Worst of Friends by Suzanne Tripp Jurmain is a simply wonderful book, aimed at “pre-schoolers and up”.
It tells of Thomas Jefferson, John Adams “and the true story of an American feud”, recounting in the most accessible way the special relationship between the two titans of American democracy.
The pair were, of course, the best of friends but completely different. During the War of Independence they were shoulder to shoulder:
“Noisy John, who was one of America’s best talkers, told Americans to kick out King George and make America an independent country.”
“Shy Tom, who was one of America’s best writers, sat down and wrote the Declaration of Independence to tell King George the colonies were free.”
But by the second year of the union,1790, Jefferson (who would be third president, 1801-1809) and Adams (who would be second, 1797-1801) had fallen out.
The issue? The powers of the executive versus the powers of the parliament.
“John said the president should always be the country’s biggest, strongest boss – because a really strong and powerful president could defend the country’s laws and protect the people’s freedom.”
“Tom said, No way! He told everybody that a really strong and powerful president might break the country’s laws and take away the people’s freedom. In fact, said Tom, an extra-superstrong and bossy president might even try to make himself a king.”
The US Constitution, adopted in 1789, made crystal clear where the power to go to war resided: Article 1, Section 8 vested it solely in the Congress. That worked fine, stretching from the War of 1812 to World War II without incident.
But then some presidents started taking liberties, in their role as commander in chief of the military, entering South Korea in 1950 under President Harry Truman in a “police action”, not “a war”, followed by President John Kennedy initially sending supplies and “advisers” to South Vietnam from 1963. Less than a year later, US troops were fighting in the war, without an official declaration. In 1969, President Richard Nixon authorised the bombing of Cambodia in secret. His action was not revealed for a year and it took until 1973 for Congress to pass the War Powers Resolution.
This stipulates that the President must consult Congress before committing troops overseas (unless the US is under attack). If the president does commit troops unilaterally, the commitment can only last 60 days with a 30-day withdrawal period, and then Congress must vote (unless it can’t meet because of an attack on mainland US). If forces have been deployed without a declaration of war, then the president must remove them at the direction of Congress.
Nixon’s attempted veto of the Resolution was defeated by Congress, but later presidents still took liberties.
In 1981, Ronald Reagan sent advisors to El Salvador without reporting to Congress. A legal action by some parliamentarians against him was dismissed. In the 1990s, Bill Clinton deployed troops to Kosovo for more than the 60 days. Again, the court did not support a parliamentary challenge.
In Australia, our Constitution makes only one, quaint, mention of “war”, Section 5 guaranteeing that “the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth”.
We have no equivalent of the War Powers Act. What we have is a Defence Act, Section 8 of which deals with general control and administration of the armed forces.
Australians for War Powers Reform* argue that this has been the mechanism by which the Hawke Government entered the first Gulf War (1991) and the Howard Government took us into the Iraq War (2003), which of course was not sanctioned by the United Nations and was bravely opposed in the parliament by the Labor Opposition under the late Simon Crean. Both decisions were reportedly made to the surprise of the then governors-general, who were, albeit anachronistically, legally supposed to be involved.
In a comprehensive statement to the Joint Standing Committee on Foreign Affairs, Defence and Trade in 2016, the reform body spelt out its purpose:
“Our central position is that the Parliament should be involved in any decision to expose members of the Australian Defence Force and the nation itself to the perils and uncertainties of armed conflict. The Right of the Executive, rather than the Parliament, to decide to send troops to war is in the Australian constitutional context a legacy of the Royal Prerogative which in turn has its roots in the pre-democratic notion that the power to make war is an attribute of the sovereign rather than of the people. In any society founded on the belief that power flows from the people to the state rather than from the state to the people, it is both an anachronism and an anomaly.”
The group proposed a return to the previous practice of acting through the GG rather than the Defence Act and the Defence Minister. Until 1942, Australian declarations of war and peace treaties were still approved by the British crown. This was transferred to the Governor-General, acting of course on the advice of his or her ministers through the Executive Council, and with the Cabinet handbook requiring the Attorney-General to certify the legality of any proposed actions.
The group is well aware of the counter-arguments, and say:
- Minor parties could block the legislation in the Senate only if a major Opposition party was also against a declaration of war. “It is difficult to conceive of a major party voting against deployment of the ADF at a time that the nation is genuinely under threat,” the group told the committee.
- The parliamentary process would not take too long as most military units are not maintained in a battle-ready state, save for one Ready Reaction Force.
- Of the notion that the Government might hold intelligence it should not reveal, “today’s Opposition Leader could be tomorrow’s Prime Minister”. They cite a vote of no-confidence in the House of Representatives, a la 1975. Therefore, the say, “at the very least”, relevant leading members of the opposition should not only be cleared to deal with national security classified information but, at times of looming threat, they should be made privy to available intelligence. They note this happened recently in relation to Syria.
While some crossbenchers are onside (with a number surprisingly still on the fence), there appears little appetite from either major party to make any change, notwithstanding Crean’s leading stand for Labor two decades ago.
Anthony Albanese and Peter Dutton are no Jefferson and Adams.
*The author is a member of Australians for War Powers Reform.
Andrew Fraser is the principal of Fraser Criminal Law and has worked in criminal law in the Canberra region for more than 15 years. Before beginning legal practice, Andrew was a journalist for close to 30 years with the Canberra Times and the Sydney Morning Herald, including stints in the Federal Parliamentary Press Gallery. He is also a former news editor, chief of staff and political correspondent of the Canberra Times.
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