Foreign Policy, Realist Theory

Restraint through Freedom

Opening the Pandora’s Box
Presidential Military Power – Part 3

I believe that war should never be resorted to when, or as long as, it is honorably possible to avoid it. I respect all men and women who from high motives and with sanity and self-respect do all they can to avert war. I advocate preparation for war in order to avert war; and I should never advocate war unless it were the only alternative to dishonor.

Theodore Roosevelt, “America the Unready”, Theodore Roosevelt, An Autobiography, 1913

A democracy like the United States assumes unique risks in an anarchic and hostile world. As a free people, we accept a higher vulnerability to attacks like 9/11 as the price of maintaining our freedoms.  Once war is declared,  we then accept the casualties, both to our soldiers and our values, but only for the limited period necessary to win the war.  The gravity of both types of loss demands that the decision to go to war be made not just by one person, but by the nation pursuant to the open debate envisioned by the Founding Fathers. 

I outlined the deficiencies of the current War Powers Resolution in a previous post in this series.  The law desperately needs to be updated to distinguish between different threat levels and to address new types of warfare.  First, we should recognize that not all warfare requires the same level of congressional scrutiny.  An attack upon the American homeland and a first strike against a foreign state or its leaders should be subject to a significantly higher level of congressional consultation and review.  These should be considered “major conflicts” under the law. In contrast, retaliation against overseas attacks, peacekeeping actions and other types of conflict should continue to be covered, but require authorization under the current level of scrutiny.  

The law also should apply to clandestine warfare such as cyber-attacks and low level actions such as drone attacks. Since military action will not always be the appropriate response to these kinds of attacks, presidents should be able to seek non-military responses such as trade sanctions, diplomatic or other actions in a new type of resolution called an Authorization of Action (AOA), which would also apply to military action.  To prevent endless wars, AOA’s should be automatically limited to no more than three years in duration absent a vote to renew the authorization or a declaration of war.  AOAs should also be directed at a specific state and not at a private organization or type of warfare as was the 2001 authorization. 

However, history shows that no change in the scope of presidential war powers will effectively restrain president military power without an enforcement mechanism that forces Congress to act and take responsibility for the situation.  Next to the war-making power, the most important power of Congress is the power of the purse – it’s authorization and appropriation of federal dollars.  Current law and  budgetary practice grants broad authorization to the Pentagon to spend money to support our military in the field – a necessary tool, but one that can be abused.  To prevent this, the law should provide that, notwithstanding any other law or appropriation, the President is not authorized to spend money on an action requiring an AOA after the 60-day deadline for congressional authorization.  

Finally, since major conflicts inherently expose the nation to greater risk, they should require more congressional consultation and an enforcement mechanism that makes it equally risky for presidents to ignore the process.  To achieve this, the role of the “Gang of Eight” congressional leaders should be formalized and strengthened.  If the President engages in a major conflict without proper consultation and authority, any four of the “gang”should have the power to force a record vote on impeachment of the president in the House of Representatives or a censure resolution in both the House and Senate.  For example, these standards would have triggered such consultation and review not only for the Soleimani killing, but also the Russian hacking campaign against the 2016 election.  

Critics of these reforms will complain they tie the President’s hands in the prosecution of a war.  If a conflict is truly momentous enough to give the  commander-in-chief wide-ranging power to prosecute it, there is a clear solution – seek and obtain a formal declaration of war.  At the other extreme, advocates of clandestine warfare will claim that applying the same authorization standards to lower profile cyber and drone attacks would unnecessarily expose our capabilities and risk spiraling the conflict into a shooting war.  Granting the President the right to seek a non-military response, however, lessens this threat, informs the American public of it and enlists their support in combating the threat.  It also would prevent the secret wars the act was designed to prevent and whose very existence also creates a risk of escalation. 

TR‘s most famous saying was “speak softly and carry a big stick”.  The most important element of this “big stick” was the knowledge that the American people would fight a war to a victorious conclusion.  At the same time, he knew from personal experience how horrible war could be and was proud no American service man died in combat during his presidency.  A realistic and restrained foreign policy assumes the costs of war only in those rare instances when the national security is directly in danger and thus when public support is more likely.  Those are exactly the wars America can and should win.  These reforms to the War Powers Resolution would help limit our wars to only those kinds of necessary conflicts.   

Foreign Policy, Realist Theory

The War Powers Resolution

Opening the Pandora’s BoxPresidential 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 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.