comparably unlimited prerogatives.

Collaborating with a president they roundly despise — implicitly concurring in Obama’s questionable claim that “existing statutes [already] provide me with the authority I need” to make war on ISIS — the GOP-controlled Congress thereby transformed the post-9/11 AUMF into what has now become, in effect, a writ of permanent and limitless armed conflict.  In Iraq and Syria, for instance, what began as a limited but open-ended campaign of air strikes authorized by President Obama in August 2014 has expanded to include an ever-larger contingent of U.S. trainers and advisers for the Iraqi military, special operations forces conducting raids in both Iraq and Syria, the first new all-U.S. forward fire base in Iraq, and at least 5,000 U.S. military personnel now on the ground, a number that continues to grow incrementally.

Remember Barack Obama campaigning back in 2008 and solemnly pledging to end the Iraq War?  What he neglected to mention at the time was that he was retaining the prerogative to plunge the country into another Iraq War on his own ticket.  So has he now done, with members of Congress passively assenting and the country essentially a prisoner of war.

By now, through its inaction, the legislative branch has, in fact, surrendered the final remnant of authority it retained on matters relating to whether, when, against whom, and for what purpose the United States should go to war.  Nothing now remains but to pay the bills, which Congress routinely does, citing a solemn obligation to “support the troops.”  In this way does the performance of lesser duties provide an excuse for shirking far greater ones.

In military circles, there is a term to describe this type of behavior. It’s called cowardice.

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  1. EndOfTheWorld

    Right on, Mr. Bacevich. Although it’s obvious and has been said before, it’s good to observe that often the people who have put in some years wearing the uniform of the US armed forces are the ones who are most acutely aware of the abject absurdity of the present foreign policy of the US. Conversely, those who have never been in the military are often the most bloodthirsty—the aptly named “chickenhawks”.

  2. James Levy

    I pointed out to one of my classes that when Obama refused to invoke the War Powers Act when he destroyed Libya and the Republican Congress did nothing (when they had their impeachable offense sitting their like a duck on a pond) you got the real contours of how American foreign policy works and the true contours of power and consensus here. No overseas criminality will every be punished, and it will only be questioned if the crime is too half-hearted. The idea the Obama has been “passive” as McConnell asserts is absurd to anyone who follows the news with a sharp eye (yes, they bury all the death squad activity in “state secret” horse manure but we all know it and the droning and the bombing have been the constant backdrop of this entire presidency–we have not enjoyed a moment’s peace Mr. Peace Prize).

    The pathological need for control and deference of our American elites is truly frightening. They must constantly kill in order to feel secure.

    1. Crazy Horse

      “No overseas criminality will every be punished, and it will only be questioned if the crime is too half-hearted.”

      Make that “No domestic criminality will every be punished If it involves the Overlords and their domestic servants (AKA politicians.)

      Two case examples.

      1- the MERS foreclosure fraud
      2- The 911 Commission Cover Up Report. So riddled with technical and logical flaws that even members of the Commission disavow it, but the MSM and the Government stand firmly behind the wall of disinformation they have built and the greatest domestic crime in the nation’s history fades from memory.

      1. Fiver

        Re example 2:

        If you read the link to Jonathan Schell’s review of the new Nick Turse book documenting the fact that (as some critics have claimed for many years) US atrocities were the norm, not the exception, throughout the entire Vietnam War, you’ll take some small comfort in knowing that people will not let 9/11 just fade away. In Vietnam being a ‘good’ officer vis a vis war crimes meant swimming against the current at considerable risk – yet there were many who did so, and told their stories. It is msm and the political class that to this day refuse to accommodate the truth – that the US was George Foreman on acid vs Ho Chi Ali’s resolute determination to survive.

        9/11 remains the key to taking down the entire War on Terror and exposing said ‘war’ as a criminal, mass atrocity on a par with what was visited upon Vietnam – though with far greater geopolitical and domestic political consequences. I think any honest poll of reasonably well informed Americans would reveal deep, deep skepticism re the Official Version, a skepticism buttressed by every aspect of the ‘war’ since, by the Wall Street coup of 2008, by the revelations of mass surveillance of ordinary people – the works. There are I believe, people alive, some number of them ‘good’ people, who actually know what happened but continue to believe the truth would be just too harmful for Americans to know.

