RUTHFULLY YOURS

Charles Krauthammer is usually an astute analyst of issues and often crafts perceptive and practical resolutions. In his column Who Takes Us To War?, however, Krauthammer’s resolution of the current impasse between the president and Congress over Libya would take us from the frying pan to the fire. Further, Krauthammer (acceptably since this isn’t the focus of his column) ignores the real underlying issue, how to wage war.

Krauthammer describes the impasse between President Obama and much of Congress and the public over his handling of the US involvement in the half-baked “kinetic’ operations with NATO in Libya. But Krauthammer advises to make the problem even worse by creating additional laws via a new grand commission to govern presidential-congressional relations over issues of armed actions. Such would, like all regulations, spew forth added complexities and wrangling, and possibly invite the courts into adjudicating matters of national security that to now they have avoided as properly “political” issues to be worked out between the president and Congress.

Krauthammer calls President Obama’s neglect of consulting with Congress over Libya and denying that we are actively involved in hostilities as “transparently ridiculous” and a “show of contempt for Congress and for the intelligence of the American people.”

Things came to a head today in the House, it rejecting both a resolution of support for the president’s course and a cut-off of funds for hostile operations. This leaves the president to proceed and leaves critics of his unilateral actions and the underarmed NATO campaign to fume.

There is only the defunding of operations by the Congress that may enforce the 1973 War Powers Resolution that requires justification to Congress and a time limit beyond which Congress should authorize continuing armed operations. The courts have repeatedly avoided stepping into disputes, saying they are properly “political” matters to be resolved between the president and Congress.

In the waning days of the Vietnam War, Congressional opponents passed the War Powers Resolution over President Nixon’s veto in November 1973. Despite its provenance, presidents and Congress have generally found ways to meet its intent while preserving their prerogatives, practical and constitutional. The Library of Congress Law Library outlines the provisions and their applications and compromises since passage.

Without explicitly undermining presidential powers by citing the War Powers Resolution, presidents have previously reported to Congress and received resolutions of support.

President Obama has not reported to Congress nor received Congressional approval. That sets him and Libya clearly apart from the past four decades of presidential-Congressional relations.

Krauthammer suggests that the course forward, a grand commission to create “a set of rules governing the legality of any future wars.” Krauthammers proposed commission:

“…say, chaired by a former president of each party, Bill Clinton and George W. Bush, and consisting of former legislators, judges and generals, with perhaps a couple of historians and not more than one international lawyer thrown in. Then submit the commission’s proposed law for approval by Congress and the president. And have David McCullough read the final text aloud at the signing ceremony. That will make it official.

One can rather easily imagine the combination of platitudes, restrictions and evasions, most mouthed in a lack of specificity, which would emerge. Challenges would be brought to the courts, which if not avoiding the core “political” issues as heretofore would further complicate our ability to wage hostilities. One need only look at the restrictions imposed on our counter-terrorism and detainment operations since 9/11, our military restricted by rules of engagement that often are a Catch-22 between accomplishing the mission and staying alive or being fried by remote officers or judges.

Krauthammer says, “We need a new constitutional understanding, mutually agreed to by both political branches, that translates the war-declaration power into a more modern equivalent.”

Instead, what we need is no further lawfare. Perhaps the US leading and widely respected authority on lawfare is Jack Goldsmith. Goldsmith critiques Karuthammer’s column:

There is thus no need for a new constitutional understanding.  What Krauthammer has in mind here is the old constitutional understanding applied in a world in which war declarations are things of the past….Since the 1790s and throughout American history Congress has in many wars placed conditions on the use of military resources, on the methods of force and the scope of authorized targets, and on the timing and other procedural restrictions on the use of force.

The real issue, at least from Vietnam to today, is that our presidents have failed to follow time-tested rules of war, most particularly surprise and mass but also in some cases unity of command. This has repeatedly led to dragged out conflicts, unsure prospects, and increasing costs. Popular and Congressional support understandably withered. Perhaps with the exception of pulling the fat from the fire by President George Bush’s surge in Iraq, our objectives have been woefully undermined.

Lawfare has further complicated our ability to wage war but not fatally (except for some in the military or among civilian targets of terror). Our military has continued to exhibit the courage and agility to accomplish difficult objectives, at least the objectives that they are allowed.

Americans and Congress will support winning and applaud it. In the absence of the clearly expressed and acted upon will to win, applying overwhelming mass, denying rear sanctuaries, and not incrementally ratcheting up so that the foe is able to adjust and reinforce, criticism and challenges will just add to the weakness of results and erosion of objectives.

As with the president returning to respect the partnership of Congress and the intelligence of Americans, the president – this one probably not, but future ones – must return to respecting the principles of warfare.