The roots of presidential war-making power are deep.
Nov 18, 2013, Vol. 19, No. 10 • By ILAN WURMAN
This account of George Washington’s wartime precedents regarding prisoner abuse, congressional power over war policy, military tribunals, and civilian rights represents one of the best and most colorful uses of history to help shape our understanding of the commander-in-chief clause of the Constitution. Anyone interested in the original meaning of the Constitution, or America’s revolutionary struggle generally, should read this riveting and informative account. And while Logan Beirne reveals the important contribution historical inquiry can make to constitutional interpretation, he also reveals that even the best historical analysis is but one interpretive tool that must be carefully examined alongside the Constitution’s text.
When the ratifying public approved the Constitution, with its clause naming the president “Commander in Chief of the Army and Navy of the United States,” they, Beirne is mostly correct in saying, “knew exactly what that meant: the powers that the great soldier of liberty had shaped in the crucible of war.” Surely the public, as well as the Framers, had in mind the precedents of their only previous commander in chief.
Thus, the public knew that George Washington had the liberty, under the Articles of Confederation, to treat prisoners either humanely or cruelly as he saw fit to meet the needs of the war effort. The public also knew that Washington was greatly deferential to Congress’s strategizing, but that Congress eventually saw the need to give Washington full authority to prosecute the war in his own way. Finally, the people probably understood that while Washington insisted on civilian trials for citizens and courts-martial for soldiers and American spies, he disobeyed congressional directives and tried foreign spies in military commissions with minimal due process.
But how many of those practices did the Framers ratify in the text of the Constitution? They wrote that executive power shall be vested in the president, and that he shall be commander in chief of the armed forces; but this does not necessarily tell us enough. For example, George Washington was commander in chief both when Congress was directing war strategy and after Congress relinquished its power of direction. Does this mean that the commander-in-chief clause ratified his authority only in this latter period, or that it required the commander in chief to obey Congress—whether or not it was directing war strategy?
Fortunately, the Framers left us with additional textual evidence. In this case, they explicitly gave Congress the power—in Article I, Section 8—to declare war but not to make war, as had been proposed. Thus, the Framers did, indeed, ratify the understanding that the commander in chief shall have full power to direct war strategy, but they provided an explicit textual hook.
The same questions arise in the context of prisoner treatment. Ultimately, Washington followed Congress’s instructions with respect to prisoners. These instructions sometimes demanded humane treatment and sometimes granted Washington the power to use cruel treatment. Our first commander in chief generally obeyed these instructions. He did, however, directly flout congressional directive in his treatment of Archibald Campbell, a British officer—though Congress did grant post-hoc approval for his actions. Beirne is careful not to venture overbroad on whether this means that the president or Congress should have final say on such matters; he is merely illustrating that prisoner abuse was a tool readily used.
Such history can certainly shed light on how our current Congress and president should approach the question of, say, torture; but it tells us less about what independent power the commander in chief may have.
In his most riveting episode, Beirne chronicles the travails of the British major John André, famous for his part in Benedict Arnold’s treasonous plot. “Despite the congressional resolution calling for spies to be tried by court-martial,” writes Beirne, “Washington viewed it as his prerogative instead to try a foreign enemy combatant without ‘the formality of a regular trial.’ ” Washington dispatched André after a military commission, in which André was not afforded counsel or the opportunity to confront the witnesses against him, had condemned him. Beirne writes that here, “the commander had defined American military justice.”
This history is useful as far as it goes, and it helps us understand the role of the commander in chief. At least equally important, however, is the fact that the Framers gave Congress the power to “make Rules concerning Captures on Land and Water.” This history is not enough to make sweeping claims about whether Washington’s practice could be repeated—though, careful as always, Beirne avoids overreaching in his argument.
George Washington was seen as the paragon of a virtuous and good commander in chief. One Dutch businessman, upon glimpsing Washington, wrote that he had seen “the greatest man who has ever appeared on the surface of the earth.” There can be no denying that his leadership served as a model for future commanders in chief, but we must be careful in drawing this conclusion. Washington may well have been the greatest and most virtuous man of his era; but would future presidents be as virtuous? No one doubted Washington’s virtue, but the presidency had to be crafted for all future occupants of the office. The Framers were aware of this necessity, and created an executive of limited duration, giving to Congress some traditional executive powers. They drafted the Constitution with a view to a future after George Washington.
Ilan Wurman is clerk to Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit.