Operating in the Grey- War Powers

Operating in the Grey- War Powers

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The following post was writen by ASP Senior Adjunct Fellow Ken Robbins

So in an election year in which the abnormal has become normal, we now have this.

“A 28-year-old Army officer on Wednesday sued President Obama over the legality of the war against the Islamic State, setting up a test of Mr. Obama’s disputed claim that he needs no new legal authority from Congress to order the military to wage that deepening mission.”  – NYT May 4 2016

An authorization for the use of military force has been introduced, but not acted upon by Congress.  Not surprising given that it is an election year and Congress likes to not take votes on important issues, especially ones that may come back to haunt them.  (Remember Obama vs. Clinton in the 2008 Presidential primary and the debate on the authorization over the war in Iraq)

It appears that CPT Smith, in favor of the fight against ISIS, is questioning the constitutionality of the President’s action and has teamed up with some academics and lawyers to take the issue on directly in court.   On the surface, I always think that open dialogue and discussion on these issues is very healthy.  Several years ago I co-authored a chapter on Congress’ role in National Security. Thus, while I respect CPT Smith’s opinion, I think he is just wrong for a number of reasons.

  1. No legal standing. It is not really the military’s responsibility to challenge this issue.  The authority and authorization to wage war is a matter between Congress and the President, not the military.  Congress has plenty of smart people (no laughing) and they are well positioned to protect their own constitutional authority, they don’t need the military’s help to do that.
  2. Head Nods Count. Congress has tacitly given its approval by appropriating money for the fight.  Yes, it is unlikely Congress would pull the plug on our military in the middle of the fight.  But there are plenty of ways they could push the President to reconsider, if that is what they really want.
  3. Be Careful What you Ask For. Congress might actually NOT want to formally approve the President’s actions.  A formal approval event short of a declaration of war actually gives the President far more latitude and discretion then they may want him to have.  We often romanticize that if we go back to the days when Congress declared war on our adversaries, it would be a neater and better place.  I fundamentally disagree.  War declarations are broad, messy, and invoke all sorts of second and third order consequences.

The War Powers Act has been studied by scholars for years and is generally believed to be a constitutional overreach into the Commander in Chiefs power to wage war.  However, neither branch of government is anxious to go to court over the issue for political and practical reasons.  Always better to operate in the gray then to have a court outline it in black and white.  It’s a topic worth debating, but this is not the proper avenue for such a debate.  Our commander in chief should rely on our military leaders for their advice on military and not constitutional matters.  ISIS is a non-state actor and formal congressional approval to fight them, even short of a war declaration, gives them more credibility than they deserve.

Kendric H. Robbins is a retired Army officer with more than twenty years of experience serving in tactical, operational and strategic level assignments.  Most recently, he served as a Special Assistant to the Chief of Staff of the United States Army.

Ken is the co-founder and CEO of Agent Hero Inc., which aims to connect home buyers and sellers with carefully selected professional real estate agents who are military veterans or spouses.

His educational background includes a B.S. in American Politics from the United States Military Academy and a Master in Public Administration from the Harvard Kennedy School where he was recognized for academic and leadership excellence.  His military awards include the Legion of Merit, NATO medal, and UN Meda