Unconstitutional Wars?

 “To The Shores of Tripoli” by Raymond Massey

One of the pieces of misinformation that seems to be prominent this election cycle is the idea that the American actions in the Middle East for the last twenty-five years were illegal and unconstitutional. This idea was first floated by liberal Democrats to discredit the two Bush Administrations, but it’s gained traction in the military community in general and the supporters of Ron Paul in particular. Unfortunately, this rhetoric demonstrates a plebian understanding of the Constitution, history and the actions of the US Congress. Except for the Clinton administration adventure in Kosovo and the most recent actions in Libya, it’s just not true.

Before we dive into the discussion, we need to see what the constitution says on the matter.

Article II, section 8 defines the powers of Congress, among these is the power To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

That’s it. There’s no rules concerning the form that such a declaration of war should take, the recipe for doing so, or any magic incantation that would differentiate an authorization for the use of force from a de facto Declaration of War.

The Constitution deliberately built in a tension between the Presidency and Congress, for while the Congress retains the sole power to declare war, 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.

The implication of this is that the President can do whatever he wants with the military during peace time, except commit them to combat. Presumably this includes deploying the military to foreign lands with which we have military cooperation agreements, for joint exercises.

This was an acceptable state of affairs in the eighteenth century, when communications took days and you would be aware of an approaching army weeks or months in advance. But technology overwhelmed this concept to the point where Congress could go to bed in peacetime, and wake up to a shooting war with US troops engaged in combat. Worse, with the advent of intercontinental ballistic missiles and submarine launched attack systems, the President’s reaction time to respond militarily to an imminent attack on the USA could conceivably be reduced to mere minutes.

In 1973, the US congress, in a fit of collective amnesia, passed the War Powers Act, codifying the precise conditions and limits under which the President can deploy the military in today’s fast moving world. Many people misunderstand this to be a constitutional amendment. It is not. It’s just federal law designed to define the constitutional roles of Congress and the President within the realities of the Twentieth Century and beyond.

Some History

The political and diplomatic turmoil around the world that resulted from the power redistribution and decolonization that occurred after World War II led to a number of circumstances that were unforeseen by the founding fathers. The end of WWII found US soldiers on every continent in the world except South America, cast in the role of liberator or conquering hero. In both cases, the local government was typically non-functional, and the US administration of these countries was considered appropriate by all until a functioning government could be established. In the case of our former enemies, such a government necessarily had to conform to certain requirements of the conquering allies to ensure that the conditions that gave rise to WWII could not be resurrected.

This would have been an orderly progression of recovery from the devastation of WWII, except for a couple of flies in the ointment. First, the Soviet Union was exercising a methodic campaign to foment a socialist movement nearly everywhere it could assert influence. Such movements weren’t above using violence – indeed the Leninist model demanded that at some point violence would be necessary to throw off the bourgeoisie. Second, the US State Department was primarily concerned with preserving friendly ties with our wartime allies – particularly to present a united front to the growing menace of Soviet hegemony. This meant that a number of indigent populations in colonial lands owned by our allies were thrown under the bus in the post-war realignments. Very often this happened over the protests of US administrators in these areas. The OSS in French Indochina vehemently disagreed with the idea of returning that colony back to France after the war, saying that the Vietnamese and Cambodian people would not tolerate it, but they were ignored by the European desk of the State Department, which was calling the shots.

Tensions between the Western Allies and the Soviets peaked in 1948 with the Berlin Airlift. It became plain to the President and Congress that our nation simply could not afford to keep our commitments to our allies and oversee an orderly postwar realignment and still draw down our nation’s military to pre-war levels. This was confirmed when Chinese-supported North Koreans crossed the demarcation line between the occupation zones in 1950, and attempted to reunite the country under a communist government. The ensuing war was a disaster for the Communist bloc, and ended in an uneasy stalemate that continues to this day.

Realizing that a direct invasion by proxy would result in a powerful response from the western powers, the Soviets and China began pouring resources into low-key communist insurgencies. This placed the Western powers and the US in particular in an awkward situation. In order to prevent a power vacuum that would make a communist take-over a fait accompli, the US found itself supporting some right bastards as virtual dictators in countries who had recently cast off their colonial shackles. This was a less than optimal situation, and while these guys were bastards, at least they were our bastards.

