Archive for the ‘war powers’ Category

Regarding the Policy Toward Syria

RegardingThePolicyTowardSyria   <–  PDF version

The civil war in Syria has been in progress for about 30 months, and an estimated 100,000 people have been killed thus far.  The U. S. government has claimed to have evidence that the national forces in Syria loyal to President Bashar Assad used some form of chemical weapon on 21 Aug 2013 in a suburb of Damascus, resulting in the deaths of 1429 people, of which 426 were children.  This information was detailed in an unclassified document released by an unidentified component of U. S.intelligence services, according to U. S. Secretary of State John F. Kerry on 30 Aug 2013.  Members of Congress and the administration have been given further classified briefings on the subject.  In Mr. Kerry’s address, he cited “clear and compelling” evidence that Mr. Assad’s forces had used chemical weapons, noting America has an “obligation to act”, and that “Assad must be punished for his crime against humanity”.  President Obama stated on 31 Aug 2013 that that America must “hold the Assad regime accountable for the use of chemical weapons” in order to confirm the “writ of the international community” against the use of those weapons.  Although he did not mention it, presumably Mr. Obama was referring to prohibitions on the use of chemical weapons per two treaties, The Geneva Protocol and the Chemical Weapons Convention [1, 2].  The President also claimed that America “can not and will not turn a blind eye to what happened in Damascus”; that “this menace must be confronted”; and that although he had unilateral authority to attack Syria in response, he would seek authorization from Congress when it returned from summer vacation on 9 Sep 2013.

On 1 Sep 2013, Mr. Kerry further stated that “we do not grant impunity to a ruthless dictator to gas his own people”.  Senator Jack Reed likewise stated that America must “vindicate this principle of international law” against the use of chemical weapons; and former Senator Joseph Lieberman called Mr. Assad a “mass murderer”.

Mr. Obama has clarified the extent of any military action, saying a) it will be of a limited duration, b) it will not cause any U. S troops to be deployed in-country, and c) it will not seek to overturn the government of Mr. Assad.  According to public reports, these limitations imply that any U. S. attack on Syria will involve only cruise missiles, likely targeted at either chemical weapons factories or air bases.  The urgent tone of Mr. Kerry’s 30 Aug address, implying that action was imminent, followed by Mr. Obama’s 31 Aug announcement that he will wait nearly two weeks for a Congressional vote has caused some confusion in the Middle East.  The Syrians and their Iranian allies are celebrating an apparent political victory.  The Israeli’s are angry at Mr. Obama’s timidity and question his sincerity about another ultimatum he previously issued regarding Iran’s development of nuclear technology.  The Syrian rebel forces are disappointed but hopeful that a positive vote by Congress will assure them of consistent aid by the American military.  Meanwhile, the British Parliament has denied Prime Minister David Cameron’s request to pursue military action against Syria. France has announced it is in favor of some action, but has declined to say what they are contemplating.

The focus on chemical weapons by the administration derives from a speech given a year ago by Mr. Obama, in which he referred to the use of any chemical weapons by the Syrian regime as a “red line” that would trigger a response by the U. S.  Given the current confusion over the actual policy, it is clear that Mr. Obama issued a “red line” threat without having a firm approved plan in place to act if the red line were crossed.

There is some confusion among the American ruling elite regarding Mr. Obama’s unilateral powers.  Some, like Senator Rand Paul advise Mr. Obama that he requires authorization from Congress.  But there are many others like Representative Peter King, who claims that Mr. Obama “does not need Congress to authorize a strike on Syria”.

