War Powers and Libya

How many cars have two steering wheels? The answer, of course is none, at least of those billion or so driving around on public roads between here and Timbuktu. The reason for that is simple: when one person drives a car it is dangerous enough. But give two people the controls simultaneously and you are certain to have a wreck. The same is true for any organization, in particular a military.

Despite what some (too many) may say of ‘dual-hatting’ and similar ‘modern’ forms of management (and they aren’t modern, just recently rediscovered), the fact is that when things become very serious the chain of command must become focused. If you don’t think so, try to have two surgeons in charge of your open-heart operation. There may be many people, all very professional, working simultaneously and with what appears to be little minute-to-minute oversight, but there is only one person in charge in the operating room at any time.

The same is just as necessary – and just as critical – in a war zone. That is why having Congress debate foreign military involvement is of such value: it allows the government as a whole, and all the agencies, to come together and receive clear guidance. When a President signs a declaration of war (something that hasn’t been done since December of 1941, though President Bush came fairly close with the resolutions Congress passed in both 2001 and in 2003), several things happen:

1) The entire nation is provided with clarity as to what the government is doing - a goal is set

2) The government provides a statement as to our level of commitment - what assets are available

3) The President is now given clear and specific authority to execute – we all know who is in charge.

This is all of interest now for two different reasons. The first is the obscure US involvement in Libya, and the second is that the Department of Defense, in one of the weirdest pieces of irony in recent memory, just officially (for the first time) released the Pentagon Papers on Monday June 13th, the 40th anniversary of their first – and unofficial – release.

What these two have in common is simply this: the shock of the Pentagon Papers was that is displayed for all to see the confused thinking and lack of clear direction that was prevalent throughout the Pentagon and the White House with regard to US goals in Vietnam and South East Asia. Whether it was the White House, the Pentagon and Joint Staff, the theater commander in Hawaii, the commander in Saigon or the CIA, everyone seemed to think that they were ‘really’ running the war, that they knew the real goals, that they had insight into what really needed to be done.

All of which would seem to lead back to the issue of waging war within the construct of the Constitution.

A review of the declarations of war for World War I and World War II make interesting reading, particularly in that they are so short. The language is deliberately sparse in order to prevent any ambiguity or dissimulation.

World War I

WHEREAS, The Imperial German Government has committed repeated acts of war against the Government and the people of the United States of America; therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war between the United States and the Imperial German Government, which has thus been thrust upon the United States, is hereby formally declared; and

That the President be, and he is hereby, authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial German Government; and to bring the conflict to a successful termination all the resources of the country are hereby pledged by the Congress of the United States.

World War II

JOINT RESOLUTION Declaring that a state of war exists between the Imperial Government of Japan and the Government and the people of the United States and making provisions to prosecute the same.

Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America: Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan; and, to bring the conflict to a successful termination, all the resources of the country are hereby pledged by the Congress of the United States.

Spanish-American War

The Declaration of War for the Spanish American War – a limited war, in as much as we were not trying to bring down the entire Spanish government – is of interest:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, First. That war be, and the same is hereby, declared to exist, and that war has existed since the 21st day of April, A.D. 1898, including said day, between the United States of America and the Kingdom of Spain.

Second. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States and to call into actual service of the United States the militia of the several States to such extent as may be necessary to carry this act into effect.

Approved, April 25, 1898.

Presidents then have followed these declarations with specific guidance. Over the years that guidance has grown in size and complexity, but at the very top of the hierarchy – what the President signs out of his office – the guidance still is usually contained in just a few short pages. In those pages – which would be drafted by his staff and the Department of Defense and State with the Attorney General providing legal input as well – the President would define the geography of the war – the Area Of Responsibility, as well as define who is responsible for what specific actions within the AOR. Good leaders provide clear direction, and the better the leader, the better the direction. On the other hand, poor leaders avoid providing direction, and usually avoid discussions which would focus on the presence or absence of clear directions.

All of which is of interest now in light of the ongoing US and NATO combined operations against the Libyan government.

