Militarizing the Presidency
August 9, 2017
Aug 9, 2017
22 Min read time
Since its origins, the United States has grappled with the role of the military in a democracy. Given Trump's latest moves, do the people still decide who will be killed in their name?
Waging War: The Clash Between Presidents and Congress, 1776 to ISIS
David J. Barron
Simon & Schuster, $30 (cloth)
Spiral: Trapped in the Forever War
Simon & Schuster, $17 (paper)
How Everything Became War and the Military Became Everything: Tales from the Pentagon
Simon & Schuster, $17 (paper)
President Donald Trump’s threat of violence against North Korea is a dramatic and dangerous example of a consistent theme of his administration: the militarization of the executive branch. Trump has placed a significant part of the national security and foreign policy planning apparatus in the hands of military officers—whom he possessively calls “my generals”—including Secretary of Defense and retired Marine general James Mattis, National Security Advisor and Army Lieutenant General H. R. McMaster, and the Pentagon planners who have been given unilateral authority to determine troop levels in the war in Afghanistan. Trump’s view seems to be that if there is a problem abroad, the military should fix it for him. With retired Marine general John Kelly’s appointment as White House chief of staff last week, Trump also seems to be asking his generals to fix the domestic side of his administration. Now, his knee-jerk turn to threats of spectacular force against North Korea—“fire and fury”—threatens to short-circuit the possibility of diplomatic solutions to the crisis. With the stakes this high, Trump’s consistent reliance on armed force and deference to military experts should worry both civilians and the military.
There has always been a tug of war about who gets to make war. But in our own time, we have seen perhaps the most sweeping attempt to assert presidential war powers in American history.
The American political system has, since its origins, grappled with the role of the military in a democracy. In the Declaration of Independence, the Founders accused King George III of making “the Military independent of and superior to the Civil power” and of keeping standing armies “without the Consent of our legislatures.” Their intimate experience with war later led them to conclude that it was an existential threat to individual liberty, and they therefore sought to subject the government’s war-making powers to democratic control. James Madison believed checks on such powers were the very bedrock of freedom. “Of all the enemies to public liberty,” he wrote in 1795, “war is, perhaps, the most to be dreaded.” To prevent autocratic abuses, the Constitution divides up the power to make war: Congress can “declare War,” “raise and support Armies,” and “make Rules for the Government and Regulation” of troops; the president “shall be Commander in Chief”; and the public, through the militia system, is meant to play an important role in national defense. Nonetheless Madison worried that during wartime, “the discretionary power of the Executive is extended”—most distressingly, its power to “seduc[e] the minds . . . of the people.” “No nation,” he concluded, “could preserve its freedom in the midst of continual warfare.”
And yet, continual warfare is the state in which we find ourselves sixteen years after the attacks of September 11, 2001. American troops are still fighting in the wars President George W. Bush began in Afghanistan and Iraq, and terrorism suspects are still detained in the prison he opened at Guantánamo Bay. President Barack Obama developed a secret “drone playbook” for targeted killings abroad, expanded the use of special forces operations, and intervened in Libya without congressional consent. Trump has given the Pentagon broad new authority to launch military strikes in Yemen and Somalia without prior White House approval and with a higher acceptable level of civilian deaths. He has also suggested a preemptive strike against North Korea, while lawmakers and journalists have questioned whether his use of cruise missiles in Syria was an illegal act of war. We are waging an open-ended and largely invisible war against terrorism, conducted mainly by presidential fiat, in an ever-increasing number of foreign countries. The “discretionary power of the Executive” has indeed been “extended.” If Madison was right, this should raise a profound question about democracy in America: do we, the people, still decide who will be killed in our name?
Three recent books help to answer this question. In Waging War, David J. Barron, a federal judge and former Justice Department lawyer, teases out the long legal history of legislative, executive, and judicial branch struggles over who holds the power to wage war. In Spiral, Mark Danner, a veteran war reporter and journalism professor, zooms in on the specific legal and political history of the ongoing War on Terror. And in How Everything Became War and the Military Became Everything, Rosa Brooks, a law professor and former Pentagon official, examines how American foreign policy in the twenty-first century has turned into one giant military operation, with the Pentagon running everything from foreign aid and global health programs to special forces operations and aerial bombing campaigns. This leaves little room for military officers, civilian policymakers, or everyday citizens to imagine anything other than a military solution to many of our most pressing international problems.
If Brooks is right, then anyone who wants to rein in the War on Terror faces an extremely difficult battle. In an era of military solutionism and secret, unilateral presidential war-making, how can citizens fulfill our moral and constitutional responsibility to help choose how—and whether—American military forces act on our behalf abroad?
