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Wednesday, May 10, 2006

SOTU Alternatives: WAR POWERS

Originally Posted: January 29, 2006 -- 1:41 PM
Fool Boards Link: http://boards.fool.com/Message.asp?mid=23626816

One of two follow-ups for improving the State of the Union.


I posted a lengthy commentary (do I write any other kind? -- smile) on 2006/01/22 reflecting an alternative State Of the Union report.


In that post, I mentioned that rather than just whining from the sidelines without suggesting alternatives, I'd actually provide some suggestions of concrete polices that could address some of those issues.

Before some of the details, a few political comments.

First, being the minority doesn't obligate the minority to simply sit down in the back seat and shut up while the majority drives the country towards obvious problems. In the current climate, this seems to be a common theme of conservatives who like the status quo and think dissent is defeatism or aid and comfort to the "enemy."

Second, the minority (whichever side you're on) is OBLIGATED to speak up and propose alternatives, even if it lacks the votes to get them enacted, just to ensure a balance of ideas is presented to the public. The minority cannot withhold its ideas in a futile attempt to keep the other party from "stealing" them and taking credit. If the ideas are good enough, the public will figure out where they came from eventually.

Having stated that, conservatives need to remember that when you control all the levers of government, everything that comes out of government (pointless military adventures, wasteful spending, etc.) or fails to come out of government (emergency support after disasters, appropriate enforcement of industry, etc.) will be YOUR RESPONSIBILITY from a political standpoint when Americans finally wake up.

Are these suggested as "Democratic" or "Republican" proposals? I don't think Democrats can change enough of their inertia in one or two years to reorient the ship. I don't think Republicans have the courage to walk away from tactics and policies that appear (in the incredibly short term, political sense only) to be succeeding. Think of them as "Alternative" suggestions.

Here's the first of a few.



The language of the War Powers Act needs to be updated to reflect the realities of asymmetric security threats, terrorism and the relationships between military and law-enforcement responsibilities to meet these threats. Under the Constitution, the Congress is responsible for declaring war and providing funding for the military. Specifically,

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Under the Constitution, the President is granted authority as Commander in Chief of the military. Specifically,

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; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

Read the above clauses again, CAREFULLY. They unambiguously state that the President is the commander in chief of military / militia forces once called into the actual service of the United States. They unambiguously state that only Congress has the power to DEPLOY any military force against foreign or domestic threats.

The WPA was enacted in 1973 as a response to the process (or lack thereof) that got us into Vietnam and allowed the war to escalate into an unproductive military and social disaster without ever formally declaring war. In the WPA, Congress attempts to reassert the language of the Constitution while recognizing present day war technology posed threats in scale / immediacy that might require military response before formal debate and a declaration of war.

Interestingly, section 4(b) reiterates that while it is the President's role as Commander in Chief to DIRECT the military once IN a war, it is the Congress' role to COMMIT the nation to war. Section 2(c) is the most important clause of the document and merits the most clarification. It states:

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

So what constitutes a national emergency? More importantly, how do you identify when a national emergency ends?

September 11, 2001 was clearly a day that began a national state of emergency. We had four known hijacked airliners operated by unknown personnel with then-unknown support mechanisms. Attacks were conducted on four crucial targets and succeeded on three of four. Once the hijackers had been identified by name, it took about two weeks to retrace their steps from security check-in back to rental cars, hotels, apartments leased, flight schools attended, arrival flights into the country from Saudi Arabia, etc. and their links to Bin Laden. In the mean time, flights had resumed with much tighter security checks to counteract another sucker punch attack using the same tactics. At that point, we no longer had a national emergency from an unknown danger but (sadly) a new state of existence.

The Bush Administration clearly believes that

a) we are still in a state of emergency

b) The President's role as Command-in-Chief trumps all other Constitutional responsibilities of Congress and the Judiciary during a state of emergency

c) The existence of a declared state of war or implied state of war or "emergency" where military forces are engaged empowers the President to use powers as CIC across the entire spectrum of national policy and government action.

d) The President's role as CIC entitles him to manage military and intelligence policy without the oversight of Congress to protect "national security" and avoid indefinitely (forever?) divulging information that would risk the security of military forces or American citizens.

Even a novice reading of the above clauses from the Constitution would indicate the Founding Fathers never had any intention to grant such sweeping powers to the Executive branch. The WPA needs the following changes to restore the balance of power between Congress and the Executive branch.

Redefinition of the term State of Emergency -- The language of the WPA was clearly intended to allow the use of military forces to restore security and order after extraordinary events (attacks or otherwise). However, the identification of some new physical threat not previously understood CANNOT be used to declare a permanent state of emergency and certainly CANNOT be used to allow the President as CIC to direct military forces for indefinite periods of time combating indefinite "dangers" and "enemies."

The WPA should be amended to require Congress and the President, within 30 days of military deployment for a "state of emergency", to jointly agree upon an exact definition of the emergency condition and criteria that will identify the end of that state of emergency. If no such agreement can be reached, the deployment should be halted within 1 year.

Require a Declaration of War -- As written, the WPA virtually assures the United States will never formally declare war ever again. Congress will "authorize" the President to pursue all means to avoid war as a public stick towards the opponent, the President will "make all possible efforts" to solve a problem via diplomatic means, then deploy troops during a perceived emergency and troops will remain committed indefinitely without a clear mission. (Sound familiar?)

Neither Congress or the President should get off so easily. The WPA should be amended to REQUIRE Congress to formally declare war within 30 days any time the President deploys troops in a foreign nation. Doing so will hopefully ensure greater clarity in our mission and objectives and public buy-in and stop the current pattern of poorly planned, escalating commitments.

Clarification of Military versus Asymmetric Terrorist Threats -- Al Quieda and other groups clearly have no will, desire or courage to form a traditional military battalion and take on the 82nd Airborne or build a few ships and shoot it out with a Navy task force in the Indian Ocean. They cannot afford it nor does it suit their strategy. We cannot afford using full-blown military responses in response to potentially thousands of terrorist threats or actual attacks, nor is appropriate to allow the President to justify use of other powers as CIC in response to threats which cannot adequately be addressed by the military. An amended WPA should define explicit boundaries between military support services for military versus terrorist targets.

Clarification of Command Intelligence Within the Military -- Supporters of domestic spying believe that it involves identification of military threats to the United States and, as such, constitutes military "command intelligence" and can be authorized by the President via his role as CIC. The super-secret, super-strategic nature of this information leads many to believe the President has no obligation to share either the data gathered or information about the methods used to obtain it with Congress. The CIC function was assigned to the President simply to have a clear decision tree on military matters, not to allow the president to operate the military without Congressional oversight.

The WPA should be amended to EXPLICITLY state that any intelligence categorized as COMINT is still subject to the oversight of Congress, including information gathered via theatre command, NSA, CIA, etc. Few argue the need to conduct domestic spying under certain circumstances, only that all such spying MUST be conducted within the informed oversight of Congress and the courts.

It is absolutely the President's right under the Constitution to make the final call on military tactics and responses but NOTHING in the Constitution allows him to hide from Congress WHAT information he is acting upon and HOW that information was obtained.



The War Powers Act: http://www.cs.indiana.edu/statecraft/warpow.html

The United States Constitution: http://www.usconstitution.net/const.html