Thursday, June 16, 2011

Another really good question

This is how the intertubes work. I am recommending you read a post that Gino recommended on his frequent commenter Brian's blog, but that is a guest post from a commenter to Brian's blog named Dave.

The subject is the War Powers Act, a 1973 law passed in the twilight of the war in Vietnam, which places strict limits on a president's ability to make war without Congressional approval.

Allow Dave to introduce himself:

I'm a naval officer. I generally don't like making partisan political arguments and I am essentially prohibited from making such statements in public. Even though I have pretty strong political opinions, I'm okay with that; a staunchly non-partisan military is one of our country's great accomplishments. Unlike everyone else is the country, I have people who have explicitly sworn to obey my orders. So I really need to be careful about what I say … my comments could be construed as undermining the constitutional order. And since these people who swear to obey my orders have access to guns, well, that's a big deal.

There's no doubt about that. Dave is concerned that President Obama is flouting the War Powers Act:

That constitutional order is very important. As a commissioned officer, I have sworn to preserve, protect, and defend the Constitution of the United States. Not to obey orders, but to support the constitution. And while that constitution names the President as the military's commander-in-chief, it also grants a significant war-making role to Congress. And Congress, empowered to both declare war and to regulate the naval and land forces, has exercised that power in the form of the War Powers Act. And my sense is that the administration, by continuing military operations in Libya beyond the 60 day limit without congressional approval, is violating that Act.

He's making the proper distinction. Then he asks the right question for someone in his position:

So what is an officer to do?

I don't think the answer is clear. I might breezily state that a good military officer should refuse any orders dealing with Libya. Legally defensible perhaps, but generally not a good habit to get into. The armed forces should not get into the practice of parsing the constitutionality of orders, especially those from the top.

But, the War Powers Act remains. If the intent was for the armed forces to just obey Presidential orders, congress would have included the part from the enlistment oath about obeying orders in the officer's commissioning oath. They left that out on purpose, creating in the contest of Libya a bit of an ethical quandary.
To me, there are two issues at play here.

1) Should a president's ability to wage war have limits?
2) How do we deal with gaps in the law that leave big questions of this sort out there?

I'm not a constitutional scholar and wouldn't pretend to know whether or not the War Powers Act is actually constitutional. Every administration that has operated under the law has fought it, in one way or another, as an arrogation of executive power. Having said that, every president has had, in the end, to go with hat in hand to Congress. Now it's Obama's turn to deal with the issue.

We owe it to our naval officers, and to all who wear the uniform, to resolve this issue. Dave makes the point quite well:

I do not think that Congress has a responsibility to approve the Libya adventure in order to avoid constitutional ambiguity; to argue so would turn the legislature into a rubber stamp. But I do think that this is the inevitable consequence of a half-century of Congressional dereliction with regard to executive power in general and specifically with presidential war-making.
It has to stop sometime. Meanwhile, as they always say, read the whole thing.

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