Balkinization  

Monday, April 07, 2008

What Does an Illegal War Look Like?

Marty Lederman

In the Washington Post yesterday, Bruce Ackerman and Oona Hathaway argued, not without some force, that when the current U.N. Iraq Resolution expires on December 31st, there will no longer be any factual predicate for the President's use of military force in Iraq pursuant to the 2002 statute that authorized such force.

Although the Bush Administration does not concede that congressional authorization will expire on New Year's Eve, it understands the strength of the argument, and therefore it is planning to establish new authorization, not by way of a treaty or law approved by Congress, but instead through a "sole executive agreement" with Iraq that would commit the U.S. to provide military support there for the foreseeable future.

As I understand them, Bruce and Oona argue that such a unilateral presidential agreement would be unlawful for one or both of two reasons: (i) the President does not have independent power to enter into such an agreement because he would not have the constitutional authority to unilaterally introduce troops into present-day Iraq in the first place; and/or (ii) such an agreement would violate implied statutory limitations -- "conditions" -- placed on the President in the 2002 law.

I tend to think although the recent Medellin decision gives some support to the first argument against the sole executive agreement, the second of these arguments (that the agreement would transgress limits implicit in the 2002 statute) is the stronger one. Nevertheless, both arguments are certainly contestable and, more to the point, President Bush will in fact reject both arguments, will sign the agreement with Iraq, and will keep troops in Iraq in 2009, without specific congressional authorization. As will the next President, come January 20, 2009. (Bruce and Oona point to proposed legislation that would forbid the use of funds to deploy troops in Iraq, but I'm assuming such legislation, if passed, would never survive a veto.)

And what then? Well, by that point, Congress will have done one of two things: It will either have appropriated funds in support of the continuing deployment to Iraq, or it will have dramatically limited its appropriation, to levels (or on conditions) that are only consistent with (virtually) immediate withdrawal. If, as is likely, it does chooses the former option, well then won't that appropriation provide the requisite legislative authorization to support the President's sole executive agreement, even if Bruce and Oona were correct that the agreement would be unconstitutional absent such approval?

Bruce and Oona say no: "Approving funds is not sufficient to authorize military action. If it were, the president could start any fight he pleased, and then force Congress to choose between exercising its constitutional powers and supporting the troops."

I'm not quite sure I understand this argument. Why is Congress limited to a Hobson's Choice? Couldn't Congress, instead of fully funding a full-scale operation in Iraq, insist that funds be expended only (i) for large-scale withdrawal and (ii) for limited functions of the remaining troops, as Senator Obama's proposed legislation would have done in 2007? In that case, not only would the President (arguably) lack independent constitutional power to prolong the military action in Iraq, he would be required by law to change course. This is how OLC put the point when the same issue when Congress appropriated funds to support President Clinton's controversial 1999 air campaign in Kosovo:
Some have argued that . . . appropriation statutes that fund ongoing war efforts do not constitute authorization of those war efforts. See . . . War Powers Legislation: Hearings Before the Senate Comm. on Foreign Relations, 92d Cong. 23 (1973) (statement of Professor Alexander M. Bickel) ("To appropriate money in support of a war the President is already waging, it seems to me, is no more to ratify his action in responsible fashion than to appropriate money for the payment of his salary."); . . . . This argument can take one of two forms. First, one could argue that a general defense-related appropriation statute does not authorize the ongoing hostilities because it provides only general defense-related funds and does not indicate any approval of the specific hostilities at issue. While this might be true, it does not undermine the basic principle . . . that an appropriation statute specifically and conspicuously aimed at funding hostilities may constitute authorization of those hostilities. Second, some have argued that appropriations, regardless of how specific they may be with respect to ongoing war efforts, should not be interpreted to authorize continuing military operations because those appropriations could just as easily be understood as providing resources for men and women already in combat, simply to ensure that they do not suffer as a result of a disagreement between the Executive and the Congress regarding the wisdom of the deployment. See, e.g., Mitchell v. Laird, 488 F.2d at 615 (declining to decide whether President Nixon had exceeded his constitutional power on political question grounds, but noting that, "in voting to appropriate money or to draft men a Congressman is not necessarily approving the continuation of a war no matter how specifically the appropriation or draft act refers to that war. . . . An honorable, decent, compassionate act of aiding those already in peril is no proof of consent to the actions that placed and continued them in that dangerous posture."). Although this may be true in some cases, in other cases, as Ely explains, this proposition "doesn't make sense . . . [because] Congress could [phrase] its funds cut-off as a phase out, providing for the protection of the troops as they [are] withdrawn." Ely, War and Responsibility at 29. Congress took such a step with respect to hostilities in Somalia in November of 1993, when it provided that funds could be obligated beyond March of 1994 only "to protect American diplomatic facilities and American citizens, and noncombat personnel to advise the United Nations commander in Somalia." Pub. L. No. 103-139, § 8151(b)(2)(B), 107 Stat. 1418, 1476 (1993). Alternatively, Congress could preclude the use of funds to introduce additional troops, as it did through the 1971 Cooper-Church Amendment, which provided that "none of the funds authorized or appropriated pursuant to this or any other Act may be used to finance the introduction of United States ground combat troops into Cambodia, or to provide United States advisers to or for Cambodian military forces in Cambodia." Pub. L. No. 91-652, § 7(a), 84 Stat. 1942, 1943 (1971). [FN: Banks and Raven-Hansen explain the difficulty with the objection that it is impossible to construe national security appropriations as ratification because of the circumstances of their enactment: "The objection is exaggerated and ahistorical. It seems to proceed on the assumption that Congress's choices are all or nothing; fund or deny all funding. But the Vietnam War itself showed that Congress has intermediate options, including funding phaseouts, prospective cutoffs, and, subject to separation of powers limits, area limitations." . . . .] In the end, the question whether a particular targeted appropriation constitutes authorization for continuing hostilities will turn on the specific circumstances of each case.
That is to say: The ball will be in Congress's court, after all. And in order to know whether the continuation of military force in Iraq in 2009 will be unlawful, well, show me the money.

