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War power limitations on the president—putting the recent House resolution in perspective

The War Powers Resolution was passed in 1973 by both Houses of Congress, overriding the veto of President Nixon. It was passed to reassert Congressional authority over the decision to send American troops to war.  After President Nixon ordered the bombing of Cambodia without Congress’s consent, Congress passed the War Powers Resolution of 1973, intended to limit the president’s authority to conduct war.

At the time, President Richard Nixon vetoed the bill on constitutional grounds, arguing that the measure would define presidential war powers “in ways which would strictly limit his constitutional authority.” Nonetheless, a two-thirds majority in each congressional chamber overrode the veto.

The War Powers Resolution requires the president to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30-day withdrawal period, without a congressional authorization for use of military force or a declaration of war by the United States.

There have been several instances when the President has not notified Congress within the required 48 hours.  In the case of the attack on General Soleimani the Trump administration made such a notification.  However it would be easy to argue that Congress has already authorized military activities in Iraq and therefore that such a notification was not required.

Yesterday Congressional Democrats, seemed  blissfully unaware of then-President Barack Obama’s rather expansive interpretation of the War Powers Resolution of 1973 during his strategically disastrous 2011 operation to oust Libyan strongman Muammar al-Qaddafi, suddenly seemed to care an awful lot about constitutional norms and separation of powers principles. Intellectual hypocrisy again.

Specifically, Speaker Nancy Pelosi’s House of Representatives debated whether to Congressionally impose War Powers Resolution limitations upon President Trump’s unilateral ability to ratchet up militancy actions with the Islamic Republic of Iran. In their crusade to hamstring the president’s conduct of his foreign policy vis-à-vis the Iranian regime, House Democrats even found several libertarian-leaning Republican allies.

In my opinion this exercise was misguided, because the War Powers Resolution is, and always has been, unconstitutional.  It has never been challenged in the courts.  This most recent effort was really an attempt by the Democrats to embarrass the president.

The Constitution divides foreign affairs powers between the legislative and executive branches. Among other enumerated powers in Article I, Section 8, Congress has the ability to “declare War,” “raise and support Armies,” “provide and maintain a Navy,” “make Rules for the Government and Regulation of the land and naval Forces,” “provide for calling forth the Militia,” and “provide for organizing, arming, and disciplining, the Militia.”

On the other hand, Article II of the Constitution provides that “[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” The very first clause of Article II also vests the president with “[t]he executive Power” — meaning a “residual” foreign affairs power that encompasses all those powers not expressly delegated to Congress in Article I, Section 8.

Many legal scholars have conducted a careful, line-by-line overview of Congress’s enumerated powers and have concluded that the constitution does not provide a legislative means that could feasibly justify the War Powers Resolution. The most likely candidate is the Declare War Clause, but that provision happens to be woefully misunderstood by many lawyers and politicians across the ideological spectrum.

Congress can intervene to halt a president if it views a reckless warmonger is using the manifold tools it has at its disposal:

  • Decreasing the size of the Pentagon’s budget by going line item-by-line item and removing various offensive-oriented materiel from the Department of Defense’s arsenal, or using its more general power of the purse to defund a war effort in its entirety
    • This was what eventually happened in the Vietnam War case.

This interpretation of the Declare War Clause should not be nearly as controversial as it is. At the 1787 constitutional convention, the Framers actually conscientiously substituted out “make War” with “declare War.” In so doing, James Madison explained that it was imperative to leave to the president the “power to repel sudden attacks.” This ought to make a great deal of sense; as Alexander Hamilton would explain only six months after the constitutional convention in The Federalist No. 70, “[d]ecision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number.”

Finally, in Article I, Section 10, the Constitution precludes a state from “engag[ing] in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” The Framers were therefore aware of multiple verbs — “make” and “engage” — that could have clearly conveyed the meaning of an initiation of hostilities. But they didn’t use those words, and they didn’t use them for a reason. The Framers understood that there was great merit to leaving decisions such as the commencement of hostilities to one man, and not to a fractious Congress.

