“Why quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any [other nation], entangle our peace and prosperity in the toils of … ambition, rivalship, interest, humor or caprice?”

- President George Washington, Farewell Address, 1796

The recent tragedy at the U.S. consulate in Benghazi, Libya has reignited the debate over American involvement in the region. But how would have our first Commander-in-Chief, George Washington, handled the situation?

Burning of the Frigate Philadelphia in Tripoli, 1804

Since this spring, commentators have expressed alarm over the President’s use of military force throughout the Muslim world without authorization from Congress. As the President sends fresh marines into Libya, American forces continue drone attacks in Pakistan, Yemen, and Somalia, and the U.S. weighs intervention in Syria, we are once again in the throes of a long-standing debate over the constitutionality of executive war-time power.

Article I of the U.S. Constitution bestows the President with “commander-in-chief powers,” but provides virtually no elaboration on what they entail. The laconic text was left in such a state, in part, because everyone in 18th century already knew what this phrase meant: those powers wielded by General George Washington.

During the Revolution, Washington served as the nation’s only “commander-in-chief” prior to the Constitution. During  that time, he gallantly developed the very meaning of the term amidst the crucible. When the Framers gathered in Philadelphia at the Constitutional Convention, he served as not only the President of the Convention, but as the model for the newly formed Executive Branch. So when they gave the President “commander-in-chief” powers, Washington served of the living embodiment of those terms. The precedents he set as the nation’s first commander-in-chief would, thus, have a lasting impact on the meaning of the Constitution.

As we debate the current administration’s military policies, we might do well to ask ourselves “What Would George Do?” An analysis of George Washington’s two terms as president, reveal two interesting precedents: an inclination toward isolationism and congressional consultation.

I. Isolationism

Washington was highly reluctant to entangle the United States in the affairs of other nations, even ignoring allies’ pleas for help securing liberty. For example, when the French overthrew the chains of monarchy in their quest for democracy, Washington refused to help. And when Britain subsequently declared war on France, Washington again steered clear.

Washington’s decision was motivated by his unashamed desire to protect America’s self-interest—another war with Great Britain would be too costly and was unlikely result in an American victory. Washington famously asked in his farewell address, “[w]hy quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any [other nation], entangle our peace and prosperity in the toils of … ambition, rivalship, interest, humor or caprice?”

When Washington did involve the United States in conflict, he made sure it was of direct benefit to the nation. When Haitian slaves revolted in the French colony of Saint-Domingue, Washington lent aid to the French. His decision was motivated by his desire to serve American interests: he used the aid to repay the U.S.’s debt owed to France for assistance during the Revolutionary War, and also sought to preserve Southern economic interests by dissuading American slaves from following suit.

It is worth noting that in the rare instances in which Washington determined that the direct benefits outweighed the costs of committing U.S. lives and resources abroad, he made sure to first obtain congressional approval for his actions. Modern presidents, including President Obama, have not necessarily followed Washington’s lead.

II. Congressional Approval

In 2011, Yale Law professor Bruce Ackerman poignantly wrote, “In taking the country into a war with Libya, Barack Obama’s administration [broke] new ground in its construction of an imperial presidency – an executive who increasingly acts independently of Congress at home and abroad.” In ordering the U.S. air strikes on Libya, President Obama consulted the United Nations, NATO, and even the Arab League, but apparently not the United States Congress. In fact, as Professors Ackerman and Hathaway have pointed out, “[h]e ignored repeated calls — by … Hillary Rodham Clinton and Joe Biden, among others — to submit it to Congress for approval.” Along the same lines, the President has not obtained legislative authorization for his drone strikes within Pakistan, Yemen, or Somalia. George Washington, among others, would be surprised, to say the least.

The Constitution was specifically designed to ensure congressional involvement in the initiation of hostilities. James Madison declared, “The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature… . the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.” And even during those actions without a formal declaration, the legislature played an important role in authorizing the Executive’s actions.

