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What Will A Proposed Authorization for Military Force in Syria Authorize?

By on August 31, 2013 6:05 pm in Constitutional Law, Military, Obama, War and Armed Conflict

Now that the president has vowed to seek Congress’s approval even for what he promises will be very limited military action in Syria, an interesting question arises. What will the authorization authorize him to do? 

The president will want an expansive resolution, allowing him maximum flexibility to do what he thinks necessary to accomplish what he determines to be the goals of military action.  Skeptics on the right and left will push for a narrower authorization, carefully circumscribing his authority to a limited response to the use of chemical weapons by Syria.  Some of the issues that may arise relate to the purpose, scope, and duration of the intervention.  Will the authorization state the purposes of the intervention (punishment, deterrence, disabling the regime’s ability to use chemical or other forbidden weapons, protecting civilians, etc.) and then try to limit the authorization to those purposes?  How much flexibility will the president have to respond to unexpected developments, like a post-bombing retaliation by Syria against its neighbors or retaliation by terrorist groups or nations like Iran?  Will the authorization be sunsetted, or will it be temporally open-ended?  Will Congress attempt to select the type or magnitude of force that might be used by, for example, limiting it to air strikes rather than to the introduction of ground troops? 

As we’ve already seen in the run-up to this proposed intervention in Syria, the specter of the Bush era will hang over the debate.  After 9/11 there was some debate over the substance of the eventual Authorization for the Use of Military Force (AUMF).  The Bush administration wanted maximum executive power, including a specific provision authorizing the president to order military force within the United States itself.  While that language was ultimately omitted, the final version of the AUMF opted for breadth:

[T]he President

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The 150th Anniversary of the Battle of Gettysburg

By on July 3, 2013 11:10 am in Civil War, Military, Secession

Today is the 150th anniversary of Pickett’s Charge and the last day of the Battle Gettysburg. Many modern historians take issue with the traditional view that this Union victory was the decisive battle of the Civil War. They point out that the Confederacy still had a chance to win by demoralizing northern public opinion during the 1864 campaign. But there is little doubt that Gettysburg was an extremely important victory, even if not absolutely decisive. It broke the aura of invincibility that had gathered around Robert E. Lee and the Army of Northern Virginia, and inflicted enormous losses on the Confederates that the South could not replace. Gettysburg should be remembered for its crucial role in putting an end to an odious regime established for the purpose of perpetuating the evil institution of slavery.

For most of the last 150 years, military historians and other commentators have debated the issue of which Confederate general deserves the blame for the defeat at Gettysburg. Various writers have argued that such generals as James Longstreet, Dick Ewell, A.P. Hill, and Jeb Stuart were responsible. The effort to blame Longstreet (the second-highest ranking officer in Lee’s army) gathered steam after the war, when he committed what many white southerners viewed as the unforgivable sin of joining the Republican Party. I am just an amateur reader of this literature. But, for what it is worth, I tend to agree with modern revisionist scholars such as Alan Nolan and Gary Gallagher, who argue that the main culprit was Robert E. Lee. It was Lee who ordered the disastrous Pickett’s Charge, overruling Longstreet’s opposition. To the extent that other generals made mistakes, it was in part because Lee didn’t give them proper supervision, even though he knew that several key subordinates were new to their [...]

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Bill to Be Introduced to Increase Armed Services Committees’ Oversight Over Special Operations

By on May 9, 2013 9:48 am in Counter-Terrorism Policy, Drones (UAVs), Military, National Security, Targeted Killing, War and Armed Conflict, War on Terror

Rep. Mac Thornberry (R-Texas), member of the US House of Representatives Armed Services Committee, plans to introduce a bill that would increase Congressional oversight over kill-capture operations conducted outside of Afghanistan by the US military.  University of Texas law professor Robert Chesney discusses the proposed legislation over at Lawfare, and gives a section by section commentary.  Whether this is an important step or not depends on one’s starting point, of course; I agree with Chesney that it is a big deal and a welcome step to regularizing . (Though if one’s view is that all these operations are unlawful, or that  they require judicial oversight, or something else, whether from the Left of the Democratic Party or what we might call the Pauline wing of the Republican Party, then you won’t be much moved.)