Let us consider some facts outside this jungle of rhetoric.  First, it is important to remember that the population of Syria is Arab.  Nearly all Arabs practice the religion of Islam.  The religion of Islam demands a totalitarian government, preferably a religious one.  But most Arab nations are governed by secular dictators, having succeeded in winning the secular tribal wars and neutralizing the active religious elements.  An Arab dictatorship (or an absolute monarchy) is a good thing for Arab nations: these totalitarian governments maintain some semblance of peace and order; otherwise the Arab race would have exterminated itself several centuries ago in intra-Islamic religious warfare.  History shows that the Arab race requires absolute government for its very existence, whether provided by the Romans, the Byzantines, the Turks, or their own domestic tyrants.  The Arab people, with their long and distinguished history, expect the worst from their governments, as they also expect the worst from each other. If in fact Mr. Assad used chemical weapons against the Syrian people, it is not much of a surprise to them.  On the other hand, it will also be no surprise to them if it is found that the rebel forces or Hezbollah used them.

Second, the American people should expect this whole Syrian debate to be a continuing fountain of political hypocrisy by the respective ruling Parties.  If Congress authorizes an attack on Syria, but the President decides not to follow-through, he will be accused of weakness and abandoning Israel.  If Congress authorizes it and he does launch a very limited attack, the President will claim a great moral victory but will in fact accomplish nothing.  If Congress refuses the authorization, and the President attacks anyway, he will justify it as a police action and not an act of war; two weeks later he will claim he went to war to preserve international consensus.  If Congress refuses the authorization and the President abides by it, the ruling elite will have somehow managed by accident to obey the intent of the Constitution (Art. 1, Sec 8).  For any attack upon Syria is an act of war, even if it is limited to cruise missiles.  (If Canada launched cruise missiles against Ft. Drum (Watertown, NY), or Mexico against Ft. Bliss(El Paso TX), both would surely be regarded as acts of war by the entire ruling elite.)  The U. S. Constitution was founded on the notion of just war in the interest of the American people, not the interest of people fighting in foreign civil wars; nor to satisfy the moral conscience or ambition of government officials.  As John Jay wrote in The Federalist #3:

Among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their safety seems to be the first.  The safety of the people doubtless has relation to a great variety of circumstances and considerations, and consequently affords great latitude to those who wish to define it precisely and comprehensively.

At present I mean only to consider it as it respects security for the preservation of peace and tranquility, as well as against dangers from foreign arms and influence, as from dangers of the like kind arising from domestic causes.  As the former of these comes first in order, it is proper it should be the first to be discussed.  Let us therefore proceed to examine whether the people are not right in their opinion that a cordial Union, under an efficient national government, affords them the best security that can be devised against hostilities from abroad.

The number of wars which have happened or will happen in the world will always be found to be in proportion to the number and weight of the causes, whether real or pretended, which provoke or invite them.  If this remark be just, it becomes useful to inquire whether so many just causes of war are likely to be given by United America as by disunited America; for if it should turn out that United America will probably give the fewest, then it will follow that in this respect the Union tends most to preserve the people in a state of peace with other nations.

The just causes of war, for the most part, arise either from violations of treaties or from direct violence. America has already formed treaties with no less than six foreign nations, and all of them, except Prussia, are maritime, and therefore able to annoy and injure us.  She has also extensive commerce with Portugal, Spain, and Britain, and, with respect to the two latter, has, in addition, the circumstance of neighborhood to attend to.

It is of high importance to the peace of America that she observe the laws of nations towards all these powers, and to me it appears evident that this will be more perfectly and punctually done by one national government than it could be either by thirteen separate states or by three or four distinct confederacies.

Jay’s main argument is that the thirteen states would be better able to obey treaty provisions, and to negotiate better ones, if united under the Constitution than by entering into treaties individually.  Likewise a united nation will be better prepared to respond appropriately to violations of treaties by foreign powers.  We can discover the meaning of “the law of nations” from the same source as the Founding Fathers did, the eminent English jurist William Blackstone [3]:

