Saturday, August 31, 2013

What should Congress vote on?

President Obama's request for congressional authorization for retaliatory strikes in Syria creates tough choices for members of Congress. Do they want to assert their constitutional role in war powers by taking decisive action, or do they want to play political games? Does a majority want to support action, oppose it, or try to set limits and conditions?

The best model for congressional action is the law they passed in 1983 authorizing participation in the UN peacekeeping force in Lebanon, the only time Congress specifically authorized force under the War Powers Act. Public Law 98-119 has several features that should be part of any measure on Syria:
- It declared the action is part of the War Powers Act process, thus reasserting that mostly ignored law as a proper basis for action.
- It limited U.S. military participation to a peacekeeping mission as President Reagan had promised -- that the U.S. forces would not engage in combat.
- It provided expedited, no filibuster rules for considering subsequent amendments to the law.

The best test of the Obama policy would be a simple up-or-down vote on a joint resolution authorizing the attack but limiting its purpose and scope.  If that is not enough, if some members want to promote a policy of military aid to the Syrian opposition or a no-fly zone, let them vote on that and abide by the results. If it's too much, let them vote that way and deny the President the support he seeks.

If Congress can't come together and agree on a common policy, they will forfeit their claims to war powers.

But can Congress get its act together?

On Syria, not likely. They sure haven't been able to come together on much else this year.

With few exceptions since 1973, Congress has not really accepted its own responsibilities under the War Powers Act. Lawmakers, especially from the President’s opposition party, have pounded the table demanding a congressional role, but rarely have they actually tried to pass legislation that would support, oppose, or condition the use of force. Unless and until they actually negotiate and pass something, they should shut up about presidential abuses of the war power.

Thus far, the only bill that has even passed a committee is a Senate measure, S. 960,  that calls for assistance and training, including defense articles, to elements of the Syrian opposition that are " vetted" as not being connected to identified terrorist groups and are "committed to rejecting terrorism and extremist ideologies." [Maybe they'll hire the same firm that did the security clearance for Edward Snowden.]

The most popular pro-Syrian aid bill in the House hasn't been approved by any of the three committees it was referred to months ago.

Congress wants to have it both ways: look tough but avoid blame if things go sour. Still, it would be good for the country if lawmakers actually had to decide whether they supported or opposed retaliatory action in response to the evident Syrian use of chemical weapons, or whether they could agree on a policy in law that set some conditions or restrictions on the President.

Congress can say no to war and mean it

It's a shame that the Obama administration hasn't even tried to force Congress to take a stand on Syrian use of chemical weapons. Prior to 1950 and the start of the Korean War, that was the practice in cases of major military operations.

John Adams asked for and got a military build up to prepare for possible war with France in 1798.

Thomas Jefferson sent ships with strictly defensive orders against Barbary pirates while Congress was out of session for several months, but asked for authority and more ships -- and Congress responded not only with formal authority to fight but even voted new taxes to pay for the operations.

Just recently, while researching the war of 1812, I discovered that Congress had actually authorized the seizure of Spanish-held East Florida in 1811 in a secret law not disclosed until many years later. I’d missed it because the war did not take place. [Andrew Jackson took Florida on his own a few years later.] I also learned that, despite that 1811 law, Congress in 1812 defeated a bill sought by President Madison  to occupy and establish a government in East Florida. Madison decided to withdraw troops already deployed for the attack.

I also learned that President Buchanan twice –in 1858 and 1859 -- asked Congress for the authority to send troops into northern Mexico and establish a protectorate there. There was ongoing widespread civil conflict and atrocities against Americans and Mexicans. He never sent the troops because the Senate first defeated such a bill and then failed to act on his second request.

These are worthwhile examples of when Presidents heeded the will of Congress on military actions.

Thursday, August 29, 2013

British vote on Syria

It's time for the Obama administration to listen to their GPS device, which is saying "recalculating." The road to Damascus has suddenly been blocked.

The British parliament tonight voted 285-272 against a fairly mild government proposal that read as follows:
That this House, ... Believes that the United Nations Security Council must have the opportunity immediately to consider that briefing and that every effort should be made to secure a Security Council Resolution backing military action before any such action is taken, and notes that before any direct British involvement in such action a further vote of the House of Commons will take place; and
Notes that this Resolution relates solely to efforts to alleviate humanitarian suffering by deterring use of chemical weapons and does not sanction any action in Syria with wider objectives.
Note that the language urges military action but conditions it on UN Security Council approval and a subsequent parliamentary vote. Note that it stops short of calling for regime change,

Despite those provisions, parliament voted no.-

Meanwhile, the French want to wait for the formal UN inspectors' report.

