The middle class is shrinking. Those in power have run up enormous debts on public credit while shoveling most of the money into private pockets. The corporations that have benefitted from this borrowing binge, meanwhile, leverage the global trade system to transfer their profits beyond the reach of national governments.

Meanwhile, we have been told lies by Democrats and by Republicans, divided into artificial camps and led into debates that are either irrelevant or so dramatically scripted that we fail to realize every choice leads to the same result: the dismantling of the social framework that defined and sustained the opportunity of the last century. National mobilization of resources has given way to radical individualism under a narrative that, in the wealthiest nation in the world, we must always expect less.

In this tumultuous time, we search for a way forward - a new Square Deal for the American people.

Thursday, June 16, 2011

Defining American War Powers

On Sunday, an important milestone will be reached: American forces will have been engaged in various combat and combat-support operations in Libya for 90 days.

In reaching that milestone, the decision of President Obama to commit U.s. planes and pilots, ships and sailors, missiles, and about $700 million without any authorization from Congress will officially cross the threshold established by the War Powers Act.

What will come next is anyone's guess.

Let's explore this a bit, beginning with how the United States wages war under the rule of law and how the War Powers Act factors into the mix.

War Powers under the American System of Government

The U.S. Constitution divides authority relating to war:

  • Article I, Section 8 gives to Congress the power "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."

  • Article II, Section 2 states that "The 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."
In the time of the founding of the country, this conflict was de facto meaningless: the Continental Army was disbanded immediately upon the conclusion of the Revolutionary War except for 55 privates who guarded munitions depots, and when the Constitution was established, the authorized end-strength of the Army numbered precisely 840 officers and men.

America mobilized for war and demobilized for peace. The President could call the militia to active service (assuming that the governors heeded the call; this was not a given, and several states did not send troops to participate in the War of 1812), and in time, the United States Navy became a very professional force able to intervene militarily in short-duration conflicts at the command of the President. The ability of the President to engage in true wartime activities absent Congressional authorization and appropriation, however, was close to nil.

Things remained that way until 1945.

From Demobilization to Readiness

At the end of the Second World War, America did indeed demobilize, sending home millions of soldiers from the European and Pacific theatres. Evident hostility from the Soviet Union, however, made the familiar retreat to isolationism ill-advised, and the United States resolved to maintain a much stronger standing military than it had in the past. Forces were permanently stationed in Germany, Italy, Japan, and other parts of the world to serve as counterweights to Soviet intimidation.

After 1949, the very real possibility of a Soviet nuclear attack added weight to the Commander-in-Chief role. The organization of the United Nations, meanwhile, led to a renunciation of war as a legitimate tool of national sovereignty, diminishing the importance of the Congress to make Declarations of War. But a Declaration of War was never more than a diplomatic gesture. The true meaning of the Declaration was an expression by Congress that it would provide money, and the "power of the purse" still applies.

On the other hand, threatening to withhold funds is a pretty drastic measure. After Presidents Johnson and Nixon used the thinly-framed Tonkin Gulf Resolution passed in January 1964 as the basis for waging an extremely costly war that spanned nearly a decade, Congress decided that enough was enough and cut off all funding. Shortly thereafter, President Ford was simply unable to order American bombers into action to prevent a resumption of hostilities by the North Vietnamese--precisely what Congress had intended, of course, but a bitter pill for Americans to swallow when they saw that whole decade of sacrifice collapse with the walls around the Reunification Palace in on April 30, 1975.

Had American soldiers been engaged in combat operations at the time and left to die because of denied Congressional funds, it's doubtful that such a choice could ever be forgiven by the American people.

Restrictions on the Presidency

The War Powers Act (or Resolution; either usage is common) of 1973 attempted to eliminate the need for a cutoff of funds by "clarifying" the relationship between the President and Congress with regards to the U.S. military. The Act established as law that the President could send American forces into action for no more than 60 days, followed by a period of 30 days to allow for an orderly withdraw. After a total of 90 days, further military action could continue only with the approval of Congress.

President Nixon opposed the Act because he recognized it to be a subordination of Executive authority to the Legislature. He vetoed the Act, but Congress overrode his veto, and the Act became law. Nonetheless, most Presidents elected since its passage have ignored it, and scholars are divided on whether it may be an unconstitutional breach of the Separation of Powers since the Presidency is not subject only to the definition of its role as established in the Constitution (versus provisions made in public law).

The War Powers Act and Libya

As anyone with even a passing interest in casual news coverage knows, the United States has entered a period of hyper-partisanship. That being the case, it may be tempting to dismiss recent moves taken by Speaker of the House John Boehner and other Republicans to rein in the Libya conflict as being mere posturing in the run-up to a hotly anticipated 2012 election cycle.

It is also important to know and remember that Republicans insisted through the entire length of the Bush administration that the resolution passed in 2002 that authorized a response to the September 11 terror attacks actually granted President Bush authority to use military force anywhere in the world for any reason linked to terror. They deflected constant assertions by Democrats during that time that the President was overstepping his bounds by engaging in operations in Yemen, Pakistan, and Africa.

It is a bridge too far for us to imagine that they suddenly feel a need for Congressional oversight rather than simply being annoyed that the President who is not subordinating his wartime activities to their review is a Democrat--as Senator McCain recently commented on the Senate floor.

But partisanship does not deflect the actual validity of the claim. Recent claims by the Obama administration that "U.S. military operations [in Libya] are distinct from the kind of ‘hostilities’ contemplated" by the War Powers Act, and that the deadlines thus do not apply, can be greeted by any rational person only with laughter.

Congressman Sherman (D-CA) put it well: "If any other country were flying over the United States for the purpose of bombing our territory, we would regard that as being introduced into hostilities."


Every President, Senator, and Congressman needs to remember that he or she serves the American people--not himself or herself, and not the other way around. The money and materiel committed to military operations are American property, and the lives of soldiers put on the line in prosecution of these operations are pledged to support and defend the Constitution. America's military does not serve the President; it serves the United States.

President Obama has done little to put to rest the concerns about his use of expansive wartime powers, particularly taking into account that he ran for office specifically denouncing such powers. If Republicans are prodding him because he is a Democrat, the same explanation applies in the opposite direction for why he is snubbing them.

It is time that everyone involved in this debate "grows up" and starts behaving in a manner befitting his or her office. We are firing missiles and dropping bombs. We are killing people--and specifically, we are killing the legal soldiers of the Libyan government, an action that goes far beyond anything associated with "terrorism." President Obama and the U.S. Congress owe the American people a full, complete, and public discussion of why we are doing this and how it will end, because the last thing that we need is another endless war.

We can't afford it, in any sense of the word.

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