• • •
Despite the long tradition of casting critics of U.S. military action as traitors, there is an equally rich history of very loud, very public debates about making war, dating back to the Revolution. As Barron details in Waging War, the colonists began their armed struggle for independence by wrestling over exactly who would be in charge of military operations, the generals or the civilians.
In George Washington’s commission as commander in chief of the Continental Army, the Continental Congress required Washington “punctually to observe and follow such orders and directions, from time to time, as you shall receive from this, or a future Congress of these United Colonies.” Congress did, from time to time, give Washington orders while he was in the field, and he did, from time to time, disagree with them. He tried to find as much breathing room in his orders as he could, but in the end, he consistently accommodated himself to congressional authority. At the close of the war, he ceremonially resigned his commission and was, as he put it, “translated into a private Citizen.”
“No nation,” wrote James Madison, “could preserve its freedom in the midst of continual warfare.” Our reliance on the military since 9/11 should raise profound questions about democracy in America.
Washington’s example, Barron argues, had a critical impact on the Constitutional Convention in 1787. Delegates assumed that Washington would be elected as the nation’s first president, and they trusted him to exercise restraint in the use of military force, just as he had done during the Revolution. With that in mind, they were willing to name the president as commander in chief in the written text of the Constitution without further elaborating the specific war powers that the title entailed. This left the document fundamentally ambiguous: Congress retained the right to “make Rules for the Government and Regulation” of troops, but could the president, as commander in chief, ignore those rules? Americans have been disagreeing about the answer ever since.
Barron’s narrative stylishly traces those debates, tracking the evolving conflicts over war powers between presidents, Congress, and, on occasion, the Supreme Court. He writes with gusto and a good eye for the most entertaining anecdotes, and his overall point comes through clearly: there has always been a tug of war about who gets to make war. Congress has sometimes asserted its authority quite forcefully, as when neutrality laws limited President Franklin D. Roosevelt’s efforts to aid Britain in the 1930s or when the War Powers Resolution of 1973 required presidents to get congressional approval for military deployments lasting longer than sixty days. In turn, presidents have asserted vast authority as commanders in chief, as when Lincoln unilaterally blockaded Confederate ports, raised an army, and suspended habeas corpus in the spring of 1861, then cheekily asked Congress to retroactively approve his decisions.
In our own time, we have seen perhaps the most sweeping attempt to assert presidential war powers in American history. After September 11, the Bush administration argued that it was, as former Bush Justice Department lawyer Jack Goldsmith put it, strangled by law: the president could not properly protect the country from terrorism because of restraints imposed—mostly after Vietnam—by the War Powers Resolution, international human rights treaties, and other laws. Administration lawyers claimed that such laws were a radically new and unconstitutional infringement on the president’s role as commander in chief. In the infamous Justice Department torture memos that allowed terrorism suspects to be illegally beaten, waterboarded, and humiliated, administration lawyers tried to throw off all limits on the president’s war powers.
Barron proves that, contrary to the arguments advanced by Bush’s lawyers, legal restraints on the president’s wartime powers are nothing new. In fact, Barron makes a compelling case that laws of war, far from being an unconstitutional imposition on presidential prerogatives, represent a critical component of our political system. “Commanders in chief,” he writes, “have found themselves mired in statutory restrictions in every prior phase of American war making,” and presidents have always “had to figure out how best to respond to these restrictions.” The delicate and often contentious balancing act between congressional and presidential war powers even helps to protect the Constitution itself. The president’s “felt need” to fight wars without claiming absolute authority, Barron argues, is “a key reason why our system of checks and balances, for all its limitations, has managed to endure even when America is waging war.”
After sixteen years of a War on Terror that has produced no lasting victories and has spawned many new enemies, ordinary citizens ought also to experience a “felt need” to engage in searching public conversations about the purposes of military action and the legal and moral restrictions placed on it. It is not just long-standing statutory limitations that should guide and constrain presidential war-making. The people should too.
• • •
Because terrorism is not an adversary but an abstract concept, it is difficult to imagine what victory in the War on Terror would even entail. A war against al Qaeda, the Taliban, or the Islamic State would at least have clear goals, but the War on Terror appears to have as its endpoint nothing short of forestalling all future acts of terrorism. Worse yet, the United States has pursued this grandiose but vague aim in ways that have made the cessation of terrorism less, rather than more, likely—most notably with the catastrophic invasion of Iraq. In Spiral, Mark Danner contends that both parts of the name “War on Terror” are ill considered: not only did we not need to pursue a war against terrorism—as opposed to some more conventional enemy—but our desired aims were poorly served by pursuing them through warfare.