Comments:

What powers do these statutes have anyway? If Bush chooses to proceed by forcing Congress to choose between enforcing Constitutional powers and supporting the troops, and Congress, out of fear of political suicide at the polls, elects to "support the troops" and Bush continues the illegal war in Iraq, what's the point of any of these laws if the party breaking them is highly unlikely to be prosecuted anyway?

Since these laws are hard for public to understand, political slogans will always win the hearts and minds of the American people rather than Constitutional statutes. Moreover, Congress will never prosecute a war-time president, no matter how unpopular. The consequence is straight forward and clear: Bush will continue the war in Iraq and legal limitations will just become marginalized as they have in the last 7 years.

http://rationalleft.com/
 

Won't this issue be a critical one for this November's congressional elections what with polls demonstrating a strong desire to end this mistake of a war plus economic concerns? Will Congress (especially the House) try to defer until after the elections? A lot can happen on the ground between now and November.
 

Ackerman should know better.

1) Under the Constitution, the UN has no authority to declare war or anything at all.

2) Article I authorizes Congress to declare or start wars. However, there is no provision enabling Congress to withdraw authority in the middle of a war any more than the Senate can withdraw approval for a Supreme Court Justice.

3) Congress enacted two AUMFs to go to war against al Qaeda and its allies and against Iraq which apply here.

The war against Iraq did not limit the enemy to the Baathist dictatorship. So long as there are Iraqis shooting at us, the war against Iraq is not over.

Even if the war against Iraq was won, the war against al Qaeda is ongoing and has been the primary mission of our troops in Iraq for a year now.

4) The executive agreement is in preparation for the end of the Iraq War and establishes ongoing security, SOFA and basing agreements ala Europe, Japan and Korea. It is not an authorization for a new war.
 

Even if the war against Iraq was won, the war against al Qaeda is ongoing and has been the primary mission of our troops in Iraq for a year now.

According to you, Al Qaeda has been fleeing Iraq for the last 5 years, so this is a complete load of crap.
 

i do agree that congress, once they have voted upon a declaration of war, cannot override the president's authority as commander in chief, and unilaterally end a war by declaration. this having been said, while i could be wrong about this, mostly because i frequently am wrong, it is my understanding that a declaration of war from congress must clearly state that it is, in fact, a declaration of war. "authorization of the use of military force" is not such a declararation, although i am sure there are some who will disagree with this. i would imagine inasmuch as war itself is such a terrifying and awesome responsibility to impose upon this country, that the declaration that we are at war with somebody must specifically state that we are, in fact, in a state of war, not that we are simply authorizing the use of military force for limited purposes; otherwise, in the past few decades, one could have argued that we were at war with, among others, somalia, kosovo and grenada.

this being the case, if we are dealing with such an authorization, rather than a declaration of war, regardless of what the president and his supporters may state, we are not in a "state of war", we are simply in a military exercise that has been authorized by congress. inasmuch as we are not in a state of war, it would seem to me that as easily as congress authorized the use of military force in this instance, it can also unauthorize it.
 

Second, some have argued that appropriations, regardless of how specific they may be with respect to ongoing war efforts, should not be interpreted to authorize continuing military operations because those appropriations could just as easily be understood as providing resources for men and women already in combat, simply to ensure that they do not suffer as a result of a disagreement between the Executive and the Congress regarding the wisdom of the deployment.

