Balance of Power

by James W. Huston

  Inside his office, Congressman Stanbridge from the Forty-ninth District in San Diego was in a beatified state. The tension in the office was audible, a humming of human energy: excitement and fear, jubilation and an instinctive desire to run for cover—or to change one’s name.

  “Robin!” he yelled through the closed door.

  She put a call down on hold without even determining who was on the line, and rushed into his office. “Yes, sir.”

  “I want you to change the location of the press conference. I want it to be in the Rotunda, right under the Dome. In the center of congressional history,” he said, smiling at how appropriate that would be.

  “You’ve never had one there, sir,” she said, puzzled.

  “I know that, Robin. I know that.”

  “But the press has never set up there.”

  “I guess the ones who can will be the ones who get this story.”

  “Should I tell them anything else?” she asked, hoping for some other morsel to offer the inquisitive press other than that the Speaker would be holding a press conference at 10:30 about a “major development.”

  “Nope. Keep them guessing. Has Pete Peterson called yet?” he asked, hoping the Senate Majority Leader was still on his side. Peterson hadn’t been very receptive to the idea initially, but said he would consider it. Stanbridge was counting on him to get the Democrats to agree to a debating schedule that would let them consider it tonight. Peterson said they knew their best chance to defeat it was tonight, when it was new and uncomfortable to everyone.

  Stanbridge looked at those staff members gathered again, every one of whom had been up all night and showed it.

  Dillon stood next to him, assuming a position of leadership without being asked. The Speaker did not object. “Anybody else have anything before I ask Mr. Dillon to give us the results of his research?”

  No one spoke. “Okay, Jim?” the Speaker said.

  Dillon looked at the staff and tried to force his heart back down his throat. He answered slowly. “There isn’t anything out there in American law, or constitutional law, or cases, and not much in law reviews, that says we can’t do this. It’s really never been argued, because nobody has ever thought of it.”

  The Speaker hesitated and looked at the ceiling. He glanced at his watch, measuring the time between now and his press conference, when he would announce this to the entire world. He could not afford to be wrong. “Do you realize the implications?”

  “Yes.”

  “It could be the end of me politically.” He turned his head quickly to Dillon. “You understand that?”

  “Yes, I do.”

  “We can’t be wrong.” He looked as serious as Dillon had ever seen him. “You willing to take that risk?”

  “Mr. Speaker, the attack on the Pacific Flyer has already meant the death of twenty-six Americans. They’re not just politically dead, they’re really dead. I want to do whatever we can to get these guys. If that means taking a position that is marginal in someone’s eyes, then fine. But I don’t think it’s marginal.”

  “So, the bottom line, Mr. Dillon, is that there is nothing that says we can’t do this?”

  Dillon shook his head slowly. “Nothing.”

  Stanbridge lowered his voice. “Not only could this mean a new era for Congress, it could mean the end of this President.”

  Stanbridge walked into the Rotunda, the large circular room underneath the dome of the Capitol building. The center of power in Washington, or at least the center of the power not resident in the White House. The cameras whirred and clicked as Stanbridge walked to the small, hurriedly constructed wooden platform in front of a huge painting of General George Washington resigning his commission to Congress as Commander in Chief of the Army. The reporters hurled questions at him, annoyed at not having been able to find out what this was all about. He paused behind the mountain of microphones and phalanx of reporters without saying anything, a grave but confident look on his face. Standing slightly above them on the platform made him look taller, and he kept the microphones low, near the middle of his chest instead of in front of his mouth so that he towered above them in any picture. He waited until the hum died down. CNN and all the major broadcast networks were carrying the press conference live. He stepped to the microphone and raised his hand.

  “Good morning. Before I open for questions, I thought I would tell you what this is all about. Otherwise you wouldn’t know what questions to ask.” There was a political chuckle, meaning no one thought it was truly funny.

  “As you have all heard, the President has decided not to pursue the terrorists who killed innocent Americans aboard an American-flagged vessel carrying American goods to a country that is our trading partner.” He stared coldly into the cameras. “I am not going to let it rest there. My staff and I have been up all night since then, evaluating our options. I will be calling on the House, and I have word from my counterpart in the Senate that he will do likewise, to intervene.” He paused, looking at them. “To do what the President is afraid to do.” He waited until the murmur died down. “I will be asking the House and the Senate to authorize direct action through the issuance of a Letter of Reprisal. As I’m sure you know, the Constitution of the United States authorizes just such a Letter to be issued by Congress in Article one, Section eight. I’m also sure, though, that you’re not intimately familiar with it, because it hasn’t been used since the War of 1812. Until now…”

  He tried to go on but the clamor of shocked reporters was too much. He waited and watched the tumult. Finally he continued. “If the…if the President won’t do what he is required to do, to protect citizens and the property of citizens, then we will.” He held up his hand as the reporters fought to get their questions out. “In due time,” he said calmly. “In due time. Frankly, we were hoping it wouldn’t come to this. We expected the President to take the appropriate steps, especially in light of the presence of the U.S. battle group already there. But we were wrong. Therefore, Congress will be in session until this is done. The Rules Committee is meeting right now in special session to consider a rule to allow this to be heard and passed tonight. I expect we’ll be here all night, but we’re prepared to do that. I’m sure my fellow members of Congress will have questions, but we’ve done the research necessary to answer those questions quickly. Now, if there are any…”

  The reporters cut him off before he finished his sentence. “Is this legal?” asked the correspondent from Newsweek.

