Category: Foreign Policy

Foreign Policy, Realist Theory

The War Powers Resolution

Bob Claude |

Opening the Pandora’s Box – Presidential Military Power, Part 2

The War Powers Resolution of 1973 was enacted  to reclaim Congressional war-making authority under Article I of the Constitution.  Presidents have contested its constitutionality, but typically try to comply with the letter of the law, especially in true national crises. The Soleimani killing highlights the two main flaws in the law – the ability of Presidents to ignore it at their convenience and its failure to encompass modern forms of warfare.   Any authentic foreign policy of realism and restraint must begin with consideration of the reforms necessary to remedy these flaws. 

Together with other statutes, the resolution set up a process of consultation, reporting and approval designed to insure congressional input into the decision to commit the nation to military action. First, a separate statute requires notice and consultation with congressional leaders (colloquially known as the “Gang of Eight”) on classified intelligence matters, which would practically give those leaders notice of any threats that might require a military response. The War Powers Resolution then requires the president to report to Congress within 48 hours any introduction of American military forces into hostilities, the imminent threat thereof or into the territory of another nation while equipped for combat.  The action must be terminated if Congress has not declared war or adopted an authorization for use military force (AUMF) by sixty days after the report was due, which can be extended for 30 days only if necessary to safely withdraw troops from the combat area. Otherwise, there are no exceptions except where an attack makes it impossible to convene Congress. 

The process is relatively simple, but presidents have still found ways to game the system to reduce or avoid any serious oversight.  As the Soleimani action shows, they can avoid consultation entirely in cases of short-term attacks.  Even when an AUFM is granted, it has not historically been limited in duration.  Presidents Bush, Obama & Trump have also shown how the text of an authorization can be stretched to justify interventions far beyond its original intent.  

The AUFM granted after the September 11, 2001 attack is the most notorious example. It authorizes the use of force against all “nations, organizations, or persons … [the president]…. 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”.   This created the endless and amorphous “War on Terror”, which has been used to justify both human combat and drone attacks against terrorists only loosely affiliated, if at all, with Al Qaeda.  According to the Congressional Research Service, it was used by the Bush and Obama Administrations to justify not only the war in Afghanistan, but also military  interventions in Djibouti, Eritrea, Ethiopia, Georgia, Iraq, Kenya, Libya, Philippines, Somalia, Syria and Yemen.  President Trump uses the same excuse to continue these operations. This is exactly the kind of unsupervised and endless war that the War Powers Resolution was intended to prevent.  

In the end,  the main weakness in the Resolution is the absence of any effective congressional enforcement mechanism. Congress has the right to adopt a concurrent resolution to stop presidential non- compliance, repeal a previously granted AUFM or simply refuse to appropriate money to fund noncompliance, but never had the will to exercise those rights.  Republican congresses never seriously challenged Clinton and Obama abuses just as Democratic congresses failed to check the excesses of Bush. The courts are no help since individual members of Congress have no private right to sue to force a President to seek an AUFM (See https://en.wikipedia.org/wiki/Campbell_v._Clinton). The resolution can succeed only if Congress unites to defend its war-fighting prerogative. 

 There is a little hope.  In the wake of the Soleimani killing, both the Democratic House and Republican Senate have passed bills to prohibit further military strikes against Iran without congressional approval. The two versions must be reconciled in a conference committee and, even if passed, will certainly be vetoed by President Trump. Will this Congress be able to muster the same courage of the Congress that overrode Nixon’s veto of the original War Powers Resolution?   Unfortunately, this seems highly unlikely in the current atmosphere of hyper-partisanship. 

Thus, incidents like the Soleimani assassination are likely to continue or even worsen until congressional war powers are significantly strengthened.   The next post will propose some specific changes to the law to achieve this goal. 

Defense Policy, Foreign Policy

Great Power Threats off Our Own Shores

Bob Claude |

We have certain duties in the West and East Indies. We cannot with honor shirk those duties. On the one hand we must undertake them, and on the other we must not fail to perform them in a way that will redound to the advantage of the people of the islands, no less than to our national renown.