Congress already has a number of tools at its disposal to push back against a crusading commander-in-chief. As Andrew McCarthy wrote this week at Fox News, “No statute is needed to provide Congress with the power to frustrate unauthorized presidential war-making. The Constitution empowers the legislature to do so by simply refusing to appropriate funds for military action.” But the Declare War Clause means something fundamentally different than what many believe it does.

No president, to date, has abided by the war powers act!  Grenada, Lebanon, Panama, Libya being cases in point. They have avoided a legal show down by advising Congress after the fact of military action.  President Obama in 2016 wrote: “I am providing this supplemental consolidated report, prepared by my Administration and consistent with the War Powers Resolution (Public Law 93-148), as part of my efforts to keep the Congress informed about deployments of U.S. Armed Forces equipped for combat.”  The term “consistent with” has been used by multiple presidents.  They were saying that their notification was not “as required” by the resolution, but “consistent with” it..  This wording was used to avoid a legal challenge to the requirements for notification of Congress for fear of the president losing to a liberal judiciary and thus a resulting limitation on presidential power.

The debate over the war powers of the Congress versus the President will continue and in most cases it will be highlighted when a house of Congress is controlled by a political party that does not control the White House.  This is what we have just observed.

The strategic question is highlighted by the preemptive attack versus defensive reaction.  If the War Powers goal of the House Democrats was to take away the president’s ability to preempt an Iranian attack it is both a strategic mistake and inconsistent with the war powers resolution.  This is precisely what the Democrats sought: The resolution “requires the president to consult with Congress in every possible instanced before introducing United States Armed Forces in hostilities.” As a perceived new limitation on the ability of the president to use the military to protect US interests it would be tantamount to strategic surrender to the Iranians by denying the president multiple strategic options.  This action thus must surely be nothing more than the Democrats expressing their angst against a successful presidential action.

The debate over war powers will most likely continue and will most likely never been  finalized because the extreme answers available are strategic mistakes and such is realized by most clear thinking personnel.

Where are we going

One thing about getting older is that my personal data base has gotten much larger, however through all of the political battles and discussions of war and peace that I have observed and participated in I have never seen a political party that through its hypocrisy, lies and lack of constitutional grounding do so much to destroy our republic and divide the country.  I am going to list some activities and then focus on the international situation in the post-Soleimani era.  The Democrats have:

  • Weaponized impeachment such that every future president who is opposed by the other party in the House of Representatives is an odds on favorite to be impeached for looking cross-eyed during the state-of-the-union.
    • Now we hear that the House Intelligence Committee may consider the Soleimani attack as ground for another article of impeachment. (This could be an event filled with hypocrisy as all of Obama’s drone strikes are discussed.)
  • The Speaker of the House is now seeking to micro-manage the President by proposing legislation that would limit the President’s authority in the current dust-up over the death of General Soleiman. The result would be to contribute to the overall lessening of presidential power that the Democrats seek given their lack of competitive candidates for the 2020 election.
  • The left and their media allies are treating General Soleimani as a hero, not the butcher that he was. Of course they couldn’t congratulate the President for exploiting intelligence and attacking General Soleimani before he could launch his next terrorist attack.
    • These critiques include questioning every military move made by the administration. The current media frenzy suggests that Saddam Hussein was correct when he determined that the US center of gravity was/is the body bag.  Unfortunately, military operations are dangerous events and there will be casualties.  But preemptive actions are designed to limit civilian and other casualties.
    • By being afraid to suffer casualties (or even to appear that way) we are emboldening our enemies to try and inflict casualties. Thus, we should blame the Democrats and their media cohorts for every soldier, sailor airman or Marine who may become a casualty.  My liberal friends will challenge this logic only because they know that it is correct and that hurts.  Deterrence is about perceptions and the media and the Democrats are providing the wrong perceptions. 
      • Deterrence can include bluster. They have 35 targets and we have 52.  Have they tried to hit 2 of their targets with their attack in Kenya and the cyber-attack against the national library?  If so then we should expect several reactions in the coming days.  The management of these targets will tell us a lot—whether there is an attempt to manage escalation or not.
      • The composition of targets will also tell us a lot—casualty producing targets versus infrastructure/war fighting capabilities.

