To me, the reference to "legal authorities" in the NY Times article seems to refer to an international legal issue, not to something like the domestic law question relating to the Chief of Mission's role. As for the latter, would military personnel even be considered "executive branch employees" for purposes of the statute in question. My thought (no more than a guess) is that civilian DOD employees would be included, but not active-duty military.
 

It is often helpful to look at these things in reverse.

Let us suppose that the Pakistani ISI (Military Intelligence) were directed by their Minister to go covertly into the United States and kill some Pakistani dissidents.

In US law terms, the operatives in question would have no lawful authority of any kind: if apprehended they would be liable to be charged with homicide or attempted homicide and/or conspiracy and if the conspiracy was shown to involve high officials in Pakistan there would doubtless be entirely justified demands by the USA for these individuals to be surrendered to stand trial in a US Court.

In the murky world of what are basically unlawful operations, it could well be that the receiving state (i.e. Pakistan in this case - or the USA in the converse hypothetical) has agreed to turn a blind eye and run some interference if Police Constable Suleiman (or Sheriff Dolittle in the converse hypothetical) turns up by accident while the operation is in progress.

There is absolutely no doubt that there have been examples of such US covert operations (unlawful under the foreign law) in the “extraordinary rendition” sphere. In an Italian case there are warrants out for CIA operatives and some Italian officials are on trial for their involvement. In a Bosnian case, the rendition took place in direct violation of a Court Order. Others are coming to light.

Such activities have the potential to cause a first-class diplomatic incident. Now, with that in mind, the rule about involving the Head of Mission makes eminent sense – he may be called upon to obtain the ‘nod and wink’ at a very high level. He may be called upon to give shelter to a fugitive CIA officer within the Embassy compound and work out how to get the man out of the country. He may have some very fast explaining to do at the receiving state’s foreign ministry.
 

Marty,
Even if the AUMF gives Bush U.S. legal authorization to order incursions into another sovereign nation like Pakistan, the secret orders and the ensuing raids are sure to do more harm than good to U.S. interests. If you were a citizen of Pakistan, how would you view the "legal authorization" that the AUMF gave Bush that allows raids into your country? I am sure with animus and outrage.

NYT's Mazzetti and Schmitt report:
"Pakistan’s top army officer said Wednesday that his forces would not tolerate American incursions like the one that took place last week and that the army would defend the country’s sovereignty “at all costs.” . . ."

"Unilateral action by the American forces does not help the war against terror because it only enrages public opinion,” said Husain Haqqani, Pakistan’s ambassador to Washington, during a speech on Friday. “In this particular incident, nothing was gained by the action of the troops.”"
 

Marty --

The chief of mission statute arose because CIA operations were taking place without the ambassador's knowledge which countered US official policy for which the CIA claimed independent presidential authorization. To a lesser extent, it arose from statutes giving semi-autonomous authority to other government agencies, such as USAID (which by statute is not supposed to be influenced by the state of political relations) or the NTSB (which is the official US representative investigating accidents involving US airplanes under treaty) and similar technical agencies. But the special forces were under the control of the area military commander and hence outside the chief of mission statute.

What we are probably talking about is an executive agreement (and perhaps even a secret portion of one) between the US and Pakistan. We know that the Zia and Reagan administrations entered into one which covered the terms under which the US would provide support to the mujahideen. Presumably this agreement would have dealt with potential "spillover" of the war into Pakistan. Also, after 9/11, the US needed permission to use Pakistani airspace; to use Pakistani airfields for search-and-rescue, logistics, and spy bases; and to do "hot pursuit" into Pakistan. This could provide a legal impediment of which we are unaware.
 

Marty, the area commander is Gen. Petraeus (CENTCOM). However, special forces are under their own command (SOCOM). Hope that explains why they need the ambassador's permission.
 

But the new orders for the military's Special Operations forces relax firm restrictions on conducting raids on the soil of an important ally without its permission.

This passage suggests prior military rules of engagement set by an executive order rather that a provision of the US Code. ROE's are changed all the time, so this is not a legal issue. However, it does sound like this leak is coming out of the State Department whining about the military intruding on its turf.

