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May 21st, 2011

“Kinetic” War and the Constitutional Separation of Powers

By Patti Brown

In an interview with the Boston Globe on December 20, 2007, presidential candidate and then Senator Barack Obama said, “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

In response to critics, President Obama issued a letter Friday afternoon to congressional leaders saying that America’s military involvement in Libya was “limited” and, therefore, congressional authorization for continued involvement was unnecessary.

Just ask our veterans from Korea, Vietnam, as well as those from Iraq and Afghanistan, if they were soldiers in a war or in some sort of “limited” or “kinetic” military engagement.

When bombs are dropped and bullets are flying, it’s war.

Since U.S. military action in Libya began, President Obama has used the 1973 War Powers Resolution which allows the president to authorize U.S. military involvement for 60 days without obtaining a declaration of war unless one of three conditions is met. The first is that Congress has declared war or authorized U. S. military forces; the second is that Congress has extended by law an additional sixty-day period; or third, Congress is unable to meet due to an armed attack on the U.S.

According to Sect. 5(b)( 3) of the War Powers Resolution, without authorization, U.S. military involvement must end within the following 30 days: “Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.”

Our military involvement began March 19. The president formally notified Congress March 21. After getting home from a spring break vacation with his family in South America, the President got around to speaking to the American people on March 28 about what our military was doing in Libya. The clock on the original “sixty-day period” ended Friday, May 20.

In his letter yesterday afternoon to Congress, the president asked for a bipartisan resolution of “support” rather than for congressional authorization of war: “I wish to express my support for the bipartisan resolution drafted by Senators Kerry, McCain, Levin, Feinstein, Graham, and Lieberman, which would confirm that the Congress supports the U.S. mission in Libya and that both branches are united in their commitment to supporting the aspirations of the Libyan people for political reform and self-government.”

According to Article 1 Section 8 Clause 11—the War Powers Clause—of the U.S. Constitution, Congress, not the President, has the power to declare war.

The War Powers Resolution, commonly referred to as the War Powers Act, was passed as a response to U.S. involvement in both Korea and Vietnam, two military actions where U.S. troops were committed without a declaration of war.

In the case of Vietnam, our involvement began in 1950 when the French left and we first sent in military and political advisors, followed by military arms and other supplies in the mid 1950s, to some 1,000 military personnel by the end of 1961 to more than 15,000 by 1962 along with 250,000 arms, of which many fell into the hands of the Viet Cong. Three years later there were 75,000 U.S. troops in Vietnam, and by 1969 there were more than a half-million troops were “in-country.” Vietnam began as a “limited” military engagement. It was assumed that with some support, the Vietnamese would rise up and be able to fight their own fight.

We escalated our involvement, first by inches then by yards, and soon learned we were in an undeclared war without the authorization of Congress or the support of the nation. By 1975 when the last of our helicopters left as Saigon fell, 58,267 Americans had died, 303,644 were wounded in action, and 1,711 are still listed as missing. One of the last two soldiers killed in Vietnam was nineteen-year-old Lance Corporal Darwin Judge of Marshalltown who died on April 29, 1975 during a rocket attack. He was one of 869 Iowa soldiers killed in action in Vietnam.

The war that wasn’t a war left an indelible mark on our nation. It created a cynical generation which grew to mistrust its government, particularly on foreign affairs and national security measures.

The purpose of the War Powers Resolution was to allow the president to act in the role as Commander-in-Chief to protect the nation in emergencies, but to restrict the president from committing the U.S. forces without appropriate congressional authorization as specified by the Constitution.

Passed by the Senate and House as House Joint Resolution 542, President Richard Nixon vetoed the measure on October 24, 1973 stating that “the restrictions which this resolution would impose upon the authority of the President are both unconstitutional and dangerous to the best interests of our Nation.”

The founders believed it was good public policy to have a separation of powers, vesting Congress with the power to declare war and giving the President the power to direct the military, but only after getting the go-ahead by Congress.

Two weeks after Nixon’s veto, the 93rd Congress affirmed the founders’ vision of the separation of powers by voting to override the president’s veto and the resolution became Public Law 93-148 (87 Stat. 555).

Granted, Libyan leader Muammar al-Qaddafi is a tyrant who has committed horrific crimes against humanity both in his country and abroad. His regime lost any vestige of legitimacy as he turned the Libyan military on its own citizens this year. The world will be a better place when he is deposed of all power. However, continued U.S. involvement in air-strikes and other military activities against Qaddafi—despite authorization by the United Nations Security Council Resolution 1973 on March 17—is constitutionally illegal without an act of Congress. And the President’s attempt to justify continued military action by minimizing what they are doing as actions not requiring a declaration of war is duplicitous.

In his letter Friday to Congress, the President said: The initial phase of U.S. military involvement in Libya was conducted under the command of the United States Africa Command. By April 4, however, the United States had transferred responsibility for the military operations in Libya to the North Atlantic Treaty Organization (NATO) and the U.S. involvement has assumed a supporting role in the coalition’s efforts. Since April 4, U.S. participation has consisted of: (1) non-kinetic support to the NATO-led operation, including intelligence, logistical support, and search and rescue assistance; (2) aircraft that have assisted in the suppression and destruction of air defenses in support of the no-fly zone; and (3) since April 23, precision strikes by unmanned aerial vehicles against a limited set of clearly defined targets in support of the NATO-led coalition’s efforts.”

Twenty-first century warfare will not necessarily be fought with large numbers of troops engaged in traditional battles. Unmanned drones can be operated remotely by a computer operator in the U.S.  Stealth planes can fly precision bombing missions half-way around the world allowing pilots to make it back home in time to attend dinner with the family.

On a practical day-to-day level, the reality of war becomes invisible to the American public, until of course a local soldier is killed and brought home for burial. And even then, the reality of the our nation being “at war” is surreal, almost like a video game played out on cable news, sandwiched between reports about pop stars and sensationalized crime stories. And when we use euphemisms to refer to war, we distance ourselves even more from its gritty, harsh reality.

When the nation commits its military to acts of war, it should do so according to the laws of this nation, beginning with the U.S. Constitution which allows voters to have accountability through their Senators and Representatives.

The President’s request that Congress look the other way, that Congress merely give him a resolution supporting the use of U.S. military forces for intelligence, logistical support, search and rescue assistance, suppression and destruction of air defenses, and precision strikes against clearly defined targets is a dangerous request.

A war by any other name—whether it be “limited military engagement” or a new fangled “kinetic action”—is still a war. And according to the U.S. Constitution, a war needs an act of Congress for it to be legitimate.

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About the Author

Polly Twocents
Polly Twocents is the pseudonym for the political commentary of Patti Brown, a partner in the Iowa Policy Institute, a research and analysis firm specializing in public policy issues. Patti is an Iowa mother of five who has a masters degree in journalism with a minor in political science from Iowa State University and an masters in social work from the University of Iowa. Patti worked for many years as a social worker in hospital, hospice and mental health settings. In addition she has also been a staff writer and columnist for The Catholic Mirror and a writer for The Des Moines Register. She is unabashedly and consistently pro-life and pro-family. As a bleeding heart conservative, Patti believes in a limited, representative government, personal responsibility, individual opportunity, and free enterprise.

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