01 January 2020

Happy New Year. Let's Have (Another) War

The image is all too familiar: Anti-American protests in a Middle Eastern capital turn violent, with a US embassy--and the US civilians stationed there--becoming a convenient target of the protesters' rage. Too easily, it recalls the horrific 2012 attack on the US Consulate in Benghazi, Libya, in which Ambassador Chris Stevens and three other Americans were killed.  Thankfully, this attack on a US embassy had a somewhat better outcome, as no one was reported hurt during the attack.

Tit For Tat: How To Justify Endless War

The image is familiar because the story is one we've heard before: An American facility in the Middle East is targeted by a militia sponsored by Iran, this time resulting in the death of an American civilian. In response, the US attacks milita bases, killing dozens and injuring dozens more. Outraged their actions should have lethal consequences, militia members and their civilian supporters attack the one sure target in the region, the local US embassy.

In Baghdad, as in Benghazi in 2012, as in Beirut in 1984, Americans are being attacked not because of some horrible miscreance on their part, but simply because they are there. Those perpetrating the violence blame the US for other, often unrelated violence. With the perverse logic of Middle Eastern militias and terrorist groups, retaliation for unprovoked violence is justification for even greater violence. If the Kataeb Hezbollah has its way, any retaliation by the US for the embassy attack will be the catalyst for an even greater attack.

The US certainly seems willing to oblige Kataeb Hezbollah, for, right on cue, the Pentagon responded to the embassy attack by sending additional troops to Baghdad and pledging even more. More troops to become more targets for more attacks requiring more troops.

On both sides, violence becomes the justification for even greater violence. Out of this endless cycle of tit for tat comes the rationale for perpetual conflict, for endless war. 


Whether we are looking at Israel and Palestine, Saudi Arabia and Yemen, Libya, Syria, or now Iraq, if there is one common denominator among incidents of Middle Eastern violence it is this constant back and forth, this constant demand of an eye for an eye. On all sides, an attack by another is unforgivable, and retribution is claimed as the inalienable right of those attacked. On all sides, each act of retribution is viewed as an unforgivable attack, thus becoming the next justification for the next bit of retribution. Violence becomes the justification for further violence, and for greater violence. War is thus made the justification for more war.

Apparently, this logic makes sense to some people. I am not among them. War for its own sake is a particularly odious sort of barbarism, a mode of violence that never leaves room for peace.

Exactly what US interest is being served by our playing this demented game? Knowing what must happen next, why do the authors of US foreign policy insist on playing? Knowing that each retaliation is seen as an escalation and a provocation, why perpetuate the cycle?

An Endless War Is Not A Just War

No matter how reasonable an initial retaliation to a seemingly unprovoked attack might be, in no way can an endless cycle of retaliations and provocations ever be reasonable. Endless war is not--and can never be--a just war.

Nothing as violent and brutal as war should ever be started cavalierly, or for small and inconsequential reasons. Indeed, this is a key component of just war theory, the just ad bellum:
The principles of the justice of war are commonly held to be: having just cause, being a last resort, being declared by a proper authority, possessing right intention, having a reasonable chance of success, and the end being proportional to the means used.
"He started it" can hardly be considered a just cause for war. While all people and all nations enjoy a right of self defense, war is by definition offense more than defense. Being attacked, by itself, cannot be the sole justification for attacking in kind. If nothing else, an attack launched simply because one is attacked is not an attack launched as a last resort, but as a first option--the antithesis of a just war. 

Moreover, the endless cycle of such provocations precludes all chance of victory. There is not merely no reasonable chance of success, there is no chance at all. A war which does not end is by definition a war which cannot be won--again, the antithesis of a just war.

Finally, any pattern of constant escalations in response to provocations can hardly lay claim to proportionality. Eventually, an increasing crescendo must become disproportionate--again, the antithesis of a just war.

Endless war is, by definition, never a just war.

Only Congress Can Declare War

For the United States, any just war has one absolute prerequisite: The Congress must vote to declare war.

Article 1 Section 8 of the Constitution reserves to the Congress the power to declare war. Only when sanctioned by Congress can a US war be presumed declared by the proper authority. 

Further, the power of Congress includes the power to make all "Rules for the Government and Regulation of the land and naval Forces". A quick consultation of Merriam Webster on the meaning of "Government" ("authoritative direction or control") suffices to establish that any deployment of the armed forces falls under the rule-making power of the Congress. With or without a formal declaration of war, the authority to commit troops to combat is an authority of Congress and not the President.

Let me note here that the military mission in Iraq and Syria, Operation Inherent Resolve, was never authorized by Congress--nor was that authorization ever sought. Perversely, more attention was given to naming the mission than to establishing its legal foundation. 

Amazingly, all current US military action in the Middle East presumably is authorized by either Public Law 107-40 or Public Law 107-243, authorizations to use military force against the terrorists involved in the 9/11 attacks and against Saddam Hussein's regime in Iraq, respectively. These authorizations are nearly 20 years old, although both the Obama and Trump Administrations have maintained they are sufficient to send American troops into harms way.

They are not.