It is unclear precisely what legal authorities the United States has invoked to conduct even limited ground raids in a friendly country. A second senior American official said that the Pakistani government had privately assented to the general concept of limited ground assaults by Special Operations forces against significant militant targets, but that it did not approve each mission.

This sounds like an invocation of some unnamed source's interpretation of international law. All the authority the President requires to deploy the military anywhere in the world to engage al Qaeda is the AUMF/Declaration of War Congress provided.

However, the article suggests as I suspected that the US is not conducting operations in Pakistan without Pakistani permission. Rather, the Pakistani government for political reasons wants plausible deniability.

What is discouraging about this article is that it does not appear that the Pakistanis are going to set their own house in order any time soon and this is only the beginning leading up to a full blown US ground operation to clean out the border areas to finish off al Qaeda and the Taliban.

In response to Sandy's post yesterday, here is yet another reason why voters need to elect a competent CiC.
 

mourad:

al Qaeda and the Taliban are not even remotely the equivalent of Pakistani dissidents. If the United States allowed an Indian terrorist group to set up operations in the United States to launch attacks against Pakistani military and civilians, then Pakistan has every right to send its military into our territory to deal with the Indian terrorist group themselves.
 

If the United States allowed an Indian terrorist group to set up operations in the United States to launch attacks against Pakistani military and civilians, then Pakistan has every right to send its military into our territory to deal with the Indian terrorist group themselves.

# posted by Bart DePalma : 2:19 PM


I wonder why Cuba hasn't taken advantage of that "right"?
 

The COM authority is required because there the SOF are not sent there under the command of a DOD organization deployed in Pakistan. The COM, for example, does not have similar authority over military personnel in Afghanistan (or Germany or Korea, for that matter) because those forces are commanded by an organization by a military headquarters deployed in country under the authority of the POTUS.
The relationship between the COM and the Regional Combattent Commander are established in MOAs signed off by by each COM and RCC.
As far as previous comments go, the authority applies to both civilian and military DOD personnel, and while the SOF are indeed assigned to SOCOM, they are under the tactical control of the commander in Afghaistan through his Joint Special Operations Task FOrce (JSOTF) commander. Having been the Defense Attache in three countries, I have worked this issue several times.
 

"Bart" DeProcrastinator:

In response to Sandy's post yesterday, here is yet another reason why voters need to elect a competent CiC.

Ummm, it's seven years since 9/11/2001.

Oh. But there's an election coming up, so that enhances the "urgency"....

Cheers,
 

In a recent interview with Terry Gross Hersh claimed that Cheney had the Joint Special Operations Command sent their operatives (DoD with CIA support) abroad with a (Cheney provided) list of people to assasinate. They apparently operate w/o any knowledge of US embassies which is presumably not needed because of the 2001 AUMF directed against al Qaeda.

The legal theory thus is Cheney can order anybody assassinated, abroad at least, and not to have to tell Congress about it.
 

Let's get one thing straight.

When one takes about the US President having "legal authority" to undertake action's overseas, one has to remember that there is a further question: - "legal" by whose law?

So far as the rest of the world is concerned, whatever authority the President may consider he has under US law, absent a special agreement, his authority in international law and in the domestic laws of other states does not extend beyond the territory of the USA, its territorial waters, its airspace, US flag vessels on the high seas and US aircraft in international airspace.

Thus: his legal authority by convention extends to the building of a US diplomatic mission because that is deemed to be the sovereign territory of the USA - the local police may enter only at the invitation of the US ambassador.

Now take the example of a CIA operative stationed in London. Whatever lawful authority the President may have as a matter of US law, so far as the UK is concerned the writ of the US president does not extend to the United Kingdom. Thus (unless he is a diplomat) Mr CIA operative in the UK is simply a private individual. Whether acting under the authority of the US President or not, if he lays a finger on any person in the UK, it is a battery, if he detains anybody it is unlawful arrest and false imprisonment, if he should torture anybody it is torture, and if he should kill anybody it is murder.

If he is detained for such an offence by the UK authorities, he will be arrested, prosecuted and tried in our Courts and his authority from the POTUS will avail him not in his defence.

Therefore when Bart says:-

"All the authority the President requires to deploy the military anywhere in the world to engage al Qaeda is the AUMF/Declaration of War Congress provided."

all he is doing is demonstating a quite remarkable level of ignorance.