If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws than the law of nature [morality, or the duty towards one's neighbor], and the law of God.  Neither could any other law possibly exist: for a law always supposes some superior who is to make it; and, in a state of nature, we are all equal, without any other superior but Him who is the author of our being.  But man was formed for society; and, as is demonstrated by the writers on this subject, is neither capable of living alone, nor indeed has the courage to do it.  However, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many, and form separate states, commonwealths, and nations, entirely independent of each other, and yet liable to a mutual intercourse.  Hence arises a third kind of law to regulate this mutual intercourse, called “the law of nations”, which as none of these states will acknowledge a superiority in the other, cannot be dictated by any, but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between these several communities: in the construction also of which compacts we have no other rule to resort to, but the law of nature; being the only one to which all the communities are equally subject …”

These show that committing an act of war against Syria is justifiable under only two circumstances: a) if Syria were to attack the U. S. directly; or b)Syria had violated the terms of a treaty and the violation is either against the U. S. directly, or obligates the U. S.to defend other signatories.  Neither case arises here: a) Syria clearly did not attack the U. S.; and b) secondly, neither of the aforementioned treaties prohibits the use of chemical weapons in a domestic conflict, nor do they obligate any signatory to respond to any use in violation thereof.

If the U. S. does attack Syria, it will do so only because our ruling elite has arrogated to itself the power to regulate the internal affairs of other nations.  The President has claimed that such an attack, if accomplished, will not involve an actual invasion.  But these so-called minor military adventures sometimes expand in scope as recent history has proved.  We should also remember that if a great power like the U. S. attacks a minor power like Syria to interfere in a civil war, the U. S.will end up with imputed responsibility for the outcome.  A previous paper [4] provided a crude means to estimate the cost and duration of full-scale wars as fought in Iraq and Afghanistan; for such a war in Syria, the cost would come to about $ 179 billion, and the duration would be about 2.7 years.

[1]        The Geneva Protocol, formally known as the “Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare”, was signed 7 Sep 1925.  The U. S. abided by the provisions of the Protocol, but was not formally ratified by the U. S. Senate until 16 Dec 1974.

[2]        The Chemical Weapons Convention prohibits production and use of chemical weapons, provides for scheduled destruction of chemical weapons, but contains no provision for punishment of violators.  It was signed 13 Jan 1993 and ratified by the U. S. Senate ratified 24 Apr 1997.

[3]        Sir William Blackstone, Commentaries on the Laws of England, 1765, Vol. I, p. 43; the sections in square brackets are summaries of Blackstone’s footnotes.

[4]        Edward D. Duvall, Formulas for Estimating the Costs of War, 24 Mar 2012.  For Syria, the value of f is 4, and g is 6.25.  Syria’s area is 186.4 sq. km and its population is 22.53 million.  See archives for Mar 2012 at http://edduvall.com, or directly at  http://0336a2b.netsolhost.com/WordPress/?m=201203

Tags: , , ,
Posted in Federalist Papers, John Jay, treaties, U. S. Constitution, war powers | No Comments »

Obama, Bush, and War Powers

Obama_Bush_and_WarPowers  <==  PDF version

Mr. Steven Thomma, a reporter covering the White House for the McClatchey Newspapers, published an article today called “Obama: The New ‘W’”.  Mr. Thomma recounts the historical facts regarding how Mr. G. W. Bush initiated both wars in Afghanistan and Iraq by first obtaining approval from Congress, whereas Mr. Obama proceeded to conduct warfare against Libya, who did not pose an imminent threat, without even notifying Congress.  Mr. Thomma also quoted Mr. Obama from an interview in 2007, prior to his election to the Presidency, in which Mr. Obama confirmed his view that Presidents do not in fact have a unilateral power to initiate war unless an attack upon the U. S. is so imminent as to preclude approval from Congress.

It seems that Mr. Obama understood the importance of gaining Congressional approval while he was a member of Congress; but now that he is President, it seems like he is not so particular about the Constitutional provision.  For us, it is important to understand why those powers were divided as they were.

