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

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.

Waging War  1 

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.

*  *  *

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.

*  *  *

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.

*  *  *

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 September 2, Washington wrote to Congress with a question: “If we should be obliged to abandon this Town ought It to stand as Winter Quarters for the Enemy?”

Hancock and his fellow members of Congress were far from the battlefield when they received Washington’s letter and the leading question that it posed. They knew that if New York fell, Philadelphia could be next. From their remote vantage point, there was more to consider than the struggle for terrain and temporary tactical advantage. There was also the fight for the hearts and minds of the American people and for the international standing of a government bidding for admission into the community of nations.

It was the Americans who had consistently condemned the British for burning cities—from Charlestown, Massachusetts, to Jamestown, Rhode Island. One had to look no farther than the Declaration of Independence—the very document that helped to precipitate the British attack on New York. That document listed as a leading grievance the fact that the king had “burnt our towns.” More practically, the members of Congress wondered whether New York’s importance actually provided a reason to spare it rather than lay it to waste. To destroy such a valuable city so early in the conflict would hardly reflect the kind of confidence in ultimate victory on which a successful rebellion depended. And what if the rebels later gained the upper hand as the war progressed? Wouldn’t the rebels come to regret the destruction of their former stronghold? Hancock and the other representatives knew that if they wanted the city to survive, they needed to tell Washington right away. A courier carried Congress’s response from Philadelphia the very next day. Hancock’s directive instructed the commander in chief to ensure that “no damage [was to] be done” to the city, and, as Washington later recalled, “absolutely forbid” the burning.

*  *  *

Washington was incredulous when he received the response from Congress. But, then, the man whom Ambrose Serle had just weeks before imagined to be an all-powerful generalissimo, swiftly regained his composure. His emotions in check, Washington immediately replied with a promise to obey. “I shall take every measure in my power” to preserve the city intact, Washington explained, even though, as he later wrote to a family confidant, “this in my judgment may be set down am[on]g one of the capitol [sic] errors of Congress.”

Within the fortnight, the British put Washington’s promise to the test. The final British assault began on September 15. The attack was as brutal as Washington feared. The American general struggled to keep his forces intact. The British onslaught continued hour after hour. Some of Washington’s men ran despite the leader’s orders to stay and fight. The shells raining down from Admiral Howe’s warships were more than Washington’s men could stand. With the shrieks of the frightened civilian populace adding to the frenzy, Washington at last called for a formal retreat. His men finally fled.

From his newly established position on Harlem Heights, Washington looked out upon the British encampments, much as Serle had, only a month before, surveyed the American tents arrayed across the water from his anchored British war vessel. The view was painful. New York City still stood. The congressional order had been respected. But the enemy was busy setting up quarters in the city for the bitter months ahead, and Washington’s men were without their former home.

*  *  *

Six days later, Washington’s army headed out in search of a new encampment—the beginnings of a hellish journey that would soon take the troops across the Delaware River and ultimately on to Valley Forge. As the American forces left New York, smoke could be seen rising from the city in a great plume. The fire that ran through Manhattan on September 21 destroyed hundreds of houses. Some of the British and many of the loyalists blamed Washington. They noted the town’s bells had been taken and that their absence deprived the city of alarms that might have helped contain the blaze. They saw the traces of an American military plan to destroy the city in the course of the retreat. Others doubted Washington’s involvement in the burning of New York. They believed the fire an accident or the work of rogue agents acting on their own.

That so much of New York survived indicated that the fire was not the result of a military plan. Surely if there had been a conscious intention to raze the city, the fire would not have been so poorly set. As for the missing bells, they were made of lead. Their disappearance was thus likely due to fleeing Americans desperate for matériel for munitions.

Washington, for his part, did not regret the burning. He later wrote that “Providence—or some good honest Fellow, has done more for us than we were disposed to do for ourselves, as near One fourth of the City is supposed to be consumed.” But, by noting that the fire had resulted from efforts the rebels had been unwilling to undertake on their own, Washington confirmed the key thing: He had played no role in bringing about the destruction. He had given his word to Hancock that he would do nothing to destroy the city that Congress wished to spare. And he had kept that promise.

*  *  *

New York did not mark the last time that Washington found himself at odds with Philadelphia over the conduct of the war. Nor was it the last time that he would submit to Congress in a clash over tactics in the midst of hostilities. No sooner had Washington begun to lead his men from Manhattan and eventually across the icy waters of the Delaware, than yet another conflict with Congress over tactics erupted.

This new disagreement also pitted tactical imperatives against larger strategic judgments. But now Washington favored the more humane and prudent approach, while Congress pressed hard for a more aggressive course of action.

The immediate cause of the dispute was the incautious behavior of one of Washington’s fellow officers, Charles Lee. A former British solider, Lee was once a serious rival for the title commander in chief. Well schooled but slovenly, the long-faced Lee ultimately lost out to the tall gentleman from Virginia. Lee never reconciled himself to his defeat at Washington’s hands. Lee’s enduring envy of Washington’s title as chief commander eventually led to a dramatic battlefield confrontation between the two men and, ultimately, Lee’s own court-martial for misconduct. Before his shocking downfall, though, there was this earlier wartime incident, which briefly made Lee a hero and caused Washington no end of grief.

The trigger for the dispute was an unexpected American triumph. In the first true battle of the Revolutionary War, and before the rebels had even declared their independence, Washington’s men had withstood a furious British assault on Boston. Those under Washington’s command had performed well enough to capture hundreds of the king’s soldiers. Archibald Campbell was among them. He was an officer in the 71st Regiment of Highlanders, a force of Scotsmen devoted to aiding the Crown. But the Americans were ill prepared for their unexpected victory, and they lacked a plan for quartering their newly captured prisoners. The Continental Congress stepped into the breach. Campbell and seven fellow Scotsmen were to be sent to the Massachusetts town of Reading. There they were placed in the home of an American captain, Nathan Parker, for safekeeping.

For a time, Campbell and his fellow soldiers seemed almost to enjoy the stay. Upwards of twenty servants attended to their needs. The prisoners roamed freely within a six-mile radius of the Parker homestead. Over time, however, the Americans’ willingness to accommodate the “luxurious habits” of the “gay, red-coated strangers” and their “outlandish costume and music” wore thin. The guests began to “offend the frugal, self-denying farmers” of the area. Even still, thin...