What he says may be true as a matter of US law, but it is certainly NOT true as a matter of UK law or of many, many other states where the rule of law is observed.

For example, take the example of US Forces stationed in England under the NATO Status of Forces Agreement. The US authorities may be agreement may arrest members of their own forces of base. But otherwise, of base they have no authority beyond that of a private individual. To quote from Major Murray's article to which Professor Lederman provided a link:

However, American forces arresting non-Americans on foreign soil is a major stumbling block. The NATO SOFA does not give American forces the
authority to arrest a national of the host nation while he is on an American installation, except in an emergency situation.Outside of an American installation, the general rule is that American forces have the authority to arrest American personnel only.The only exception to this rule appears to be if American military forces arrest a foreign national while he is in flagrante delicto. For instance, if American military police caught a terrorist outside of an American installation placing a bomb next to the perimeter fence, the military police would be within their rights to arrest the terrorist and then hand him over to the law enforcement authorities of the host nation." (Note: a "citizen's arrest").

Nor was it true in relation to the detention and removal from Pakistan by US personnel of persons detained in Pakistan as was noted by the English Court in Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2008] EWHC 2048 at paragraph 24 of the Judgment:-

"On the evidence of Pakistani law given by Mr Afzal H Mufti of Cornelius, Lane and Mufti, an experienced advocate of considerable standing before the Supreme Court of Pakistan, it is clear that the detention was unlawful under the laws of Pakistan. The suspension of the constitution of Pakistan by General Musharraf and the issuing of a Provisional Constitution Order in October 1999, did not affect the position under the law of Pakistan that fundamental rights remained in full force. It was therefore unlawful in Pakistan to hold BM incommunicado, without access to legal representation, and to hand him over to United States agents without due judicial process. That was the only evidence of Pakistani law before us and we accept it."

The same is true as a matter of the laws of other countries were persons have been subjected to extraordinary rendition.

Whether the USA has concluded some agreement with Pakistan about US operations in the FATA territories I know not. Certainly the public pronouncements of the Commanding General of the Army, the Pakistani Ambassador and now the Prime Minister suggest otherwise.

In international law terms, absent such agreement, the USA has probably committed an act of war against Pakistan. What may come of that is uncertain. Some readers may remember the comedy where an impoverished fictional country decides to declare war against the USA and promptly surrender in order to get the financial benefits of US occupation.

But, as I have been saying for months here, the situation is not going well in Afghanistan and expansion into Pakistan may prove very, very dangerous. The population of Pakistan is around 173 millions a very significant proportion of whom are militant islamists.

Get too involved here without careful thought and Vietnam will seem like a picnic.

People should remember that no-one since Alexander the Great has brought any semblance of order to Afghanistan and the FATA. Not the British in the heyday of the Indian Empire, not the Russians, no-one.
 

This comment has been removed by the author.
 

Bart DePalma wrote:
"If the United States allowed an Indian terrorist group to set up operations in the United States to launch attacks against Pakistani military and civilians, then Pakistan has every right to send its military into our territory to deal with the Indian terrorist group themselves."

In Bart's hypothetical, Pakistan may think it has every legal right, but as Murad wrote, this action would be entirely illegal in the U.S. We don't want guys running around assassinating people in the streets, that's why we have courts. Pakistan might consider that the U.S. takes no action against Indian terrorists, so let them bring an action in the local district court.
 

Murad wrote:

"But, as I have been saying for months here, the situation is not going well in Afghanistan and expansion into Pakistan may prove very, very dangerous. The population of Pakistan is around 173 millions a very significant proportion of whom are militant islamists.

"Get too involved here without careful thought and Vietnam will seem like a picnic.

"People should remember that no-one since Alexander the Great has brought any semblance of order to Afghanistan and the FATA. Not the British in the heyday of the Indian Empire, not the Russians, no-one."

Thanks for the good comment, Murad. Americans seem to think they can do whatever they want in other countries because they have passed a "law."

They also tend to believe that bombing and shooting will sovle all foreign relations problems. Witness Afghanistan. We saw what the Afghanis did to the Russians, yet we persist in thinking there is a military solution.
 

Mourad:

There is only one law in the United States which governs whether we go to war - the Constitution.