        The powerful people and interests that produced Vietnam did so in what is by comparison a far, far more regimented information environment with a general populace that was all but ignorant. Not so much today. And I’m not so sure those few ‘good’ ones will keep their mouths shut if anyone else tries to ride the War on Terror to even greater heights of violence.

  3. EndOfTheWorld

    Can’t the Europeans see that their present catastrophe with thousands of refugees surging in is directly related to the US foreign policy insanity? How long will it take before they cease to be our “allies”?

    1. Stephen Verchinski

      As long as their own elites continue to profit there will be no change. In the USA our collective insecurity state of mind allows for no national debate (so far) as to the wisdom to commit 1 trillion dollars to modernizing nuclear weapons and their delivey methods. Our elites will siphon off millions of dollars and call it good and an insane President will, as in “The Experiment” be told to ignore the screamers and press the nuclear button. The winnable nuclear conflict experiment will be tested on our common humanity. Unfortunately I don’t think that will end well with blatant meglomaniacs like Hillary and Trump and Cruz. If you want a better world ask for it. Go Bernie.

    2. sid_finster

      Euroelites love the United States, as “the Americans made us do it” can be used as political cover for them to do what they want to do.

    3. Sam adams

      Less likely US foreign policy than climate change pressures on geography and local power elites shifting settled populations and power structures. Not to say us policy has no impact, but not as much as it is blamed.

  4. divadab

    The machinery of Empire, the largest and richest empire in the history of humans, is inconsistent with the democratic institutions of our republic. The same thing happened in Rome, and to a lesser extent in the UK – the forms of the republic are observed, but the actual power resides in a permanent and unaccountable structure. This centralized structure is susceptible to takeover by secret (often foreign) interests – for whose benefit is US foreign policy run? Figure this out and figure out who has hijacked our government for their own ends.

    1. Jim Haygood

      “with legislators largely consigned to the status of observers”

      Funny how this statement characterizes the two main offenders prosecuted at Nuremberg, Germany and Japan. A couple of internet quotes:

      “Following the Nazi seizure of power and the passing of the Enabling Act of 1933, [the Reichstag] met only as a rubber stamp for the actions of Adolf Hitler’s dictatorship–always by unanimous consent.”

      “Cabinet ministers for [Japan’s] army and the navy could consult with the emperor directly, letting the military set government policy without the knowledge or approval of the prime minister.”

      A soft coup — in which the forms of democratic government are retained, but stripped of their power — is the ideal public face of a militarist oligopoly.

      Setting aside the 535 KongressKlowns, is Obama the Drone Laureate (and his impending successor) actually in charge, or just a figurehead for the powers behind the throne?

      NATO’s continued advance into eastern Europe under Gen. Breedlove argues for the latter. The president remains silent, while the legislative branch is simply out of the picture entirely.

      1. REDPILLED

        Who actually runs things?

        WORLD BANK


        An Act of State: The Execution of Martin Luther King (Updated Edition) by William F. Pepper (2008)

        JFK and the Unspeakable: Why He Died and Why It Matters by James W. Douglass (2010)

        Mounting Evidence: Why We Need A New Investigation Into 9/11 by Paul W. Rea (2011)

        9/11 Ten Years Later: When State Crimes Against Democracy Succeed by David Ray Griffin (2011)

        The War Conspiracy: JFK, 9/11, and the Deep Politics of War by Peter Dale Scott (2013)

        They Rule: The 1% VS. Democracy by Paul Street (2014)

        The American Deep State: Wall Street, Big Oil, and the Attack on U.S. Democracy by Peter Dale Scott (2014)

        All the Presidents’ Bankers: The Hidden Alliances That Drive American Power by Nomi Prins (2014)

        Shadow Government: Surveillance, Secret Wars, and a Global Security State in a Single-Superpower World by Tom Englehardt (2014)