Since before the Revolution, Americans had fought against a confederation of numerous Native American tribes for control of the Northwest Territory. After the United States emerged triumphant, the seething British incited the Native Americans to renew their attacks. In response, President Washington sent troops to enforce the U.S.’s control over the territory. While he did not have a formal declaration of war, this was a continuing war in which Congress was very much so involved. Washington defended the land claims granted by Congress and the American settlers directly under siege. He was in close communication with Congress, which responded favorably to Washington’s pleas and granted the funds to raise the army he sent. While undeclared, this was a war that was granted and continually received congressional approval.

Following Washington’s lead just a few years later in 1789, President John Adams commanded the U.S. military against France in the “Quasi War.” Although Congress did not declare war, it passed the long-winded “Act Further to Protect the Commerce of the United States.” While it did not exactly roll off the tongue, the Act did the trick – Adams had Congressional authorization to protect American shipping under attack.

Again, in 1801, when pirates were likewise threatening U.S. ships, President Jefferson attacked – ironically – Tripoli without a declaration of war. However, he did have other congressional votes to back him. Congress authorized him to seize the ships of Tripoli and “to cause to be done all such other acts of precaution or hostility as the state of war will justify.”

* * *

At our nation’s founding, military action was a last resort—one only utilized to directly better American interests or defend against attack. And when the Washington and the first Presidents led the nation into battle, Congress was deeply involved in the initiation of military action.

This history remains highly relevant as we navigate our response to the dire situations in Libya, Pakistan, Yemen, and Syria. In order to fully understand the powers of the president as this list keeps growing, we may better understand the terse text of Article II by looking to Washington and our founding fathers for guidance on how to respond to unique global challenges while remaining faithful to our nation’s core constitutional principles.

Cross posted with the Constitutional Sources Project

“We must be the great arsenal of democracy. For us this is an emergency as serious as war itself.”

- Franklin D. Roosevelt, 1940

Global arms sales data indicates that countries are preparing for war. And the United States is leading the race. The Congressional Research Service’s annual report on conventional arms sales explains: “The value of all arms transfer agreements worldwide . . . in 2011 was $85.3 billion. This was an extraordinary increase in arms agreements values (91.7%) over the 2010 total of $44.5 billion…. In 2011, the United States led in arms
transfer agreements worldwide, making agreements valued at $66.3 billion (77.7% of all such agreements), an extraordinary increase from $21.4 billion in 2010. The United States worldwide agreements total in 2011 is the largest for a single year in the history of the U.S. arms export program.”

Global Arms Race

Long before FDR declared that the U.S. would arm the free world in our fight against the Nazi threat, we sprang from humble beginnings. During the Revolutionary War, we were in dire need of munitions as we fought to overthrow the British Empire. We had strikingly few factories capable of producing weapons required for the war effort – and our government was so dysfunctional we lacked the money or leadership to properly supply our troops.

Instead, we won the war because of American patriotism and ingenuity. So eager to join in the cause for liberty, men (and some heroic women) abandoned their civilian lives, picked up their own hunting rifles, and jumped into the front lines of war. Once fighting, their guns often malfunctioned and they resorted to hand-to-hand combat to win the battles. They took that the trickle of supplies from the states and those munitions they won from our enemies and used it to defeat the strongest military in the world: the British.

It was American patriotism and ingenuity that not only won us the war, but eventually built us into the strongest military and largest arms producer in the world. Now that another battle looms, will the United States “lead from behind”?

“We have it in our power to begin the world over again. A situation, similar to the present, hath not happened since the days of Noah until now. The birthday of a new world is at hand.”

- Thomas Paine, Common Sense, 1776

American Progress

Yale Professor and one of American’s foremost strategists, Charles Hill, provided a sobering assessment of the United States’s current policies. He argues that “era of liberal democracy is in jeopardy, and the historical norm of dominance by great powers will return if the U.S. fails to lead.” He reminds us that the relative freedom and prosperity that the world now enjoys is in great thanks to American sacrifice. He warns that the Obama’s administration’s desire to “lead from behind” may mean “the possible end of a great era of human rights and democracy promotion the likes of which the planet has never seen.”

Our Founding Fathers would likely be proud of what the United States has achieved – and alarmed by our most recent shift away from leading the world. The American Revolution was not merely a local battle between Britain and her former colonists. It quickly escalated into the worldwide war: the patriots’ Revolutionary democratic ideology and military triumph helped to ignite uprisings in France, Ireland, the Netherlands, Poland, Haiti, and Latin America.