Whether other countries agree with our decision to go to war is a diplomatic and not a legal consideration.

What your courts think about our decisions in prosecuting a war is meaningless and does not even amount to a diplomatic consideration.

People should remember that no-one since Alexander the Great has brought any semblance of order to Afghanistan and the FATA. Not the British in the heyday of the Indian Empire, not the Russians, no-one.

Actually, the US military is the first to do so in Afghanistan. The question is whether we will end up doing so in the Pakistani border region.
 

Roberto: I could not agree with you more. For years now and for months on this blog I have been writing about the dangers of substituting air power and missiles for "boots on the ground". If you are going to invade a country with a view to providing law and order, then the very first task is to impose order. That means an occupation force in sufficient numbers to make every citizen feel safe going about their business. Then reconstruction employing as many locals as possible - the devil finds work for idle hands. Finally, one starts developing institutions. It was done in Germany post 1945 and it has been done elsewhere.

It was not done in Iraq and it has not been done in Afghanistan - which is why it looks as though the Canadians are going to pull out of ISAF. The mission is failing. And one of the primary reasons is that air power has been substituted for "boots on the ground" with tragic consequences which have alienated a highly tribalised population where the response to a fatality is "you kill one of my clan and I kill two of yours".

That is why the Afghan government's writ does not run outside Kabul to any significant exent and why the Taliban presently controls large parts of the territory at night. Were the ignorance not so tragic, I would fall about laughing when US persons talk about "securing the border with Pakistan". Does no-one realise that the Afghan-Pak border or Durand Line is 2,640 km long, across some of the world's roughest terrain and a border which the Pushtun tribes have made it a point of honour totally to ignore since Sir Mortimer Durand imposed it in 1893 on the then Amir of Afghanistan. Securing the Afghan-Pak border would be a task several magnitudes greater than securing the US-Mexico border.

Professor Juan Cole, whose Informed Comment is actually informed, as opposed to others I shall not mention has a post up today in which he says:-

"While the Taliban are broadly unpopular in both Pakistan and Afghanistan, they do have some claim on sentiments of sub-nationalism among the Pushtun ethnic group and so have managed to become political movements and not just terrorist groups (though they continue to deploy terrorism as one tool for accomplishing their political goals). The neo-Taliban in Afghanistan seem to be near to taking Ghazni, which is not so far from the capital, Kabul.

Although the US is worried about the Arab volunteers who take refuge among the resurgent Taliban, they are a tiny element and cannot easily launch international terrorist operations from FATA. NATO is making a significant error if it does not recognize that the neo-Taliban is more than just a small international terrorist organization. Rather, it has elements of a national liberation organization (in northwest Pakistan it is the lentil-eating Punjabis who are coded as the 'foreign' occupiers).

While counter-terrorism activities can be usefully pursued in these three areas, it is clear that the local perception of foreign occupation is part of the problem, and a long-term occupation is likely to exacerbate the violence rather than reduce it....

It seems clear to me that a combination of sticks and carrots in dealing with the tribes plus strengthening the capacity and efficiency of the local military forces is the only path likely to succeed in the long run here. In any case the Taliban themselves do not pose the threat of international terrorism, though they may give safe harbor to individuals from abroad that do. The focus should be on tracking down and circumscribing the activities of those individuals.

Convincing the Pushtun population generally to put up with 70,000 US and NATO troops and with air strikes that kill civilian villagers is a fool's errand."

Exactly. Which is why Bart's very latest comment shows why he is one of those very fools. He's been getting his information from the wrong blogs again.
 

Marty, is it your view that the AUMF gave Bush unlimited in time e authority basically to declare war against any country that he believes is connected to the perpetrators of September 11 (which, as a technical matter, almost certainly do not include the Taliban, as against Al Quaeda. As Larry Wright notes in The Looming Tower, the Taliban was not in fact enthralled with bin Laden's adventurism, though they were obviously unwilling to expel him.
 

i think the possibilities of letting "outsiders" into the US for the use of our existing facilities is needless to say ridiculous and more importantly not fair to others who are more deserving of our alliance and resources.

jay
cyber monday
 

There is only one law in the United States which governs whether we go to war - the Constitution.