The attempt to stall the Communist insurgencies and infiltrations of these countries required new ways of thinking when it came to manipulating military and political force. Unfortunately, the American mindset was educated from our recent military experiences in WWII and Korea. Our overwhelming victory in WWII gave us the political power to literally dictate terms to both our enemies and our allies resulting in an excessive amount of diplomatic hubris. These factors resulted in heavy-handed and inappropriate responses from the US in what had become the client states that we had sponsored after they had been decolonized. In our position as the world’s preeminent economic and military super power, we were unwilling to learn from the success of the British in the communist insurgency in Malaysia, which used a small number of highly trained counter-insurgency operatives and a dedicated campaign to win the hearts and minds of the locals and deny the enemy the advantages that an insurgency typically enjoys. The result of this was a series of ongoing US commitments of conventional ground forces into brushfire wars, and a general attitude that America had become the policeman of the world. This attitude was what made the American reaction to the invasion of Kuwait almost automatic.

Some More History

The main point of contention among the contemporary critics is that American soldiers were sent into Afghanistan and Iraq without a declaration of war, and that these actions are therefore unconstitutional.

This point is without merit.

The precedent of sending American soldiers overseas into a combat situation began in 1801 when then-president Thomas Jefferson (remember him? He had a bit of a hand in the forming of our government) deployed a naval frigate squadron and the US Marines to the Mediterranean coast of Africa to put an end to the Muslim pirates of the Barbary Coast. In many ways this action was little different than the deployments and fighting that’s been done since 1990. Was it constitutional? Jefferson felt it was, because he had Congressional approval starting with the 3rd congress, session 1, chapter 12, An Act to provide Naval Armament, which cited the depredations of the Algerian Corsairs as the reason for the Naval Appropriation. Congress further provided its approval and authorization for the use of force in the 7th congress, Session 1 chapter 4, An Act for the protection of the Commerce and Seamen of the United States, against Tripolitan Cruisers. It very explicitly gave sanction to conduct military operations and to prosecute a war in the 8th congress, Session 1, chapter 46, An Act to further protect the commerce and seamen of the United States against the Barbary powers, which specifically authorizes, “warlike operations against the regency of Tripoli, or any other of the Barbary powers.”  There were in fact ten such congressional acts passed pertaining to the barbary wars, but you get the idea. Note that Congress did not specifically declare war on any other nation, nor was the term “Declaration of War” used.

For the folks who insist that America’s involvement in Iraq, Afghanistan and yes, Vietnam was unconstitutional, please compare the legislation that Jefferson used to prosecute his military expedition, and those of the more recent congresses:

Authorization to invade Afghanistan, Public Law 107-40

Authorization to invade Iraq, Public Law 107-243

Authorization to prosecute Desert Storm, Public Law 102-1
One could argue that Desert Shield didn't get congressional approval, but Desert Shield was a massive deployment to an allied nation, and not a combat deployment, so there's a question whether the war Powers Act applied, a question the courts chose to abstain on in Ange v. Bush.

Authorization to commit military forces to fight in Vietnam, Public Law 88-408

All of these actions were authorized by congress under the same theory of law that Thomas Jefferson used for his actions against the Barbary pirates. Any political office holder – particularly any Congressman who was sitting when these laws were passed – who claims that these wars are unconstitutional is just being disingenuous (that’s a fancy word for “lying through his teeth”).

In closing, the idea of a “Declaration of War” is quickly becoming an archaic term. In the historical context of the day, a declaration of war meant that the people and government of one nation-state was at war with the people and government of another nation-state. In today’s context, this is rarely the case with the use of the US military. The United States is a constitutional republic, dedicated to the concept that people should be free to be governed by their consent. Most American ventures since WWII have been against regimes in support of the oppressed people they govern. It’s not the position of the USA to declare war on the people of a nation, rather we draw a distinction between the people and the government that we assume is not acting in the best interests of those people. The term “Declaration of War” carries a connotation of war against the people as well as the government of a nation that isn’t appropriate with the interests and goals of the United States. This doesn’t mean that our military ventures are unconstitutional, unless you’re willing to take the absurd position that Thomas Jefferson’s action was unconstitutional.

