frazwJan 4

Why does the US military obey an order to go to war despite Congress not having given their consent?

https://lemmy.world/post/41136002

Why does the US military obey an order to go to war despite Congress not having given their consent? - Lemmy.World

Sorry for the political question, but I’ve been hearing all the time that only Congress can declare war and therefore authorise the invasion of another country. Therefore, when the military receives orders to invade e.g. Venezuela, from the executive branch, not from Congress, why is the order followed, or why is there no corroboration of the order? It feels like there is an assumption of propriety, that the military assumes the executive branch followed proper procedural norms. Are the military exposed to prosecution for war crimes as a result of following such an order?

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Not all military actions require Congressional approval.

Going to Congress takes some time, and so you don’t always have that time.

I don’t think that case law has precisely hammered out the division at the level of the US Constitution, but in legal terms, a major element is the War Powers Resolution:

en.wikipedia.org/wiki/War_Powers_Resolution

The War Powers Resolution (also known as the War Powers Resolution of 1973 or the War Powers Act) (50 U.S.C. ch. 33) is a federal law intended to check the U.S. president’s power to commit the United States to an armed conflict without the consent of the U.S. Congress. The resolution was adopted in the form of a United States congressional joint resolution. It provides that the president can send the U.S. Armed Forces into action abroad only by Congress’s “statutory authorization”, or in case of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces”.

The bill was introduced by Clement Zablocki, a Democratic congressman representing Wisconsin’s 4th district. The bill had bipartisan support and was co-sponsored by a number of U.S. military veterans.[1] The War Powers Resolution requires the president to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30-day withdrawal period, without congressional authorization for use of military force (AUMF) or a declaration of war by the United States. The resolution was passed by two-thirds each of the House and Senate, overriding the veto of President Richard Nixon.

In practice, the US has not declared war since World War II, though it has engaged in many military conflicts since then. What has happened, for major conflicts, is that Congress has passed some form of military authorization permitting continued combat operations in line with the above act.

In part, I believe it was the practical pressures of the nuclear weapons era that gave the President more freedom to act. There would be no time to obtain approval from Congress in a number of nuclear weapons scenarios, and if you let the Executive make use of the nuclear arsenal — a really big stick — without Congress’s approval, it seems a bit odd to restrict use of conventional force.

I also suspect that one factor is that war is also politically risky; if it becomes unpopular, a Congressman — who may be around for a lot longer than a President, who will be out after two terms — may not want to have a declaration of that unpopular war on his record, and would prefer to minimize involvement, so Congress is generally not, for political reasons, adverse to reducing its exposure.

The issue here is that there’s a certain assumption in that legislation that the freedom given the President is because he requires a great deal of leeway to respond rapidly to unexpected dangers.

In this case, that wasn’t the case, though I suspect one could make a fair argument that an operation of the sort taken required operational secrecy, and Congressional debate would be at serious odds with it.

I think that it’s fair to say that the US has taken the position some time before now that ejecting Maduro is okay and a goal — that’s why Venezuela has been under the sanctions, for example, to create political pressure. That hasn’t worked. The question is really whether that policy can or should be shifted from economic pressure to military force.

War Powers Resolution - Wikipedia

Jan 4 at 3:19pmWeb
Show threadtalJan 4

[Moving this text to a separate response, as it really deals with a separate set of issues]

There’s also the issue not just of US law, but of international law, and I think that that’s where more of the interesting questions come up. Under treaties that the US is party to, at an international level, as the UN rules go, to engage in military conflict, other than individual defense or defense of an ally, the US should seek approval from the UNSC (which it would not get on Venezuela; Russia or China would presumably block this). The US has certainly stretched things — its legal argument that the UNSC authorized action against Saddam Hussein is very questionable, for example, but what one sees is a steady erosion of willingness to follow UN rules. Russia and the US are two of the permanent seat holders on the UNSC. Russia didn’t bother to try to get authorization to invade Ukraine (which obviously other members would veto), and I suspect that the Trump administration won’t on Venezuela.

The five permanent UNSC seat holders are the US, China, Russia, France, and the UK. Outside of nuclear weapons, Russia’s military power has substantially declined from the Cold War era, and its economy is of limited size. China is much more militarily powerful than it once was, and today, France and the UK are substantially less militarily-capable in most regards than China and the US. Prior to Brexit, I had thought that the EU would federalize and the French and UK seat would then become an EU seat, which would do something to restore some of the degree to which seat-holders had ability to exert military force. But as things stand, the UNSC, which was crafted to include the major military powers in the world, is now substantially out-of-whack with actual military ability. If you have a legal system to avoid conflict because it reflects what would happen in an actual conflict — e.g. instead of having to fight a war because Party 2 would fight you over the matter, you just have a vote instead that would produce a comparable outcome at far less cost than fighting a war — then there is sense in participating in such a thing. I think in practice, though, the major military powers increasingly don’t care what the UNSC says, for two reasons:

  • In some cases, a permanent seat holder may use a veto to increase the political cost of a country engaging in war when it would not actually go to war against the country wanting to use military force. This degrades the stability of the system, encourages parties to disregard it. I think that this is probably the largest flaw in the system as it stands, and that may be fundamental to it.

  • Secondly, in 2026, China and the US in particular are, in most regards, much more militarily powerful than the other permanent seat members, and may simply not be willing to extend them a veto over their military activity. All countries holding a permanent seat are nuclear powers with some form of second-strike capability, which means that war with them is, at least in theory, quite risky. In practice, though, actually using nuclear weapons comes with a lot of drawbacks; they are not a terribly usable weapon. Countries might well be willing to engage in conflict even expecting strong opposition from permanent seat holders, betting that it will not rise to the use of nuclear weapons. The UK is, absent playing nuclear hardball, going to have very limited ability to militarily oppose China if China wants to conduct a conventional land invasion in Asia. Playing nuclear hardball with China is probably going to be pretty risky.

    en.wikipedia.org/wiki/Handover_of_Hong_Kong

    During talks with Thatcher, China planned to seize Hong Kong if the negotiations set off unrest in the colony. Thatcher later said that Deng told her bluntly that China could easily take Hong Kong by force, stating that “I could walk in and take the whole lot this afternoon”, to which she replied that “there is nothing I could do to stop you, but the eyes of the world would now know what China is like”.[35]

    In theory, the UK could veto such an action at the UNSC. In practice, China was willing to ignore whether-or-not it had UNSC approval, because it knew that the UK lacked the ability and/or will to back up that veto with military force.

This isn’t to say that the UNSC system has always been perfect, but the less it maps to actual ability and will to use military force, the more I expect it to be viewed as irrelevant by the major powers. Trump’s action here will probably further weaken it, I think.

Second strike - Wikipedia