        The Devil’s Chessboard: Allen Dulles, the CIA, and the Rise of America’s Secret Government by David Talbot (2015)

        The Deep State: The Fall of the Constitution and the Rise of a Shadow Government by Mike Lofgren (2015)

        The Orwellian Empire by Gilbert Mercier (2015)

        Two web sites:

        Architects and Engineers for 9/11 Truth

        Patriots Question 9/11 – Responsible Criticism of the 9/11 Commission Report

    1. Chauncey Gardiner

      I agree. A former U.S. president said long ago in the then divided city of Berlin with its wall, “Ich bin ein Berliner.” As Bacevich implicitly asks in the title to this post, “Are We the People all POWs now?”

    2. MED

      Would it be worth the effort to add footnotes to the constitution? The original constitution is not working as written. Hope we have the trees.

  5. susan the other

    Perpetual war for what? To prevent future catastrophe like global boiling, as in boiling frogs; to prevent unbearable human population growth; to prevent the final death of the oceans; to do a crash program to detox and reforest the world; to create new monetary systems, etc? Apparently not. We haven’t put a dent in the real problems. Perpetual war looks to be for the same old reason: control (hence coal and oil wars). Buying time as time runs out. The scary part is that it is very hard to control a world population that informs itself – as in cell phones and blogs. And so we have political “parties” disintegrating before our very eyes. This is the revolution. The irony is that governments will have to kill themselves to stop it. This revolution will be won by people with the best solutions and the courage to tell the truth.

  6. Wade Riddick

    Why is everybody so surprised that in the age of _Citizens United_ and unlimited corporate bribery of politicians we’ve had the two longest, most expensive and least determinate wars in our nation’s history?

    Perpetual war is yet another consequence of privatizing essential government functions like war and justice.
    When you hand war over to the private sector and they make money on war, why would they ever win a war or lose a war? They won’t profit unless they keep the war going.

    Privatized prisons lead to kidnapping for profit. Privatized healthcare leads to sickcare.

    Why are we surprised by the results of privatizing warfare?

    It’s the logical consequence of corporations owning and operating the government for private profit. It’s also a great way for politicians handling the budget to confiscate part of it for themselves. They hand it off to donors through privatized contractors and the contractors hand part of it back to the politicians.

    Marines don’t make campaign donations – but military contractors do. Public school teachers don’t make campaign donations but charter school employees do. Public prison guards can’t give politicians a cut of their salaries (what Huey Long called the “deduct box”) but private prison workers can. Nobody providing insulin to diabetics can kick it back to politicians in a genuinely public healthcare system – which is why Washington is constantly busy with find ways of undermining Medicare.

    It’s the great unwinding of Progressive Era reforms against corruption.

    With the laws being written by lobbyists and handed off to the stenographers on Congressional committees, why would you be surprised that Congress appears disconnected from the issue of war? It’s not. It’s very connected to getting its cut. But none of the decisions that matter are being made there.

  7. B1whois

    This is the best title of an article I have seen yet. My compliments to those who came up with it. Prisoner of war indeed!

  8. knowbuddhau

    Every time I see an article from the likes of Bacevich (military establishmentarians critical of the establishment), I search for “crim,” short for crime, criminality, etc., looking for the calling of war crimes “war crimes.” Search string not found in the article, but several times in the comments.

    How is it that we’ve become a “prisoner of war”? From the failure of people with military cred like Col. Bacevich to call war crimes “war crimes.” They argue that we shouldn’t do these things, not because they’re criminal, but because they’re not “smart.” Others seem to think it’s a brilliant title and a brilliant essay. Turning the perps into the victims – how effing brilliant.

    The pretense that, for example, the rape of Iraq was a blunder, a mistake, even a folly, but definitely not a crime, accepts the highest crimes as possible actions, just not very smart ones.

    “If Barack Obama owes his presidency to one thing, it was the good sense he had back in 2002 to call the Iraq War what it was: ‘dumb.'” (Common Dreams, “Obama’s Dumb War, 10/15/2014.)