Whether these wars were ill-advised or properly executed is a different argument altogether. But no one can rationally make the argument that the conflicts mentioned in this article were unconstitutional.

Presidential Nominee Romney? Not So Fast.

Even though he hasn’t quite yet got the 1144 delegates necessary to cinch the Republican nomination, since the rest of the candidates having either suspended their campaigns or just run out of money to actively do anything, Mitt Romney is now the presumptive nominee. Indeed, he’s already turned his focus to the campaign against the sitting president. The apparatchiks of the Republican party are looking forward to the national convention being a pro-forma coronation ball, with the message that we must all unite “for the good of the party” to beat Barack Hussein Obama.

That’s certainly the message that’s being communicated throughout the Republican party establishment. Ah, if only it was that easy. From where I sit, there are still a lot of really pissed off people at the lowest levels of the conservative side of America. The most charitable thing that can be said for their relationship with Romney is that they view him with deep suspicion. I doubt they will ever quite get over that, and Romney’s mandate as the Republican candidate is tenuous at best.

One could logically point out that it’s mathematically impossible for any other candidate to get the required delegates, so Mitt is the nominee, get over it. Not so fast. A lot of the delegates that are showing up in Romney’s column aren’t as firm as the party and the media would like you to believe. For example, my State of Washington will send 45 delegates to the national convention. 5 of those are automatic slots for state committee members, 10 of them are delegates at large, and the rest will be made up of delegates selected from the ten congressional districts. Since Romney won the non-binding straw poll, everyone assumes that they can chalk up 45 delegates in his column.

And here’s where politics come in to play. First of all, there are an awful lot of Ron Paul delegates going to the state convention, because the Ron Paul machine is very well oiled up here. Then you have to factor in the delegates who caucused for Santorum and Gingrich. These are basically free agents, capable of tilting the race in either direction if they vote as a bloc. And this is the critical thing. Romney has given them no reason to get behind his campaign, and there’s a lot of reasons - still – to vote against him. The Romney organization was unable to turn the tide at the county conventions, and as of this writing, it's highly likely that 2/3 of the Washington delegates going to the national convention will be other than Romney supporters.

This isn’t sour grapes or a conservative temper tantrum by people who didn’t get their way. Our representative government system is designed to ensure that the minorities aren’t steamrollered by the majority. For the non-Romney people, there’s a very big motive to deny Romney a clear victory going into the national convention in Tampa.

The worry among the rank and file conservatives is that this is going to be a replay of the G.W. Bush administration. Instead of reforming a new government, with fresh new ideas and a new perspective on how things work inside the beltway, Bush 43 loaded his administration from top to bottom with the republican old guard, resurrecting many of his Father’s people and placing them back in top positions to run the country. This wouldn’t have been that much of a problem if his dad had overseen an exemplary administration, but that wasn’t the case. Bush 41’s presidency was mediocre at best, characterized by moderation, and ultimately doomed by disillusioned conservatives who wanted to believe in something besides the status quo, no matter how outrageous it sounded. His son deliberately designed his administration to be more of the same.

Romney is perceived to be a Republican establishment creature, and is expected to load his administration with cronies and establishment insiders. The chatter over his Vice Presidential possibilities is indicative. The short list all revolves around established names in the party machine: Bobby Jindal, Marco Rubio, Chris Christie, Bob McDonnell, etc. The idea of Allen West is pooh-poohed by the talking heads as being “inexperienced,” “unseasoned,” etc. The fact is that he was put into office by the TEA party and does not toe the party line. Therefore he’s not in consideration.

This kind of attitude does not sit well with the not-Romney majority of the Republican party, and this contingent seems to be reaching critical mass. They’re talking to each other and planning. The Ron Paul and Rick Santorum enthusiasts are realizing they have more in common than they have differences, and that together they may be able to gather enough power in the national convention to squeeze some major concessions from Romney regarding cabinet positions and the makeup of his administration.