Theodore Roosevelt, “America Part of the World’s Work”, February 1899

https://www.thedrive.com/the-war-zone/32145/new-pentagon-map-shows-huge-scale-of-worrisome-russian-and-chinese-naval-operations

Neoconservatives and other globalist elites have often hyped the need for American intervention in the Middle East or elsewhere by claiming we faced grave and imminent threats to our national security. The Pentagon just released a map illustrating real threats to our security that should worry every American.  It shows that Russian and Chinese naval forces have dramatically increased their activity along our own East Coast.  As mentioned in the attached article, the scope and scale of Russian submarine activity led one senior officer to say:

“Our new reality is that when our sailors toss the lines over and set sail, they can expect to be operating in contested space once they leave Norfolk.  Our ships can no longer expect to operate in a safe haven on the East coast or merely cross the Atlantic unhindered to operate in another location.”

Vice Admiral Andrew Lewis, Commander U.S Navy 2nd Fleet, February 4, 2020

Much of this activity occurs along or near undersea cables that carry internet and other communication traffic between the U.S., Europe and South America.  Russia clearly knows the critical value of these links as illustrated by their own recent experiment in isolating their own domestic internet from the rest of the world as a way of hardening it from attack. 

Meanwhile, the Chinese navy has also become active not only in east Asian waters, but also in the Arctic and off South America.  In particular, a tiny red dot on the map off of Florida represents China’s recent construction of a port in the Bahamas and reflects their increasing presence in that island nation.  China has used similar investments to create “debt-traps” that force nations to convey long term leases or other rights to China easily convertible to military use.  Sen. Marco Rubio of Florida has highlighted the existence of a Chinese listening station in Cuba.  China also recruited several Caribbean nations to join their Belt and Road Initiative even though they are far removed from the stated focus of the program on the Eurasian heartland. 

TR knew the strategic importance of preserving our influence in the Western Hemisphere as well as the tactical value of a navy in projecting power across the world.  Instead of wasting money and resources in the Middle East, we should be paying attention to the increasing competition for power and influence here in our own back yard.  If we lose that competition, our national security and the American homeland itself will be threatened as never before.   

Foreign Policy, Realist Theory

Presidential Military Power

Bob Claude |

Opening the Pandora’s Box
Presidential Military Power, Part 1

Theodore Roosevelt’s first reaction to the killing of Iranian General Soleimani may very well have been grudging admiration of its audacity and the avenging of American blood on his hands.  Moreover, TR was an unrepentant advocate of presidential power and believed he could “do anything the nation demanded unless it was specifically prohibited by the Constitution”.  Many neoconservatives and some advocates of realism maintain that presidents need such unilateral power in a world where terrorism, cyber-attacks and other low-level threats will be the prevailing warfare of the future. 

Nevertheless, even Roosevelt would have had to concede that Article I of the Constitution vests in Congress, not the President, the power to declare war against a sovereign state.  Over time, presidents have arrogated more and more power to engage in military action with little or no input from Congress or the public. The Soleimani action shows how unrestrained military action can risk committing the nation to a general shooting war without the constitutional constraints envisioned by the Founding Fathers.   

Modern American nationalists who believe in realism and restraint should be horrified at this situation.  It limits the input into such a momentous decision to only a narrow elite without the discussion necessary to achieve the broad consensus required to sustain the commitment to victory.  The last three decades shows that it also encourages interventions in regions such as the Middle East where we have little direct interest. The fact that America has endured as many shooting wars in those 30 years as it did during the Cold War speaks to how such power can be abused and dissipate American lives and treasure to no conclusive  end.  Moreover, these interventions have occurred at the expense of the longer-term strategy necessary to deal with more important challenges such as China.

There is no question that American foreign and defense policy will need to be nimble and precise to effectively deal with cyber and drone warfare, as well as other foreign threats that we can hardly imagine now.  These twin challenges call for a new statutory framework for authorizing national action, military and otherwise.  The old War Powers Resolution adopted in 1973 has proven ineffective at controlling presidential military power and outmoded in managing modern forms of warfare.  It should be replaced by a system that requires varying levels of authorization based on the degree of national commitment necessary to successfully respond to the attack or level of threat.  The next post will outline the elements of such a statute.