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A Time for Calm Reflection and Adherence to Law
by Jacob G. Hornberger

The Founders of our nation understood two principles: first, that the greatest threat to the freedom and well-being of the citizenry lies not with some foreign enemy but rather with one's own government, and, second, that this threat is greatest during times of crisis. That is why our ancestors refused to institute a government of general, unlimited powers, but instead one whose powers were enumerated and extremely limited, even (or perhaps especially) during times of crisis. It is our constitutional form of government that has distinguished our nation from all others in history.

There are those who are comparing the attacks on the World Trade Center and the Pentagon to the Japanese attack on Pearl Harbor. Fine, let's follow the analogy.

After the Pearl Harbor attack, President Roosevelt went to Congress and specifically requested a declaration of war against Japan.

Why didn't he simply proceed to use U.S. military forces to wage war against an enemy nation that had already attacked U.S. forces?

Because he understood what all Americans once clearly understood: that the Constitution -- our supreme law of the land that governs the conduct of our own government officials -- prohibits the president from waging war, even against those who attack our nation, without an express declaration of war by Congress. Indeed, that was why President Wilson also had sought a congressional declaration of war before committing the United States to entry into World War I.

If Tuesday's attacks are treated as criminal offenses, then no matter how horrific they are, adherence to the rule of law requires that legal procedures be employed to bring the wrongdoers to justice, as difficult as that may be. If the attacks are treated as acts of war, adherence to the Constitution requires that the president, as a prerequisite to waging war, make his case to Congress by seeking and securing a declaration of war.

Americans ignore at their peril the importance of requiring their government officials to adhere to their supreme law of the land. After all, while we do not yet know who is responsible for the hijackings and the attacks on the World Trade Center and the Pentagon and what motivated them, how can we ignore the possibility that they are counterattacks by people against whom the U.S. government has unconstitutionally waged war for the past several decades?

Think about it: the U.S. government waged war for many years in Korea and Vietnam, in which tens of thousands of people were killed. It has invaded independent nations, such as Granada and Panama. It has helped dictatorial regimes to torture, kill, and suppress their own citizenry. It has helped to oust democratically elected presidents from office. It has waged war against the Iraqi people with bombs and embargoes, and continues to do so. It recently rained bombs and missiles on the people of Yugoslavia.

There is one common denominator to all this U.S. government warfare: it has all occurred without the constitutionally required congressional declaration of war.

Would it have made a difference if the Constitution had been followed for the past several decades with respect to the separation of the power to declare war and the power to wage war? It is of course impossible to know, but the reason our Founders enacted this constitutional safeguard is that they clearly understood the grave consequences that flow from war, including the deep anger, long-lasting animosity, and unquenchable thirst for revenge among those against whom war is waged. Moreover, by requiring the president to set forth his case for war to Congress, the Founders were providing a procedural safeguard by which innocent people and innocent nations, as much as possible, would not be mistakenly targeted for retribution by the executive branch of our government.

With crisis comes both danger and opportunity. The danger is that U.S. government officials will make life for the American people even more unsafe and insecure, both by what they do internationally out of their own anger and thirst for revenge and also by accelerating their long-standing assaults on the civil liberties of the American people. Our Founders understood this danger. We need to seize the opportunity to reflect upon their wisdom and to restore their principles.

Mr. Hornberger is president of The Future of Freedom Foundation
(www.fff.org) in Fairfax, Va, and co-editor of The Failure of America's
Foreign Wars.