Before September 11, the United States fought terrorism with law enforcement and under the rules of law enforcement, rather than with the military and under the laws of war. International terrorists such as Osama bin Laden were policed in much the same way as domestic terrorists such as Timothy McVeigh. This law enforcement approach came close to preventing 9/11. The CIA tracked two of the hijackers to the United States, but failed at the critical step of passing that information to the FBI, whose domestic law enforcement agents would have further investigated and likely brought charges. Throughout the summer of 2001, White House counterterrorism czar Richard Clarke warned repeatedly of “hundreds of dead in the streets.” FBI agents in the Minneapolis field office were stymied in their attempts to obtain a warrant to search the laptop of Zacarias Moussaoui, later convicted of conspiring in the attacks. And in early August, a CIA briefer told President Bush that FBI information on al Qaeda “indicates patterns of suspicious activity in this country consistent with preparations for hijackings.” “You’ve covered your ass, now,” Bush allegedly replied.
The military has become our main tool for foreign policy, and when you only have a hammer, everything looks like a nail.
Even though the law enforcement approach to terrorism might well have been able to stop 9/11 if a few breaks in the case had gone differently, on the day after the attacks President Bush declared that they were “more than acts of terror. They were acts of war.” This was not merely a rhetorical device meant to rally the country. It was a decision to respond to terrorism in a fundamentally new and different way: with military force and under the president’s powers as commander in chief.
That decision still shapes our world. Indefinite detention at Guantánamo and the digital surveillance of American citizens have both been justified under the president’s war powers, as has the extrajudicial execution of terrorism suspects, including Americans. The broad deployment of military force today, from Afghanistan and Pakistan to Iraq, Syria, Yemen, and Somalia, is likewise still justified under the Authorization for Use of Military Force (AUMF) passed by Congress on September 14, 2001. Like James Madison two centuries ago, Danner worries that this perpetual warfare has resulted in executive overreach, with a president who claims to be a law unto himself.
Even the harshest critics of the War on Terror therefore need to continue using that name: to remind us that America is purposefully fighting terrorism as a war, with the weapons of war and under—or sometimes outside of, as in the case of torture—the domestic and international laws of war. Danner argues that despite these extreme measures, we are no closer to ending terrorism. Meanwhile, he claims, we have produced the “spiral” that titles his book: an ever-widening global conflict that gets worse the more the United States tries to rectify it with military force. For evidence, Danner points to a 2004 report by the Pentagon’s Defense Science Board which showed that American intervention in the Middle East, instead of undermining terrorist networks, has actually been the ultimate recruiting pitch for violent jihad. For more recent confirmation of this theory, we have only to look to the Islamic State, born from the wreckage of the Iraq War.
If applying military force mostly makes things worse, what can we do? Danner advocates for a return to the law enforcement paradigm for fighting terrorism, a strategy driven by the detective work and legal prosecution that we already know can succeed. He also promotes an approach to building stability that centers diplomacy in the Middle East, and supports a “publicly appointed Truth Commission” to investigate abuses in the War on Terror, especially torture, in order to return “justice” to the fight against terrorism. Most immediately, he wants Congress to repeal the 2001 AUMF and replace it with a new, more restrictive authorization to use force against specific enemies in specific places for a specific amount of time. He wants Congress, that is, to do its constitutional job and declare the wars we fight.
Danner’s most idealistic proposal seems far-fetched: the United States is unlikely to establish a truth and reconciliation commission for the War on Terror, let alone prosecute senior administration officials for war crimes. But with sufficient political and public support, is it possible that we could reemphasize civilian diplomacy, redesign our AUMF, and return to a law enforcement approach to counterterrorism? That would require us to first move away from thinking of the military as the first-line solution for every challenge our country faces.
• • •
In How Everything Became War and the Military Became Everything, Rosa Brooks argues that the boundary between war and peace has been hopelessly eroded in the twenty-first century, leaving the military to perform countless tasks that fall far outside of the traditional scope of fighting a war. This makes it immensely difficult to address terrorism with anything other than armed force. The military has become our main tool for foreign policy, and when you only have a hammer, everything looks like a nail.
There is no reversing this situation, Brooks says. Her book is a bracing, lucid, and entertaining—if often troubling—exploration of the irrevocable changes to war-making that have occurred this century. She ticks off a bevy of global problems that have come to seem like battles for the Pentagon to fight: piracy, peacekeeping, famine, malaria, HIV, crumbling infrastructures, failing economies, global warming, terrorist networks, cyberwarfare, political corruption, and weak civil societies. The U.S. military finds itself not only bombing targets but also conducting diplomacy with local governments, building water treatment plants, and launching news websites to encourage informed citizenries. Can we rightly call most of this “war”?