Isn't this reason enough for the administration to stand down? Isn't it time to "recalculate'?

walking the cat back beyond the Syria red lines

Deterrence works fine in theory: if you do X, I will punish you severely -- at a time and place of my choosing with actions you will find unacceptable. The threat must be clear and credible.

In practice, however, there are many difficulties applying that theory. The forbidden action might be hard to verify [such as the origin of many cyber attacks]; or the target state might have a different calculus of how much pain it can bear [why did North Vietnam keep fighting?]; or the warning state might lack the capability or the political will to carry out the threatened action [would a president really risk the nuclear destruction of even one American city by using nuclear weapons to prevent occupation of, say, Estonia or the disputed islands in the South China Sea?]

The Obama Administration thought it could deter any Syria "use or transfer" of chemical weapons by saying that would cross a "red line."  It didn't work. Now what?

The administration seems headed on a path toward some kind of punitive air strike, as one unnamed official told the L.A, Times, "just muscular enough not to get mocked" but not so devastating that it would prompt a response from Syrian allies Iran and Russia.  If that's their criterion, I bet they end up on the "just enough" to be mocked -- and thus further weaken U.S. credibility for future deterrence warnings, such as to Iran.

Since Presidents don't say "I was wrong," the administration needs another way to walk the cat back beyond those Syrian red lines.

The President could establish additional conditions for punitive action, and then stick to them. Conditions like an endorsing vote by some international organization -- such as NATO at the time of Kosovo in 1999. Conditions like formal approval by Congress.

The United States could also buy some time for diplomacy by offering or threatening to deploy more troops outside Syria for military training and refugee relief.

The strongest argument for action is that U.S. credibility is undermined if we make a threat and don't carry through. But remember that deterrence theory requires threats to be credible -- and a mockable military action now wouldn't bolster credibility in a future faceoff with Iran.

Obama originally said that the crossing of the red line "would change my calculus." A revised calculus would still show that a punitive strike would fail to achieve our announced strategic goals in Syria. So don't do it.

Tuesday, August 27, 2013

two sides on Syria from one author

I have to share this: George Packer's imaginary dialog over what to do in Syria. There are strong arguments on both sides. But we are dealing with enormous uncertainties and unforeseen consequences of action and inaction. Sad to say, whatever the President's decision, it will be presented as if there were no doubts, no alternatives. That's the way Presidents announce and defend their policies. But remember that foreign policy isn't brain surgery but more structured improvisation.

legal justification for action in Syria

I'm not a lawyer and I do not believe that legal opinions should always constrain state actions. But I do believe that widely shared international principles governing the behavior of states should be taken into consideration.

I await with interest how the Obama administration explains how its actions in Syria in response to apparent chemical weapons attacks -- whatever they may be -- fit within international law.

I think there are widely shared international principles -- the just war doctrine. When the Security Council was unable to act in Kosovo in 1999. NATO members decided to act. In my view, that constituted the "legitimate authority" required for action since it was a determination by an existing international organization that even operated under a unanimity principle.

Thus it would help if some other existing international organization formally authorized a punitive response to the use of the chemical weapons.  I know U.S. military doctrine works to limit collateral damage and civilian casualties, another just war principle. Perhaps harder to justify is the principle that the actions "must have a reasonable chance of success." Although the goal of many nations is to overthrow the Assad regime, that is beyond the reach of limited air strikes, so some other goal must be chosen, for which there is a chance of success.

Let's see what the lawyers say, and whether they blush as they say it.

Monday, August 26, 2013

catching up with the spy stories

Now that I'm back home from the beach and gearing up for the new academic year, I've tried to catch up with the news, including the avalanche of reports from the Snowden leaks.

There's a good summary of recent revelations at TPM. I also valued the comments of Dana Priest and Walter Pincus of the Post and Marc Ambinder.

I don't accept the "trust us" approach of some in the intelligence community, but neither do I accept the "we weren't told" complaints by those in Congress who were not on the intelligence committees. What I'm waiting to hear is a documented assessment of how well those committees with jurisdiction did their jobs.

making sense of the Mideast mess

There's a sad irony in the New York Times headline over Ed Luttwak's article, "In Syria, America Loses if Either Side Wins." The United States has no good options, and it's hard to sort out bad from worse.

