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Wartime Without End, War Powers Without Check

70 years after the start of the Korean War, presidential lawyers still use its example to launch endless overseas entanglements today.
Korean War

When is the U.S. at war? This should be one of the easiest questions for Americans to answer, but for the last seven decades the U.S. has pursued a series of policies that have relied on obfuscation, distortion, and the redefinition of basic words to avoid giving clear answers to that question.

The blunt answer is that the U.S. considers itself to be at war when it is expedient for the current administration, and it will likewise deny that it is wartime when admitting that would expose the president to political and legal consequences.

Supporters of endless war will switch between using threat inflation to justify ceaseless military action on the one hand and dismissing U.S. involvement in foreign conflicts as something less than war on the other. Depending on the political circumstances, we will be told that we are in a generational struggle that must continue, or we will be told that we’re not really at war at all when that makes it easier to keep U.S. troops stationed in warzones on the far side of the world. If there is any hope of building a more peaceful, democratic, and restrained foreign policy, the executive has to be forced to give up the war powers it has taken for itself. That requires electing representatives that will jealously guard their prerogatives in matters of war rather than quietly acquiescing to an elected imperator.

Executive usurpation of Congress’ role in matters of war is not an obscure point of constitutional law. It goes to the heart of our warped and destructive foreign policy. It subverts our republican form of government, and it makes a mockery of democratic accountability. For seventy years, Americans have entrusted the decision to make war to the branch that can be trusted least with that power, and a long record of bloody, desultory warfare has been the result. Restraining the executive is not a panacea for all of the problems of U.S. foreign policy, but it would significantly limit the damage that the U.S. can do to itself and to other countries.

Last month was the 70th anniversary of the start of the Korean War. While the armistice has been in place for sixty-seven of those years and for the most part it has held, that war has never formally been brought to an end. Commonly referred to as the “forgotten war” here in the United States, it has not been forgotten by presidential lawyers. The Korean War’s precedent has loomed large in the war powers debate by serving as a ready-made excuse for whenever a president wants to wage war without Congressional approval. Presidents have since used the example of Korea to assert the legality of other illegal wars in the decades that have followed. Mary Dudziak remarked on this last year:

Trump’s Office of Legal Counsel drew upon the Korean War precedent as authority after he ordered targeted military strikes on an air base in Syria from which the Syrian regime had launched chemical weapons on its own people in 2017 and 2018. In 2011, President Barack Obama also relied on the Korea precedent when, without congressional authorization, he ordered airstrikes in Libya in an effort to prevent civilian deaths by the government of Moammar Gaddafi.

Contemporaries understood at the time that there was no legal justification for Truman’s action under U.S. law:

Sen. Robert A. Taft (R-Ohio) loudly objected to Truman’s decision, insisting there was “no legal authority for what he has done.”

The first major armed conflict of the Cold War, the Korean War was also the birth of the extremely costly policy of global containment that committed the U.S. to fight in strategically irrelevant places ostensibly for our own security. For the next seventy years, most presidents from both parties would try to sell the public on the necessity of wars of choice, all of which were undeclared and many of which had no legal justification at all.

When the U.S. commits an egregious act of war against another state the defenders of the strike will also insist that the president needs no authorization from Congress to order such attacks whenever he deems it necessary. This is not a new problem for the U.S., nor is it limited only to the post-Cold War interventionism of the last thirty years, but dates back to the earliest years of America’s pursuit of global hegemony after 1945. If we would cure the U.S. of its habit of waging unnecessary wars, we have to root out the assumptions behind the strategy that requires constant war somewhere in the world.

In just the last 25 years, the U.S. has illegally started or joined wars in Kosovo, Libya, Yemen, and the war against ISIS. None of these campaigns was ever approved by Congress, and most of them were debated only after they began and never received authorization after the fact. Today the U.S. reserves the right to attack any government that it sees as a potential threat, and then when it carries out attacks against a foreign government our leaders will then claim that our forces are not engaged in hostilities because the other side is unable to strike back. Even if Congress is informed of what the military is doing, it is never involved in the decision of whether to attack. Then when Congress insists on getting involved, the president will ignore them and veto their resolutions.

Today it is customary for many proponents of continuing the endless “war on terror” to deny that endless war is even happening. Like Truman before them, they will describe the conflicts that U.S. forces are fighting as police actions or stabilization operations or anything except what they are. In their less guarded moments, they will liken them to the frontier wars of expansion and empire from the 19th century. James Jay Carafano was the most direct in his denial of endless war: “That’s not to say we don’t have troops in combat zones around the world. But, by any reasonable definition, America just isn’t at war.” This claim is shameless. It is not just a denial of reality, but an attempt to trick people into accepting war by lying to them that it isn’t happening.

News reporting and editorials sometimes unwittingly echo the claim that the U.S. isn’t at war by describing wartime presidents as if they were presiding over a period of peace. Obama arguably tried to end U.S. involvement in Iraq, but otherwise he escalated old wars and started or joined new ones. Trump has not ended any of the wars he inherited, and he has expanded some of them. These are not peacetime presidents, but they are also not scrutinized as if they are wartime leaders.

The perverse incentives in Washington ensure that one president after another does just enough to avoid being seen as losing wars that have already been lost while severely constraining their ability to extricate the U.S. from these no-win scenarios. Candidates claim to be against endless war, but in practice it is easier and politically safer for them to leave the wars on autopilot once they are elected. Having abdicated their role in the decision to go to war, Congress has also largely washed its hands of its responsibilities to oversee the conduct of the ongoing wars.

Wartime is supposed to be limited and exceptional. We tolerate the expansion of the government’s power during wartime on the assumption that it will be reduced later on once the original reason for the war has ceased to exist. Instead our country is permanently at war with someone somewhere, and so long as the war is conducted out of sight at a low enough intensity most Americans seem willing to let it drag on forever. Supporters of endless war will say that the U.S. isn’t at war in order to make sure that it never stops fighting. By pretending that war is something else, they hope to make incessant warfare the norm.