This argument a more than a little "genie out of the bottle" quality about it. Once we are at war, the debate over going to war is moot. Indeed, unless one interprets the declaration of war clause to bar a President from defending the country until Congress declares war, then if an enemy has started a war against us the power to declare or start a war is also mooted because the war is has already begun and there is nothing for Congress to start.

A very good argument can be made that a general authorization for military expenditures which the Executive uses to fight a war is not an express authorization by Congress to go to war.

However, I do not see how one can interpret a specific authorization to fund a specific war ala the Iraq and Afghan special appropriations as anything less than an implied authorization to fight the war.
 

2) Article I authorizes Congress to declare or start wars. However, there is no provision enabling Congress to withdraw authority in the middle of a war any more than the Senate can withdraw approval for a Supreme Court Justice.

There's always impeachment.

The war against Iraq did not limit the enemy to the Baathist dictatorship. So long as there are Iraqis shooting at us, the war against Iraq is not over.

So if an American shoots at a British citizen, the Revolution is not finished, and they can try to take us back over? Of course, a ludicrous point based on relative power, but historically it has been used to restart wars to reclaim lost territory. Arguing with this point is advocating a power position, not a legal position.
 

phg said...

it is my understanding that a declaration of war from congress must clearly state that it is, in fact, a declaration of war. "authorization of the use of military force" is not such a declararation...

Two items...

Article I grants Congress only one power to initiate hostilities - the Declaration of War Clause. Thus, Congress must be acting pursuant to this power to enact lawful AUMFs.

The Declaration of War Clause does not require any magic words. What is a declaration of war if not an authorization to use military force?
 

Bart de Palma wrote:

2) Article I authorizes Congress to declare or start wars. However, there is no provision enabling Congress to withdraw authority in the middle of a war any more than the Senate can withdraw approval for a Supreme Court Justice.

It is technically true that there is nothing in the Constitution authorizing Congress to pass a conditional declaration of war or a declaration of war with a sunset clause. But there's nothing in the Constitution authorizing Congress to pass any legislation with conditions or a sunset clause--for the simple reason that Congress's right to do this is too obvious to need explicit statement.

The comparison with confirmation of an appointment is inapposite. The Senate confirms under a special procedure set out in art. II, sec. 2, and has an explicit removal procedure -- impeachment -- set out in art. I, sec. 3.

However, the power to declare war is just one of many powers granted to Congress in art. I, sec. 8, and there is no indication that it is procedurally different from the others. Certainly the presentment clause, and all other explicit procedural requirements, apply. So the best reading is that if Congress can pass legislation authorizing the coinage of money only on certain conditions, or levying a duty for a limited amount of time, then it can pass legislation authorizing force for a certain period of time, or subject to certain conditions obtaining.

This textual/structural argument is, to my mind, wholly dispositive, but if you want judicial authority too, there's plenty in the Quasi War Cases.
 

alix:

The term "declaration of war" means a proclamation that a state of war against an enemy now exists. That term does not imply in any way a power to cease hostilities. Rather, the term means the polar opposite of ceasing hostilities.

Furthermore, there is no evidence of original understanding that the power to declare war included the power to include a sunset provision. In fact, there is no historical precedent for a sunset provision in a declaration of war either before or after the enactment of the Constitution.

Indeed, the concept of empowering Congress to declare a cessation of hostilities is absurd since the enemy is unlikely to recognize and obey a congressional resolution.

Finally, the Quasi War cases are completely inapposite. Congress was acting under its power to set rules for captured ships and was in fact actively avoiding going to war against the far more powerful Napoleonic France. These cases were interpreting the naval prize statutes and not the power to declare war.
 

"Bart" DePalma:

2) Article I authorizes Congress to declare or start wars. However, there is no provision enabling Congress to withdraw authority in the middle of a war any more than the Senate can withdraw approval for a Supreme Court Justice.

See here:

"No matter how learned my correspondent, I do not accept bare assertions as undisputed fact." -- BDP

I have even less regard for those that have been known to miscite case and hornbook law.....

Cheers,
 

"Bart" DePalma:

Indeed, the concept of empowering Congress to declare a cessation of hostilities is absurd since the enemy is unlikely to recognize and obey a congressional resolution.

This is a pragmatic objection. It may be unwise for Congress to do so, but likewise it may be unwise for Congress to declare a war yet this is their (and solely their) prerogative. As I've argued before, Congress has the power, in "regulating" the armed forces, to insist that all soldiers go into battle armed only with sporks. While unwise once again, this was given to Congress with the understanding that this august and deliberative body would be less likely to commit such a mistake than, say, the presnit doing the same (or sending troops to recover hostages in the midst of a sandstorm, or arming a bunch of rebels for a Bay or Pigs invasion, or giving arms to the mujahedeen, or invading a country "with the army you have, not the army you wish you have" ... well, you get the picture).