PL 107-40 authorized President Bush to use military force to deal with the Al Qaeda terrorists who perpetrated the World Trade Center attacks on 9/11. It was not a blanket authorization for endless war in the Middle East:
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
PL 107-243 authorized President Bush to use military force against Saddam Hussein and to enforce UN resolutions involving Iraq:
(a) AUTHORIZATION.—The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to—
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.
Whatever assertions one wishes to make about ISIS and other terrorist and rebel groups operating in Iraq and Syria, one fact is absolutely unavoidable: they had absolutely nothing to do with the September 11, 2001, terrorist attacks, and they have absolutely no connection to Saddam Hussein's brutal rule over Iraq. Iraq certainly is not a "continuing threat" today, nor was it in 2014.

Only by the most extravagant reading of either authorization to use military force can one conclude they provide adequate legal basis for any action by the United States anywhere in the Middle East. By the plain reading of both Public Laws 107-40 and 107-243, Operation Inherent Resolve exists outside any legal framework or justification.

Even the thin gruel of these authorizations by Congress fall short of a declaration of war by the Congress. Whatever such authorizations to use military force may be, the one thing they are not--the one thing they are never represented to be--is a declaration of war. Reliance on the use of such authorization alone is to wage an undeclared war.

While the Constitution does not require that war be explicitly declared, no undeclared war can ever be counted as a just war. Even if an authorization to use military force is a legal authorization by the Congress to commit troops to combat, the ethics of such commitment is at best problematic, and at worst nonexistent.

No Debate, No Consent, No Legality

The one saving grace of Public Laws 107-40 and 107-243 is this: at least the Congress debated and discussed the matter, gave at least some consideration to the merits and demerits of such authorizations. The elected representatives of the American people, presumably acting on behalf of their respective constituencies, considered each measure and, hopefully, voted the will of those constituencies. Even though not Constitutionally sufficient, with these authorizations there was at least some deliberative process, some assertion by the "right body" for any just war involving Americans.

Where was the debate over Operation Inherent Resolve? Public discussion over the mission's name hardly counts as appropriate deliberation by the Congress. Congressional haggling over military budgets is equally inadequate for justifying any war effort--justifying war is not a question of determining how much to spend but whether to send troops into battle in the first place.

There has been no debate over Operation Inherent Resolve, Congress has never consented to Operation Inherent Resolve, and thus there is no legality to Operation Inherent Resolve, nor to any military action arising out of Operation Inherent Resolve. Op-ed pieces and chattering class commentary abound in the legacy media, but posturing by media pundits is not any substitute for the Constitutionally commanded Congressional debate and deliberation over whether or not to take the nation to war. Neither CNN, nor Fox News, nor even A Voice Of LIberty can presume to speak for the Congress, and so cannot presume to speak for the American people.

There has been no recent Congressional debate over America's military involvement in the Middle East, and certainly there has been no recent Congressional consent (except implicitly by its acquiescence to the adventuristic whimsy of the President, which is wholly unacceptable) to America's military involvement in the Middle East, and so there is no legality, no propriety to America's military involvement in the Middle East.

The US forces of Operation Inherent Resolve are fighting an illegal war.

Make The Case

It takes no great exercise of the imagination to realize that terrorism is a problem. Terrorism is not a problem that will ever simply go away. Terroristic activity of one form or fashion pre-dates the Republic and likely will exist long after the United States has faded into history. Terrorism is a challenge for 2020 just as it was for 2001, and 2002, and 2012. Terrorism must be confronted, and must be done so in such fashion as will do the most to eliminate terrorism and terrorists from the face of the Earth.

Against Al Qaeda, against Isis, against any terrorist organization that seeks to harm the United States, there is a clear call to take action. That much should never be in dispute.

However, a call to action is not a blanket justification for all action. Unless and until the case is made for a particular action or strategy, that action or strategy cannot be presumed to be justified, and it certainly cannot be presumed to have been authorized by the Congress.

Nor is this the first time the Congress has been confronted with this issue. The First Militia Act of 1792 was passed specifically to give the President an authority to call forth the militia under specific circumstances.  This act of Congress arose from the military disaster known as "St. Clair's Defeat" (also as The Battle of The Wabash), which left the United States with a worst-case scenario of an Indian incursion while Congress was in recess and could not authorize calling out the state militias to respond. Congress addressed this possibility by granting to the President limited authority to summon the militias to repel invasions or deal with insurrections (this power would be brought to bear during the Whisky Rebellion in 1794).

Surely if a fledgling Congress can address exigencies of national defense and national security in conformance to the Constitution, the Congress today can do so as well. There is no reason, and no excuse, for such Constitutional lassitude by this or any session of Congress.

No matter how many US embassies and consulates are attacked, the United States government must operate under the strictures of the United States Constitution, and the United States Constitution says that only the Congress can take the nation to war. Before the Congress can take the nation to war it must debate, discuss, and ultimately pass the appropriate enabling legislation.

We must have that debate. Congress must have that debate. Congress and the President must make the case for war--either with Iran, with Kataeb Hezbollah, or both--and, if the case has merit, then declare that war and let us prosecute it to the utmost. Let there be a declaration of war, a summoning of the will, the determination, and the might of the American people to make a quick and victorious end to that war, and then let there be peace.

That would be the right thing to do. That would be the right choice for the Congress to make. That would be the Constitutional choice for the Congress to make.

What we are getting now is the wrong choice. What we are getting now is the President, the Congress, and the legacy media ringing in the New Year by gifting us with yet another undeclared (and illegal) war.

If there is one resolution both Congress and President Trump should make to start 2020 it is this: there will be no more illegal, undeclared, and endless wars.

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