True, but our Constitution is only operable law in the United States and its territories. Foreign nations are not required to abide by our laws, just as we are not required to abide by theirs. Unless you are suggesting that our law trumps theirs?

Whether other countries agree with our decision to go to war is a diplomatic and not a legal consideration.

That seems correct. However, their actions in reaction to our military forces on their soil might be something else altogether.

What your courts think about our decisions in prosecuting a war is meaningless and does not even amount to a diplomatic consideration.

True. However, those courts' actions if any of the architects of that war come into their control are, again, something else entirely.

Mourad: People should remember that no-one since Alexander the Great has brought any semblance of order to Afghanistan and the FATA. Not the British in the heyday of the Indian Empire, not the Russians, no-one.

BD: Actually, the US military is the first to do so in Afghanistan. [sound of liquid being expelled across the room] The question is whether we will end up doing so in the Pakistani border region.

Bart, are you advocating America as policeman for the world?

al Qaeda and the Taliban are not even remotely the equivalent of Pakistani dissidents. If the United States allowed an Indian terrorist group to set up operations in the United States to launch attacks against Pakistani military and civilians, then Pakistan has every right to send its military into our territory to deal with the Indian terrorist group themselves.

Didn't we fight a war, once, in part to protect American citizens and residents who were accused of supplying contraband to a belligerent, and who were arrested by another power? I am sure American citizens would love the idea of a foreign military staging operations against their (potentially) friends and neighbors.
 

Sandy:

The AUMF expressly granted the President the authority to use military force against any nation, group or individual who provided aid to or harbored al Qaeda. That language was specifically intended to authorize war against the Taliban, but can equally apply to others.
 

fraud guy:

Bart, are you advocating America as policeman for the world?

No. We would not enter Pakistan to police it. Rather, we happen to be at war with the Taliban and al Qaeda who are using it as a base to attack our troops and our ally Afghanistan. This former grunt has the quaint idea that you should win wars and you win wars by defeating the enemy no matter where he is hiding.
 

Well, you were directly referring to bringing a "semblance of order" to that area of Pakistan, not prosecuting the war on terror. Thank you for your clarification of your earlier point.
 

Here we go again:-

Under the law of nations, a state of war may only exist between two sovereign states. Therefore the so-called "war on terror" is at best political hyperbole in the same way as for a "war on drugs" or a "war on child poverty".

As a legal concept, there can be no "war on terror" because terrorists have no sovereignty.

Under the US Constitution the right to declare war is vested in the Congress - not the President.

The procedure under which authorisations for the use of military force (short of a declaration of war) are granted by the Congress are of doubtful constitutionality and at best benefit from the presumption of constitutionality because neither the Congress nor the President has taken the issue to the Supreme Court. Was not the intent of the legislation to prevent a president placing US forces in harm's way (as in Vietnam where the provision of military advisers escalated into disaster) without some congressional control?

Was the intention of the Congress in granting the AUMF at issue to permit the President to invade as many countries as he chooses in breach of the Charter of the United Nations, a treaty which the USA has ratified and which therefore forms part of the supreme law of the United States of America ?

Pakistan is an independent sovereign state. If there is some agreement between the USA and Pakistan for the US forces to operate on the sovereign territory of Pakistan, alternatively a resolution of the UN Security Council under Chapter VII of UN Charter permitting the use of force for the purposes of peace enforcement, the US actions could be lawful as a matter of international law, otherwise they are unlawful.

So it seems the issue may be whether the Congress can re-assert some authority over this rogue president - because if not, then possibly the question of whether the US has a "constitutional dictatorship" discussed on other threads has been resolved in one sense: the constitutional scheme envisaged by the US founding fathers was to vest control of the overseas relations of the USA (even down to the nomination of ambassadors) in the joint power of the congress and the presidency. That has broken down.

Yesterday, President Bush declared at the dedication of the Pentagon Memorial: "The years that followed have seen justice delivered to evil men and battles fought in distant lands"

Justice? Not in the eyes of the world. The "Delivery of Justice", would have been the capture and trial in accordance with law of the conspirators. Not the bombing, maiming and torture of persons in Afghanistan, Iraq and elsewhere who were in no way connected with 9-11. What has been delivered overseas in the name of the United States is injustice of the grossest kind. And that does no honour to the victims.