If we want to open the door to pragmatic concerns, it should be pointed out that there's no provision in Article II for the preznit to declare a cessation of any declared "state of war", so the text leads one to the conclusion that no war can ever be ceased (and thus any war declared will exist in perpetuity). Obviously, that can't hold. As pointed out above, inherent in the power to start something is really the power to not start it, or to stop it, absent any explicit specification.

One other difference between "Bart"'s judicial appointment and the power to declare war is the fact that the preznit nominates the judicial appointee, whereas the power to declare war is plenary with Congress.

Cheers,
 

arne langsetmo said...

"Bart" DePalma: Indeed, the concept of empowering Congress to declare a cessation of hostilities is absurd since the enemy is unlikely to recognize and obey a congressional resolution.

This is a pragmatic objection.


That is correct. The only reason I included it at the end was to argue that the drafters and ratifiers of the Constitution were not stupid enough to even consider granting such a power.

If we want to open the door to pragmatic concerns, it should be pointed out that there's no provision in Article II for the preznit to declare a cessation of any declared "state of war", so the text leads one to the conclusion that no war can ever be ceased (and thus any war declared will exist in perpetuity).

1) When you fight wars to victory, they are self ending because the enemy stops fighting.

2) In any case, Article I makes the President the CiC. Military commanders traditionally have the power to negotiate ceasefires, accept enemy surrenders and even surrender their own forces if they face imminent destruction.
 

Military commanders traditionally have the power to negotiate ceasefires, accept enemy surrenders and even surrender their own forces if they face imminent destruction.

True, but when these situations are formalized, it would be in a treaty, which must be approved by the legislature.
 

Fraud guy:

When has Congress ever ratified a military surrender or ceasefire as if it were a treaty?
 

Given the track record of this administration what is to stop them from just doing what they want and demand the funding afterwords? You can aurgue all day about constitutional nuances, but Cheney and Co don't give a tinker's damn. They know congress has no spine to even start impeachment proceedings. Constitutional principles (or any other) mean nothing to these people. The Unitary Executive in the guiding priciple.

Lonnie
 

Bart,

Just a quick review of Wiki shows several surrender treaties with the Indians which were ratified, e.g. Treaty of Payne's Landing.

FYI,

Fraud Guy
 

"Bart" DePalma:

If we want to open the door to pragmatic concerns, it should be pointed out that there's no provision in Article II for the preznit to declare a cessation of any declared "state of war", so the text leads one to the conclusion that no war can ever be ceased (and thus any war declared will exist in perpetuity).

1) When you fight wars to victory, they are self ending because the enemy stops fighting.


Kind of begging the question, dontcha think? IC that Fraud Guy has your nonsense appropriately skewered, though.

Cheers,
 

"Bart" DePalma:

In any case, Article I makes the President the CiC.

Is that a statement of fact, "Bart"? Or just your standard "briefing" technique? You really ought to start drinking a bit later....

Cheers,
 

fraud guy said...

Just a quick review of Wiki shows several surrender treaties with the Indians which were ratified, e.g. Treaty of Payne's Landing.

Did your quick review actually involve reading the Wiki article on the Treaty of Payne's Landing? My friend, this treaty had nothing to do with a surrender because the United States and the Seminole Tribes were not at war at the time. Rather, the 1832 treaty led to the Second Seminole War in 1835.

Here is the opening paragraph from the Wiki article which you referenced describing the actual terms of the treaty for you to read:

The Treaty of Payne's Landing (Treaty with the Seminole, 1832) was an agreement signed on 9 May 1832 between the government of the United States and several chiefs of the Seminole Indians in the present-day state of Florida. By the Treaty of Moultrie Creek in 1823, the Seminoles had relinquished all claims to land in the Florida Territory in return for a reservation in the center of the Florida peninsula and certain payments, supplies and services to be provided by the U.S. government, guaranteed for twenty years. After the election of Andrew Jackson as President of the United States in 1828, the movement to transfer all Indians in the United States to west of the Mississippi River grew, and in 1830 the United States Congress passed the Indian Removal Act.[1]

Because this is your argument, go find us a treaty which only dealt with military surrender and not to the relationships between the United States and the enemy nation after the war. The Indian War treaties usually involved removal to reservations in exchange for various promises the government rarely kept. The actual hostilities ended months if not years before the Senate ratified these agreements.
 

Bart:

How do you deal with Alix's structural argument regarding sunset provisions? That you just don't think that Congress should have the power to "undeclare" war is hardly an answer.

For what it's worth, the structure Alix points to is the evidence of original intent you said was lacking.
 