There’s a general sentiment from the not-Romney folks that they realize that the nomination is a done deal, but they want to register a protest vote to put the establishment on notice that we’re mad as hell and we’re not taking it any more. But if the power of the minority of delegates who have the ability to swing the vote is focused by thoughtful application and choosing their fights, they might be able to drag the Romney ticket kicking and screaming back to the right.

Some of the things that such a conservative alliance could push for might include appointing Ron Paul as the Secretary of the Treasury, John Bolton as Secretary of State, Newt Gingrich as Director of the Office of Management and Budget, David Petraeus as Secretary of Defense.

Among the faces we don’t want to ever see near 1600 Pennsylvania Ave are Karl Rove, Donald Rumsfeld, Dick Cheney, Colin Powell, John McCain, John Ashcroft, Ben Bernanke, John Beohner or Tom Ridge. This country has been driven into the ditch by the shortsightedness that such people brought to their service, and it need not be repeated. We no longer need Washington insiders who know how the system works and have a vested interest in perpetuating it. We need fresh blood at all levels of the new administration who are inclined to ask “Why the hell are we doing it this way, and where does it say you can do that in the constitution?”

We can have such an administration if conservatives force Mitt Romney to accede to their demands before they agree to nominate him. That will take a lot of coordination and trust among the not-Romney delegates. Deals will have to be made, and everyone will have to understand that they won’t get everything they want, but their piece of the pie can still be substantial.

Is Ron Paul Still a Viable Candidate?

I stepped into the political ring this year, and it’s been quite an education. I first went to the precinct caucus to provide a voice of reason against a very strong and very well organized Ron Paul contingent in my part of the state.  This ultimately led to my being selected to go first to the county and then to the state convention, where I would have a chance to run as a delegate for the National Republican convention if I wanted to go.  I don’t think I’ll do that, because I have other financial priorities at the moment.

But one of the effects of this activity is that I’ve learned that what the media is reporting is often very different from what’s actually happening.  The conventional wisdom right now is that Mitt Romney is the presumptive nominee for the Republican party.  He’s the anointed one by the mainstream media and the Republican party establishment.

But from my position in the trenches, I’m not seeing it.  For example, he won in the Washington state straw poll that was taken on the day of the caucus, and so Washington was declared for Mitt Romney.

Not so cotton-picking fast.  The Ron Paul and Santorum campaigns got organized before the county conventions, and with some cooperation from the grass roots that wasn’t authorized by the Gingrich campaign, these three campaigns unified to send proportional numbers of delegates to the state convention, almost completely shutting out the Romney delegates.  From what I hear, this wasn’t the only county where this happened.  Numerically Romney may still have more delegates at the state convention than the other campaigns, but hardly a plurality.  With the Santorum and Gingrich delegates now being basically free agents, the Not-Romney delegates far outnumber the Romney delegates.  I could easily see a scenario where Washington sends a delegation composed of Ron Paul and free agents to the national convention, completely shutting out Mittens.

The word to the media and to the Romney campaign is, therefore, don’t count your chickens before they’re hatched.  There’s a ground swell of resentment among the conservatives of this nation, fueled by the TEA party, that’s sick and tired of the career, business as usual, establishment Republicans who vote the status quo in congress and don’t use their majority status to render the liberal democrats irrelevant. Conservatives on the grass roots level are tired of Republicans reaching across the aisle and then getting jerked off their feet. Bipartisanship to a Democrat means voting the Democrat agenda, nothing more.

So does Ron Paul have a chance?  Based on his campaign to date, I sincerely hope that answer is no.  Don’t get me wrong, I like what Ron Paul has to say on domestic policy, I really do.  We need the federal government to relinquish all powers that are not specifically enumerated in the constitution.  We need to get spending under control, and we need to abolish the federal reserve system.

But Ron Paul’s stated foreign policies are completely at odds with reality.  He seems to have no rational approach to evaluating the intent of foreign powers and how the actions of foreign powers affect the United States.  His statements about Domestic vs. Foreign energy production seem to be at odds with his stated endorsement of free trade.  His ideas about precipitously reducing the US military presence worldwide is ill-advised, does not reflect the very complex reality of world affairs, and could very easily result in millions of deaths where just the implied possibility of US intervention is a stabilizing influence in simmering regional conflicts.