From our country’s birth, we served as a catalyst for democracy. We certainly had an isolationist streak and shied from needless foreign entanglement; however, American nevertheless yearned to help “to begin the world over again.” Our constitutional republic has successfully led millions to freedom as it rose to become the most powerful and prosperous nation that the world has ever known. Is it time for that to end?

“The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissention, which in different ages & countries has perpetrated the most horrid enormities, is itself a frightful despotism.”

— George Washington, September 19, 1796

President Obama is currently vacationing on Martha’s Vineyard. Unlike when the Clintons summered here to much fanfare, the Obamas mainly keep to themselves. Aside from the occasional tourist wearing a supportive “Hope and Change” t-shirt, the island shows relatively little sign of their presence. The first family is staying at the secluded, beachfront Blue Heron Farm, where the torrential rain of the past couple days has likely kept them indoors. Rain or shine, the Republicans deride the President for taking a vacation during such tumultuous times.

President Obama's Latest Visit

I last saw President Obama Thursday when he was landing at the helipad in lower Manhattan. It was an impressive security detail: police and Coastguard boats blocked off the harbor as snipers scrutinized the thousands of onlookers in towering buildings and crowded streets. Attack helicopters circled and secured the pad before two identical helicopters landed – one with the president and another a decoy. The Presidential motorcade then breezed through the blocked FDR highway as traffic ensnarled the city. I could not help but think of the taxpayer dollars being spent to get the President to a $35,800/ticket celebrity fundraiser for his own reelection. He needs these funds to promote his and the democratic ticket again resurgent Republicans. Such party politics are something of which all recent Presidents are guilty. Our first President would not be pleased.

Washington belonged to no political party. He longed for a democracy without such factions. However, he witnessed them arise and warned against them. He characterized them as “A fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume.” To Washington, political parties were something to be discouraged since they posed a “constant danger of excess,” and therefore, ”the effort ought to be by force of public opinion to mitigate and assuage it.” It appears that we have failed him.

Over two centuries later, we now find ourselves in a country where the political parties seem to expend more resources fighting one another than fixing the nation.

“We must not let our rulers load us with perpetual debt. We must make our selection between economy and liberty or profusion and servitude. . . . This is the tendency of all human governments. A departure from principle becomes a precedent for a second; that second for a third; and so on, till the bulk of society is reduced to mere automatons of misery, to have no sensibilities left but for sinning and suffering . . . . And the fore horse of this frightful team is public debt. Taxation follows that, and in its train wretchedness and oppression.”

                                                                                                          – Thomas Jefferson, 1816

So Congress and the President reach a deal on the debt, and no one is particularly happy with it. While the nation has averted the looming default, plenty of economic uncertainty remains. How will we find a long term fix to the nation’s massive spending? What will become of the entitlement programs such as Medicare, Medicaid, and Social Security? Defense spending? Perhaps the Founding Fathers have some guidance:

Following the Revolutionary War, the fledgling United States was in dire economic straights. During the 1780′s, the fragile nation was not only deeply indebted to her French allies for their monetary wartime assistance but also owed vast sums to her own American patriots who had sacrificed so much in service to the war effort. The debt had been essential in keeping the Washington and his army fighting. But after they won, the payments and interest threatened to crush America.

Thomas Jefferson saw “public debt as the greatest of dangers to be feared.” He warned America, ”We must not let our rulers load us with perpetual debt. We must make our selection between economy and liberty or profusion and servitude . . . .” He saw debt as the first step, to be followed by higher taxes and oppression. Many of our founding fathers agreed.

Some wanted to simply repudiate the debt. But while many did not mind sticking it to the French, such a default would severely harm those veterans to which vast sums were owed. Washington had already made up his mind on this issue.

Washington saw it as imperative that the country pay down its debt – and do it quickly. He approached the issue as one of honor, urging the government to follow “the same good faith we suppose ourselves bound to perform our private engagements.” He implored, “No pecuniary consideration is more urgent, than the regular redemption and discharge of the public debt.”

Perhaps we should listen.