"Bart" DePalma:

[Arne]: This is a pragmatic objection.

That is correct.


So what do you say to my point that such pragmatic concerns argue instead for a role of Congress, and not the preznit, in ceasing wars? Doesn't the same argument that Congress is best fit to declare war also argue that Congress is best fit not to declare war, or to reverse itself when things aren't going right? Particularly in light of the fact that a preznit may feel less inclined to stop a war which he has managed to FOOBAR in the execution, and on which he might be sorely tempted to "double down" to try and save his own 'place in history'?

Cheers,
 

daniel said...

Bart: How do you deal with Alix's structural argument regarding sunset provisions? That you just don't think that Congress should have the power to "undeclare" war is hardly an answer.

Alix is arguing that it is self evident that Congress has the power to enact sunset provisions in declarations or war the same way they can in standard legislation.

However, the power to declare war is not a general authorization to enact legislation concerning war. Rather, as I posted above, a declaration of war has a specific and limited meaning - a proclamation that a state of war against an enemy now exists.
 

arne langsetmo said...

Doesn't the same argument that Congress is best fit to declare war also argue that Congress is best fit not to declare war, or to reverse itself when things aren't going right?

The term for reversing a decision to go to war in the middle of a war is called surrender. I doubt the drafters of the Constitution, who were revolutionaries that persevered for years to gain victory in a war that very rarely went right, could have conceived of expressly granting either Congress or the President the power to surrender in a war.

As I posted above, when you fight wars to victory, they are self ending because the enemy stops fighting.

I know this concept is alien to most of the post Vietnam Democrat Party, but it has been the American way of war for almost all of our history. Our military is taught to never retreat and to never surrender until it achieves victory. Our civilians used to share that same viewpoint.
 

"Bart" DePalma:

The term for reversing a decision to go to war in the middle of a war is called surrender....

No. If you have authority to support this assertion of yours, you ought to come forth with it.

... I doubt the drafters of the Constitution, who were revolutionaries that persevered for years to gain victory in a war that very rarely went right, could have conceived of expressly granting either Congress or the President the power to surrender in a war.

Once again, if you have authority to support this assertion, you ought to come forth with it.

I have my own, more rational take on "surrender" (and in late breaking news, see this).

As I posted above, when you fight wars to victory, they are self ending because the enemy stops fighting.

Oh. I thought it was when they surrendered.

You know, "Bart", when you decide that all wars should be fought to "victory", you need to pick and choose your wars a bit better....

I know this concept is alien to most of the post Vietnam Democrat Party,...

Nixon was a Democrat? Who wouldda thunk it?

... but it has been the American way of war for almost all of our history. Our military is taught to never retreat and to never surrender until it achieves victory....

"By Grabthar's hammer!"

FWIW, you might try explain that to Gen. MacArthur. Or do you hold Commander Peter Taggart in higher regard?

... Our civilians used to share that same viewpoint.

If you have authority to support this assertion, you ought to come forth with it.

Why aren't you in Iraq?

Cheers,
 

The actual hostilities ended months if not years before the Senate ratified these agreements.

How soon after a surrender would you want a treaty to be in order for it to be a valid instance of a treaty following a surrender?
 

I know this concept is alien to most of the post Vietnam Democrat Party

Not to mention Eisenhower and Nixon.

Baghdad, is there any reason you haven't posted my quote from Crocker on your blog?
 

phg:i do agree that congress, once they have voted upon a declaration of war, cannot override the president's authority as commander in chief, and unilaterally end a war by declaration.

After WWI, Congress didn't ratify the Treaty of Versailles, but did put together a joint resolution declaring the war at an end in support of a bilateral treaty.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled:

"That the state of war declared to exist between the Imperial German Government and the United States of America by the joint resolution of Congress approved April 6, 1917, is hereby declared at an end.


In this case, the President approved the measure, but it seems possible that Congress could have overridden such a veto. Now, of course, the historical particulars here are a bit different, but it seems (to me at least) to open the door for legislative reversal even in the strictest context of a formal declaration of war.
 

arne langsetmo said...

"Bart" DePalma: The term for reversing a decision to go to war in the middle of a war is called surrender....

No. If you have authority to support this assertion of yours, you ought to come forth with it.


:::chuckle:::

One does not need legal authority to determine the most accurate word to describe an act.

If you can find a more accurate term than "surrender" to describe the act of unilaterally and voluntarily ceasing hostilities during a war, withdrawing from the battlefield and ceding the battlefield and the war to the enemy, I would enjoy knowing what that term might be.

If you cannot provide a more accurate term for that act, man up and admit that such an act is surrender.
 