There is a small chorus that says that President Obama violated the Constitution by ordering US forces to conduct attacks against Libya. The President’s authority to direct US military forces come from Article II, Section 2 of the Constitution, which simply says that he is the Commander In Chief of the Army, Navy and Militia. The powers of the President, and in particular his war-fighting powers, were left deliberately vague by the Founders for two reasons: first because they knew Washington was going to be the first President and they wanted him to define, and limit, those powers; and second because they understood that some events would require action long before any President could gather Congress together, present them with the pertinent facts, hold a debate and then vote. This was particularly true in an era when Congress did not sit for the whole year, but rather spent the bulk of the year in their home districts and states.

At the same time, the Founders clarified the role of Congress in war-fighting in Article I, Section 8 which states that Congress will provide for the common defense, and later that Congress shall declare war. Sitting at one’s desk that may look fairly neat and clear: Congress declares war, the President is the Commander in Chief. It has rarely been that neat, however, and in particular, in the post-World War II era there has been quite a bit of concern expressed by many that Presidents have overstepped their bounds by putting Marines ashore or deploying ships to this or that trouble spot and acting in US interests (or interfering as others might define it.)

Presidents have, in fact, used US capabilities quite extensively for most of our history and the legacy of Congressional involvement has often been minimal to non-existent. The ability – or inability – to communicate in anything approaching real time certainly changes the nature of the problem, meaning that US actions overseas prior to the laying of the first trans-oceanic telegraphs was of necessity actions taken based on general orders given military commanders weeks to months prior to the actual action. Thus, US involvement in actions such as the Korea Raid in 1871 necessarily took place without Congressional consultation – they took place without Presidential consultation.

It is worth noting that the telegraph – the real dawn of the information age – dramatically changed everything, from the course of events in the War in Crimea in 1855-1856 which was reported essentially in real time in capitals in Europe, to the US Civil War in which Lincoln followed events through daily (and often detailed) telegraphed reports from his commanders, through to President McKinley ordering Admiral Dewey to attack the Spanish fleet in Manila, just hours after the resolution was approved in Congress.

But the point of the Constitution was not to give the President unlimited powers. A reasonable reading of the provisions concerning war and a Navy and an Army strongly suggests that the Founding Fathers believed that the President needed to have the ability to respond to situations as they developed – as Washington did during the Whiskey Rebellion – but that such authority was not open ended. Congress needed to approve in the end because Congress held the purse strings. Congress was, and is, after all, the Legislature, that is, those who create the laws and ‘acts’ which control the actions of the government. The President led the Executive Branch, those who were tasked to execute the laws of the land. Execute the directions provide, not determine those directions. Hence, no President would or should be allowed to conduct an operation without eventually obtaining Congressional approval. But, this control would be applied either directly – a declaration of war, or indirectly – through the approval of a budget that provided funding for the war.

In both cases it was assumed that Congress would insist on being fully informed and would engage in a full and honest debate about whatever military action was taking place.

As for the War Powers Act of 1973, drafted as a direct response to Vietnam and the revelations of leaks such as the Pentagon Papers, President Obama has put the final nail in the coffin on that. While no president since Nixon has agreed with the act, then Senator Obama railed against President Bush for his actions that, in the Senator’s opinion, violated that law. But, with his operations in Libya President Obama has demonstrated by his actions that he sides with his predecessors in viewing the law as un-Constitutional and will not comply with it.

So be it. But whether you believe in the Constitutional validity of the War Powers Act or not, one fact remains: Congress alone has the power to declare war. Congress has usually executed that power passively, allowing Presidents to engage in a wide range of activities, and the Congress has simply ‘gone along’ and funded it. By so doing they have de facto declared their support for the Presidents’ actions just a certainly as if there had been a formal declaration. What is missing is the informed debate and the ostensible product of such a debate: clarity of action.

Irrespective of whether there is a debate or not, a formal declaration or not, when Congress appropriates money to continue various actions, it has declared its support for those actions. Congress can whine and complain about the War Powers Act and about the President exceeding his authorities. But what is crystal clear is that Congress has the power and the responsibility to act to control the behavior of the executive. If it agrees with the behavior, so be it. But Congress still retains the responsibility of funding the executive. If Congress wants to stop US actions in Libya it is fully capable of doing so. If it does not, then it is de facto endorsing those actions. Either way, Congress must choose.