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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.

Draining the swamp

The swamp is not a new phenomenon—it is just a new name for a reality that started in the Roosevelt administration.  When government began growing at a rapid rate political appointees hired civil servants who shared their vision of what a new policy to be implemented would bring.  This large number of oriented civil service grew over time.

Throughout the years as political leaders changed they tried to change the civil service as new positions were created and older bureaucrats retired.  I can remember during the Nixon administration a long debate about how to neutralize Kennedy/Johnson liberal bureaucrats. During the Reagan administration a bureaucrat who opposed his arms control policy was given a closet sized office with no phone or computer.  He hung on until Clinton became president and sought to get even with policy prescriptions during the Clinton years.

This hangover of bureaucrats thus is not a new thing.  What is new is how emboldened some of these bureaucrats have become.  NSC staffers personally talking with Presidents of foreign countries and advising them how to “deal” with President Trump.  Such bureaucrats are coming out of the woodwork in their attempt to impeach President Trump.  These hangovers from the Obama years are risking much—pensions and promotions.  This suggests that someone outside of government is offering them a safety net—employment, etc.  Some have gone to CNN and MSNBC, but others are not in poverty as the swamp supporters step up to their aid.

Conversely, one hears little of such behavior in the United Kingdom.  The UK is known for its politically neutral civil servants who serve their political masters devotedly.  The critical difference is one of political culture.  Do US political appointees demand more from civil service appointees than they should?  Does advancement depend upon political orientation?

I have not performed a statistical analysis but given the “drain the swamp” orientation of President Trump one can believe that the administration is finally getting around to “liberal” bureaucrats.  Their cries for support have not been heard by the liberal press as it focuses on impeachment.

Some months ago I argued that behind the smoke screen of Trump’s tweets and other statements the transformation of government was occurring. This related to policy but probably also should be applied to the realignment of civil servants.

The Intelligence Community seems to be a special case.  In observing the activities of members of this group of self-declared elites I am reminded of the Pakistani Intelligence Service (IIS).  The IIS is the power behind the throne and the country.  It has its tentacles throughout Pakistan and has changed the political leadership several times.  Is this the power that the US intelligence community seeks?

What do you think?

Media Excursion

The announcement that the US would re-position some of its 1000 troops in Syria to avoid their being engaged by Turkish soldiers if they invade has created another firestorm in the media.

Now that the Turks have started their attack there are numerous reports flying around:

  • Civilian targets are being attacked
  • The Kurds have requested that the US impose and enforce a “no fly zone.”
  • The Senate is considering severe sanctions against Turkey

The media and even some Republicans fear is that Kurdish fighters may be attacked by Turkish armed forces moving into north-eastern Syria.  In essence the media and other pundits are saying that the lives of US soldiers should remain at risk in order to protect the Kurds.

Hidden in all of this punditry are several hard facts:

  • The Kurds, with US support are holding 11,000 ISIS prisoners. An attack on the Kurds would possibly result in their freedom.
  • There are only about 50 Special Forces that are being tactically relocated.
  • The US has always wanted the US presence in Syria to be a short term operation
  • Now that the Turks have invaded their stated goal is to create a free zone in Syria so that many of the refugees that are in Turkey can be relocated to this safe zone
  • There is no indication that the Russians in Syria will get caught up in engaging the Turks—if that should happen it could trip the NATO obligations of other states to come to the assistance of an attacked ally. There are even reports that the Russians were trying to negotiate some form of cease fire.

What I seem to have missed in the reporting is why the Turks chose to attack into Syria now.  Probably missed because there are so many possible explanations:

  • Expansion of Turkey’s geographic area of control
  • Resettlement of Syrian refugees
  • Further destabilizing Assad of Syria
  • Weakening/destroying the Kurds

None of these explain the current timing.  Could the real reason be because Erdogan is in trouble politically?  The above objectives could all be valid but the domestic political situation is responsible for the present timing.

If the Turks don’t attack the Kurds and their US Special Forces advisors there will be no problem.  The US will have reduced its footprint in Syria and be on the way out, leaving the resolution of the conflict to regional actors with the Kurds secure in an enclave away  from the Turkish border.

So when you cut everything away the media frenzy is about US credibility in supporting allies in the future.  This assumes that the Kurds are being deserted by their Special Forces advisor / assistants and especially that their logistical support and air support will be shut off.  It is difficult to see that happening if for no other reason than the 11,000 ISIS prisoners that they hold.

In a perfect world the Kurds and Turks could coexist and the Syrian refugees could be relocated from Turkey into this safe zone.  Such a coexistence would be a very fragile one.

Strategically, there is still something missing from the above discussion.  We will watch the situation and update it as appropriate in the future.

We’ll see what happens.

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Nuclear weapons and their employment–media deception

The media, amid rising nuclear tensions with North Korea and concern over the potential for war, has captured some unfortunate discussion by the Strategic Command (STRATCOM) commander. He reportedly said that he would resist President Trump if he ordered an “illegal” launch of nuclear weapons.  What an illegal launch of nuclear weapons is was never clarified.

STRATCOM is the command that controls the strategic weapons commands of primarily the Navy (submarines and carrier based aircraft) and the Air Force (bombers and silo based missiles).  It is STRATCOM that would issue the orders to the selected commands to employ selected weapons system against selected targets.  These targets and systems are each accounted for in the Strategic Integrated Operational Plan (SIOP).

Air Force General John Hyten, commander of the US Strategic Command (STRATCOM), reportedly told an audience at the Halifax International Security Forum in Nova Scotia, Canada that he had thought a lot about what to say if he received such an order.

“I think some people think we’re stupid,” Hyten reportedly said in response to a question about such a scenario. “We’re not stupid people. We think about these things a lot. When you have this responsibility, how do you not think about it?”

There are two issues about this story that are worrying:

  1. The media attempt to characterize the president as unstable and reckless has only the folk image that it is trying to create as a basis for such a portrayal.  Such characterization when it involves nuclear weapons would be truly damning.
  2. Both the question and the answer do not do justice to the way that nuclear weapons would be employed.

As mentioned above, nuclear weapons are targeted based on the Strategic Integrated Operational Plan (SIOP). The SIOP is a master list of targets and these are allocated weapons and delivery systems for multiple different scenarios/contingencies/situations.  A president cannot just tell the Secretary of Defense or a field commander to “nuc” a desired target.  That is just not how the system works.

The SIOP has matured and changed since the beginning of the nuclear era in 1945.  There are numerous personnel from each of the services involved in building and refining the SIOP on almost a continuous basis.  Targets change, weapons system availability changes, and contingencies change making the process extremely dynamic and closely controlled and tightly held.  When the president would order the execution of some part of the SIOP it would be based upon a situation and the best advice that he could get from both the intelligence and operational communities of the Joint Chiefs of Staff and other agencies.  It is not a unilateral decision done in the “dark’ as the question and answer would imply.

Unfortunately for the STRATCOM commander the details of the process of using nuclear weapons is highly classified and could not be part of his answer.  If he was thinking he probably would have said something to the effect of implying reckless behavior on the part of the president is not something that it is useful to discuss.  At this time if I was the Secretary of Defense or the Chairman of the Joint Chiefs of Staff I would have a “chat” with General Hyten.

It is deplorable that the effort to demean President Trump has reached this level of reporting—the creating of false implications and news.