Bush’s decision to respond to 9/11 with military force and under the president’s powers as commander in chief still shapes our world.
In order to manage this complicated situation, the Pentagon has come to rely on a “six phase” paradigm for military operations. It ranges from Phase Zero, which focuses on preventing conflict, through Phase Three, or outright war, to Phases Four and Five, which seek to reestablish stability and transfer power back to civil authorities. The U.S. military is currently deployed in some 150 countries, and most of them are not in Phase Three. But even in Phase Zero, Brooks explains, the military sees its job as “‘shaping’ the character of possible future operations by building relationships, collecting information, and seeking to influence the attitudes of local actors.” The whole planet has become a quasi-battlefield in a pre-declared future war, with the military seeking to influence all sorts of civilian decision-making around the world.
This radically expanded role for the military has created a number of problems. Most importantly, it breeds tension between civilian and military leaders and produces major asymmetries in government spending. “Congress seems increasingly disinclined to fund civilian diplomacy and development initiatives,” Brooks writes, “much less education, environment, and antipoverty programs.” But such programs are vital to preventing wars, as the Pentagon is well aware. And while there is little political will to boost funding for civilian agencies, the defense budget continues to grow. As a result, Defense Secretary Robert Gates said in 2007, the military has taken on “many of these burdens that might have been assumed by civilian agencies in the past.” Gates lamented the “gutting” of America’s “soft power,” such as the State Department, and raised concerns about the larger diplomatic and foreign aid role the military has consequently had to perform. This reveals the irony of Trump’s proposed “hard power” budget, which would steeply cut funds for diplomacy and foreign aid in order to finance a huge increase in defense spending: the military prefers for civilian diplomats to keep doing their jobs, but these days, even funding a “hard power” Pentagon means paying for “soft power” projects too.
There are no easy solutions to these problems. Brooks likens twenty-first-century terrorism, famine, and failing states to Ludwig Wittgenstein’s duck-rabbit: if you look at them one way, they appear to be military problems; seen from another angle, they seem to be social, economic, or criminal issues best met by civilian action. This is why there may be no going back to the straightforward law enforcement approach to terrorism that Danner advocates. When the Islamic State simultaneously wages a regional conventional war and uses online social media to recruit lone-wolf terrorists around the world, then domestic detective work, international spying, cybersecurity, foreign aid, diplomatic coordination with our allies, and outright bombing campaigns bleed into each other.
In such uncertain circumstances, our laws and policies must evolve. “Lawmaking is an imaginative enterprise,” Brooks writes, a creative activity that projects a future world and works to make it real. She therefore calls for the development of new conceptual categories to understand contemporary conflict: new moral vantages for defending human rights, new laws and institutions to limit the violence of perpetual war. More provocatively, Brooks suggests that we accept military mission creep and intentionally “knock down” the remaining “walls” between civilian agencies and the military so that we can consciously erect new mechanisms, such as more transparent rules for drone strikes, to guide and constrain the use of force.
There is a rich history of very loud, very public debates about making war, dating back to the Revolution.
This call to accept the military’s radically expanded role will be a chilling proposition for both right-leaning libertarian and left-leaning progressive critics of American militarism—as well as for plenty of soldiers and their officers who want a clear task for which they are properly trained and equipped. But it is also a point of view worth debating, if only to develop the strongest possible critique of military solutionism today. The military has been woven so thickly into humanitarian and environmentalist causes, from global health care to the Pentagon’s consistent advocacy for fighting global warming, that trying to return America to a less a militarized past will require difficult and careful work to disentangle civilian and military initiatives.
But Brooks gets ahead things when she claims there is no good way to limit the military’s new role. It ought to still be possible to debate the ends for which we deploy military force and to advance civilian means for achieving our foreign policy ends. If two successive presidents could be elected by campaigning against “dumb wars,” the public is clearly open to a debate about military strategy and foreign policy goals. And if, over the last eight years, the U.S. public has come to accept the revolutionary (for us) idea that the government ought to spend substantial sums on health care, it suggests that it should not be impossible to convince voters of the need for a renewed commitment to funding civilian diplomacy and foreign aid. We might still be able to separate the duck from the rabbit. If the political will can be mustered, things can change.
