The Law: When Wars Begin: Misleading Statements by Presidents

On July 27, 2009, the Crime Subcommittee of the House Committee on the Judiciary held a hearing on H.R. 743, the Executive Accountability Act of 2009. The bill would apply criminal penalties to presidents and executive officials who knowingly and willfully mislead Congress or the people of the United States for the purpose of gaining support for the use of U.S. armed forces. Although the bill was introduced in 2009, it could have been introduced in 1789, and the framers would have been pleased with it. They knew the danger of executive wars. They understood that executive military initiatives threaten the legislative powers of war and spending and undermine popular government. They concluded from a careful reading of history that executives often promote wars that are ruinous to their country, both in lives lost and treasures squandered. The framers believed that only one branch of the U.S. government--Congress--has the authority to take the country from a state of peace to a state of war against another nation. In voting on a matter that serious, members of Congress must have confidence in the information provided by presidents and executive officials. Often that information has been highly misleading, and lawmakers have not taken the time to independently assess and confirm the truthfulness of executive assertions. Checking Executive Wars The views of the framers about foreign wars are reflected in the writings of John Jay, whose entire career up to 1787 had been in foreign affairs, lf~~~~ anyone might have been sympathetic to executive powers in national security, it would have been him. We recall what he wrote in Federalist No. 64, about the Senate and the treaty power. He said, "It seldom happens in the negotiation of treaties, of whatever nature, but that perfect secrecy and immediate despatch are sometimes requisite. There are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery" (Wright 2002, 422). Whatever discretion Jay would have entrusted to the president in the negotiation of treaties, he was entirely opposed to executive wars. His warning about executive military initiatives appears in Federalist No. 4: "It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting any thing by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans." Those motivations and others, "which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people" (Wright 2002, 101). What Jay feared has come to pass. At least since the Mexican-American War of 1846, presidents have had a record of making misleading statements to justify wars. The framers understood that government officials will deceive the nation about the need for war. In Federalist No. 3, Jay referred to the causes of war, "whether real or pretendea" (Wright 2002, 98). In debating whether to use military force, members of Congress must receive from the president and executive officials reliable and truthful information. Legislative deliberation on such a grave matter as going to war must be informed. There can be no justification for the executive branch to knowingly and willfully mislead Congress and the public about the need for war. Deception and false statements in time of war may be necessary, but not in wars of choice for a democratic society. Section 1001 H.R. 743 adopts language from the False Statements Act, Section 1001 of Title 18. The purpose of the bill and the statute is to identify the types of conduct that would merit prosecution of individuals who falsify, conceal, or make other misrepresentations. …