Seen within the framework of US law and oversight of overseas use of force operations, this is an important step.  A couple of observations.  First, this (soon-to-be) proposed legislation is with respect to operations conducted by the US military under US Code Title 10; it does not cover CIA activities, which are already subject to oversight and reporting under US Code Title 50.  Second, it covers US military operations with respect to the lines of oversight running back to the Armed Services committees; essentially it increases the role of the Armed Services committees in oversight of US military operations in what it defines as “Sensitive Military Operations” – which in practice means clandestine Joint Special Operations Command (JSOC) activities.  It does not alter the existing oversight processes of Congressional intelligence committees governing covert action as defined in US Code Title 50, but extends and increases oversight over military operations.  Why this focus on military operations conducted by JSOC?

Counterintuitive as many might find it, [...]

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Human Rights Watch Can’t Wait to Accuse Israel

By on February 14, 2013 3:05 pm in Human Rights Watch, International Law, Israel, Military, National Security, War on Terror

Human Rights Watch has just released a report on Israel’s recent “Pillar of Defense” operation to suppress rocket fire from Gaza. The report concludes that 18 airstrikes violated international law by not being properly targeted. I do not know if 18 is a little or a lot for an operation of this scale, as there an no good comparative data (though the report is released as Afghanistan says yet another NATO airstrike hit a house with innocent women and children inside.)

The report, by its description of its methods, appears to be a hit piece. Here is what the report said about the group’s investigative method (emphasis added):

Human Rights Watch sent detailed information about the cases to the Israel Defense Forces (IDF) on January 14, 2013, requesting further information. At a meeting on January 24 and in subsequent phone conversations, the military spokesperson’s office told Human Rights Watch that the military chief of staff had ordered a general (aluf) to conduct an “operational debriefing” (tahkir mivtza’i) concerning “dozens” of Israeli attacks during the conflict, including the cases Human Rights Watch investigated, which would be completed by late February.

Because previous Israeli “operational debriefings” involving attacks were not conducted by trained military police investigators or dedicated to investigating alleged laws-of-war violations, Human Rights Watch has decided to publish its findings rather than wait for their results.

In other words, HRW received high-level and consistent cooperation. A meeting between HRW and the IDF took place on Jan 24 (just 10 days after HRW asked for further information), and were told that the IDF would have a more detailed response by late February after its own investigations were over. One month is not a long time to wait, certainly not covering an incident that occurred months ago.

It is completely [...]

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National Security Law in the News

By on November 25, 2012 11:51 am in Constitutional Law, Counter-Terrorism Policy, Criminal Law, Executive Branch, International Law, Military, National Security, Press, Targeted Killing

National Security Law in the News: A Guide for Journalists, Scholars, and Policymakers is a new book published by the ABA’s Standing Committee on Law and National Security and Northwestern’s Medill School of Journalism. Despite the title, the book should be of interest to a general audience, as it offers a concise, broad plain-language overview of the many timely issues at the intersection of domestic and international law. I wrote the chapter on piracy. Congratulations to the editors, Paul Rosenzweig, Timothy J. McNulty, and Ellen Shearer.

Here is the overview:

Written by seasoned experts, each chapter contains a summary of legal and policy issues of significance and is accompanied by an annotated bibliography for further reading. The book is divided into four parts:
Part I provides an overview of the basic issues of constitutional and international law including discussion of the scope of the president’s authority, the meaning and effect of the First Amendment, and the role of international law in American courts.
Part II turns the focus to the military and explores questions about military organization and operations.
Part III looks at the world of domestic law enforcement and counterterrorism.
Part IV covers homeland security issues.
An added bonus: a list of experts to contact for additional background information is included in chapter.

Some early journo reactions:

Every reporter on the national security beat should keep this book within reach.”

