In the maelstrom of modern war, presumed certainties crumble like piecrust. Consider two questions asked in the wake of U.S. attacks on Iran.
In April 1943, American code breakers in the Pacific Theater decrypted flight plans of Adm. Isoroku Yamamoto, who had conducted Japan’s attack on Pearl Harbor. In May, his plane was destroyed. The New York Times headline was: “‘Gosh!’ Says Roosevelt On Death of Yamamoto.”
Was this targeted killing of a particular person of military importance an assassination? Every president since Gerald Ford, who was responding to harebrained Kennedy administration plans to kill Fidel Castro, has officially respected Ford’s finding that assassinations violate international law, and hence disserve U.S. interests.
The second question is: What is constitutionally (never mind prudentially) obligatory concerning Congress’s involvement in uses of military force? The answer is: almost nothing.
An ethical calculus that can answer the first question is elusive. And as the war against Iran illustrates, the two questions are inseparable: Surprise is a substantial military asset. If the Trump administration had briefed legislators in advance, could it have achieved the targeted killings crucial to its regime decapitation objective — an objective intended to economize violence?
Less than two years after the targeted killing of Yamamoto, on March 9, 1945, more than 300 B-29s left the Mariana Islands, bound for Tokyo. There they dropped 1,665 tons of incendiary bombs that destroyed one-sixth of Japan’s capital, killing between 80,000 and 100,000 or more. Try, without experiencing moral vertigo, to disapprove Yamamoto’s assassination, which it was, in a war that included the incineration of Tokyo.
In 1787, the Constitutional Convention initially was going to vest in Congress the power to “make war.” Instead, it vested the power to “declare war.” (Congress has not declared war since 1942 — against Hungary, Romania and Bulgaria — many wars and other military interventions ago.) The convention did this because Congress is often dispersed, whereas presidents are on the job 24/7. And because presidents can act with more energy and dispatch than Congress even when it is in session. And because if the power to make war were vested in Congress, the president might lack the power to respond unilaterally to sudden attacks. And because throughout history, wars have often been declared by the launching of them.
Industrialism and conscription — nations, not just militaries, mobilized for war — have blurred the distinction between combatants and civilians whose farms, factories and transportation systems sustain combat. Hence the wholesale destruction during Gen. William Tecumseh Sherman’s march through Georgia and South Carolina. Hence the World War II bombing of residential areas to “de-house” (the Allies’ antiseptic term) German and Japanese civilians. Other aspects of the modern state that have partially erased the distinction between military and nonmilitary factors are organizational bureaucracies, mobilizing propaganda, and forced-draft science (e.g., the Manhattan Project).
Albert Einstein supposedly said, “Make everything as simple as possible, but not simpler.” In law, constitutional and other, and in war, which is even difficult to define, we should emulate Einstein. We should make distinctions as clear as possible, but not clearer.
That our nation is planted thick with lawyers is part cause and part consequence of the American yearning for rules to govern those who govern us. Codifying behavior in order to circumscribe governmental discretion is most necessary, but most difficult, regarding executive latitude in war-making. There is only one large and clear example of Congress asserting primacy: It wielded its power of the purse to end what remained, in 1975, of U.S. participation in Vietnam.
Other than among his devotees, Donald Trump has only the trust and empathy he has earned: none. It is too late for him to prudently increase Congress’s buy-in with his Iran policy by consulting it. So, the language and processes of law are the only arrows in his critics’ quivers.
Those are, however, unavailing. Courts will not intervene where Congress is, as a practical matter, precluded by presidential nimbleness. There are many kinds of wars, and as many ways for presidents to evade Congress. Non-state actors (e.g., Hamas) can initiate and wage wars. Presidents can marginalize Congress by calling a war a “police action” (Korea, 1950).
For decades, this column has been a tireless — to some readers, a tiresome — critic of the swollen, often lawless, modern presidency. Now more than ever it is urgent to regard executive power as, in Daniel Webster’s words, “a lion which must be caged.” But conditions, threats, and capabilities change, so moral and political imperatives do, too. Changes in modern circumstances, including technologies, often strengthen, if not the argument for, then the opportunity for, executive unilateralism.
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