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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.
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.
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?
Preamble: We have taken a sabbatical from writing articles for the last 18 months in response to the venom that is out there in the media. However, the US response to the Iranian attacks seems to indicate a completely new US approach to global stability. Therefore I felt duty bound to spell out my thoughts and respond to those who can only see their hate of this administration.
The recent Iranian attacks on the Saudi oil facilities in north eastern Saudi Arabia indicate an escalation by the Iranians. Why? Do the Iranians perceive that the US is powerless because of the Democratic calls for impeachment? Are the sanctions and limits on Iranian oil exports taking such a toll that the Iranians feel that the world will react to Saudi oil output short falls and try to force the US to relax its containment of Iran?
The lack of an American kinetic response has the world wondering what has changed in the US approach to the world. By listening to the president’s speech at the UN yesterday it is now very clear that the President does not see the US as the world’s policeman. In the name of regional stability the US is deploying defensive capabilities to Saudi Arabia.
The recent attacks show the deficiencies of the Saudi military. In spite of extensive expenditures their missile defense capabilities are still inadequate in the face of Iranian cruise missiles. Reports indicate that the problems are both the training of the force and the needs of a modern missile defense.
Missile defense requires the ability to intercept multiple types of missiles through a complex spectrum of missile types. Most missile defense systems can be overcome by a volume of missiles. The Israeli “Iron Dome” system attempts to discriminate based on a calculation of impact points. Will incoming missiles hit critical assets? The Saudi system has not reached the degree of sophistication required to make such a discrimination automatically.
The lack of a kinetic attack illustrates the new Trump Doctrine—allies must protect themselves and respond to attacks using their own capabilities. The US will assist where necessary to maintain stability until the allies have developed their own capabilities. This approach means that the Saudis and the Gulf Cooperative Council members should respond to threats. The US may provide technical assistance in such a response, but one should not expect US forces attacking Iran unless US forces have been directly engaged by Iranians.
The military situation in the Gulf is truly asymmetric, but in a different way than the discussion of conventional forces versus terrorists or unconventional forces. The Iranians have devoted a significant part of their defense development to offensive missiles and small attack boats, while the Gulf States have focused on air power and defensive forces. As noted above the Iranian missile assets can most likely overpower the defenses of the Gulf States. However, a series of preemptive attacks might go a long way in leveling the battle field. One could even envision the Apache attack helicopters that the Saudis have being able to go in under the Iranian radar and doing extensive damage.
Will the Saudis/Gulf States respond? The answer to this question is probably in the Iranian hands. If they push the opportunity that they may perceive exists because of the political situation in the US they may in fact cause a reaction with extensive US support. On the other hand if the new status quo continues nothing may happen. The status quo favors the Saudis and the Gulf States as the political situation in Iran may continue to deteriorate and they can enhance their defensive and offensive capabilities.
According to news reports there are over 1000 Hondurans, who are being assisted by the Mexican Government moving in formation to invade the United States and demand amnesty. This tragedy is most likely funded by far left political activists such as George Soros. Their most likely goal is to embarrass President Trump.
The organizers of this invasion probably feel that they are in a win-win situation. If they successfully breach the border the US will have no option but to care for them and eventually grant them amnesty. If they are stopped the organizers see a net win for the total amnesty supporters as public opinion will be aroused and with the midterm elections coming the political pressure to give in will be horrendous.
One can count on the media portraying these invaders as poor people looking for work and if any of them are harmed they will seek compensation from mean old United States.
To date the Trump administration has only played the Obama game—talking tough but not doing anything. The threats against NAFTA may momentarily give the Mexican government pause, but not for long.
Since even the Associated Press is calling this an invasion, the President should treat it as such. It would be very easy to deploy helicopters and infantry to form a ready reaction force against the invaders. With drone provided intelligence the defending forces could react to any movement towards the border and form a physical force to meet the invaders on the border. Additionally, using helicopters and cargo planes food supplies could be dropped behind the invaders as an incentive to turn around. Finally a detention facility with tents and barbed wire could be quickly established for anyone who might leak through. This facility should be very bare bones, not the typical elegant jails that the US normally puts such folks in. Invaders should be taken from the detention facility to a port of embarkation for the return to Honduras. No legal niceties need apply–they are invaders.