If you can find a more accurate term than "surrender" to describe the act of unilaterally and voluntarily ceasing hostilities during a war, withdrawing from the battlefield and ceding the battlefield and the war to the enemy, I would enjoy knowing what that term might be.

;;; chuckle ;;;

Peace with honor.
 

bb:

"Peace with honor" is a self serving euphemism for surrender just like "redeployment from Iraq.
 

I would add..


Cut your losses.

Give up the ghost.

Come to your senses.

See the error of your ways.

Stop pissing away good money after bad.

End an idotic disaster.
 

"Peace with honor" is a self serving euphemism for surrender just like "redeployment from Iraq.

"Surrender" is just a self serving euphemism for "I refuse to admit that invading Iraq was a mistake" from a warmongering asshole.
 

"Bart" DePalma:

["Bart" DePalma]: The term for reversing a decision to go to war in the middle of a war is called surrender....

[Arne]: No. If you have authority to support this assertion of yours, you ought to come forth with it.

:::chuckle:::

One does not need legal authority to determine the most accurate word to describe an act.

If you can find a more accurate term than "surrender" to describe the act of unilaterally and voluntarily ceasing hostilities during a war, withdrawing from the battlefield and ceding the battlefield AND THE WAR to the enemy, I would enjoy knowing what that term might be.


Wow. Where'd that language (bolded above) come from?!?!? Nothing like (re-)"framing" the question. Care to get back to the original point, rather than manufacturing a new one to suit your rhetorical purposes?

Your argumentative techniques are patently dishonest, "Bart". That is obvious to even the most casual onlooker.

If you cannot provide a more accurate term for that act, man up and admit that such an act is surrender.

When I order a steak, medium rare, with a side of baked potato, salad, and beans, and a certificate of surrender to sign on the side, yes, my lunch is then in fact a "surrender".

Cease-fires are not surrenders. Nor are armistices, disengagements, etc. The Korean accord, for one, was not and is not, a "surrender". Vietnam wasn't a "surrender" either, FWIW. We shouldn't have had our troops in their country to begin with, so that withdrawing was hardly giving up territory (or according to their "surrender demands").

And a FU to your "man up". If your "little soldier" is flagging, tell someone else. I don't care; it's not my problem.

Cheers,
 

If you cannot provide a more accurate term for that act, man up and admit that such an act is surrender.

# posted by Bart DePalma : 12:01 PM


If anyone here needs to "man up", it's you. Get your cowardly ass into the fight.
 

arne langsetmo said...

"Bart" DePalma: The term for reversing a decision to go to war in the middle of a war is called surrender....If you can find a more accurate term than "surrender" to describe the act of unilaterally and voluntarily ceasing hostilities during a war, withdrawing from the battlefield and ceding the battlefield AND THE WAR to the enemy, I would enjoy knowing what that term might be.

Wow. Where'd that language (bolded above) come from?!?!? Nothing like (re-)"framing" the question.


I like to be precise.

You are assuming that Congress possesses a power to order the cessation of hostilities in the middle of a war.

Wars involve fighting an enemy on a battlefield to achieve certain political ends through force of arms.

If we are in the middle of a war, we obviously have not yet achieved our political ends or denied the enemy's political ends through force of arms.

Thus, if you order a unilateral cessation of force of arms, you have ceded the war to the enemy. The enemy is free to pursue his political ends through a continued force of arms and you are not.

BD: If you cannot provide a more accurate term for that act, man up and admit that such an act is surrender.

Cease-fires are not surrenders. Nor are armistices, disengagements, etc.


Ceasefires or armistes are agreements by both sides to cease hostilities. You are correct that this is not a surrender.

However, your proposed power is a unilateral act where only the United States ceases hostilities and while the enemy continues. This is a surrender.

Vietnam wasn't a "surrender" either.

That is debatable depending upon whether the United States intended an armistice or a unilateral cessation of hostilities.

The North Vietnamese never intended to abide by the accords and merely paused its attempts to conquer the South until we had withdrawn our ground troops.

If the United States actually believed (against all reason and experience) that the North Vietnamese would actually abide by the peace accords, then there was no intent to surrender. Rather, we were fooled.

However, if the United States knew that the North Vietnamese would not abide by the agreement, the United States was essentially surrendering the battlefield and the war to the enemy behind the fig leaf of an armistice.

Nixon and Kissinger were not stupid. They knew damn well the North would invade again. It was a surrender.
 

If we are in the middle of a war, we obviously have not yet achieved our political ends or denied the enemy's political ends through force of arms.

Thus, if you order a unilateral cessation of force of arms, you have ceded the war to the enemy. The enemy is free to pursue his political ends through a continued force of arms and you are not.


However, what if one were able to achieve our political ends by ceasing the use of force, even unilaterally. By your logic, since we have achieved our political ends, it is not surrender, but victory!
 

