Wednesday, July 28, 2010

War Powers revisited

My British friend Julian at Americas Debate penned a great post concerning the War Powers Act and the ability of the Executive to commit the nation to war, so I'm cross-posting his piece, and my response.

[The War Powers Act] So who here would like to restore it?

Yes, with some modification - possibly even a Constitutional amendment, international treaty, etc.. I think the way war used to be declared, providing for the idea of "total war" (where every resource available could be directed toward securing victory, at the discretion of the executive) is a very serious step that should only be taken at a crisis of national survival. Such wars used to be relatively common, in the 18th and 19th centuries, when everybody was trying to invade everyone else (most particularly in Europe, but it also covers resistance against colonial expansionism pretty much everywhere else). Since 1945, there have been such conflicts - Kuwait had a pretty bullet-proof justification for declaring war on Iraq when they were invaded.

I think these days that the idea of a war of national survival for most developed countries is a pretty remote, but still conceivable, possibility, so we need to keep the statutory powers on the books (who knows how a dominant late 21st or 22nd Century China, India, or Brazil will behave?), but make a distinction between that and the type of engagements that the USA (taking it as an example, though the UK, France, Russia etc. aren't far behind in their international post WW2 adventures) has been carrying out without formal declarations of war, but still requiring flag draped coffins in large numbers.

The missing piece of the puzzle needs to be something like a declaration of hostilities. The executive should only get their peacetime powers - to engage, but not to allocate any extra funding without legislative approval. But, and this is really just a failure of the legislature(s - the UK Parliament hasn't been great at this either).

What I'd like to see are some SMART objectives i.e. Specific (exactly what are we trying to achieve?), Measurable (how will we know when we've won?) Achievable (are the aims sensible or possible?) Relevant (are the aims actually worth our aiming for?) and Timed (when will all this be done by?). That's the kind of thing a Congress can sign off on quite sensibly, assuming they agree. But, unlike a "war", where the idea is very much "don't stop until...", the terms of legislative approval on "hostilities" change as soon as any of the objective parameters change. If it's going to take longer than originally planned (as almost every military campaign will), that needs specific approval. If it's going to need to widen in scope because the enemy have moved, that needs specific approval. Not down to getting a Congressional motion signed for every bullet fired, of course - any project has tolerances built in within which the people on the ground have the discretion to vary the plan. But there has to be escalation to the people paying for it - the legislature, and ultimately the people themselves - in instances where the plan goes outside the agreed tolerances. And, of course, there has to be a plan in the first place.

The current Afghan campaign was specific (root out al Qaeda there, and anyone protecting them), measurable (no more attacks on mainland USA), and relevant (a-Q was a real and significant threat in 2001, and several times since). But I'm not sure how achievable it was without thinking about the Pakistani badlands where a lot of activity is now concentrated, and there was no end point set at the outset.

As for Iraq, the campaign wasn't specific (being based as it was on mistakes and falsehoods - the WMDs weren't found because there were never that many, and they'd been used in the Iran-Iraq war, and on Kurds and Marsh Arabs long before 2003), it was measurable (remove Saddam and create a peaceful Western-friendly democracy), it wasn't really relevant (Saddam's Iraq was all mouth and no action, as far as the West was concerned). But, crucially, it wasn't achievable (disbanding the Iraqi army just put a lot of weaponry at the hands of people with a new reason to have a grudge; there was no real understanding of the size of the task because of serious misjudgments e.g. Iraqis would all be lining the streets in gratitude for their "liberation"; etc.)

I think under these kinds of rules for the approval of "declarations of hostilities", we'd have gone into Afghanistan, but with a clearer idea of what and how we were doing, and we wouldn't have gone into Iraq at all.

The problem we've had here in the former colonies, is that power has shifted from the Legislative to the Executive over the last 100 years...and more rapidly over the last 50. It seems clear that the founders intent was that the Executive would not retain the ability to make war. Respond to attack, yes...but initiate no. John Jay in fact wrote Executives will make war whenever they have a prospect of getting any thing by it; absolute monarchs will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. And Article I of the Constitution still states that the Constitution gives Congress the exclusive right to declare war. Unfortunately, vaguely worded Joint Resolutions by Congress have led to such atrocities as the PATRIOT Act and the Authorization for Use of Military Force (AUMF).

Congress has essentially abdicated its role and responsibility over Article I by using terminology in the AUMF: That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The war making powers have been handed over carte blanche to whatever executive resides at 1600 Pennsylvania.

There has been some light placed on this dynamic, one being proposed House Joint Resolution 53. But the likelihood of a dramatic change I fear is slight. Two decent reads on this subject are The War Powers Resolution: After Thirty-Four Years and The Law, The Baker-Christopher War Powers Commission

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