Saturday - May 21, 2011

How is the War Powers Act Enforced?  Or Should it be?

The commander in chief of our armed forces has been ordering the US military to bomb Libya. Although the Constitution only allows Congress to declare war, the entire purpose of having a commander in chief is to be sure that there is a single man making decisions in times of emergency. Unity of command is critical to winning wars and ever since the earliest of days of our republic it has been assumed that the President can act militarily without a declaration of war if there is some exigent circumstance.

In the aftermath of the Viet Nam war Congress passed a law, vetoed by Nixon but nonetheless overridden by Congress, to limit the length of time that such exigent circumstances can allow military action.  Now comes the recent military action in Libya. Congress has not been consulted, no declaration of war or other authorization for use of military forces has been even contemplated. Sixty days, the limit of the War Powers Act, are coming to an end.

So now what? Does military action now become illegal? Should military commanders refuse to continue fighting because the order to fight is no longer a lawful order? Or should they wait until Congress acts to inform them that the fighting must stop?

The rule of law is only as good as the people require it to be. It might prove dangerous to our republic if our executive branch can unilaterally begin wars and simply ignore any laws limiting his power to wage war.  

As a military officer, I rely on having a certain amount of lawful authority when I issue the orders necessary for the accomplishment of my missions. This authority is based on agreement from society for the base of that authority. When a company commander tells a squad leader to attack, he does so because he has faith that the people of the United States have lawfully vested him with that authority, as delegated from that granted to Congress and the President. If that understanding of authority were to be questioned because it is based on unlawful military orders from the Commander in Chief, then we may cease being a nation of laws and our military will be no better than the tool of whoever is in office at 1600 Pennsylvania Avenue, much like the potentates of old or the likes of Mussolini or Hitler.

Congress has made a law. If we are to be a nation of laws, this law must be obeyed, or it must be overturned, either by Congress or by the courts. It cannot be simpy ignored by the very party it is meant to constrain.  

If the Commander in Chief wishes to challenge the War Powers Act, he should do so by going to court or by calling on Congress to repeal it. Simply ignoring it puts our military commanders and soldiers at risk of acting unlawfully, they will be damned if they obey and damned if they don't.

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