War and Responsibility

Formerly the Tyler Professor of Constitutional Law at Harvard University and then Dean of Stanford Law School, John Hart Ely is Robert E. Paradise Professor at Stanford. His Democracy and Distrust: A Theory of Judicial Review won the Order of the Coif triennial award for the best book published in any field of law during the years 1980 through 1982.

"John Hart Ely has done a remarkable job in taking a series of elegant and sophisticated legal arguments and presenting them in an unusually concise and readable form. More important, he has breathed new life into the War Powers Resolution with a handful of suggestions that could bring the war power back to where it was intended, the representatives of the people."--Melvin Small, History: Reviews of New Books "This is scholarship with a difference... Now that this book exists, no one should engage in discussions about war and U.S. responsibility or the War Powers Act without having first consulted it."--James Finn, Commonweal "In this short but compellingly reasoned book, John Hart Ely argues that the congressional effort to regain its constitutional power has essentially failed... With clarity and sophistication, [he] walks us through a mine field of legal and political nuances... Ely's fine book should be seen as part of a revival of scholarly commitment to the separation of powers and to the theory of governing that undergirds it."--The Annals of the Academy of Political and Social Science "In this splendid volume Ely gives us the mature, ripened intellectual fruit of at least a quarter century's thought and the reflection by a leading constitutional law scholar on [a] most divisive public issue."--Daniel J. Kornstein, New York Law Journal

• PrefaceCh. 1The Constitutional Framework3The Counterargument from Obsolescence5The Counterargument from Practice9Korea10Ch. 2Vietnam: The (Troubled) Constitutionality of the War They Told Us About12The Constitutionality of the Vietnam War, 1964-197313The American Ground Incursion into Cambodia, 197030The Repeal of the Tonkin Gulf Resolution, 197132The Continued Bombing of Cambodia, 197334Ch. 3Inducing Congress to Face Up to Its Constitutional Responsibilities47The Experience Since Vietnam48Can Anybody Here Fix This Thing?52Judicial "Remand" as a Corrective for Legislative Evasion54Ch. 4The (Unenforceable) Unconstitutionality of the "Secret War" in Laos, 1962-196968America's Role in the War in Laos69Defense 1: Because It Wasn't Fought by Our "Armed Forces," the Campaign in Laos Wasn't Covered by the Constitutional Requirement That Wars Be Authorized by Congress73Defense 2: The Tonkin Gulf Resolution Authorized the War in Laos75Defense 3: There Were Compelling Military Reasons Why Congress and the American Public Could Not Be Told About the War in Laos, and Thus Why Authorization Could Not Be Sought76Defense 4: In Fact the "Secret War" in Laos Was No Secret82What is the Remedy for a Secret War?93Ch. 5The (Enforceable) Unconstitutionality of the Secret Bombing of Cambodia, 1969-197098The Sihanouk Scenarios99What Is the Remedy for a Secret War in Which Congress Isn't Complicit?103Ch. 6"Covert" War Today105Have Covert Wars Been Congressionally Authorized En Masse?106Must Covert Wars Be Congressionally Authorized?108Have I Just Given Away the Store?109Appendix: Toward a War Powers (Combat Authorization) Act That Works115Provisions That Don't Do Any Good and Only Give the President an Excuse to Flout the Resolution115Strengthening the Potentially Operational Provisions120A Proposed Combat Authorization Act132Notes139Index239