When Is A War Not A War?

This Drone Is Providing Support But Is Not Actually Involved In War. See The difference?

A helpful guidepost in understanding the recent debate over President Obama’s use of the military in Libya and the War Powers Act is Garry Wills seminal work “Bomb Power:  The Modern Presidency and The National Security State”.  In it, Wills makes a strong case against the misuse of Presidential power that has come from the creation and control of America’s nuclear arsenal.  Wills case is a deeply convincing one that should be read in full by any one who wants to properly understand the major structural changes that have taken place in the United States government since the end of World War II.  A short but powerful section of the book to explaining issues related to Congress’ 1973 passing of The War Powers Act.  He makes argument that The War Powers Act itself is unconstitutional.

The Constitution seems to bear out Wills point when it clearly states in Article 1 Section 8 that “Congress shall have the Power…to declare war.”  The War Powers Act implies that the President must ask for a Congressional Declaration of War within 60 days of using the military in a conflict.  This appears to be illogical.  If Congress has the sole power to declare war why would the President be allowed to send the military into conflict for 60 days before these powers kick in?  How can Congress cede it’s right to declare war for any period of time? There is no clear provision in the Constitution that allows such a use of military power and there is certainly no provision that allows a Congressional abdication of this power.

The President does have some power over the military as outlined in Article 2 Section 2.  He or she has the role of Commander-in-Chief over the military “when called into the actual service of the United States.”  Clearly, the President can control the armed forces when they are at war, but nowhere does the President have the right to actually call the armed forces into service.  Wills deals with this idea at length and debunks the myth that the term Commander-in-Chief means that the President has the right to use the military whenever they feel it is correct to do so.

President Obama has argued that in the case of Libya, the Executive Branch does not have to gain the approval of Congress because it is a limited military action and the United States is merely playing a supporting role.  Indeed, this logic has been used to justify many incursions into foreign countries without the approval of Congress.  The fact that it has been deemed acceptable in the past to skirt the separation of powers that have been outlined in the Constitution is certainly not an argument to continue doing so.  Further, what properly defines a supporting role in conflict?  If we commit the military to a conflict that is under NATO supervision the armed forces have still been called into service.  Even if we are using them in a limited fashion, it still constitutes calling them into service.  It is not hard to see how the “limited scope” of a conflict could be used repeatedly to justify the Presidents usurption of the Constitutional mandate of Congress for any reason whatsoever.  It is a legal fiction that continues an alarming trend of consolidating the power of the military in the hands of the Executive Branch.

The attempt here is not to make an Originalist argument for the interpretation of the Constitution.  Occasionally, there are moments where the necessity of the moment is more significant then the Constitution itself.  If the United States came under attack and Congress was unable to convene, their would be a rationale for the President calling up the military.  A once-in-a-lifetime national emergency could force the President to ignore the Constitution and take action to keep the American people safe.  This is clearly not the situation in Libya, nor has it been the case in just about every use of the military over the nation’s history.

The problem with the War Powers Act is that it legitimizes the belief that the military is the dominion of the Commander-In-Chief.  When a piece of legislation is passed to restrain someone’s power, it is an admission that they have that power in the first place.   In the case of Libya, President Obama is using a power he doesn’t have and actually arguing that it cannot even be limited Congress.

Support of the Libyan rebels might well be a worthwhile cause.  It is easy to understand the motivation to help support their struggle against Gaddafi’s tyrannical state.  If the rationale is so righteous and the need so great, why not make the case to Congress and ask it to take seriously the plight of the Libyan people by supporting their revolution?  It is true that Congress has been infested with obstructionist tactics and absurd partisan bickering, but are they so far gone that they are incapable of being trusted with any sort of worthwhile cause?

The task of using the military is a solemn one.  Its improper use has led to significant suffering and a slew of seemingly never-ending problems around the world.  The power was put into the hands of Congress because its use should be stridently argued and debated, not simply decided unilaterally. By legitimizing a process that shifts this power to one person instead of a legislative body drawn from the people we are continuing to feed a monster that grows ever more frightening by the day.

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  1. #1 by John Erickson on June 18, 2011 - 6:35 PM

    Ah, but the action in Libya is not a military one, but a humanitarian one. After all, we’re supplying the rebels with steel, petroleum distillates, and various fertilizer-like compounds. And we’re delivering them with “rush” supply craft like the F-15. (Pay no attention to the fact that these supply packages loo suspiciously like bombs.) 😉
    Seriously, this kind of “definition” is the problem. We’re in a “humanitarian support mission” in Libya, just like, 60 years ago, we were in a “police action” in Korea. Or an “anti-terror homeland defence” role in Iraq and A-stan. By calling it something other than war, the various Administrations have danced around the limitations on declaring war. And as technology progresses, how much longer will we need significant force deployment? We’re already fighting a war in the hinterlands between A-stan and Pakistan with unmanned drones. We have many times the manpower involved fueling and arming the craft than we do flying them, and there is NO Armed Forces member over enemy territory in these cases. Is it war if you’re flying a model airplane from a truck trailer thousands of miles away?
    We need to recognise that ANY deployment of force, manned or not, is a military act – an act of WAR. Anything else is just bureaucratic BS.

    • #2 by Keith Spillett on June 18, 2011 - 7:44 PM

      Extremely insightful comment, John. The supporting examples are quite good as well. The explanations for this “whichamacallit” or war, depending on who you ask, are so utterly weak that I can’t believe they would trot this sort of thing out and expect people to buy in. They are reminiscent of the ridiculous John Yoo authored Bush Administration explanations of how waterboarding was not torture. Do they really expect people to think that if you are not using manned aircrafts it’s not technically war?