And now the "war which is not a war" is to be further extended in Pakistan?
 

Mourad:

No matter how much you and others would like it to be otherwise, no country including the United States needs UN permission to go to war.

Furthermore, international law is not analogous to domestic law in a nation state. There is no elected world government with sovereignty to enact and enforce international law. Rather, "international law" are actually unenforceable international agreements and understandings between sovereign nation states who only agree to abide by them out of their perceived self interest.
 

Just to be clear, Bart's reading of the AUMF is that it is a "delegation running riot" giving the President the authority to declare war on any country, anywhere in the world, that he determines provided aid to al-Qaeda. (Incidentally, does Bart believe that the congressional "authorization" is even necessary, or is it an inherent power of our "constitutional dictator"? (I'm not being snarky: This is a serious question, in every respect.)
 

Of course it's legal. If Pakistan sees someone it wants out of action in the U.S., of course it's perfectly legal for them to send an attack team into, oh let's say New Jersey, and take out the problem, as well as anyone who get in their way. And let's have no complaints from anyone that this is somehow not legal. If it's legal for us, it's legal for them.

Oh wait, Mourad already made this point.

Well I can expand on it: if in fact Pakistan did this, you'd never hear the end of the outrage from the right wing: "we were attacked!" The same right wing that claims it's ok for us to do the same thing. The hypocrisy drips of the table and oozes down the floor, boys.

Ah well, at least they're consistent in their hypocrisy. If a U.S. soldier were waterboarded, they'd be up in arms about the torture and the violations of Geneva and what a civilized country does and does not do. Likewise the recent prattle about Putin having no right to just invade another country, that's not what nations do in this day in age.

Passing then briefly from hypocrisy to consistency thereof, we may arrive at two year old morality, which is what this is. "It's OK if I do it but not if you do it". The law means nothing to a two year old, of course. That's why we don't hold two year olds to the full standard of the law. What adults understand is that if the law doesn't apply to everyone, then it's not law.
 

sandy levinson said...

Just to be clear, Bart's reading of the AUMF is that it is a "delegation running riot" giving the President the authority to declare war on any country, anywhere in the world, that he determines provided aid to al-Qaeda.

Can you read it any other way? The language is pretty darn broad and has no real limiting provisions. Essentially Congress declared war against al Qaeda and any person, group or nation who gives them aid or shelter. If you dislike such a broad authorization, take it up with Congress rather than the President.

Incidentally, does Bart believe that the congressional "authorization" is even necessary, or is it an inherent power of our "constitutional dictator"? (I'm not being snarky: This is a serious question, in every respect.)

Indeed, this is a deadly serious question.

Article I requires a declaration of war by Congress, which is essentially approval for the President to start a war. Thus, it is clear that at minimum the President cannot start a war against a nation state or a non-state guerilla group without such a declaration.

However, there are two interesting questions which are raised by al Qaeda's attack on the United States:

1) al Qaeda falls into a murky area. Are they more akin to a guerilla group where you arguably need a declaration of war or a pirate band which does not require a declaration of war to use military force to destroy? I have opined here that terrorists are more akin to a pirate bands and should be attacked on sight by all nations regardless of whom the group is attacking. However, I can see contrary arguments that they are more akin to a guerilla group because they are intent on establishing a Caliphate government.

2) Assuming that al Qaeda is a guerilla group, does the President need authorization from Congress to start a war when the enemy is already warring against the US? The war is already underway and a declaration is really moot. Moreover, do we really want to have the President waiting on Congress before he can use the military to defend the nation?

A an aside, even if a Declaration of War is not required legally, Declarations of War/AUMF's also serve a vital political purpose of committing the People through their representatives to the war before we send troops in harm's way. Unfortunately, this binding effect does not appear to last very long any more or survive even minor military reverses. See Iraq.
 

Bart, please do not try to educate me on the law of nations or the laws of war

I well understand that you are licensed and qualified to take the money of drunk drivers in Colorado who want to keep their driving licences. Pray explain if there is any other field in which you assert you are qualified.

You are, I think, what we call a "weekend soldier": "I am a weekend soldier, and the world is scared of me.. I've fought a million battles, to be home in time for tea..."