After nearly 10 years of hunting, the United States has killed Osama Bin Laden. President Obama stated, “We will be relentless in defense of our citizens and our friends and allies. . . . [W]e are once again reminded that America can do whatever we set our mind to. That is the story of our history . . .”

Mission Accomplished

The United States was founded on perseverance. We did not win the Revolutionary War through grand military strategy, superior technology, or greater numbers. In fact, we were largely lacking in all these areas. General Washington and the Continental Army were battling the world’s greatest power. The British had more adept and experienced generals, the most formidable navy in the world, and far superior numbers of highly trained soldiers. But we had our convictions.

George Washington indeed lost more battles than he won. He was prone to overly complicated tactical maneuvers and the Americans bungled most of their battles. To make matters worse, the military novices in Congress felt the need to meddle in Washington’s tactics and often pushed Washington into military disasters. With all of this defeat, the American Army came alarmingly close to disintegration as the soldiers – who suffered from illness, overdue payments from the cash-strapped Congress, and defeat after the defeat – yearned to return home. But Americans are hardy stock. The cause for liberty and independence kept the patriots fighting.

Washington served as the epitome of American perseverance. Despite nearly hopeless odds, he pressed on. And in doing so, he rallied the American people to fight on with him. Even though he yearned to stand up and fight the British “like a man” he knew he would lose and instead chose patience. He turned the Revolution into a war of attrition in which he fought many defensive battles, retreating time and again. In doing so, he wore down the British and drained Parliament’s coffers.

Even after the original patriotic zeal for the war faded and the horrors of battle set in, Washington and his men soldiered on. Through death and defeat they fought on for 7 years. America would stop at nothing to achieve her goals.

This is the American way. I am proud that has not changed.

Professors Bruce Ackerman and Yochai Benkler fired a salvo in the war against torture. They charge that the military under the Obama Administration is holding Private Bradley Manning “under degrading and inhumane conditions that are illegal and immoral.” The 23 year old Manning is accused of leaking classified government information to Wikileaks. Specifically, he is charged with illegally obtaining 250,000 U.S. government cables, 380,000 records related to the war and a military video of an attack on unarmed men in Iraq.

Activists Protest the Treatment of Bradley Manning

“For nine months, Manning has been confined to his cell for twenty-three hours a day. During his one remaining hour, he can walk in circles in another room, with no other prisoners present. He is not allowed to doze off or relax during the day, but must answer the question ‘Are you OK?’ verbally and in the affirmative every five minutes. At night, he is awakened to be asked again ‘Are you OK?’ every time he turns his back to the cell door or covers his head with a blanket so that the guards cannot see his face. During the past week he was forced to sleep naked and stand naked for inspection in front of his cell, and for the indefinite future must remove his clothes and wear a “smock” under claims of risk to himself that he disputes.”

Few realize that America has a long tradition of prisoner abuse.

George Washington was indeed morally opposed to torture. He hoped for his new nation to rise above the cruel practices of the past and instead treat his British captives with humanity. However, that hope soon faded as the realities of war set in. Washington came to see torture as a necessary evil in his bid to save American lives.

Washington was outraged by how the British were treating their American prisoners. He threatened the British that he would retaliate upon their men in his custody. With reports circulating that British employed “torture by searing irons and secret scourges,” Washington’s arguments for treatment “in kind” concerned gruesome practices. Washington even went as far as ordering his captives to draw straws for a random execution. In doing so, he made it clear that he would exact and eye for an eye in order to protect his people.

However, one of the many important differences between then and now is that Washington focused this mistreatment on foreign nationals rather than Americans. This is not to say that the American “traitors” were treated nicely. Loyalists were often beaten, tarred, and feathered (which may seem funny but could cause disfiguring burns, blindness, infection, and potentially death), and “spicketted.” Spicketting was a gruesome practice in which a giant screw was driven into the Loyalist American’s foot as a crow spun him around on it. But such abuse against Americans was not at Washington’s direction. While Washington did not always condemn these attacks, he did not see it as within the Commander in Chief’s power to order the mistreatment of Americans.

“President Obama was once a professor of constitutional law, and entered the national stage as an eloquent moral leader. The question now, however, is whether his conduct as commander in chief meets fundamental standards of decency.” There are many differences between then and now. What lessons might we learn from our past as we approach the challenges of today?