Coupled with the physical barrier and humanitarian food supplies a psychological campaign should be waged to influence the invaders to turn around.
On the economic from the border should be closed to goods coming from Mexico or there should be a huge tax on them to pay for the repelling of the invasion.
Finally, intelligence sources should pin point the leadership and funding of the operation and take appropriate action to neutralize them while documenting their use of poor Hondurans for their agenda.
This whole invasion is a political ploy and should be dealt with by the use of stern, unrelenting but humanitarian efforts. Political and economic action should accompany the act of repelling the invasion.
On the 1st of April 1968 the 1st Cavalry Division (Airmobile) launched Operation Pegasus. Many newly interested authors focus on the battle for the old French fort. What they don’t realize that just as the operation was beginning the war was being officially lost.
As the senior advisor in Khe Sanh before the beginning of the “agony of Khe Sanh” on 21 January 1968 I was seconded to the 1st Cavalry Division to assist in the planning for Operation Pegasus. (For a complete discussion of the siege of Khe Sanh see: www. Expendablewarriors.com or my recent postings here.)
It was strange to fly over what had once been the area along route 9 and see rice paddies where there had never been paddies before. In actuality what I was seeing was bomb craters that were filled with rain water. (I flew into Khe Sanh with Major General John Tolson (commander of the 1st Cavalry Division) several times,
Route 9–the Road to Khe Sanh
Lz Stud was at the turn of the Route from North South to East-West
During the planning process units from the 1st Cav, the 101st Airborne Division and the 3rd Marines were conducting operations along the DMZ as a diversion to the relief operation. The engineers were busy building a short runway and underground bunkers for the command and control of Operation Pegasus near Calu. The new facility was to be named LZ Stud.
LZ Stud–right before Route 9 turned west
It was located under the range fan of USMC artillery units north and east of here
For Operation Pegasus the 1st Cav had an extensive set of capabilities
- The 1st Cavalry Division with its 400+ helicopters
- A Marine BDE with augmenting engineers and artillery
- An Army of Vietnam (ARVN) airborne brigade
- 26th Marine Regiment +–the whole force defending the Combat Base (5000 strong)
- Massive air support
This was the equivalent of a small Corps.
The attack began the morning of the April 1st with the Marine Brigade attacking along route 9. Its mission was to open Route 9 from LZ Stud to the combat base. This required the repair of numerous road by passes that had been destroyed by the NVA and neglect over more than a year. The air assault was delayed until 1 PM due to fog in the Khe Sanh area. The initial air assault was into areas where the vegetation had been flattened by use a bomb called a Daisy Cutter (a 20,000 pound bomb that was dropped from a C130 aircraft and detonated when the long pipe that was its detonator struck the ground—thus creating standoff and blowing things down without creating a crater). The Infantry and engineers followed to secure the area and move the blow down so that howitzers, crews and ammunition could be lifted in. As a result a firebase was created.
With fire support for support of the infantry and to support the next hop forward closer to Khe Sanh the next unit could be inserted and the leap frog towards the combat base and the enemy could continue.
It was on this day 1 April 1968 when the war was lost. Major Paul Schwartz and I had to brief General Tolson on the proposed concept for the Division’s next mission—clearing the NVA out of the A Shau Valley (about 40-50 kilometers south of Khe Sanh. There were 4 people present at the briefing—General Tolson, his Chief of Staff, Major Schwartz and myself. We proposed attacking through Khe Sanh to the Vietnam-Laos border. Going into Laos, cleaning up the Ho Chi Minh Trail and then turning south to enter the A Shau Valley for the west—not the traditional route which was from the east. There were 90 days of supplies at Khe Sanh to draw upon and thus not have to back haul. Most importantly such an approach would have caught the NVA by surprise and had war winning effects.
After about 4 minutes of briefing General Tolson said” “Obviously you didn’t hear the President last night! What you are proposing is politically impossible.” Lyndon Johnson had just announced a partial bombing halt in an effort to enter negotiations with North Vietnam.