James Madison made a point about the general powers of the federal government in regard to war and peace in The Federalist No. 41, without discussing directly how such power was allocated between Congress and the Executive.  He first summarizes the six general classes of powers to be granted under the Constitution, the first being “security against foreign danger”.  He then addresses what particular powers fall in that class:

            “The powers falling within the first class are those of declaring war and granting letters of marque; of providing armies and fleets; of regulating and calling out the militia; of levying and borrowing money.

            Security against foreign danger is one of the primitive objects of civil society.  It is an avowed and essential object of the American Union.  The powers requisite for attaining it must be effectually confided to the federal councils.

            Is the power of declaring war necessary?  No man will answer this question in the negative.  It would be superfluous, therefore, to enter into a proof of the affirmative.  The existing Confederation establishes this power in the most ample form.”

This is sufficient for explaining why war power in general exists at the federal level; but why is the particular power lodged with Congress?  For that, we have to recount the debates in the Constitutional Convention of 1787.  On the 6th of August, a committee had presented a draft of a constitution, one article of which stated that the national legislature (Congress) shall have the power “to make war”.  Here is the text of the debate on 17 Aug 1787 on this subject, per Madison’s notes [1]:

            “On the clause “to make war” –

            Mr. Pinckney opposed the vesting this power in the legislature.  Its proceedings were too slow.  It would meet but once a year.  The House of Representatives would be too numerous for such deliberations.  The Senate would be the best depository, being more acquainted with foreign affairs, and most capable of proper resolutions.  If the states are equally represented in the Senate, so as to give no advantage to the large states, the power will, notwithstanding, be safe, as the small have their all at stake, in such cases, as well as the large states.  It would be singular for one authority to make war, and another peace.

            Mr. Butler.  The objections against the legislature lie, in a great degree, against the Senate.  He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the nation will support it.

            Mr. Madison and Mr. Gerry moved to insert “declare”, striking out “make” war, leaving to the executive the power to repel sudden attacks.

            Mr. Sherman thought it stood very well.  The executive should be able to repel, and not to commence, war.  “Make” is better than “declare”, the latter narrowing the power too much.

            Mr. Gerry never expected to hear, in a republic, a motion to empower the executive alone to declare war.

            Mr. Ellsworth.  There is a material difference between the cases of making war and making peace.  It should be more easy to get out of war than to get into it.  War, also, is a simple and overt declaration; peace, attended with intricate and secret negotiations.

            Mr. Mason was against giving the power of war to the executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it.  He was for clogging, rather than facilitating, war; but for facilitating peace.  He preferred “declare” to “make”.

            On the motion to insert “declare”, in place of “make”, it was agreed to.

            Connecticut, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye, 8; New Hampshire, no, 1; Massachusetts, absent.

            Mr. Pinckney’s motion, to strike out the whole clause, was disagreed to, without a call of states.

            Mr. Butler moved to give the legislature the power of peace, as they were to have that of war.

            Mr. Gerry seconds him.  Eight senators may possibly exercise the power, if vested in that body, and fourteen if all should be present, and may, consequently, give up part of the United States.  The Senate are more liable to be corrupted by an enemy than the whole legislature.

            On the motion for adding “and peace” after “war”, it was unanimously negatived.

            Adjourned.”

This was the only debate on the subject in the Convention as a whole.  Re-reading Mr. Gerry’s comment again, it is shocking, is it not, the degree to which these men distrusted putting too much power in one place?  As we all know (or should know) Article I, Section 8 of the U. S. Constitution gives Congress the power to declare war, but Article II, Section 2 grants the President the power to make treaties, with the concurrence of two-thirds of the Senate.  This is how the founding fathers wisely distributed the powers of war and peace.

[1]  Jonathan Elliot, Debates on the Adoption of the Federal Constitution, in the Convention Held at Philadelphia in 1787; With a Diary of the Debates of the Congress of the Confederation; As Reported by James Madison, Philadelphia: J. B. Lippincott & Co., 1881, Vol. 5, pp. 438, 439

Posted in Articles of Confederation, Constitutional Convention, Early American history, Federalist Papers, U. S. Constitution, war powers | No Comments »