“Resolved, That General Washington shall be, and he is hereby vested with full, ample, and complete powers to . . . arrest and confine persons . . . who are disaffected to the American cause.”

– Resolution of the Continental Congress, 1776

In a dramatic about face, the Obama Administration has announced that September 11th mastermind Khalid

Khalid Sheikh Mohammed, looking dapper

Sheik Mohammed will be brought before a military commission in Guantanamo Bay, Cuba. Captured in Pakistan in 2003, Mohammed was the “principal architect of the 9/11 attacks” according to the 9/11 Commission. When the Obama Administration sought to try Mohammed and his four accomplices in a civilian court in Manhattan, the President faced a bipartisan barrage of criticism. Americans were infuriated by this original plan to bring Mohammed back to the scene of his heinous crime, where he would enjoy the privileges and protections of an American citizen. And so, in a reversal, the Administration has changed course.

As discussed, George Washington set a precedent for utilizing military commissions against our nation’s enemies. Military commissions were historically held according to the Commander’s discretion and did not necessarily provide any protections whatsoever. The procedures of the proceeding were largely left to the whims of the Commander. Unlike civilian trials, these war courts provided the defendant with few – if any – protections and typically ended with a prompt hanging.

While Washington typically referred enemies of the nation to other trials held under rules passed by Congress, he utilized commissions to dole out punishment when need be. And with yesterday’s announcement, President Obama appears to be following suit.

The families of the September 11th victims have been waiting for nearly a decade for justice. When do you think they will receive it?

“The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature. … the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.”

- James Madison, 1793

A growing chorus is claiming President Obama has violated the Constitution. Professor Bruce Ackerman poignantly wrote “In taking the country into a war with Libya, Barack Obama’s administration is breaking new ground in its construction of an imperial presidency – an executive who increasingly acts independently of Congress at home and abroad.” In ordering the U.S. air strikes on Libya, President Obama consulted the United Nations, NATO, and even the Arab League, but apparently not the United States Congress. In fact, as Professors Ackerman and Hathaway point out, “[h]e ignored repeated calls — by Sens. Hillary Rodham Clinton and Joe Biden, among others — to submit it to Congress for approval.” The Founding Fathers would be surprised, to say the least.

The first time the United States Congress officially declared war was, unsurprisingly, against Britain. But what is more surprising is that it was not during the Revolution, it was much later – at the start of the War of 1812,

General Washington, who served as the model for the President’s Commander in Chief powers, never declared war during the Revolution. Washington was not even named Commander of the U.S. forces until after the outbreak of hostilities with the British in Massachusetts in 1775. In fact, neither Congress nor Washington formally declared war during the Revolution. The closest the United States came was when Congress adopted the Declaration of Independence in 1776, thereby making reconciliation with Britain nearly impossible – and a drawn out war inevitable. But even then, Washington did not sign.

Once he became President, Washington indeed engaged in an undeclared war. Since before the Revolution, the Americans had fought against a confederation of numerous Native American tribes for control of the Northwest Territory. After the Americans emerged triumphant in the Revolution, the seething British incited the Native Americans to renew their attacks. In response, President Washington sent troops to enforce the U.S.’s control over the territory. While he did not have a formal declaration of war, this was a continuing war in which Congress was very involved. Washington’s actions were defending the land claims granted by Congress and the American settlers directly under siege. He was in close communication with Congress, which responded favorably to Washington’s pleas and granted the funds to raise the army he sent. So while this was an undeclared war, it had Congressional approval. And it was not the only one.

Again just a few years later in 1789, President John Adams commanded the U.S. military against France in the Quasi War. While Congress did not declare war, it passed the long-winded “Act Further to Protect the Commerce of the United States.” While it did not roll off the tongue, the Act did the trick – Adams had Congressional authorization.  Again in 1801, President Jefferson did not have a declaration of war from Congress when he attacked Tripoli, as I touched upon last week. However, he did have other Congressional votes to back him. Congress authorized him to seize the ships of Tripoli and “to cause to be done all such other acts of precaution or hostility as the state of war will justify.”

At our nation’s founding, Congress was deeply involved in the initiation of military action. Why were our elected legislatures not more involved today?