The problem with Ron Paul is reflected in his followers, who mostly have a very libertarian bent.  Remember that Ron Paul was himself the Libertarian candidate for years, until he adopted the “If you can’t beat ‘em, join ‘em” attitude that got him elected to congress.  His problem is that his rigid adherence to principle makes him unable to provide a flexible, well-reasoned response to the realities of a given situation.  Given a Republican congress, this inflexibility would actually be an asset in correcting the course of the nation, but in international affairs, that flexibility will be taken advantage of by agents who do not have the best interests of the USA in their hearts.  A flexible, restrained, realistic approach to international affairs is essential to prevent a repeat of the bloody chaos of the twentieth century.  In this realm Ron Paul has demonstrated that he’s no historian, and no social scientist.

Based solely on the support of his ardent – almost religious – following, Ron Paul cannot win the nomination.  But given the very large pool of free agent delegates Ron Paul could force a brokered convention and could conceivably win the nomination if he played his cards right.  There’s a huge number of delegates already in place that would love nothing better than to poke a stick in the eye of the likes of Mitch McConnell and John Boehner and put them on notice that their moderate, RINO way of governing isn’t playing well in Peoria.  The problem that's causing these anti-establishment folks to lose sleep is the idea that a protest vote against the establishment selection of Romney could be too successful, and they end up accidentally nominating Ron Paul!

This doesn’t have to be a bad thing.  Ron Paul could re-ignite his campaign with the remaining undecided or recently disenchanted Santorum/Gingrich camps by stepping back from his foreign policy rhetoric, hiring John Bolton as his foreign policy advisor and potential Secretary of State and making the following concessions to the independent delegates:

• The USA will continue to uphold ratified treaty obligations, including those that require American forces to be stationed overseas.
• The USA will support the nuclear non-proliferation treaty and actively work to deny nuclear capability to unstable countries, i.e. Iran and presumptively North Korea.
• The USA will continue to provide unwavering support to our closest ally in the Middle East, Israel.
• The USA will continue to be an advocate for international law and the sovereignty of all nations.
• The USA will continue to be an advocate of human rights around the world, and will work against all nations who play politics with hunger.

Ron Paul’s stated policy to bring the troops home from all over the world is a laudable one, but totally impractical in the short term.  In the long term this would be a very desirable goal.  But we’ve spent the last 70 years insinuating ourselves into world affairs, and have for better or worse been cast as the major player in many regions outside of North America.  A withdrawal from these stages would need to be well-planned and carried out over a period of years if not decades, to allow these regions the opportunity to adjust to a different balance of power without collapsing into chaos.  Chaos kills people and is bad for business.

If Ron Paul can re-brand himself on international policy; if he will publicly admit that he’s weak in this field and will hire and take the council of reputable experts, then he could very well squeak out a win.  And if this were to happen, I wouldn’t have a problem with that.  Hell, I would heartily endorse the man and raise a toast to his honor!

The lesson to the Ron Paul enthusiasts is that a half a loaf is better than none.  The Ron Paul camp consistently wants ALL of their agenda implemented, no exceptions, and have been unwilling to cooperate with people whose ideas do not match theirs.  They fail to recognize that this rigid idealism inevitably alienates them from people who share most of their values, and results in the candidate who least represents their positions from getting in power.  Very good case in point:  In the Washington state governors race between Christine Gregoire and Dino Rossi, the margin by which Gregoire won was very very tight.  So tight, in fact, that the number of votes cast for the libertarian candidate - that's the same group that will vote for Paul - was more than the number of votes that Rossi needed for a win. I fail to see how electing the liberal Gregoire does anything to promote the cause of the libertarians.  Quite the opposite.  One lesson we need to take from how the liberal agenda has been implemented is that incrementalism works.  The all or nothing mindset of the Libertarian, Ron Paul supporters is self-defeating and needs to be dispensed with.