— Jane Mayer, Staff Writer, The New Yorker Magazine

Finally, we now have a clear-eyed primer on national security law that can serve as an essential reference for journalists as they try to cut through the spin and get to the truth.”

— James Risen, author, State of War: The Secret History of the CIA and the Bush Administration

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Assessing Obama’s Performance on Libya

By on October 21, 2011 2:31 pm in Military, War and Armed Conflict

Politico recently asked its Arena contributors whether the recent death of Muammar Gadhafi vindicates President Obama’s Libya policy:

How much credit should President Barack Obama get for Qadhafi’s death and the tyrannical regime’s ouster? Does it vindicate the president over Libya mission critics like Rep. Michele Bachmann?

My response is available here:

President Obama deserves credit for facilitating the overthrow of a brutal dictator at little immediate cost to the United States. Republican critics were wrong to claim that this result could only be achieved with a much larger commitment of U.S. forces.

On the other hand, it is far from clear whether the new regime in Libya will be any better than the old. The new Libyan government includes many different groups, including an influential radical Islamist faction….. If radical Islamists do take over Libya, the result could well be a regime that is just as oppressive as Gadhafi’s and much more hostile to American interests.

The United States may also pay a price for violating our 2003 agreement with Libya, under which Gadhafi agreed to stop supporting terrorism and give up his nuclear program in exchange for the US and Britain implicitly committing themselves to not seeking his overthrow….

Obviously, Gadhafi deserved to be overthrown. He certainly had no “right” to tyrannize over the people of Libya. But, after seeing what happened to him, other dictatorships such as Iran may be less willing to sign similar deals….

Finally, by going to war without congressional authorization, the president violated both the Constitution and the 1973 War Powers Act. Then-Senator Barack Obama got it right back in 2007, when he wrote that “[t]he president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent

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The Return of ROTC to Elite Universities

By on June 1, 2011 1:04 pm in Academia, Don't Ask, Don't Tell (DADT), Military, War and Armed Conflict, War on Terror

The LA Times has an article describing how ROTC programs have returned to many elite universities in the wake of the abolition of the Don’t Ask Don’t Tell policy:

Helped by the recession, more active recruiting and a sea change in student perceptions of the military, enrollment in ROTC programs on college campuses is booming.

Even with ongoing U.S. involvement in conflicts in Afghanistan, Iraq and now Libya, participation in the program has surged 27% over the last four years — to 56,757 men and women, according to the Defense Department. The military boosted the number of ROTC scholarships to help expand the wartime officer corps, and the recession made the offers attractive to students.

Today’s college students, who never faced a military draft and whose childhood memories include the terrorist attacks of Sept. 11, 2001, are more receptive than their parents’ generation to seeing fellow students in uniform. Returning veterans who served in Iraq and Afghanistan and are now enrolled in college also create a more sympathetic, and familiar, image of the military.

In another sign of the changing times, the congressional rescinding last year of the “don’t ask, don’t tell” ban on gays serving openly in the military has recently led Stanford, Harvard and several other elite universities to take steps to welcome the ROTC back to their campuses for the first time in 40 years.

On-campus military training still raises hackles for some. Yet even critics acknowledge that most current college students are willing to accept the ROTC.

I previously wrote about the return of ROTC here and here. Although I thought that DADT was a shortsighted and unjust policy, I also argued that banning ROTC and military recruiters from campus was not the right way to combat this form of anti-gay discrimination. Be that [...]

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Harvard Allows Return of ROTC

By on March 3, 2011 10:41 pm in Academia, Don't Ask, Don't Tell (DADT), Military

A few weeks ago, I wrote a post about the question of whether elite universities will allow ROTC programs to return to campus now that the don’t ask don’t tell policy has been repealed and gays and lesbians can serve openly in the military. I am happy to report that Harvard University has now agreed to recognize ROTC [HT: Harvard student Yair Rosenberg]:

The Reserve Officers’ Training Corps will be formally recognized by Harvard tomorrow after a 40-year hiatus, the University announced today. University President Drew G. Faust and Navy Secretary Ray Mabus are set to sign an agreement Friday that will recognize the Naval ROTC on campus.

