Spirit and Intent

In my youth I was a Nuclear Weapons Security Officer (NWSO) on a destroyer in the U.S. Navy. You would think that the rules and regulations governing the safeguarding of nuclear weapons would be comprehensive and crystal clear, and in general, you would be correct. However, I found myself facing a personnel decision – I don’t remember the exact details – that seemed to fall through the cracks of the rules and regulations, and there seemed no clear answer as to what to do to address the situation.

However, many presidents, starting with George Washington, have felt overly constrained by this interpretation, and have argued they have the authority, as Commander in Chief, to employ the armed forces to ensure the security of the United States. It is impossible to imagine that this extremely liberal interpretation – that the president has their own private military that they can order to kill other human beings on their authority alone – was what the founding fathers intended. Nevertheless, presidents of both parties have jealously guarded this argument, if not in so many words.

Frustrated with how the Kennedy, Johnson and Nixon administrations got the U.S. into and prosecuted the war with Vietnam, Congress passed the War Powers Resolution, and then, over President Nixon’s veto, the War Powers Act. In passing the Act, Congress recognized that some circumstances might very call for immediate military action to be taken to ensure the security of the United States, action that could not wait for Congress to convene, discuss, debate, and vote on. However, Congress wanted to ensure that their authority under the Constitution with regards to war be preserved, and so the Act establishes procedures for consultation, reporting, and approval with regard to military operations.

In our overly litigious society, however, it was inevitable that attorneys would devise arguments specifically designed to get around the language of the Act – and, of course, Congress, being the political entity it is, for a Congress not inclined to hold the executive branch accountable, to decline to pursue the oversight the Act calls for.

Attorneys are masters at finding loopholes, weaknesses, and daylight in even well-crafted language, and so suspected drug smugglers are killed – since they don’t pose a threat to the people killing them, the people killing them are therefore not engaged in “hostilities” – and in the case of Iran, “hostilities” end with the announcement of a ceasefire, a ceasefire that does not end acts of war (a blockade) or “fires” that may, and do, occur.

So, while the attorneys weave webs of words to salve their conscience and enable the killing of other people in the name of the United States of America, what about the spirit and intent of the War Powers Act and, indeed, the Constitution?

I believe the founding fathers wanted the direct representatives of the people involved in deciding when the nation would go to war – because in the United States of America it is the nation, not the armed forces, that goes to war; at least, that is the intent.

I further believe it was the intent of Congress to allow the president great latitude and leeway in employing the military to secure America’s security interests, but in consultation with and eventual approval of Congress.

Anthony Cowden is the Managing Director of Stari Consulting Services and co-author of Fighting the Fleet: Operational Art and Modern Fleet Combat, all royalties from which go to the Navy/Marine Corps Relief Society.