So where are we going?  The Iranians are most likely emboldened by all of the political noise coming from the Democrats.  This in ways seems like Deja vue all over again.  The North Vietnamese could never defeat the United States on the battlefield but they undermined the political will to finish the fight.  The current messages that our opponents are seeing is that the political will to fight has again been undermined—not by the acts of the Iranians or any of their proxies but by the desire of the left and the media to destroy this President and our current form of government.

We can only hope that people with reason will step forward as new leaders of the Democratic Party.

Offensive cyber authorization

Reports indicate that new legislation in the Senate proposes to authorize US military cyber warriors to go on the offensive against Russian attacks on the United States in cyberspace.   It also mandates a cyber deterrence doctrine.

These same reports indicate that lawmakers were disappointed in the administration’s latest cyber policy. The Senate Armed Services Committee’s fiscal year 2019 defense policy bill designates clandestine military operations in cyberspace as “traditional military activities.”  This affirms the secretary of defense’s ability to order cyber operations. A related section of the bill “authorizes the National Command Authority to direct US Cyber Command to take appropriate and proportional action through cyberspace to disrupt, defeat and deter systematic and ongoing attacks by Russia in cyberspace,” the report states:

(a) In General.—It shall be the policy of the United States, with respect to matters pertaining to cyberspace, cybersecurity, and cyber warfare, that the United States should employ all instruments of national power, including the use of offensive cyber capabilities, to deter if possible, and respond when necessary, to any and all cyber-attacks or other malicious cyber activities that target United States interests with the intent to—

(1) cause casualties among United States persons or persons of our allies;

(2) significantly disrupt the normal functioning of United States democratic society or government (including attacks against critical infrastructure that could damage systems used to provide key services to the public or government);

(3) threaten the command and control of the United States Armed Forces, the freedom of maneuver of the United States Armed Forces, or the industrial base or other infrastructure on which the United States Armed Forces rely to defend United States interests and commitments; or

(4) achieve an effect, whether individually or in aggregate, comparable to an armed attack or imperil a vital interest of the United States.”

There are several interesting aspects to this Congressional proposed strategic policy.

1.    The concept of cyber deterrence as a doctrine.

2.    That deterrence of cyber-attacks may also be achieved by the use of non-cyber responses.

The congress determining national security strategy is by itself unique.  The formal authorization of a cyber deterrence doctrine opens the whole realm of what is deterrence?

My UCLA graduate school professor (Bernard Brodie who was one of the founders of deterrence doctrine thought of deterrence as” a strategy intended to dissuade an adversary from taking an action not yet started, or to prevent them from doing something that another state desires. A credible nuclear deterrent,  he wrote, must be always at the ready, yet never used.”

Subsequently the capacity to harm another state was to be a motivating factor for other states to avoid it and influence another state’s behavior. To be coercive or deter another state, violence must be anticipated and avoidable by accommodation.

Deterrence is considered to consist of the capability to inflict such harm and the willingness to do so.  Capability is the more easily demonstrated aspect of deterrence.  It is achieved through observable tests, news reports or use. Willingness is the hard part to quantify.  It is usually thought to consist of demonstrated use or as during the cold war some form of automaticity to the response.  With the consequences of a major nuclear exchange being so great during the cold war and automatic responses discussed openly no side was willing to test the willingness of the other.

This lack of willingness to test the other side’s willingness became the source of moderation during the cold war.  Simple escalation of the DEFCON or making advanced alert status visible was used as a method of signaling willingness.

How one is to signal willingness in the cyber world is a fascinating question.  It may require some cyber ‘skirmishes.”  Possibly these have already occurred.

As we go forward in the evolution of strategic thought the concept of cyber deterrence will require significant additional study and the response to questions, such as:

  • What is the potential damage?
  • What is the nature of escalatory steps?
  • What are the defensive measures?  (These will most likely be constantly changing.)