“Our renewed relationship affirms the vital role that the members of our Armed Forces play in serving the nation and securing our freedoms, while also affirming inclusion and opportunity as powerful American ideals,” Faust said in a statement. “It broadens the pathways for students to participate in an honorable and admirable calling and in so doing advances our commitment to both learning and service.”

Previously, University officials have stated that they would not recognize the program until “Don’t Ask, Don’t Tell”—the military policy which banned gays from openly serving the military—was lifted. Since Congress repealed the ban in November, Faust and other officials have been in discussions with the Pentagon about bringing the program back to campus.

Apparently, Harvard ROTC participants will continue to train at MIT rather than at Harvard itself. That, however, seems to be a cost-driven decision by the Pentagon, not the result of any effort by Harvard to keep the military off-campus.

Although I have always opposed DADT, I also argued that banning ROTC and military recruiters from campus was not the right way to combat this form of anti-gay discrimination. Be that has it may, there [...]

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Will the End of Don’t Ask Don’t Tell Lead to the Return of ROTC Programs to Elite Universities?

By on February 1, 2011 2:35 am in Academia, Don't Ask, Don't Tell (DADT), Law Schools, Military

At the Weekly Standard blog, Cheryl Miller asks whether the repeal of Don’t Ask Don’t Tell will lead to the return of ROTC programs to elite university campuses [HT: here]. In recent years, university officials have defended the exclusion of ROTC from campus as a way of countering the military’ discrimination against gays and lesbians, and have vehemently denied that they are antimilitary. With the end of DADT, that obstacle to ROTC should be removed.

As Miller points out, the Pentagon may have reasons for its own for choosing not to establish ROTC programs at some elite schools. And there are those in the military who strongly dislike elite academia. Thus, some schools might not get ROTC programs any time soon even if university administrators support the idea. Still, nothing prevents university officials from announcing that they would now welcome the return of ROTC programs if the military is interested. President Obama urged them to do just that in his recent State of the Union speech.

The same point applies to law schools. After having lost a Supreme Court case over the issue, law schools were forced to permit military recruiters to interview on campus as a condition of receiving federal funding under the Solomon Amendment. In the aftermath of this legal defeat, most law schools admitted recruiters, but continued to emphasize that they were doing so under duress. Some also adopted various “ameliorative practices” required by the American Association of Law Schools, and designed to emphasize their opposition to the presence of military recruiters. Both the AALS and individual schools should repeal the varous ameliorative practices and officially indicate that they now voluntarily welcome military recruiters on the same basis as other interviewers. As recently as May 2010, the AALS emphasized that its opposition to [...]

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Professor Of Military History Weighs in on the Implausibility of Bellesiles’s Story

By on July 16, 2010 2:15 pm in Academia, History, Military

The Chronicle of Higher Education has not yet revealed the results of its investigation of the veracity of Michael Bellesiles’s story about a dying soldier and his student brother. One can only speculate why it is taking more than a day or two to verify a story that should have been easy to verify (if it is true).

While waiting for the Chronicle, I thought I’d post the views of a commenter (who says that he is a professor of military history) published in the comments after Bellesiles’s story at the Chronicle Review website (scroll down to comment 71, by mhl1972):

I actually do teach military history, in the present, at a large R-1 university. And I didn’t believe a word of Bellesisles’ story, even before I made the connection to his earlier troubles. Here’s why:

The characters are just too perfectly drawn, and the events unfold in a predictably tragic yet meaningful way. “Ernesto” and “Javier”–they are plucky immigrants that liberal academics are bound to root for, as opposed to white meatheads named Dave and Bob. Javier joined the military to thank the nation for “giving his family refuge”–they came here for political purposes, not to take our jobs! Ernesto, a Latino, writes a paper critical of DADT, in order to cement our liberal affection for him . . . . What’s more, his research paper is “amazing,” so that all us academics, who by June are ready to stab our own eyes out after spending 9 months trying to teach disinterested students who IM right through class, will like him all the more! Because it would be totally unrealistic to imagine that a non-native speaker of English in a college history class might struggle with his work! Ernesto’s brother is serving in combat–how enobling! And how rare,