President Obama backed himself into a corner when he said Syrian use of chemical weapons would cross a "red line." Even though there are no low cost or low risk ways to deal with Assad's arsenal, it looks as if there will be some cruise missile strikes -- that will then be derided as ineffective. Meanwhile, the Saudis are pressing their own campaign to defeat Assad. But the Chairman of the Joint Chiefs of Staff  notes that there are many sides in the conflict and none are currently ready to promote our interests as well as their own in a future Syria.

As if Syria weren't enough of a problem, we still have Egypt to deal with. The military leadership in Cairo rejected our advice to show restraint to demonstrators and former officials. Now the President faces a legal problem of continuing aid when the law requires a cutoff. Here, the most salient fact is that U.S. aid would total $1.3 billion, but the conservative Gulf monarchies have already pledged $12 billion to the new Egyptian government. No wonder our leverage is limited. In addition, even the Israelis are pressing the U.S. government not to cut off aid.

Since there are no good options, I hope the administration continues a cautious, temporizing, hedging approach -- not because that might work out, but because significant military action in Syria or a break in relations with Egypt would be even worse.

Tuesday, August 13, 2013

two sides to every story

It must be shocking to most people to read this in FP's Situation Report:
There are 148 senior civilians at DOD who never finished high school. The vast majority of GS-12 to GS-15 workers across the Defense Department are well-schooled. A handful aren't. According to the Pentagon, there are 148 DOD civilians who do not possess a high school degree or its equivalent. That's despite the fact that GS-12 workers can make, if they live in the greater Washington area, between $75,000 and $97,000 per year; GS-15 workers make between $124,000 and $156,000 annually in the same locale.  It's not clear where the individuals who didn't finish high school reside across DOD, and it may not be in the D.C. area. But at a time when the Pentagon is furloughing civilian workers and examining compensation issues among the uniformed military, even the small number of civilian workers making such high salaries without completing high school is striking. According to DOD data provided to Situation Report, there are 105 GS-12 employees with no completed high school degree; there are 36 GS-13 workers with no high school degree; Among GS-14 workers, there is five. And among GS-15s, there are two individuals in the DOD work force who never finished high school. "There is not a general policy on education requirements for General Schedule (GS) positions ranging from 12 to 15," according to a Pentagon spokesperson, who pointed out that many GS positions - such as engineers and psychologists - have "positive education requirements."
On the other hand , listen to this story about a friend who served as U.S. ambassador to several countries but also never finished high school.

He was evacuated from Egypt, where his father worked for the U.S. aid program, at the start of the Suez war, so he didn't complete his senior year in high school there.

No problem,  because he had been admitted to college. Four years later, however, the bursar's office called just before graduation, noting they had no record of his high school diploma  and could not give him his BA unless and until he had one.

He didn't want to take the time or trouble to do a GED because he had already been admitted to graduate school. So he was not given his college diploma.

Several years later, ready to accept his PhD,  university officials said they couldn't award that degree unless they had proof he had a BA.

He gave his explanations, but the administrators were unyielding. Never mind, he said, I've been accepted into the Foreign Service.

What's the moral to this story?

Monday, August 12, 2013

dividing up the world

Defense News reports that the Pentagon is seriously considering redrawing the map of its combatant commands. Among the options are disestablishment of the Africa Command, combining the Northern and Southern Commands into a single Western [hemisphere] command,and putting Pakistan and Afghanistan in the Pacific Command, where India already is.

The impetus appears to be to save money, plus to put the South Asian countries together for military planning purposes. Those actions make sense.  I don't know about Africom, since it had a promising start but a troubled history.

What's ironic is that the Pentagon has long insisted that its regional divisions made such good sense that they should be copied by the rest of the government. President Obama's first national security adviser, General Jim Jones, apparently tried to do that, without success.

In fact, the DOD map made little sense because it kept political fault lines under different commands, so that the commander would not have to worry about offending one adversary when visiting or dealing with another. Israel and the Arab countries are in different commands, as are India and Pakistan. The State Department, much more logically, puts the Middle East, South Asia, and the Western Hemisphere into coherent units.

secret war discovered

For several years now, I have prided myself on my list of 20 authorizations of force passed by Congress, only five of which were declarations of war. Another five were what I called contingent authorizations of force, which included the two conflicts with Iraq.

