US War Powers

  • by Pete O'Brien
  • 02-26-2023

On July 3rd, 1950, 8 days after North Korea - with Russian and Chinese assistance (and prodding) - attacked into South Korea, Secretary of State Acheson advised the President to act on his authority as Commander-in-Chief of the armed forces to respond to the attack, and not ask Congress for approval or a resolution or a declaration of war. President Truman accepted this advice. There was never a declaration of war nor a Joint Resolution. 

That precedent has held, and so, no wars since - Constitutionally anyway.

It isn’t clear to the outside observer, but in military jargon the term “unlimited war” has a different meaning than the general interpretation. It doesn’t mean what the average dictionary says, to wit, a war fought with all means at your disposal. An unlimited war is one fought with unlimited goals, that is, the destruction of the enemy’s government; think outcomes, not inputs. If your goal is to oust the other country’s leadership, your goal is unlimited, no matter what size force you use to accomplish it. 

If the enemy understands that that’s your goal, then they’ll view the fight as an unlimited fight for survival, even if they began the war with very specific, limited goals. For a government so targeted, unlimited wars are existential, and they should be expected to act accordingly. If the enemy has nuclear weapons, planning should reflect that fact.

Last March President Biden suggested that President Putin needed to be forced from office: “For God’s sake, this man cannot remain in power.” At the time the remark upset a number of people - leaders of European nations - as it appeared that President Biden was escalating the war. However, the President managed to “steer around” trouble, the remark being labeled as just an “ad lib,” etc.

However, during the Munich Security Conference this past week, in front of the defense ministers of more than 50 countries and with many of the leaders of those countries present, Vice President Harris said the following, in prepared remarks: 
"Russian forces have pursued a widespread and systemic attack against a civilian population—gruesome acts of murder, torture, rape, and deportation. Execution-style killings, beating, and electrocution. In the case of Russia's actions in Ukraine, we have examined the evidence, we know the legal standards, and there is no doubt: These are crimes against humanity.”

This isn’t an ad lib, this is a statement of the position of the administration.

Whether Russia is committing crimes against humanity is somewhat subjective as crimes against humanity haven’t been codified under any sort of international treaty. Said differently, there’s no accepted legal definition of crimes against humanity. But, after the Nuremberg trials the following definition was worked out by the London Charter of the International Military Tribunal:
Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

At the time, the understanding was that these crimes could only be prosecuted as elements of war crimes or crimes against peace. They’ve since been expanded, but in this case, it’s pretty much irrelevant, as there’s a war. Last March the International Criminal Court (ICC) began investigations to identify possible war crimes in Ukraine, which would include crimes against humanity.

This suggests that sooner or later the ICC is going to charge President Putin with war crimes and crimes against humanity. There’s been communication between various European governments and the ICC that suggests that many, perhaps all of them are leaning in that direction. Nearly every European government (perhaps all of them and I missed it), as well as President Biden, has endorsed President Zelenskyy’s peace demands, which includes (#7) Justice, including the establishment of a special tribunal to prosecute Russian war crimes.

President Zelenskyy repeatedly states there’ll be no peace negotiations with President Putin, and signed a decree last October declaring that negotiations with Putin are impossible. No NATO heads of state have publicly balked at that decree.

Returning to the main point, previously, NATO and the US appeared to be implying that the Russian government, the Putin administration, President Putin and certain key ministers, councillors and generals, be brought before the ICC. 

But this week Vice President Harris said that the US Government had examined the available information and made a “legal” determination that there’ve been crimes against humanity. So, no longer is it implied; Harris explicitly stated that crimes have been committed.

From Putin’s perspective, and that of his lieutenants, this has just become existential. Before, it was implicit. Now, it is explicit.

What next? There’s the blinding flash of the obvious: President Putin isn't going to voluntarily surrender himself to the ICC. Like Milosevic in Serbia, the only way he will ever appear before the ICC is if some future Russian government were to hand him over to the ICC. (Milosevic was turned over to the ICC by then Serbian Prime Minister Zoran Dindic, well after the breakup of Yugoslavia.)

But there’s also another facet to this: the Vice President just asserted that we want to bring the Russian government - the Putin regime - to trial. To do that they will need to be pushed from power. That is an unlimited war goal. We are now de facto in an unlimited war with Russia.

Yet we’ve had no formal, Congressional debate as to what we’re doing and why, and what we really hope to accomplish. The Constitution says: “Congress shall have the power to declare war…” But now, the Constitution seems to have been bypassed, and so has Congress. And we’re headed into war, one Russia will view as existential. Doesn’t that deserve Congressional debate?