Waging War: The Clash Between Presidents and Congress, 1776 to ISIS - Softcover

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David Barron is a United States Circuit Judge for the United States Court of Appeals for the First Circuit and former S. William Green Professor of Public Law at Harvard Law School. He previously served as the Acting Assistant Attorney General of the Office of Legal Counsel at the United States Department of Justice. He is coauthor, with Martin Lederman, of the article “The Commander in Chief at the Lowest Ebb” and the author of Waging War.

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Waging War

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THE REVOLUTIONARY WAR

“I am not invested with the Powers You Suppose.”

As much as Ambrose Serle had reason to wonder about the kind of rebel military leader the British were about to confront in New York, the object of Serle’s gaze had plenty to occupy his own mind on that July day in the summer of 1776. The commander in chief of the Continental Army, General George Washington, was under no illusion about the threat his men faced. The Americans were badly overmatched. A fleet of more than one hundred of His Majesty’s warships was massed just offshore. British general William Howe’s skillful brother, Admiral Richard Howe, was in command. The rebels, by contrast, had no navy. They could barely even field an army. And so, while Ambrose Serle reflected on Washington’s supposedly sweeping powers, the American general had other concerns. He was dreaming up daring plans for victory. He was also plotting his escape.

Assuming, that is, such a choice of tactics was even General Washington’s to make. As a practical matter, Washington was the chief commander in the field. If he was of such a mind, he could always choose to do what he thought necessary and then dare the Continental Congress to question him after the fact. Congress was in Philadelphia, after all, and so poorly positioned to second-guess his judgment in the field. But, even at this earliest stage of American government, Washington sensed that there was peril in waging war on terms his Congress did not accept. And the instinct to stay in line with Congress would guide Washington when the time came to make the crucial tactical choice that the British assault on New York would force him to make.

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If the British attack proved as ferocious as Washington expected, then he resolved, he would send his troops to safer ground. If need be, he would even direct them to abandon the city outright. In preparing for just that outcome, he had already taken the precaution of sending his personal papers—gathered in a large box, secured with nails—to Philadelphia for safekeeping. But Washington had to decide more than whether to make a last stand. He also had to decide how his men should go about withdrawing from the battle if he determined, as seemed likely, that retreat was the wiser course. That part of the decision was more complicated.

A clean retreat was certainly a possibility. It would ensure the troops could live to fight another day. It would also avoid a host of difficult judgments. But New York was no ordinary city. It occupied a vital strategic position. And it had great symbolic importance. Once in British hands, the city’s loyalist leanings could make it the center of the effort to beat back the rebellion. Washington’s advisors had been warning for months, therefore, that the city must not be left for the British to occupy.

As early as January of 1776—and thus well before the first British ships appeared off Long Island—the American general Nathanael Greene had implored Washington to “Burn or Garrison the City.” Greene later narrowed that choice when he realized how futile garrisoning would likely be. Arson, he later explained, was Washington’s only option.

There was precedent for Greene’s proposal. Rebel soldiers had set fire to villages in Indian country and in Canada. It would be easy enough to do so now. Washington, as commander in chief, would order his officers to set fires strategically throughout Manhattan. The army would head for White Plains. From there, the soldiers could watch the conflagration before moving out for good.

Washington was savvy enough to foresee the controversy that might follow the execution of such a plan. The New York Convention had already inquired about a rumor that the rebels were planning to leave the city in ruins. The rump body of New York patriots assured the new commander in chief that it would “cheerfully submit to the fatal Necessity” if he deemed “it essential to the Safety of this State or the general Interest of America.” But the Convention still wanted Washington’s word that he would burn the city only as a last resort. The commander in chief obliged. He wrote back to the Convention straightaway, informing its members that he would take such drastic action only if circumstances would “justify me to the whole World.”

Washington knew, however, that he needed to convince more than sympathetic New Yorkers or the amorphous court of world opinion. If he wished to burn the city to the ground, he also would need to persuade the institution to which he owed his command.

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The Continental Congress was an unusual body—and a maddeningly disorganized one as well. Working out of a plain brick, two-story building in Philadelphia, Congress was made up of representatives from each of the newly united colonies, a collection of more than fifty people on the rare occasion when they were all assembled. A Massachusetts native, John Hancock, served as its president. But Congress could act only if a majority of its members agreed. And so, in the words of one delegate, the Continental Congress was neither fish nor fowl. It was a “deliberating Executive assembly,” and it blended the functions of democratic government in one unwieldy revolutionary body.

Still, the mission of Congress was clear: to win the war for independence. Congress eventually established a rudimentary bureaucracy to aid its work. Congress would sometimes send its Board of War to the front so that its members could consult directly with General Washington. That board would even give Washington directives on the spot, a practice foreseen by the congressional order that commissioned him as the commander in chief.

The terms of that order did not grant Washington anything like the unlimited power that General Howe’s secretary, Ambrose Serle, seemed to assume the top American general must have enjoyed. Congress required Washington to conduct himself “in every respect by the rules and discipline of war,” and it directed him “punctually to observe and follow such orders and directions, from time to time, as you shall receive from this, or a future Congress of these United Colonies, or committee of Congress.”

Washington treasured this document. He did not part with it—even in battle—during his time at the helm of American forces. But that did not mean General Washington enjoyed the tight congressional control that his commission contemplated. He could be a devastating critic of Congress’s inefficiency, and an effective bureaucratic infighter if necessary. Even by the time of the crisis in New York, Washington had succeeded in convincing Congress to expand his powers in important ways. But the leash remained in place, and Washington knew it could be pulled at any moment.

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By late August, the British forces had taken over Long Island. Their assault on Manhattan was imminent. The Americans’ commanding general settled on a final course of action. He chose to wait before implementing it. He wanted to check in with higher authorities first. On...