Now as part of my summer reading, I've been reading more on early 19th century disputes, and I discover, in an interesting book about that period, that in January, 1811 Congress specifically authorized President Madison to seize East Florida from Spain.

From an online source:
On January 15, 1811, Congress gave its approval for an act to “enable the president of the United States, under certain contingencies, to take possession of the country lying east of the river Perdido, and south of the State of Georgia and the Mississippi Territory, and for other purposes.”
The President was given several powers in accordance with the bill: 1) To employ the military for the purpose of controlling the province if it became necessary 2) To appropriate 100,000 dollars for the necessary expenses of coveting the territory 3) To establish a temporary government over the territory in the process. 
To my chagrin, I had missed this. Nor is included in the Library of Congress' wonderful database of debates, laws, and state papers from the Continental Congress through 1876. So I dashed to the library and found a reference to a 1918 publication by the State Department with all the declassified material.

I missed this, I think, because the military operation was later called off. It's a war that didn't take place. But in 1818 Andrew Jackson invaded Florida in a reprisal raid authorized by President Monroe ostensibly to protect U.S. citizens from Seminole Indians, and Spain agreed a year later to cede Florida to the United States.

Sorry about that....  I hope there aren't any others I missed.

Friday, August 9, 2013

the joy of leaving

National Journal has another collection of quotes making the point that Congress isn't fun anymore. Sad but true.  To get elected, they have to give up their privacy, raise money from thousands of strangers, make promises they can keep without blushing, and then win more votes than anybody else.

Once elected, they get little respect and lots of abuse. They have to maintain two residences and somehow balance family and work life in two places. For this they are paid $174,000 per year. There's little likelihood of a pay increase --there hasn't been one since 2009. Today's pay is 18% below the 1992 level in purchasing power. No wonder half the members of Congress are millionaires.

In the old days -- they weren't necessary good, but they were better -- members had time to know each other and even formed friendships across the aisle. Now they are told to spend 4 hours a day raising money for their campaigns and bipartisanship is a punishable offense. There was occasional gridlock in the past over big political questions. Now it's there on the most trivial issues.

No wonder so many want to leave.

Friday, August 2, 2013

constitutionality of anti-war amendments

Now that I've had a chance to look at some of the recently released historical memos by the Office of Legal Counsel at Justice, I want to comment on one that strikes me as significant for the future.

In the spring of 1970, after the Nixon administration's invasion of Cambodia prompted widespread public outcry, especially among the student population, the major anti-war measure was the McGovern-Hatfield amendment that would have required the withdrawal of all U.S. military personnel from Vietnam by June 30, 1971 and would have limited funds after December 31, 1970 only for actions connected to such withdrawal.

I was caught up in this legislative struggle, first on campus and then when I started working in the Senate in August. We certainly thought that the amendment was constitutional, as an exercise of the Congress' power of the purse.

What's interesting now is the OLC memo by William Rehnquist, then an assistant attorney general and later Chief Justice.[See page 341] Rehnquist clearly wants to rule against the amendment, but he can't find the legal justification. In fact, he suggests that no court would outlaw the amendment because it was a "political question" rather than a Constitutional one. He cites arguments on both sides, but concludes:
"A satisfactory resolution of these constitutional arguments cannot be made in the time available, and very likely could not be made with any confidence even were a good deal more time available. Questions of the distribution of power in the field of external affairs are not traditionally justiciable, and their settlement is frequently accomplished in the political arena, rather than in the judicial forum."
At the end of the memo. Rehnquist falls back on a foreign policy argument to justify his position.

"Since the constitutional and policy issues involved in this section of the Amendment seem to me to be inextricably intertwined, it is not possible to state that the Department’s recommendation is based wholly on constitutional grounds. Having said that, I recommend that the Administration oppose this subsection of the Hatfield-McGovern Amendment in Congress, and that the President veto the Amendment if it be adopted by both houses of Congress. To do less means, I think, surrender of presidential initiative to Congress in a manner that cannot but have the most serious adverse consequences to our efforts in Southeast Asia."
If a strong, pro-war conservative couldn't find a legal basis to oppose the amendment, maybe such measures can succeed.

In 1970, however, the measure was soundly defeated, 39-55 by the Senate. Only in 1973 did Congress muster majorities to halt funding for the Vietnam war.