"Bart" DePalma:

["Bart"]: The term for reversing a decision to go to war in the middle of a war is called surrender....If you can find a more accurate term than "surrender" to describe the act of unilaterally and voluntarily ceasing hostilities during a war, withdrawing from the battlefield and ceding the battlefield AND THE WAR to the enemy, I would enjoy knowing what that term might be.

[Arne]: Wow. Where'd that language (bolded above) come from?!?!? Nothing like (re-)"framing" the question.

I like to be precise.


So do I. To be precise, "unilaterally and voluntarily ceasing hostilities during a war" is not the same as "unilaterally and voluntarily ceasing hostilities during a war, withdrawing from the battlefield and ceding the battlefield AND THE WAR to the enemy" (and signing a surrender document).

You've moved the goal posts. How very sporting of you.

I'd note that as a matter of historical fact, very few of the wars that the United States has fought have been on U.S. soil. Had they "surrendered" the battlefield in many of those wars, it wouldn't have been theirs to "surrender" in the first instance, and in fact, the recipients of said surrender might well have bee the proper owners. See, e.g., Stephen Kinzer's book, "Overthrow".....

Now that we've gotten that dishonesty on your part out of the way:

You are assuming that Congress possesses a power to order the cessation of hostilities in the middle of a war.

No. I am not assuming such. I suggested it. I put it forth as the result of my thinking, not as the unsupported (and sub silentio) premise. The one that does pretty much all the "assuming" around here is you, "Bart". See above, and in other threads.

Wars involve fighting an enemy on a battlefield to achieve certain political ends through force of arms.

... such as distracting people from domestic issues and trying to preserve a political façade of a heroic "war preznit".

If we are in the middle of a war, we obviously have not yet achieved our political ends or denied the enemy's political ends through force of arms.

So?!?!? Certainly we're allowed to change our minds about out preferred "ends"....

Thus, if you order a unilateral cessation of force of arms, you have ceded the war to the enemy.

Only if it is your "end" (or one of them) to continue fighting (and dying).....

Don't go to Vega$, "Bart". They cream in their pants over rubes like you.

... The enemy is free to pursue his political ends through a continued force of arms and you are not.

And you, being of free will, are allowed to change your mind once again.

["Bart"]: If you cannot provide a more accurate term for that act, man up and admit that such an act is surrender.

[Arne]: Cease-fires are not surrenders. Nor are armistices, disengagements, etc.

Ceasefires or armistes are agreements by both sides to cease hostilities. You are correct that this is not a surrender.


And many a cease-fire have been achieved by unilateral cessation, followed by recognition of such by the other side.

However, your proposed power is a unilateral act where only the United States ceases hostilities and while the enemy continues. This is a surrender.

No.

[Arne]: Vietnam wasn't a "surrender" either.

That is debatable depending upon whether the United States intended an armistice or a unilateral cessation of hostilities.


We didn't belong there. We gave up none of our territory (but we did give up many thousands of young lives).

The North Vietnamese never intended to abide by the accords and merely paused its attempts to conquer the South until we had withdrawn our ground troops.

There was one country until us Westerners mucked it up. In the end, the Vietnamese were left with Vietnam, a fitting end.

If the United States actually believed (against all reason and experience) that the North Vietnamese would actually abide by the peace accords, then there was no intent to surrender. Rather, we were fooled.

I don't think anyone was "fooled". If the Viet Minh and Viet Cong could hold off the United States with all its might and resources, I don't think anyone thought that our puppets down in Saigon would stand a chance (and see Kinzer's book for more on this).

However, if the United States knew that the North Vietnamese would not abide by the agreement, the United States was essentially surrendering the battlefield and the war to the enemy behind the fig leaf of an armistice.

As another wag put it, "peace with honour". That was a legitimate 'goal' for an American preznit, I suppose.

But the Vietnamese got ... (wait for it) ... Vietnam. What a concession on our part.

Nixon and Kissinger were not stupid. They knew damn well the North would invade again. It was a surrender.

Surrender of what, "Bart"? Surrender of what?!?!?

Cheers,
 

More Bart bunkum:

The term "declaration of war" means a proclamation that a state of war against an enemy now exists. That term does not imply in any way a power to cease hostilities. Rather, the term means the polar opposite of ceasing hostilities.

Gee, Congress can't "undeclare" war -- but it can stop funding it.

That is, to borrow your word, Bart, an implicit authority to undeclare a war.

Your move . . . oops! looks like check, mate!
 

Bart bubbles on, being oh so cute . . .

"1) When you fight wars to victory, they are self ending because the enemy stops fighting."

And when "you" fight wars to losing, as happened with US involvment in Viet Nam, it is self ending because the US stops fighting.