• • •
Barron, Danner, and Brooks all suggest ways to improve the legal, political, and moral footing of contemporary warfare. But they all focus on elite policymaking in Washington, D.C. If we are to fulfill our obligations as citizens and to pressure lawmakers to openly debate how we make war today, we need more than the support of Beltway insiders; we need a grassroots conversation across the country. And we need that conversation now, before we expand the wars we have already begun, ask our soldiers to fight in new ones, and spend even more money policing the world at the expense of vital services at home.
How might we start such a robust debate about war-making? In the last few years, a number of public intellectuals, especially General Stanley McChrystal and the historian Andrew Bacevich, have argued that a universal draft would help spur a public debate about war, since it would expose substantially more citizens to the risks of war. The complex history of the draft, however, makes this an unlikely solution. President Lyndon Johnson was able to escalate the Vietnam War precisely because of the draft—it gave him a large army to deploy—while Richard Nixon moved to eliminate the draft so that he could continue that same war without public resistance. At the same time, Vietnam-era anti-draft activists argued that the draft was immoral because it sent mainly minorities and poor people to war, while Charles Rangel opposed ending the draft during Vietnam precisely because he thought an all-volunteer force would be even more disproportionately composed of minorities and the poor. Changing the means by which we fight has not historically had a noticeable impact on either the ends for which we fight or the choice of which wars we wage. (This does not mean there is not a need to pursue a more just racial and class distribution of the hardship of fighting war, only that a redistribution of danger is not a silver bullet.)
A debate about the basic ends for which we use military force is therefore in order. Previous foreign policy outlooks no longer seem to fit the contemporary world, and more importantly, they no longer command wide public consensus. Cold War internationalism was driven by bipolar politics and lost its motivation when the Berlin Wall fell. Now the post–Cold War pursuit of a democratic-capitalist “new world order” has run up against the limits of American hegemony in the twenty-first century. Likewise, the global human rights regime that arose from the late 1970s onward has failed to achieve the kind of public consensus that Cold War internationalism previously enjoyed, and many feel it has been discredited by the failures of the Iraq invasion and the Libya intervention. And Trump’s “America First” foreign policy is profoundly self-contradictory—not to mention needlessly belligerent—as he variously channels the original America First movement’s xenophobic isolationism and a racist, neocolonial desire to dominate the planet through raw American power.
Far from a single-issue cause made up of pacifists and anti-militarists on the left, antiwar movements throughout American history have been richly multi-issue, cross-partisan, and coalitional.
There may, however, be an opening right now to launch the intense public debate about war that we desperately need. Representative Barbara Lee of California recently (and quite surprisingly) convinced the House Appropriations Committee, in a bipartisan vote, to repeal the 2001 AUMF. If Congress were to approve Lee’s amendment, Congress would then have to write a new, updated AUMF tailored to the changed circumstances of 2017. Appropriations Committee members’ motives are admittedly varied: Lee has taken an overtly antiwar stand since 2001, while some Republican committee members hope to pass an even more permissive AUMF now that Trump is president. Therefore, repealing and replacing the 2001 AUMF is itself a risky venture. (That is, if it ever even made it to the floor: House Speaker Paul Ryan has moved decisively to block discussion of the proposal and instead to retain the outdated 2001 AUMF as is.) But, these days, simply getting a committee to discuss which wars we should be waging is a significant step. More politicians need to follow Lee’s lead. More ordinary citizens need to, as well.
Antiwar politics are often misunderstood: far from a single-issue cause made up of pacifists and anti-militarists on the left, antiwar movements throughout American history have been richly multi-issue, cross-partisan, and coalitional, whether allying with the women’s suffrage movement during World War I or the civil rights movement during Vietnam. This coalitional spirit has been at work in protests against Trump’s Muslim travel ban—which, it should be noted, he has justified as falling under his unilateral war powers. The protests have brought together people concerned with many different issues, including immigration, human rights, race relations, legal due process, Islamophobia, and the War on Terror. Politicians and grassroots organizers should continue to interweave issues in this way in order to critically evaluate the War on Terror, to envision a different approach to foreign policy, and to generate public support.
In his poignant moral polemic Just and Unjust Wars (1977), the philosopher Michael Walzer argues that because war is “a human action, purposive and premeditated, for whose effects someone is responsible,” we have a duty to debate the wars we wage. Moral criticism, Walzer writes in Arguing about War (2004), strives to imagine a more just world, and “the point” of moral theory “is to make such imaginings obligatory.” It is Americans’ responsibility today to debate the War on Terror openly, honestly, and critically—difficult as that conversation will be—and in doing so, to imagine how we want the world to be.
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August 09, 2017
22 Min read time