If you think you can do better than the US forces and ISAF forces, presently in Afghanistan, why not recruit a "Colorado National Guard with De Palma" and deploy and blog from there ?

I'm sure you will defend well in Helmand Province. Take the KY with you however. You may be called upon for a field experience of a new and different kind. You may be able to explain to us all how homosexual rape made you a better person and gave Mrs DeP an insight into conservatives doubtful about their masculinity.
 

2) Assuming that al Qaeda is a guerilla group, does the President need authorization from Congress to start a war when the enemy is already warring against the US? The war is already underway and a declaration is really moot. Moreover, do we really want to have the President waiting on Congress before he can use the military to defend the nation?

IIRC, we did declare war on Japan after they attacked at Pearl Harbor, when it would have been very easy to just assume the point is moot. With the threat of an actual nation state that had KO'd a significant part of our forward defenses, you would think that the then President and Congress would have thought that they could have skipped that step, based on your logic.
 

Bart: "Article I requires a declaration of war by Congress, which is essentially approval for the President to start a war."
How very odd. Does Bart seriously hold that a normal war starts when the President says it starts, and not Congress?

Suppose the US Congress had declared war on Germany in December 1941, rather than the other way round; and FDR had then taken no military action until Germany did. Would a state of war have existed or not?
IMHO it takes one side to declare war, and Congress' declaration is effective.

BTW, Congress was actually asked by FDR on 8 December 1941 to declare that "a state of war has existed with the Japanese Empire" since the attack on Pearl Harbour the previous day, making a standard declaration of war by either side pointless.
 

fraud guy said...

BD: 2) Assuming that al Qaeda is a guerilla group, does the President need authorization from Congress to start a war when the enemy is already warring against the US? The war is already underway and a declaration is really moot. Moreover, do we really want to have the President waiting on Congress before he can use the military to defend the nation?

IIRC, we did declare war on Japan after they attacked at Pearl Harbor, when it would have been very easy to just assume the point is moot. With the threat of an actual nation state that had KO'd a significant part of our forward defenses, you would think that the then President and Congress would have thought that they could have skipped that step, based on your logic.

I figured that this would be the response, which is why I added my aside at the end of the post discussing the policy benefits of asking for a Declaration of War even when one is not legally required.

Obviously, FDR did not consider the Article I provision requiring an Declaration of War to be any legal obstacle to immediately using military force against Japan prior to Congress' declaration.

My point is that the requirement of a Declaration of War would appear to be a check on the President starting wars on his own rather than a check on the President using military force when an enemy has already attacked us and we are in a de facto war.
 

jamesw said...

Bart: "Article I requires a declaration of war by Congress, which is essentially approval for the President to start a war."

How very odd. Does Bart seriously hold that a normal war starts when the President says it starts, and not Congress?

Yes.

A declaration of war is essentially an authorization to the President to use military force against an enemy. However, before the President actually uses that authority and goes to war, there is no actual war.

For example, let's assume that Congress called the AUMF a declaration of war against Iraq. Then let's further assume that the President declined to use military force against Iraq and instead negotiated the removal of Saddam Hussein from power and his exile in France followed by free elections which chose a pro US government. Was there ever a war?

As the commander of the military, only the President may actually go to war. Article I simply requires the President to seek permission from Congress before starting one.
 

I don't believe you.
As an example of US practice, see the declaration of war against Bulgaria on 5 June 1942. Extract:
"Resolved by the Senate and House of Representatives of the United States of America in Congress Assembled, That the state of war between the United States and the Government of Bulgaria which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Government of Bulgaria;..." (my italics)
Are you seriously arguing that FDR had the legal option of disregarding the state of war?
 

jamesw said...

I don't believe you. As an example of US practice, see the declaration of war against Bulgaria on 5 June 1942. Extract:

"Resolved by the Senate and House of Representatives of the United States of America in Congress Assembled, That the state of war between the United States and the Government of Bulgaria which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Government of Bulgaria;..." (my italics)

Are you seriously arguing that FDR had the legal option of disregarding the state of war?

Thank you for the perfect example of my point. I had forgotten that we went to war with Bulgaria.

As in my hypothetical, Congress declared war against Bulgaria, but FDR to my knowledge declined to wage war against Bulgaria. Thus, were we ever really at war with Bulgaria?

