Balkinization: How to Think About War Powers, Pt. 2

How to Think About War Powers, Pt. 2

Stephen Griffin

If we wish to understand how and why presidents have used their war powers in contemporary times, we should inquire into how presidents see their own situation. In my first post, I posited that presidents believe they are advancing the foreign policy and defending the national security of the US. (I will bracket for now the role of domestic party-political considerations). So presidents tend to think about using armed force in the context of foreign policy and national security, not “war.” Mind you, the US has fought a number of major wars since 1945 and no one thinks otherwise. But presidents see war as a means to an end. Perhaps this is unremarkable, but experience shows that it is easy for them to focus so much on foreign policy ends that they lose sight of the terrible nature of the means. This of course suggests one of the purposes of deliberating about war in advance.

For now, let’s lay aide whether interbranch deliberation is obligatory and stay
with the path of understanding war powers in the context of US foreign
policy. One advantage of this perspective is that it provides the most relevant evidence concerning what presidents have actually been claiming about the nature of their constitutional powers. Explicit presidential statements on this score are few and scattered in the post-World War II period. But presidents generally do not spend much time ruminating about their constitutional powers. Presidents must at least implicitly claim the powers they need to execute US foreign policy strategy. So to understand their conception of their powers we need to understand the strategy they are executing. In the early Cold War, that strategy was conceptualized as containment of both Soviet power and communism (setting aside the fact that these were two different things). There are disputes over how containment was initially defined and evolved, but what is important for our purposes is that the concept was implemented by creating the capacity to project military power on a global basis. When combined with circumstances suggesting a constant threat and emergency, this triggered the necessity of claiming that presidents had the constitutional power to intervene anywhere in the world, including starting a war, on a unilateral basis. Because presidents have never been relieved of their Cold War-acquired responsibility in foreign policy and because this military capacity has never been dismantled, presidents have never relinquished this fundamental claim.

It may appear I am building to a standard conclusion about the dangers of the imperial presidency. But this would miss the fact that fundamental aspects of foreign policy usually make it, however indirectly, to the ballot box. So although important qualifications must be made about the actions of particular presidents, in general the war record of presidents since 1945 has also been our record, the record of the American people. It is one thing to say that Korea and Vietnam were unpopular wars. It is quite another to claim that containment of communism was unpopular. It remains the case that military operations ordered by presidents are judged politically in terms of the larger policies they serve rather than on narrow legalistic conceptions of what truly constitutes a “war.” Broadly speaking, this shows the dominance of the presidentialist perspective in foreign policy.

Consider President Obama’s air strikes against the Gaddafi regime. Libya was no Vietnam. But under the influence of the standard war powers debate, sometimes it seems every post-Vietnam military action has been treated as if it could morph into a full-scale war. The debate has been built around the premise that all military operations pose the same constitutional and policy risks. But there is something wrong with a view that equates Libya with Vietnam or Libya with Iraq. Vietnam cost well over $700 billion in 2010 dollars. The Iraq War was approaching $1 trillion as we left. There were over 36,000 casualties in Iraq, over 210,000 in Vietnam. Libya might have cost the US around $1 billion, with no known casualties. That appears to be a fair-size difference, on any dimension of analysis, but especially in policy and moral terms.

At one level, everyone understands that Vietnam and Iraq were “real wars,” while Libya was not. Yet the terms of the war powers debate keep pulling us back into making false equations between far different types of military operations. Those terms need to be questioned. Wars, “real” wars, pose unique risks for American constitutionalism. Small-scale presidentially-ordered military strikes in support of rebels do not. Why is this the case? That’s for the next post.

Posted 4:53 PM by Stephen Griffin [link]