Balkinization  

Monday, December 26, 2011

How to Think About War Powers, Pt. 3

Stephen Griffin

The last post ended with the promise that I would discuss the special dangers posed by “real” wars. Well, we’re almost there. I need to pursue a sub-topic
first, whether it makes sense to distinguish big or “real” wars from military
operations short of war. Some people believe we don’t need to do this. They
think there are crucial constitutional issues at stake every single time the
president orders a military operation. Thus, they seek a doctrine or set of rules that would tell us under what circumstances the president can act. This is not my project and I doubt that we could ever come up with such a doctrine, at least in the absence of the judiciary lending a consistent common law helping hand across a range of cases. Rather, I suggest we focus our attention on those operations that pose the gravest policy risks and the deepest constitutional and moral issues. Doing this, however, involves clearing out some rather mythical conceptual underbrush concerning how the US gets itself into major military operations, the ones we call “wars.”

The least constructive myth, propounded by some critics of the Vietnam War, is that big wars can start small. I’ll take this on in a moment. For now, let’s appreciate
how wars, “real” wars are fought. In 1941, FDR received some valuable advice from the Army’s War Plans Division: “Only land armies can finally win wars.” Despite some novel theories propounded by the Air Force especially and American conservatives in the years since, so it has remained. Ground forces are required to defeat enemy ground forces, control territory, conduct counterinsurgency and even to direct and assess the consequences of drone strikes. As of 2010, there had been over 410,000 casualties suffered by the US armed forces since 1945. The overwhelming majority were tallied in the ranks of the Army and Marines, the “boots on the ground.”

You may have noticed that Americans keep fighting in Asia and the Middle East
rather than Europe which is relatively close by. Substantial military operations in these regions require at least tens of thousands of troops deployed over weeks and
months. So however much it may seem that post-1945 wars have been launched in the midst of emergencies, the practical reality of fighting wars by means of ground troops means that there has always been time to think twice and deliberate before sending them into action. This was no less true in Vietnam, than in Korea, the Gulf War, Afghanistan and Iraq. In 1990, President George H. W. Bush made the decision to launch Operation Desert Shield (defending Saudi Arabia) in a matter of days without consulting Congress. But it took seventeen weeks for a purely defensive force to be assembled in the desert opposite Kuwait. Plenty of time for congressional deliberation, yet Bush did nothing. He did ask for a congressional resolution months later in January 1991, but by then it was too late for Congress to stop the operation.

The fact that our wars are still fought by ground forces means there is always time
to deliberate if the president and Congress wish. But they usually have not so wished. Recent historical scholarship has established that most leading senators with expertise in foreign affairs were deeply skeptical of launching a war in Vietnam during the crucial 1964-65 period in which President Johnson made his decisions. Yet they were also unwilling to force a public debate, a tremendous
tragedy for American public policy. After reviewing decision making on all of the major wars fought since 1945, I see no evidence that a lack of interbranch deliberation improved policymaking. As constitutionalists might expect, the opposite seems to have been the case. In my larger project, I build a systematic case that deliberation inside the executive branch cannot substitute for the
constitutionally mandated process of interbranch deliberation. This has implications for how we assess recent arguments by executive enthusiasts like John Yoo and the joint work of Eric Posner and Adrian Vermeule. It also constitutes a kind of “reverse proof” that the original constitutional order, one in which the branches deliberated together, was best suited to promoting sound public policy.

But what of the idea that big wars creep up on us? If this is true, it would mean there would not necessarily be a sharp line of demarcation between “real” wars and other sorts of military operations. Small operations could somehow morph into big wars. What we should understand is that the enormous lead time required for the buildup of the ground forces necessary to fight and win wars makes this implausible. The more common pattern has been for a crucial period during which the decision to prevail at whatever level of force is required is made – but only inside the executive branch. This was true in Korea, the 1991 Gulf War and Iraq. Afghanistan was planned by both branches as an operation in which the use of any force necessary was authorized in advance. It was of course too bad that the armed forces had no preexisting war plan for Afghanistan, but that doesn’t change the fact that what resulted was authorized.

Vietnam is the example everyone cites in this context, but it actually demonstrates the opposite. Careful scholarship by many historians has established that there was a narrow window of time in which LBJ made the decision to prevail, no matter what the level of force required. The buildup of forces along with a bombing campaign began immediately after these decisions, starting in early 1965. The escalation that resulted might have appeared to be gradual, but to conclude that a big war started small would confuse logistical details with fundamental policy decisions. It was because the eventuality of a “big war” was anticipated from the beginning that it took the Pentagon about two years, from 1965-67, to put in place the infrastructure in South Vietnam necessary to support an effort that in time involved over 500,000 troops. Big wars start with big presidential decisions. That means we can usefully focus on those decisions and the process by which they were taken in the effort to understand how the US went to war after 1945.

PS: I welcome Mary Dudziak’s post on the insulation of the American people from an era of continuous war by the buildup of many wars I would consider “small.” While I hope to take up her insights later in this series, I wonder for now whether she would make a distinction between how the American people experienced war before and after the all-volunteer force. The end of the draft in the 1970s is surely relevant to how the American people experienced war, both politically and culturally.

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