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The Chronicle Review is Looking Into the June 27th Bellesiles Article

By on July 12, 2010 7:05 pm in Academia, History, Military, Press

Late Monday afternoon, I received a one-sentence email from Liz McMillen, Editor of the Chronicle Review:

I just wanted to let you know that we are looking into the questions you have raised in your blog post Friday about Michael Bellesiles’s article for us.

Here is some background on Bellesiles’s June 27th article.

Here is some background on Bellesiles’s problems in 2000-2002. [...]

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Serious Questions About the Veracity of Michael Bellesiles’s Latest Tale

By on July 9, 2010 6:30 pm in Academia, Military

A few days ago, questions were raised first by Big Journalism and then by me about a story that Michael Bellesiles published in the June 27th issue of the Chronicle of Higher Education: Teaching Military History in a Time of War. I have now read through every DoD casualty report from last fall for both Iraq and Afghanistan and news obituaries for most of them, and I have found none that was even remotely possible as the case that Bellesiles wrote about in the Chronicle. This post discusses the serious questions this raises for the veracity of Bellesiles account. [...]

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Michael Bellesiles’s Newest Tale

By on July 6, 2010 6:10 pm in Academia, Military, Press

In its June 27, 2010 issue, the Chronicle of Higher Education published an essay by Michael Bellesiles, Teaching Military History in a Time of War:

Yet the reality of teaching in wartime, most particularly at a working-class college such as Central Connecticut State University, is that war has touched the families of many of our students, and it is a tragic error to think that they have not experienced the staggering blow of loss and personal sacrifice.

That lesson came home to me with great force this last semester. . . . On the first day of my military-history class, after a discussion of the concept of democratic warfare, I asked my usual question about veterans or National Guard members present, and if any students had family members serving in the military. Ernesto (I have changed names out of respect for this family’s privacy), a shy but exceedingly bright student, smiled with evident pride as he mentioned that his brother Javier had recently enlisted in the Army. We discussed his brother’s reasons for enlisting, which mostly focused on a sense of gratitude to a country that had given their family refuge.

Two weeks later, the class discussed Baron von Steuben’s training of the American Continental Army . . . . Afterward, Ernesto told me that his brother had been sent to Iraq. He admitted he was worried about Javier’s safety, but had read several articles indicating that the war was winding down.

Then, after a class . . . [on the Mexican War], Ernesto told me that Javier had called him the day before and described his first encounter with enemy fire, which had been chaotic and without consequence. A few days later, Ernesto gave an amazing paper on a woman who had disguised herself as a man so

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Light at the End of the DADT Tunnel

By on May 27, 2010 7:13 pm in Don't Ask, Don't Tell (DADT), Military

The Senate Armed Services Committee has just voted 16-12 to repeal Don’t Ask, Don’t Tell. The repeal would take effect after the release of a Pentagon study on how (not whether) to repeal the policy and after both the president and Defense Department have certified that the repeal will have no detrimental effect on recruitment, retention, unit cohesion, and so on. The House will vote soon. 

Meanwhile, Republican House members are taking the floor to complain that gay military personnel are trying to push their “overt” sexuality on others “in a bunker where they’re confined under fire,” that they “don’t care” about the military, and that they’re exploiting the armed forces for some kind of “liberal social experiment.”  Perhaps, but it appears 78% of Americans, including a majority of Republicans, are flaming liberals on this one.

UPDATE: The House of Representatives has voted to repeal DADT. The vote was 234-194, with only five Republicans supporting it and 26 Democrats opposed.

 

[youtube]http://www.youtube.com/watch?v=ZnBYiHHAifU[/youtube] [...]

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