  “Absolutely,” responded the Speaker in the first of many answers. He knew there would be intense interest but had underestimated the firestorm his announcement would generate. Reporters were on cellular phones, the cameras were rolling, and the networks showed no intention of cutting away to their regular programming.

  The questions came at him like baseballs from a runaway pitching machine, and equally hard. The frustration the reporters felt at not being able to prepare questions on the topic, and their ignorance of the subject matter, flustered them. One finally asked about the Constitution, and why, if the action was legal, no one had taken it recently. Stanbridge told him exactly what he thought, that no one had done it because no one had thought of it.

  Word spread quickly through the House and Senate and the rest of Washington. In the offices of the Counsel to the President, Molly Vaughan stared at the television in disbelief. The Speaker was out of his mind. Usurpation. Betrayal. A politician run amok. Her anger rose as she thought of Jim Dillon working away on something he wouldn’t talk about. She felt sick.

  Dillon watched the small television he kept on the top of his desk. The newspeople had been caught off guard. That was rare. They usually had some idea of what was coming. Not this time. Even if they had heard rumors, they wouldn’t have had any idea what it was about. Nobody did. When Dillon had raised the idea with others on the staff, he hadn’t found one person who even knew what a Letter of Marque and Reprisal was, let alone that it was a still existing constitutional power of Congress. Dill
on was so nervous his hands were shaking. The Speaker had accepted his research. He had notified Congress that they were going to be in session all night if necessary to debate and vote on issuing a Letter to strike against the terrorists. Stanbridge made it sound as routine as he could, but everyone involved—and most who weren’t—saw the implications of Congress being able to conduct a private war without the President, and in fact in direct conflict with the President. Most doubted that the Constitution said it was possible, but no one knew enough to say it didn’t.

  Even the constitutional law professors whom the reporters always called, who were always happily on standby to contribute their remarks in low, controlled, knowing tones, were baffled. Most had never given ten minutes’ thought to the clause they were being asked about. Some tried to bluff, but most said frankly that they were surprised, didn’t know the history of the clause, and would have to “look into it” before commenting further. Dillon turned off the television and put it away.

  He waited with sweaty palms for the phone call. For someone to call and tell him about some case or treaty or whatever it was that he had missed that proved him wrong, dead wrong. But no calls came.

  He glanced up at the clock. 11:00 A.M. He drew a deep breath and read the copy of the Letter of Marque and Reprisal from 1812 that he had found in the Library of Congress and put it next to his notepad. He began copying the language and unconsciously updating it. “To all those who shall see these presents, Greetings. BE IT KNOWN, That in pursuance of an Act of Congress, passed on the…” Stanbridge had asked him to have a draft ready for the afternoon to be distributed to the other members.

  Suddenly Dillon’s heart froze. He stared at the bottom of the 1812 Letter of Marque and Reprisal. How could he not have noticed it before? How could he have done all that research and never wondered how the Letter actually worked? He stared at the bottom of the Letter. It was signed by James Madison. Dillon breathed deeply as he tried to think his way around it. Manchester would never sign it. That was the whole point. He sat back and looked at the ceiling and closed his eyes. Did the President have to sign it, or was that just window dressing? His heart pounded. He could feel his pulse in his fingertips. He imagined the next press conference that the Speaker would have to give: “Just kidding about that Letter thing. Turns out the President would have to sign it, and we know he isn’t inclined to do that, so we’ll be meeting later in the week to discuss options of monitoring the Indonesian criminal investigation….” Dillon filled his lungs with as much oxygen as he could hold so he wouldn’t pass out.

  “I didn’t think you’d come,” he said as Molly stepped into the apartment.

  “Why wouldn’t I?” she asked warmly.

  “Because of the Speaker’s press conference, and the debate,” he said as he leaned over to kiss her on the cheek.

  He could feel her coolness. “They’re just going to make fools of themselves,” she said, shrugging off her coat and throwing it into a chair.

  He held his tongue and studied her. Why now? Why did this thing have to happen now, just when she had started warming to him and looking at him differently?

  “Was it your idea?” Her tone was direct and clinical.

  “Think we should talk about it? I mean with you at the White—”

  “Maybe I can talk some sense into your head so you can stop this lunacy before you commit professional suicide.” Her cheeks were red.

  He changed the subject. “I thought I’d fix one of our old student dinners, carbonara. That be okay?”

  “Don’t try and avoid the subject,” she replied quickly. “Come on, Jim. You start a constitutional crisis and you’re worried about carbonara? What have you been doing all day? I was researching this stupid Letter of Marque and Reprisal, and whether you can still use it.”

