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At dinner last night, one of my very liberal neighbors pointed out that pretty soon U.S. President George Bush will run out authority for running around chasing terrorists with U.S. military assets.  The conversation stopped immediately.  Everyone knows I am the resident military  authority on our block and these sounded like fighting words.  But the real reason it stopped was because I was, so to speak, pole-axed.  Then tonight that Hardball guy on MSNBC had Buchannan and some other fellow aruging over it.  Seems they haven't read the law very well.  So we thought we'd brief you -- the backyard barbeque court is now in session.
 

Does the U.S. President have the right to Expand the War on Terror
 
 

Our BBQ group all pretty much agreed back in September that the President could order a retaliation as long as he carefully laid out who did the deed, where they live and, as this same liberal neighbor  insisted, we gave the people harboring those people a chance to give them up.  So when Bush, unaware of our strategic advice did all these things, we were all pretty satisfied.  It turns out there were some legal hurdles our policy satisfied as well.  But, as the liberal neighbor warned back then, the President has to be careful when (my neighbor didn't even consider using the IF word, we all knew where this was going) he expanded.  And now the sanctimonious SOB was pulling a "I told you so" and ruining our BBQ steaks,  hot dogs and our carefully prepared scalloped potatoes (I like to spell it this way too -- its a cultural thing). There are really two issues here.  The President IS the Commander and Chief of the U.S. military.  So his retaliation is sort of supported by "action reaction" language in the both civil and military code. I say "sort of" because, in the past, the founders wrote the rules based upon warfare as they knew it. Nation vs. Nation.  Even the French-Indian war was a pretty clear national war.  "They" in that case were the French and their allies.  You could also stretch just a tiny bit and say the allies of the French, certain East Coast tribes of Indians, also were a nation, a place to go to retaliate.  Even under the Geneva Convention the Indians in question qualified as "combatants" since they put on special "uniforms" and painted their faces to indicate their membership in a specific group considered combatant troops. The notion of "declaring war" was written into the common law and this implies that there must be a nation to declare war upon.  We all saw this debate on television many times before President Bush committed troops to Afghanistan and recently as the debate about detainees versus prisoners of war sprang up. It was lucky in some sense that our terrorist antagonists chose to hide out in Afghanistan and choose the Taliban as their chief (at least publicly identifiable) supporter.  When the Taliban refused to turn them over, a rare occasion in the fight against terrorism occurred -- we had a nation we could pursue terrorists to and retaliate against.  In fact, this in of itself is a landmark decision made by President Bush. By attaching a supporting nation to a specific terrorist group, it makes it possible to get much closer to the needed declaration of war.

Washington Brief  - Alan Simpson in Washington George W.  may have the legal authority to scream "Attack", but he has no real authority to buy the stores, equipment, and resources to carry out that order.  One thing nobody is looking at, or  asking questions about in public, is the cost.  The President has made one hell of a lot of promises, both of resources and cash, to world leaders, to join his parade.  There is no mention in any media story,  of the cost of running this campaign in Afghanistan. There still has been no costing of earlier farces in Afghanistan, to distract the world away from Monica Lewinsky. We do know we presented the Chinese with unexploded Tomahawks, to disassemble and produce. Maybe that was reward enough, for President Clinton! Many military leaders are  worried about the state of the military infrastructure. It is all well and good equipping a handful of Rambo Special Forces, for "Made for TV" raids, but many believe that the US is fast depleting it's overall capabilities, after years of neglect.  If we decide to unilaterally attack Saddam, with the chance that Iran may join in, against the "Evil Satan", then we will need more than well-equipped Special Forces.  Many senior officers, in private, are very negative about their level of equipment, and personnel. Never mind focusing on the man proposing to shout "Charge" let's ask "What with" and then "Who pays!" The answer to the latter is of course Congress, when all the invoices are in. That will not be pretty! © Copyright, 2002, Alan Simpson

In this case our brave Congress generated resolutions supporting the President's "Declaration".

What all the text in this article means up to this point, is that the U.S. Congress supported the President by passing a nasty letter to the antagonist.  What else do you expect from a bunch of lawyers.  But it has cleared the way for Presidential action, preparing action, cognizant of laws enacted relatively recently in Constitutional history.
 

Why All The Legal  Hoops?

After Nixon pissed Congress off to no end, Congress began figuring out ways to limit the President's powers of acting out war fantasies.  One result is the War Powers Act of 1973,  which sets out conditions that eventually start building limits on Presidential actions.

The first hurdle is crossed when you want to do non CIA clandestine operations -- i.e. deploying U.S. Special Forces.  Current law requires a finding for non-CIA clandestine operations (Hughes Ryan Act  -- the Act was written with the CIA's charter in mind -- they can do covert action all year long as long as the oversight committees -- House and Senate Intelligence Committees don't have a problem).  This finding can be held for a "reasonable amount of time" -- most agree it is 30 days max.  Then the finding must be presented to Chairman and Ranking member of each of the House and Senate Armed Services and Intelligence Oversight Committees (total of 8 people).