This article should open a dialogue of cyber deterrence.  Please make your comments and check back for the comments of others.

Is a new cold war on the horizon?

I have recently been reading the Dagger Brigade posts (2nd Brigade Combat Team, 1st Infantry Division, which the author once commanded) as it moves around Eastern Europe training with allies as part of Operation Atlantic Resolve—a program to demonstrate NATO resolve to deter the Russians for dramatic attacks and conquest of its previous kingdom (satellite countries).

Atlantic Resolve and other NATO activities in Eastern Europe and the pledged increase in force capabilities seem to assume a conventional force attack by the Russians.  This approach is called into question by current Russian activities.

Russia is aggressively building up its nuclear forces and is expected to deploy a total force of 8,000 warheads by 2026 along while modernizing its deep underground bunkers, according to reports citing Pentagon officials.

The Russian force build up implies several aspects of its view of future warfare.  The 8,000 warheads will include both large strategic warheads and thousands of new low-yield and very low-yield warheads. These will circumvent arms treaty limits.   Russia’s new doctrine is one of using nuclear arms early in any conflict.

This new doctrine as it evolves seems to combine the use of low and very low yield nuclear weapons in conjunction with attacks by tactical ground forces.  Simultaneous it seeks to maintain strategic deterrence by having a modernized mobile strategic arsenal.  The mobility of the strategic forces enhances their survivability.  Part of this deterrence effort includes fortification of underground facilities for command and control during such a nuclear conflict.

The United States and NATO are watching this alarming expansion as to determine if Russia is preparing to break out of current nuclear forces constraints under arms treaties, including the 2010 New START and 1987 Intermediate-range Nuclear Forces (INF) treaties. Russia has already violated the INF accord by testing an illegal ground-launched cruise missile.

This Russian nuclear arms buildup is among the activities being studied by the ongoing Pentagon major review of US nuclear forces called the Nuclear Posture Review.  The conclusions of the review are expected to be disclosed early next year—possibly coinciding with state of the union address by the president:  He is on the record as saying: “I want modernization and rehabilitation… It’s got to be in tip top shape,”

The current posture review reverses the views of the Obama administration which called for reducing the role of nuclear weapons and the size of the arsenal. The cut back in nuclear forces by Obama was based on assessments—now considered false by many officials—that nuclear threats posed by Russia and other states had been lowered significantly, and that Moscow and Washington were no longer considered enemies.

The Obama administration based its strategic nuclear deterrence and warfare policies on the incorrect and outdated assumption that the prospects of US.-Russia military confrontation had been reduced sharply. However many have noted that since 2010 Russia, China, and North Korea have been engaged in steadily building up their forces with new nuclear arms and delivery systems, while Iran remains an outlier that many experts believe will eventually decide to build a nuclear arsenal. The Obama administration did not react to this changing strategic situation.

The Pentagon’s new posture review is based in part on a reversal of the outdated Obama-era assessment.  Most likely it will include:

  • Recognition of an increased global nuclear threat
  • Recommendations on increasing the US nuclear force modernization—warheads and delivery vehicles
  • A recommendation to revise US and NATO warfighting doctrine, tactics and techniques.

To many this may result in a modernized version of the Reagan era capability gap and a cry for almost drastic efforts to close the gap.  This will be a major fight for resources that President Trump could lose based upon liberal intransigence and an unwillingness to accept the threat.  Will the US and NATO react in time and with appropriate responses?

Is NATO’s Atlantic Resolve soon to be an inappropriate activity when the Russian nuclear threat is considered? OR can it or should it be modified to include the artillery battalion in the deployed brigade combat teams (BCTs) have nuclear warheads available?  Should the deployed artillery battalions train for the conduct of nuclear operations?  Should the ground forces train for operations in a nuclear environment?  Should additional nuclear capable systems be deployed with the BCTs?  These are all questions that NATO and the US need to consider as the efforts to deter Russian aggression continue.

Is the cold war returning?