  “Look,” he said, “I’ve got to be back on the Hill in an hour or so. Let’s just eat. Okay?”

  She relaxed slightly. “I’ve got to get back too. To undo whatever you’re going to do next.”

  She watched him without a word as he finished preparing dinner. He set two places at the small kitchen table. In his hurry, he spilled water on the table when filling her glass. Finally, he pointed to the chair, and they sat down together.

  They started eating without a word.

  “You can’t do it, you know,” she said, halfway through the silent meal.

  He rolled the spaghetti noodles onto his fork with a large spoon, catching some of the chopped bacon inside. His stomach jumped. Oh, no. He tried to look unconcerned. “Why not?”

  “Because we don’t do it anymore.”

  “Doesn’t mean we can’t.”

  “But there’s a reason we don’t,” she said somewhat smugly.

  Dillon felt his stomach tighten more, “Like what?”

  “That was a power that used to exist. It doesn’t anymore. It is a former power.”

  “Why do you say that?”

  “Jim, it’s well known.” She looked around the room. “Do you have a law dictionary?”

  “Not here.”

  “Look up Letters of Marque. It says it is ‘A power formerly granted.’ We agreed not to do it anymore. We formally agreed. In a treaty. The Declaration of Paris.”

  He put his fork down. “Did you research it?”

  “A little. The Declaration was signed in 1856. All the major powers agreed not to use it anymore. We can’t do it, Jim.” She drank from her coffee cup and watched him. He didn’t show any emotion. She was disappointed. It was why she had come—to tell him and watch his face. She had hoped to handle it better, but had finally just blurted out the facts. She had been torn between keeping him from driving off the political cliff and showing him up because she loved to compete with him. He was clearly caught off guard, but she had expected more of a response.

  “Is that it?” he said finally.

  “Is that what?”

  “Is that the only reason we can’t do it?”

  “No, there are others, but that’s good enough. We promised the whole world we wouldn’t. It would look pretty foolish to do it anyway, wouldn’t it?”

  Dillon got up and opened the refrigerator. He took out the milk and poured a glass. He held it out to her and raised his eyebrows. She wrinkled her nose. He put the milk carton back. He sat down and drank deeply from the cold milk. He exhaled, and gazed intently into her eyes. “We didn’t sign the Declaration of Paris.”

  “What do you mean, we didn’t sign it?”

  “We didn’t sign it. I don’t know how else to say it.”

  “But the law dictionary says…”

  “They’re wrong. I saw that too. About had a heart attack, because it was after I’d done most of my research. It sure seems to say we gave that power away. But I went and found the actual treaty—the Declaration of Paris—and we didn’t sign it, because of this and a few other things. The kicker is, though,” he said, moving closer to her, perhaps to convince her, “that when the Civil War broke out, the Europeans suddenly thought they should agree to the restrictions we wanted on Letters. We said okay, but wanted to exclude the Civil War. They wouldn’t do it,” he said, throwing up his arms in apparent disgust over the diplomatic discussions of a century ago, “so the thing was never signed by the United States.”

  “How can that be?” she asked, truly puzzled, confused.

  “Simple. We never agreed. Even if we had, I’m not sure it would have mattered. You know con law. Treaties can’t trump the Constitution. We can’t sign a treaty with France agreeing to disregard the First Amendment….”

  She leaned forward against the table and lowered her voice, as if talking to someone who was truly ignorant. “You mean you really think Congress can do this?”

  He nodded and finished his noodles.

  She took advantage of the silence to make her point stronger. “But even if we haven’t agreed in a treaty, it’s ancient history. Those kinds of ships don’t even exist anymore.”

  “We’re going to do it diff
erently.”

  “How?”

  He glanced up and considered whether to tell her. “The Letter is going to the USS Constitution Battle Group, not a private ship.”

  She sat back with her mouth open slightly and tried to absorb what he had said. It was impossible. It was one thing to imply that Congress could commission an armed merchant vessel and conduct some mischief, but to send a Letter to a U.S. Navy aircraft carrier? “That’s impossible.”

  “Not impossible.”

  “How can you do that? There isn’t one thing in the Constitution that even implies Congress has that power.” She stood and paced around the table, breathing harder than she would have liked as the implications of a Navy battle group under the control of Congress alone sank in. “It would be unconstitutional.”

  “Says who?” Dillon replied, his voice raised slightly.

  “Whoever looks at it will come to that conclusion. They have to.”

  “No, they don’t. There’s precedent for using the Letter of Marque or Reprisal with government forces.”

  “Where?”

  “In due time. You’ll see it in due time.”

  She sat down again, agitated. “You think this is a game? You come up with some clever idea to jerk the President around to get him to do what you want?”

  “No. It’s no game,” he said. “The President chose what he wanted to do, or not do, and now he has to live with the consequences. This isn’t some ploy to get the President to act, it’s Congress acting legally when the President won’t.”