Whether the beginning is covert or not, the clock starts ticking to a 60 day countdown.  At the end of that period, the President must go back to Congress and get a waiver -- typically to allow time for an organized and safe withdrawal -- or Congress would need to declare war.

In the current situation, we were not acting in clandestine manner.  The President presented a request similar to the finding discussed earlier directly to Congress at the same time he addressed the nation with his personal "Declaration of War on Terrorism".   Congress responded with very vague support in the form of House and Senate resolutions, similar to the Tonkin Gulf resolution that allowed continued action in Vietnam.

Since the War on Terror was "declared" in September of 2001, and Congress has already written their  nasty letter which constitutes a pseudo-declaration of war (actually more like an indefinite waiver) , the President can continue to exercise his policy of committing U.S. troops to combat in the War on Terrorism.   You could drive a few countries through resolutions languages, so we don't perceive of any real legal challenge to the President's  moving the war into any country he desires.  We believe there is a classified annex to the authorization, however which may be more specific on options Congress and the White House agreed upon.

In any case, as the operations in Afghanistan are winding down,  we've already heard the grumblings about limiting the President's expanding the war.  Armed Service Committee Chairman Levin asked a pointed question of the Chairman of the Joint Chiefs Meyers-- "Your aren't currently planning any movement of major troops strengths outside of Afghanistan..." (paraphrased).  This leading question was, we believe, intended to either get the CJCS to either say yes, starting the clock on any such activity, or no, thus making it almost impossible for any overt action without the CJCS and the President to do a quick brief beforehand.  Moreover, Congress can at anytime, just as was done in the case of the Boland Amendment, decide to withdraw the President's "license".

Of course the press has regularly spent a few hours on this topic area (about every two to three weeks), reminding everyone that they are watching the President oh so carefully.   The "training exercises" in the Philippines not withstanding, the clock has not started ticking on action anywhere else in the world -- as far as we know.

But for purposes of argument, let's assume there is a finding stored in a safe in the President's office -- for instance, George W. might have outlined his reasoning for carrying the War on Terrorism to the "Axis of Evil". Further, let's say he filed it the same day he delivered the Axis of Evil remark -- the State of the Union Address, 1/31/02.   This finding would have specifically addressed where and when covert operations would begin and summarize the mission and perhaps the conditions that would allow cessation of the clandestine action. Once he had done this, the President could then turn to SecDef Rumsfeld (presumably with a copy of the finding), 'let's get operation Pull His Teeth ready.  Let me know soonest it can go."

Rumsfeld and CJCS Meyers would huddle and then CINC-CENTCOM Tommy Franks would get a warning order.

In other words, the President, on his own initiative could commit us to a campaign against Iraq just as soon as his military team can be ready to be inserted.  He needs nothing from anyone else.

However, 60 days from when the clock started ticking (in our example on the last day of March, 2001) a decision point would come rolling up.  If the public relations were stinky, i.e. Europe has gone non-linear or the body count is a little hard to accept, Congress could pull the plug.
 

Start-Stop:  The American Risk

Literally, we could start a war and fail to finish it.  Quite easily.  And this fact is well known and understood by our opponents.  It is a major hurdle we continue to have to leap over whenever we ask people to accept our help in violently over-throwing a government.  A committed President doesn't mean diddley if Congress turns sour..  We can be there at the beginning like gang busters, but in a few months later our fickle Congress simply turn it all off  That is a pretty scary proposition for local people putting their lives in our hands by trying to depose their local dictator.

Congress has forced the withdrawal under no-uncertain terms only once. The Boland Amendment in 1982 amended the War Powers Act specifically to force President Ronald Reagan to withdraw ALL covert operations from support of the Contras in El Salvador and Nicaragua).  While this was landmark legislation and is one of the few but growing examples of heated legal wrangling between the Executive and the Legislative branches of our government, the Act was later repealed.

The bottom line is that the President could, legally, already have Spec Ops warriors on the ground preparing for a campaign in Iraq or Iran or North Korea.  The most likely is Iraq, but a VERY close second would be Iran.  However, since the President only has to state his reasons for his actions in the finding, there is only politics preventing him from moving the war to any country he desires.

Of course, the political danger ranges from "a little rough" for Iraq, to "a little more dicey" for Iran, and to "really ugly fallout" for North Korea".

Small exception come to mind... Iran might be a little easier, since reports have been rampant of Iranian aid  and perhaps even training troops creating problems along the border of Iran and Afghanistan.  This might provide, if events cook along in that direction, the political rationale for going into Iran.  In the case of Iraq, there is an already well built case for attack based on refusal to comply with the Gulf War Treaty -- substantially the U.N. WMD  and U.N. inspection regimes.  Recent U.S. rhetoric has refocused world attention on this topic area, perhaps preparing the way forward.
 
 

 © Copyright, 2002, Michael Crawford, MILNET

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