      • #3 by John Erickson on June 18, 2011 - 7:52 PM

        It’s not just the tech. Back in both the 1950s and 1990s, we lost troops and aircraft. In the 50s (Korea), it was a “police action” (as I mentioned above); in the 90s (Kosovo), it was a U.N. sanctioned “peace-keeping” mission. How you keep the peace by shooting people beats the crap outta me, but then again, I never DID care for “legalese”.
        This whole Libya thing scares me, ’cause it’s going down very similar lines to Vietnam. First we give some air support. Then we land some “advisers”. Then we put in troops to protect the advisers and humanitarian aid workers. Then we put in MORE troops to protect the protectors. 12 years later, you’ve got a wall full of dead soldiers’ names. We already have the CIA on the ground, and the Franco-British alliance wants to put in humanitarian aid. If we follow (and we’re the only ones with the realistic firepower – Britain has chopped its’ military to pieces, and it’s only a matter of time before the French surrender to SOMEBODY! 😉 ), then we’ll be right back to 1963. How much longer before somebody suggests Rolling Thunder 3?

  2. #4 by Jim Wheeler on June 18, 2011 - 8:28 PM

    An appropriate post with appropriate comments from Mr. Erickson.

    I am a retired career military officer and, looking back, I see only two justified uses of U.S. military force, the massive build-up of strategic forces in the Cold War and the sensibly-restrained use of sophisticated Cold War technology to “win” the First Gulf War under Bush I and protect our vital energy source.

    Congress is one huge committee and we all know what committee’s are like. The larger they are the less efficient they are. The founding fathers did the best they could with the original 13 colonies, but it would be asking a lot for them to plan for a nuclear-armed world with a committee of 535 ego-centric politicians. So there is little wonder to me that one Commander In Chief trumps a big committee in being decisive.

    As Keith implied without actually saying it, the need to keep a finger on the nuclear button during the Cold War created a meme that the president needed authority to act on short notice. That authority has been exercised in the vacuum created by a committee too large. We should get back to basics now that the Cold War is over, never mind that many missiles still exist. The exigencies now allow for some debate after a rogue state acts out, IMHO. Even if North Korea, Iran or Pakistan should fire a nuke off, massive damage to the United States would not be imminent.

    The other day I saw a large lake turtle trapped between the curbs of our concrete street. I stopped the car, got out, and carried the thing back to our little lake’s edge. I couldn’t bear to see the thing suffer and die in the summer sun. When you have the power to correct a wrong or to prevent suffering, the need to take action is intense. But we are at the point, I suggest, where the rest of the world needs to grow up and we in America need to stop acting like the world’s policeman. The Cold War is over. And besides, we can’t afford it.

    • #5 by John Erickson on June 18, 2011 - 8:42 PM

      Thank you for the compliment, Mr. Wheeler. You make an excellent point about the Cold War “launch on detection” syndrome. While there might have been a need when an SLBM was only 8 minutes from detect to impact, that’s not going to happen today. We’re far more likely to see another 9/11 or British-style 7/7 “internal” attack. As many observers pointed out post 9/11, “who in this day and age is going to fire a missile at us, clearly leaving a ‘return address’?”.
      May I ask about your military service, sir? Please feel free to refuse – I have dealt with enough vets to know some don’t want (or can’t) speak about their service. Share as much or as little as you want, and thank you in advance for sharing. And a Happy Father’s Day to you, sir, and to Keith!

      • #6 by Jim Wheeler on June 18, 2011 - 9:03 PM

        @ John Erickson,
        I am proud of my service and perfectly willing to talk about it. Career officers like myself generally have little trouble separating loyalty to one’s tribe (i.e., country) from politics, and I am no exception. Thanks for asking.

        There is a brief description of my background on my blog page at

        http://jwheeler59.wordpress.com

      • #7 by John Erickson on June 18, 2011 - 9:08 PM

        Thank you, Keith, for the recommendation, and thank you, Mr. Wheeler, for your blog site. I am headed there as we speak! (Type? Read? Whatever! 😀 )

    • #8 by Keith Spillett on June 18, 2011 - 8:53 PM

      The turtle metaphor was extremely powerful, Jim. A perfect image describing the feelings that might cause the mistake the Obama administration is making here. That really explains it.

      Thanks so much for the Father’s Day wish John!

      • #9 by Keith Spillett on June 18, 2011 - 9:02 PM

        By the way, John, you should check out Jim’s blog (Still Skeptical After All These Years).. It’s extremely well-written, highly thought provoking work.

  3. #10 by Jim Wheeler on June 18, 2011 - 8:30 PM

    PS – The context of my comment, of course, is post-WW II.

  4. #11 by afrankangle on June 20, 2011 - 4:49 PM

    1) Has any president followed the War Powers Act?

    2) Since drones are mentioned in the Constitution, thus the president can use them without Congressional approval!

  5. #12 by Keith Spillett on June 20, 2011 - 4:54 PM

    1. Here and there. The kicker about the Act is you don’t even have to have a vote you merely need to consult Congress. Presidents have consulted and even gone so far as getting a vote, but there are numerous examples of Presidents simply ignoring it.

    2. HA! You had me rolling on that one, sir. Well played.

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