    Yeah, how freaking “smart” of our Harvard-educated prez. Calling it what it will always be, a criminal war of aggression, would’ve made him unelectable, what a “smart” move.

    The world is sick to death from “smart” moves like that. And I’m sick to death of “smart” guys like Bacevich failing to call war crimes “war crimes.” It’s like cops who waste people, blatantly and wantonly, then expect to get off (and too often, do) by saying “Oops, my bad, that was dumb,” if they even go that far down the road of remorse.

    And what TAF is this? “And just one nation — backward, Taliban-controlled Afghanistan — had provided assistance, offering sanctuary to bin Laden and his henchmen.” What an astonishingly blinkered view! Bacevich should know there were plans to attack Afghanistan prior to 9/11, it was just a convenient excuse. He should know by now that it wasn’t just “backward” Afghanistan. Just like his breezy reference to the Tonkin Gulf “incident,” he fails to note that we now know the facts were fixed around the policy. That is, we were lied into committing the highest crime. “To leap four decades ahead” – before having to deal with the well known fact that it was faked?

    This kind of apparently erudite and critical – but not really – crap reminds me of that Talking Heads song, “Psycho Killer:”

    You start a conversation you can’t even finish it
    You’re talkin’ a lot but you’re not sayin’ anything


      You are absolutey correct.

      We have been brainwashed to believe that only Nazis and Commies and a few “bad U.S. apples” such as Lt. William Calley and the Abu Ghraib torturers commit war crimes, but waging aggressive, non-defensive war was declared the Supreme International Crime at the Nuremberg War Crimes Tribunals, and what else has the U.S. been committing in all its avoidable wars since 1945?

      Intentional bombing of civilians is also a war crime which the U.S. committed by bombing German and Jpanese cities in World War II, North Korean cities in the Korean War, Hanoi in the Vietnam War, Baghdad and Fallujah in 2003, and the Dubya/Obama drone attacks since 2001.

      U.S. military and covert (CIA and Special Ops) actions, plus its many proxy wars, have killed more than 15 million people worldwide since 1945. Who will hold the U.S. to account for its decades of war crimes and state terrorism?

      1. Robert Coutinho

        Okay Redpilled, you have shown a bias that exposes your true colors. The US did not “[intentionally] bomb civilians,” in Baghdad and Fallujah. If you want to rail against war, that is perfectly acceptable. If you want to make a claim that all civilian deaths due to bombing are “bombing of civilians” you have made a fallacy leap the likes of which even Donald Trump might be called out on.

  9. washunate

    So it has been during the ongoing post-9/11 period of protracted war.

    No, Bacevich continues to miss the forest for the trees. The national security state didn’t arise post-9/11. It arose post-WW2 under cover of a Cold War against the USSR. Whatever qualms we have about the Civil War and the Great War (and some other stuff, too…), we did at least on a national level tend to 1) declare war, and then 2) demobilize after the war.

    The current trajectory accelerated after the collapse of the Soviet Union since there wasn’t even a fictional justification anymore for militarization. We were simply, plainly, running an empire. And that doesn’t fit very well with the philosophy of limited government enshrined in the Constitution.

    But a lot of Democratic pundits and intellectuals in the 1990s found they rather liked trampling Constitutional rights at home while intervening abroad so long as the Blue Team was doing the incarcerating and sanctioning and bombing.

  10. christine

    The comment here that this state of affairs was post WWII generation is wrong. For a long time I thought that as well, but it is wrong. This whole state of affairs begin with WWI. The video below is 3 1/2 hours long and worth every minute. All of it is documented, accepted history up to some of the details of the coverup surrounding JFK’s death, but it makes the state of things very clear. If anyone wants to follow up the documentary with a large dose of horror re the state of our fascist state, reading IBM and the Holocaust will clear your mind of any doubts about who we are. It pretty well changed my mental state re the US and all of the propaganda I’d been fed my whole life.

  11. MED

    Would it be correct to add footnotes to the constitution, since we don’t follow the constitution to the word.

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