While an argument can be made that a de jure state of war existed between the US and Bulgaria, I would suggest that a de jure state of war is meaningless unless it is followed by a an actual shooting war.

Congress simply has no power to compel the President to command the military to go to war nor can it take over command of the military and send it to war.
 

Congress simply has no power to compel the President to command the military to go to war nor can it take over command of the military and send it to war.

Impeachment, anyone?

What is to prevent a particularly bloodthirsty Congress (with sufficient votes) from booting a President and Veep for arguable crimes and misdemeanors (treason for not prosecuting a war, perhaps) and seating the Speaker as the new President to prosecute the war?

Not that I want to give any ideas to any particular authoritarians.
 

Armed hostilities can commence before a war is declared. For example Japan commenced armed hostilities against Pearl Habour. The USA declared war against Japan in response to that attack.

I do not think anyone is suggesting that the President and his subordinates do not have the right to respond appropriately against an armed attack - apart from anything else it might take time to assemble a quorate Congress.

The point about a declaration of war is that certain legal consequences follow: diplomatic relations come to an end - nationals of the state in the USA become enemy aliens - corporations may pass into the jurisdiction of the Comptroller of Enemy Property etc.

The real problem is that the USA and other nations signed up to the UN Charter which outlaws wars of aggression. Which is why no Western State has declared war on another state since 1945.
 

In WWII the USAF Fifteenth Air Force carried out heavy and costly raids from base in italy and Libya on the Romanian oil facilities at Ploesti. The 15th AF memorial website refers to aircrew rescued from Bulgaria. So at least some planes must have violated Bulgarian airspace - look at the map. The Wikipedia article on the 1943 raids states that Bulgarian fighters were part of the German-controlled air defenses. So it isn't true that no acts of war were carried out.
The allocation of armed forces in war, the prioritisation of enemy targets, and coordination of operations with allies are plainly executive prerogatives, and nobody contests this. You cannot read from the facts that the USA was not at war with Bulgaria.
 

After some background mulling, I would like to revisit this quote:
A declaration of war is essentially an authorization to the President to use military force against an enemy.

WRONG. A declaration of War is the Congress telling the President to attack someone. You may have been confused by your repetitive, habitual, and yeoman conflation of the AUMF with an actual declaration of war.

However, before the President actually uses that authority and goes to war, there is no actual war.

So I suppose you think that, if the Congress declares war on a country, said country's military, intelligence, and economic services will wait until the President takes action before deciding to hit back or prepare? The only reason I can see for you to even attempt to split this hair is a overweening desire to try to arrogate an additional power to the executive that simply does not exist.

As the commander of the military, only the President may actually go to war.

WRONG. His obligation is to lead the troops (commander in chief).

Article I simply requires the President to seek permission from Congress before starting one.

No, Article I gives Congress the power "To declare war". Period. Article II gives the President the duty as "commander in chief of the Army and Navy of the United States", not the authority to start--in fact, the plain language is that Congress starts wars, and the President is ordered to prosecute it. They are not creating a king-dictator, but a servant, because, as per Article I, "No title of nobility shall be granted by the United States", all your wishes to the contrary.
 

Well, I have not seen any report of the Congress authorising the invasion of Pakistan: yet today the BBC is reporting the the Pakistani army fired warning shots at US helicopters and troops to prevent them crossing into Pakistani territory: Pakistan soldiers 'confront US'

With that and the EU envoy to Afghanistan reporting that the situation there is worse than at any time since 2001, and one begins to have some doubts about the wisdom of the Administration's strategy - always assuming it has one - other than simply to pass the buck to the next administration.
 

the Administration's strategy - always assuming it has one

Irony, pain, and much truth there.

As far as I can determine, its strategy is threefold: one, try to get UBL to make Shrub look good and get Repubs elected; two, pass along the mess from this and everything else fouled up so far, to the next administration to clean up; three, "last licks" before adult supervision separates Shrub from his army in January.

And we must admit, there's nothing wrong with this strategy, other than it's stupid, wrong, and illegal. And will make it that much harder for competent governance to make things better for years to come. And is destroying innocent human life. And has potential to escalate very fast and very, very badly.