3 years later the US was to support ARVN in Lam Son 719A which was an attack into Laos where the ARVN got clobbered. The NVA had used the 3 years to recover. A year or so later President Nixon was to start the B-52 bombing missions over Hanoi and Haiphong. These would result in a peace agreement.
President Johnson’s bombing halt decision was when the US decided to not try and win the war on the battlefield—just as the NVA were on the throes of collapse. There war was winnable after the eventual Khe Sanh and Tet victories, but the political climate in the US had so turned against the war there was no political will to try and win on the battlefield.
In coming articles we will talk about the bigger lessons learned from Khe Sanh and other conflicts. It is my hope that someday some wanna be strategists will read these articles and learn something from them.
President Trump’s tweets and what seem to be off the cuff remarks are providing a perfect smoke screen for the media that want to focus on what they think is outlandish rather than do good journalism and find out what is happening behind the smoke screen.
Behind the smoke screen and the bluster and the magician act that the President is using to focus attention there seems to be a lot going on. Hate for Trump, which the President thrives on, is allowing strategic activity that would remind one of the Kissinger days when the bureaucracy was busing doing busy work while real strategic moves and ground work were occurring behind the scenes.
National Security Adviser Lieutenant General H R McMaster
If one follows the National Security Adviser LTG H R McMaster there is not much to see until this last week. During the annual Munich Security Conference he seems to have emerged and has laid down several markers:
- Used the incontrovertible truth that Russia sought to sow instability in the US elect ion process as a background to say that it was impossible for the US to work with Russia on cyber issues.
- Called for action against Iran while scolding those states that traded with Iran for giving the terrorist sponsor a blank check
- Called for action against Syria for using chemical weapons again
In addition he orchestrated the current Olympics lowering of the volume with North Korea. One can readily see the North Koreans using the very fragile détente with South Korea coming out of the Olympics as an excuse for a “delay” in missile testing.
One can be sure that both LTG McMaster and Secretary of Defense Mattis, who has also adopted a low profile, are very aware of the trategic weapons growth by the Russians and Chinese and are laying long term plans to address the potential imbalances.
As the remarks in Munich indicate relations with Russia and the current sanctions will not improve until Russia makes a positive move in the Ukraine or elsewhere. In the meantime the nuclear modernization announced by the President will go on unabated. Is the ground work being laid for a new round of arms control negotiations in 2019?
If the naval armada that has gathered in the South China Sea as a deterrent to North Korea starts migrating towards the Persian / Arabian Gulf one can anticipate the screws being applied against Iran. Obviously Secretary of State Tillison and LTG McMaster’s trips to Turkey and discussions with the Saudis and Israelis have laid the groundwork for such actions. These discussions also have further provided the venue for a consensus on how to deal with the continuing Syrian debacle.
In the first year of the Trump Administration while working behind the Trump smokescreen Trump’s National Security Strategy (NSS), was put together by McMaster’s team. It champions a realpolitik worldview that puts American national interests first and sees the world as a competitive stage. “The United States will respond to the growing political, economic, and military competitions we face around the world,” the NSS states.
Additionally, it has a focus on “revisionist powers” China and Russia and “rogue regimes” North Korea and Iran as acting in ways that are against American interests. “China and Russia challenge American power, influence, and interests, attempting to erode American security and prosperity. They are determined to make economies less free and less fair, to grow their militaries, and to control information and data to repress their societies and expand their influence. At the same time, the dictatorships of the Democratic People’s Republic of Korea and the Islamic Republic of Iran are determined to destabilize regions, threaten Americans and our allies, and brutalize their own people.”
The strategy development in which the entire national security apparatus –State, Defense, and Intelligence Agencies etc.—participated took a year. The media has given little attention to this strategy complaining that it is lacking in detail. One is now starting to see the details based upon that the interests and objectives that were clearly defined and agreed to across the government. In their most likely timeline now is the time for the deliberate but well thought out execution behind the smoke screen provided by the President.
It will be fascinating to see the media reaction as they see behind the smoke. Or will they given their Trump hatred?