"2) In any case, Article I makes the President the CiC."

And gives Congress the authority to refuse him the money with which to play pretend-"war president"

"Military commanders traditionally have the power to negotiate ceasefires, accept enemy surrenders and even surrender their own forces if they face imminent destruction."

And all those commanders are named MacArthur, right?

Or is it Patten?

Oops -- they didn't fare too well attempting to operate outside the bounds of the traditional US principle that "the military power is always in exact subordination to the Civil Power" -- Sam Adams (see also Jefferson, whining against King Georgie).
 

Bart burbles --

"However, the power to declare war is not a general authorization to enact legislation concerning war. Rather, as I posted above, a declaration of war has a specific and limited meaning - a proclamation that a state of war against an enemy now exists."

"[A] declaration of war has a specific and limited meaning."

Mmm. So an AUMF is not a declaration of war because not specific and limited in meaning -- Bushit has found things in it which aren't express, let alone specific and limited, such as shifting hundreds of millions of dollars allocated by Congress specifically for use against the Taliban/al queda in Afghanistan, without the authorization of Congress, in order to prepare his illegal invasion and occupation of Iraq.

So, by contrast, specific and limited in meaning would be, like, "We the Congress declare war against Iraq"? else it isn't a declaration of war?
 

A Bart burp --

"I know this concept is alien to most of the post Vietnam Democrat Party, but it has been the American way of war for almost all of our history. Our military is taught to never retreat and to never surrender until it achieves victory. Our civilians used to share that same viewpoint."

Really, Bart? How did the general population feel about the War of 1812?

And were they really, really, really pleased and happy with the Civil War (which the US both won and lost simultaneously)?

But yer right about the "post Vietnam Democrat[ic] Party": they were just too damned whimpy and hand-wringing to declare war on and invade the mighty military machine threatening our very existence on Grenada.

But thankfully we had a non-Democratic actor and fake military hero non-veteran who actually wore the uniform in the movies and actually had the imaginary guts to show the world how it's done!

(My favorite part of that movie was when the lead, Ray Gun, went on live TV -- wearing his suit jacket -- waggled his finger at the camera, and declared: "I never had sex with those terrorists to whom I sold the missiles in violation of the 'Trading with the Enemies Act'!")

And then there's the brilliant Republican turn-tail-and-run strategy implemented in Lebanon. No one was expecting that surprise attack against the myth of US invincibility!
 

Bart bauble:

"'Peace with honor' is a self serving euphemism for surrender just like "redeployment from Iraq."

Sometimes surrender is wiser than valor. "He who's smart and runs away lives to fight [or run away] another day."

But there are those -- non-Democrat[ic] Party all -- who prefer valor over wisdom.
 

If we are in the middle of a war, we obviously have not yet achieved our political ends or denied the enemy's political ends through force of arms.

There was no WMD. There was no Al Qaeda connection. We achieved our political ends before the first shot was fired. The only political end we are fighting for now is political cover for the assholes who got us into this mess.
 

Bartbuster:

The only political end we are fighting for now is political cover for the assholes who got us into this mess.

Quite true. Which is why they're called "political ends". ;-)

What's clear here is that the political ends desired by the American people can be significantly different from those sought by the preznit. Which is perhaps why a discussion as to whose views should prevail is important. Thank you, Prof. Lederman, for bringing it up.

Cheers,
 

This comment has been removed by the author.
 

The only political end we are fighting for now is political cover for the assholes who got us into this mess.

Obama did an excellent job of exposing this fact yesterday while questioning Crocker and Petraeus. After getting them to admit that eliminating Al Qaeda and Iranian influence in Iraq is completely impossible, he asked them to define the level of "success" that would allow us to withdraw our troops. They had no answer.

I found that amazing, if not surprising. The people in charge of this disaster have no idea what conditions would allow us to get out of there.
 

Bartbuster --

"There was no WMD. There was no Al Qaeda connection. We achieved our political ends before the first shot was fired. The only political end we are fighting for now is political cover for the assholes who got us into this mess."

You left out the centerpiece: Bushit managed to take out the #1 witness against his daddy and Rumsfled re. his having "[not] gassed his own people":

Former Reagan-Poppy Bushit good-guy and US ally Saddam Hussein.
 

My (incredibly brief review) of war crimes shows this in the Nuremberg Principles:

Principle VI

The crimes hereinafter set out are punishable as crimes under international law:
(a) Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances ...

This would include the invasion and occupation of Iraq, as it was unequivocally a war of agression and a war in violation of international treaties, agreements or assurances.

So–back to the funding issue–would Congress members who voted to fund said war–which the huge majority did over and over; and the funding for this war has been explicit and specific–not part of "defense" appropriations–be guilty of war crimes?
 

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