As the British fleet reached the shores of New York City in July of 1776, the private secretary to the King’s top military commander in America looked out from the deck of his anchored war vessel. The morning sun was “shining bright,” affording a “beautiful prospect” that stretched as far as six miles. In the distance, Ambrose Serle could see smoke rising from the fires of the rebels’ encampments.
The Americans had declared their independence a week before, but Serle was already well versed in their grievances. Months earlier, he had achieved renown for a slashing tract against their cause. He now relished the chance to crush the rebellion at its birth. Scanning the enemy forces, Serle’s eyes fastened upon the “Rebel’s Headquarters,” and his mind turned to the man who led them: “Washington, who is now made their generalissimo with full Powers.”
But is that really what General George Washington was? And is that what his successors became? More important, is that what future commanders in chief will be?
This book zeroes in on these questions by offering a new look at an old one: Who decides how America wages war? We usually think about that question by asking who has the right to start a war. For generations, the answer has been shaped by the notion of the imperial presidency. The commander in chief is said to be all-powerful in deciding whether to send troops into harm’s way, while Congress is portrayed as little more than a passive bystander. But Ambrose Serle was not thinking about Washington’s power to start the Revolutionary War. He was reflecting on the commander in chief’s power to decide how to fight a war that was already underway.
There is no less need to reflect on that question in our own time. In the fifteen years since the Twin Towers fell and Congress authorized the president to strike back, the country has confronted a series of hard choices about how to fight this strange and still live war against Al Qaeda and its affiliates. And so, in recent years, the question of whether it is “for the president alone” to decide how to conduct a war has been at the forefront of national debate.
This book pulls back from the recent controversies over how to answer that question. It does so in order to tell the story of the clash between Congress and the president over the conduct of war from Serle’s day to our own. It is a story in which presidents are not so imperial after all. Even when Congress has chosen to stay silent at the outset of an armed conflict, presidents have, time and again, met legislative resistance as the fighting has dragged on. And, sometimes, Congress has challenged the president’s powers of command even in advance of the use of force, placing obstacles in his way in the event that he should choose a course of action certain to lead to war.
The result is that, for more than two centuries, presidents have found themselves mired in a swamp of statutes, both in the run up to war and in its midst. But, rather than defiantly blow past these limits, all but a few presidents have opted for a less confrontational course. Through delay, adjustment, clever argument, political calculation, and even retreat, they have worked to accommodate, if not embrace, the restrictions that Congress has placed on their power to wage war.
The story of this complicated dance between the branches is too little appreciated. But the story starts in the days before the nation was even formed—with the disputes over wartime tactics between George Washington and the Continental Congress at the outset of the war for independence. The story resumes with the similar faceoffs that took place during the nation’s early entanglements with France and Britain, that broke out a half-century later at the height of the secession crisis, and that caused great drama during the Civil War and in its aftermath. The story continues with the power struggle that shaped the nation’s conduct of the war in the Philippines at the turn of the century, in the two world wars that followed, and during the Cold War and its winding down. And, finally, the story concludes with the battles between the branches over how to fight the major wars of our own time, from the Iraq war to the war against Al Qaeda and ISIS, and the clashes over wartime tactics—from detention to surveillance to interrogation—that have helped to define the waging of war for the last fifteen years.
Not all of Congress’s restrictions have been of equal import. But they have shaped critical wartime choices, from the threshold decision to use force at all to critical tactical judgments about the type of force to use in an ongoing military campaign. By following this single thread of history through time, it becomes clear that neither branch has overwhelmed the other in war. For good or bad, they have been enmeshed in a persistent but never-settled power struggle, in which each branch has recognized the claims of the other, even as each has sought to get its way. And, for this reason, history offers an important lesson not only for the conduct of the war in which the nation is now engaged, but also for the conduct of wars that may yet begin.
The constitutional system of checks and balances gives presidents a wide berth in war. It does not give them a blank check. Presidents have certainly tried to find ways to wage war as they wish—often through controversial interpretations of the statutory restrictions that seem to stand in their way. But the restrictions on the conduct of war that Congress has laid down have still had a disciplining effect, sometimes by encouraging presidents to exercise restraint, sometimes by spurring them to be more aggressive, and sometimes by simply causing them to put off making a decision about what to do.
For this reason, a single leader—unchecked and unstoppable—has not decided how America has waged war. And, as a result, our system of checks and balances has managed to endure even in those times when it has been under the greatest strain. In fact, our past shows that constitutional crises have erupted in war only when presidents have struck out on their own and claimed an exclusive right to decide how war should be waged. So, as much as the president’s war powers have expanded over time—as they certainly have—future presidents will have to confront the same choice that those who came before them faced. They, too, will have to decide whether to embrace a too-little-known tradition of accommodation or risk the kind of wartime constitutional crisis that all but a handful of their predecessors have so skillfully managed to avoid.
But that is getting ahead of the story. We first need to turn back the clock, to the earliest days of the Revolution, when General Washington was in command, a mighty British force was poised to attack his troops in New York, and America’s first commander in chief was facing an agonizing tactical choice that it was not at all clear that the Congress of his day was willing to let him make.