A Minor Constitutional Quibble

Reuters – Pakistan raid may signal more U.S. attacks

“The Congress shall have power...To declare war.”

-United States Constitution

“He thereby equipped himself with so expansive a theory of the power of the Commander in Chief and so elastic a theory of defensive war that he could freely, on his own initiative, without a national emergency, without Reference to Congress, as a routine employment of unilateral executive authority, go to war against any country containing any troops that might in any conceivable circumstance be used in an attack on American forces.”

-Arthur M. Schlesinger, Jr.
The Imperial Presidency

The Imperial Presidency is essential reading for every American who exercises their right to vote, and anyone in general who wants to understand how the United States has arrived at the point it has today.

Regarding the above quote, Schlesinger was writing about a different president and a different war, about Richard Nixon and the U.S. armed interventions in Cambodia and Laos, pursued without Congressional consent and justified on the grounds that the incursions were an essential extension of the war in neighboring Vietnam, and further that the Gulf of Tonkin Resolution provided the necessary authority.

This most recent escalation of U.S. military involvement on Pakistani soil (the first significantly publicized or acknowledged incursion involving U.S. ground forces) pales in scale relative to what took place in Cambodia and Laos. So do similar “counter-terrorism” interventions that have taken place dating back to the Reagan era, including the 1986 bombing of Libya, the 1998 cruise missile strikes on targets in Afghanistan and Sudan, a missile strike carried out by a drone in Yemen in 2002, a series of airstrikes carried out against Somali targets since Ethiopia invaded the country in 2007, as well as the deployment of thousands of U.S. military “advisors” to armed conflict zones worldwide since 2001. Nevertheless, these executive branch authorized actions share with the Vietnam-era events a similarly plastic interpretation of presidential war powers, unilateral executive disregard for international consultation or consensus, and a minimum of oversight or censure on the part of the U.S. Congress.

Johnson and Nixon had the Gulf of Tonkin Resolution; George W. Bush has the 2001 Authorization for the Use of Military Force and the 2002 Authorization for Use of Military Force Against Iraq Resolution. All three pieces of legislation, none of which constituted declarations of war, but which all provided the pretext for inarguable acts of war, placed similarly indefinite bounds on the ability of the president to apply military force in the name of vaguely defined U.S. national security interests.

Perhaps the character of warfare, international relations, and U.S. politics has profoundly changed since 1787. Nonetheless, it's hard to pass off the fact that the United States has not formally declared a war per its Constitution since 1941, despite the expenditure of billions of dollars and tens of thousands of American lives (not to mention hundreds of thousands, if not more likely millions, of foreign lives) in armed conflicts throughout the globe.

An attempt was made during the 1970s, embodied through the 1973 War Powers Act, to address the contradiction, but application of and adherence to the weakly crafted Act has proven inconsistent at best. The current American public political debate is relatively mute on this issue, which shouldn't be terribly surprising given its lack of depth in most regards. Both presidential candidates are doing their best to posture as competent and aggressive in regards to national security policy, and much bellicose rhetoric has been expounded by the two towards this end. In the process, neither has substantively spoken to the potential Constitutional implications of their policy objectives, nor indicated an intention to seriously revisit and address the sixty year legacy of extra-constitutional U.S. warmaking.

If there has indeed taken place some sort of fundamental change in the character of international armed conflict (although from a Clausewitzian standpoint, there arguably hasn't), then at the least, there should take place a reasoned debate (and perhaps even a constitutional amendment) aimed at clearly identifying what this change means regarding the executive/legislative relationship, and where reasonable bounds should be placed on the ability of the President to apply military violence in the national interest. The current paradigm of presidential initiative and legislative passivity can only serve to further undermine the democratic principle of executive constraint that this country was founded upon, and further concentrate the American military capacity for immense destructive power in the hands of a solitary individual.

Vaya en paz.