The Constitution & Terrorism

The Constitution and Our "War" on Terrorism

Understanding homeland security must begin with the U.S. Constitution and the powers given to provide for our common defense. "Providing for the common defense" is mentioned right in the Preamble of the Constitution. The U.S. Constitution clearly leaves the decision to go to war with Congress while at the same time makes the President the Commander-In-Chief. Presidents have all but totally ignored this Constitutional requirement. Ask your students if they can name the last time the United States declared war on another country. (Answer: WWII). Since then we have had a number of undeclared wars starting with President Truman and the Korean Conflict. Under what authority was the President acting?

There are a number of provisions in the U.S. Constitution where Congress is given some power and influence over our common defense, but two must be mentioned in even a cursory review. Article I, Section 8, Clause 11, gives Congress the power to declare war. However, with the adoption of the charter of the United Nations (Article 51), the member nations have agreed to outlaw aggressive war. Now countries have gone to war only when authorized by the U.N. Charter or by the U.N. Security Council. For Gulf War I (Desert Storm), see Authorization for Use of Military Force Against Iraq Resolution codified in 50 U.S.C.A. §1541.

The "spending clause " of the Constitution, Article I, Section 8, Clause 1, gives Congress the power of the purse to influence matters regarding our common defense. Congress is generally reluctant to use this power as it might put our military in harm’s way. (Students may want to research 1976 legislation dealing with operations in Angola or 1982 legislation limiting covert operations in Nicaragua).

The President is well recognized as our Commander-In-Chief under Article II, Section 2, Clause 1 of the Constitution. The Oath of Office Clause in Article II, Section 1, Clause 7 requires the President to swear to support and defend the Constitution. Questions remain, however, as to the extent of the President’s responsibility to defend the country upon attack or to retaliate against another country as President Reagan did on his raid of Libya in response to the death of soldiers in Germany. (See Shanor textbook, page 14.)

On Sept. 15, Congress declared "war" on terrorism. This was not a formal war declaration so what powers does it give the president? The joint resolution, adopted unanimously in the Senate and 420-1 in the House, authorized President Bush to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" as well as against anyone who "harbored" them. The wording was changed substantially from the draft version sought by the White House— which would have granted the president authority "to deter and prevent any future acts of terrorism against the United States."

Student Activities and Assessment Tools

Have the students debate the appropriateness of Congress passing even non-binding resolutions dictating how the President uses our military in homeland defense.
Have the students debate whether the war on terrorism is really a war; is the war on terrorism like the Cold War which was less than a literal war and more of an ambiguous kind of conflict; is it merely a metaphorical one like the fights against poverty or drugs; and thus should the President have the same powers as a literal war? You may wish to use the assessment form provided.