Thursday, August 1, 2013

lukewarm relations between Congress and the State Department

There's new evidence that members of Congress and their staff have a better appreciation of what the State Department and Foreign Service Officers do, but they aren't enthusiastic enough to spend much effort improving America's diplomatic instruments.

I've made my own comments on this subject in an article in the Foreign Service Journal,  where I offer some suggestions for bridging the divide between Capitol Hill and Foggy Bottom.

Now I see that the American Foreign Service Association has released a survey of Hill opinion on State and the the Foreign Service. Among the findings:
Most of the respondents said that their perceptions of the Foreign Service before they
ever dealt with it were inaccurate. Even though almost all (93%) said they now consider
themselves knowledgeable about the Foreign Service lifestyle and main duties, the author
found that to be not always the case. While only half of the participants in the study
consider diplomacy a profession, almost all associate it with national security, which
many said is not the case with all members of Congress.

Half of the respondents also think that the resources the Foreign Service and Department
of State have are insufficient, but no one expects a bigger budget anytime soon. As much
as members and staff on Capitol Hill value diplomacy, especially since 9/11 and after two
long wars, the Foreign Service will probably never truly have a strong constituency in
Congress, because its activities are not tied to votes -- as is the case with the U.S.
military, which operates in many states.
I guess we should be happy that the glass is half full.

"yes" lawyers and "no" lawyers

There's a story that Lyndon Johnson, interviewing a man to be White House Counsel, asked, "Are you a Yes lawyer or a No lawyer?"  The implication, of course, is that he wanted someone who would give him legal permission to act as he wanted.  In my [limited] experience, it seems the Executive Branch lawyers more often than not are doubters rather than enablers. In the private sector, businesses usually get the go-ahead from their lawyers.

The Justice Department has just released a bunch of historical legal opinions from the Office of Legal Counsel [OLC]. I've just started scanning them, but already there are some fascinating nuggets -- such as a firm opinion that Franklin Roosevelt had no power to order percentage cuts in departmental budgets and one from Eisenhower's OLC saying a law requiring a balanced budget was unconstitutional.  Take a look for yourself. More later.

interservice rivalries

The Wall Street Journal has a useful piece describing current efforts by the different services to keep their budgets high by embracing new missions and demanding resources for them. One of the most  egregious is an Army effort to have its helicopters on Navy ships to support soldiers on land. Of course, that's what Marine helicopters are for.

This is new but not surprising. When budgets are threatened, Pentagon planners repackage their wish lists. That's why everybody wants to have a cyber mission of some sort.

I learned this lesson back in the 1970s when the Senate Armed Services Committee staff looked into planning assumptions for war in Europe and discovered that both the Army and the Air Force assumed that only their service was responsible for destroying Soviet tanks, and they thus needed larger numbers of their own tanks or planes.

Some interservice rivalry is helpful -- in lowering costs through competition and giving senior leaders more options. But as this article shows, it can get out of hand.

Grenada grenades

Newly released British documents from 1983 show that the Reagan-Thatcher relationship was much less amicable then than the conventional wisdom usually proclaims. The British Prime Minister was furious with the President, who called her only hours before U.S. troops invaded Grenada, an island nation that was still part of the British Commonwealth.

The key evidence of U.S. deception was this:
On the evening of Oct. 24, 1983, two messages were sent by Washington, hours after a British minister had told Parliament that there was no indication of an imminent American invasion. The first message said that the United States was considering a request from some Caribbean nations to intervene; the second, sent within four hours, said that it had decided to go ahead.
As the official JCS history of the intervention, called Operation Urgent Fury, details, President Reagan's decision to authorize the execute order was made on October 22, two days before the deceptive messages to Britain, which were sent only hours before the military invasion began.

The British wrongly believed, however, that the action had been planned "for some time." In fact, a military coup and the death of the Grenadian prime minister on October 13 prompted planning for a noncombatant evacuation of American medical students because of the unrest. Only on October 20 did a senior leadership group decide that the military mission might need to be expanded to include "neutralization of Grenadian forces and armed Cuban workers" as well as establishment of a new government for the island.

While "Urgent Fury" succeeded in evacuating grateful American students, it exposed huge problems in U.S. military planning and operations which accelerated momentum for military reform legislation that became the Goldwater-Nichols law in 1986. Lawmakers learned, for example, that one officer had to make a crucial call for assistance on a pay phone with his credit card because of a lack of interoperable radios among the combined military units.