The Legal Power to Launch War

Who Decides?

Michael Head, Kristian Boehringer

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781351965569
• Topic: Business
• Subtopic: Business Strategy
• Index: Business

The issue of who has the power to declare war or authorise military action in a democracy has become a major legal and political issue, internationally, and is set to become even more pertinent in the immediate future, particularly in the wake of military action in Syria, ongoing wars in the Middle East, and tense discussions between the United States and its allies, and Russia and China.

This book comparatively examines the executive and prerogative powers to declare war or launch military action, focusing primarily on the United States, Britain and Australia. It explores key legal and constitutional questions, including:

• who currently has the power/authority to declare war?
• who currently has the power to launch military action without formally declaring war?
• how, if at all, can those powers be controlled, legally or politically?
• what are the domestic legal consequences of going to war?

In addition to probing the extensive domestic legal consequences of going to war, the book also reviews various proposals that have been advanced for interrogating the power to commence armed conflict, and explores the reasons why these propositions have failed to win support within the political establishment.

1 War and democracy

Formally speaking, as will be examined in Chapters 3–5, the war-making powers are exercised by ‘the executive’, with virtually no public, legislative or judicial scrutiny or accountability. Whether they are ‘prerogative’, ‘presidential’ or ‘executive’ powers, the legal authority to deploy armed forces for warfare is held in the hands of small cabals. The historical record shows that no parliamentary or congressional vote is necessary, let alone a public plebiscite, and no domestic court would uphold a legal challenge to a decision to launch a war.

Almost invariably, however, efforts to introduce parliamentary or congressional checks on war powers have been motivated by concerns to provide war-making decisions with a cloak of democratic legitimacy, so as to generate or bolster public support for military mobilisation. Suggestions of mass popular participation in decisions to go to war, such as via referenda, have generally been dismissed out of hand.

Even proposals for plebiscites take no account of the underlying economic and political power held in the hands of the corporate, military and political elite, or of the capacity of that elite to shape, poison or overwhelm public opinion, with the help of a complicit corporate media.

In fact, real doubts surround the formal exercise of war powers by the office formally endowed with those powers, whether it be a president, prime minister, cabinet or vice-regal representative. For one thing, the very notion of the ‘executive’ itself has shifted throughout history, according to the prevailing nation-state and socio-economic power structures.

In Britain, the war prerogative has morphed from being held by the absolute monarchy, in the name of the theory of the divine right of kings, to being exercised by the executive government—in effect, the prime minister and a perhaps a cabinet subcommittee (Joseph 2013: 22–41). In the United States, the executive has increasingly usurped the war powers—based on the president’s constitutional power to command the military—from Congress, to which the US Constitution allocated the power to declare war (Zeisberg 2013: 1–53). In Australia’s case, reflecting its unclear evolution from a British colony to an independent state, the major decisions to enter military conflict since Federation in 1901 have gone from being made in the name of the British king via the governor-general (still the constitutional ‘commander-in-chief’ of the armed forces) to the prime minister and cabinet, without any consultation with the governor-general (Sampford and Palmer 2009: 350–52).

The only common thread running through these histories is that the war powers must be kept in a small number of hands, far away from public scrutiny or control.

Who actually exercises the power?

Several further questions must be asked, however. To what extent is the person wielding the power functioning as a figurehead, conduit or even cypher for others in the corporate, media, political, military, intelligence and bureaucratic establishment? How are divisions within these circles resolved—and by whom? The titular head of government alone? Can that official be overruled or effectively countermanded by forces within the state apparatus? Can forces within the military trigger confrontations with other countries that make war inevitable?

Is it possible that economic ties, strategic dependence or treaty obligations can give governments no real choice but to join military operations? Or can the stationing of vital military-intelligence facilities (such as the US–Australian communications base at Pine Gap in central Australia) make involvement in war unavoidable?

These are not academic questions. To take the American case, there have been well-documented clashes between presidents and the military chiefs, including over General Douglas Macarthur’s proposal to use nuclear weapons against China during the 1950–53 Korean War (Lowitt 1967), as well as demands by the military, including General Curtis LeMay, for an attack on Cuba during the Cuban missile crisis (Axelrod 2009: 332, 335). Both conflicts were ultimately resolved in favour of the president, as the constitutional civilian commander-in-chief. However, President John Kennedy was subsequently assassinated in circumstances that remain unclear. In more recent times, Pentagon officials pushed for more aggressive US deployments in Syria in 2013, the South China Sea in 2015–16 and Syria again in 2016, publicly adopting stances at odds with the official line of the White House.

In Britain, during 2016, a military commander openly called into question whether the armed forces would accept a decision by a government led by Labour Party leader Jeremy Corbyn to discontinue the Trident nuclear weapons programme. Chief of the Defence Staff Sir Nicholas Houghton, asked by the BBC’s Andrew Marr about Corbyn’s statement that he would never authorise the use of nuclear weapons, replied: ‘Well, it would worry me if that thought was translated into power’ (Payne 2015). Houghton had earlier told the media that Britain was ‘letting down’ its allies by not participating in bombing missions in Syria. These comments violated the supposed principle of military non-interference in civilian politics and raised concerns about the prospect of a military mutiny against a government led by Corbyn. Rather than censure Houghton, the Conservative-led government rushed to support him, with a spokesperson for Prime Minister David Cameron stating that, ‘as the principal military adviser to the government’, it was ‘reasonable’ for Houghton ‘to talk about how we maintain the credibility of one of the most important tools in our armoury’ (Payne 2015).

More than 55 years ago, US President Dwight D. Eisenhower, who had been a five-star general during World War II, used his farewell address to the nation on 17 January 1961 to warn of the unprecedented power of what he termed the military-industrial complex:

This conjunction of an immense military establishment and a large arms industry is new in the American experience. The total influence—economic, political, even spiritual—is felt in every city, every statehouse, every office of the federal government. We recognize the imperative need for this development. Yet we must not fail to comprehend its grave implications. Our toil, resources and livelihood are all involved; so is the very structure of our society. In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military–industrial complex. The potential for the disastrous rise of misplaced power exists, and will persist.

(Eisenhower 1961)

The power of the military-industrial complex has only grown over the past six decades. As shown by whistleblower Edward Snowden’s revelations in 2013, programmes run by the Pentagon-based National Security Agency (NSA) spy on the US and world’s populations on a daily basis, capturing hundreds of millions of Internet communications, including emails, chats, videos, photos and credit card receipts.

The secret collaboration of the military, the intelligence and national security agencies, as well as gigantic corporations, in the systematic and illegal surveillance reveals the true wielders of power. Telecommunications giants, such as AT&T, Verizon and Sprint, and Internet companies, such as Google, Microsoft, Facebook and Twitter, provide the US military, the Federal Bureau of Investigation (FBI) and the Central Intelligence Agency (CIA) with access to data on hundreds of millions of people that these state agencies have no legal right to possess.

The US Congress and both of the major political parties serve as rubber stamps for the confluence of the military, the intelligence apparatus and Wall Street that really runs the country. The so-called Fourth Estate—the mass media—essentially functions as an arm of this ruling troika.

Similar webs of economic, political and military-intelligence exist in Britain and Australia. Moreover, they are linked to the US establishment by formal alliances, informal networks, the hosting of US bases and the integration of military forces. If the United States goes to war, these two allies are necessarily involved in many ways.

The US president can—and does—unilaterally order the extrajudicial assassination of people deemed to be enemy combatants, including US citizens. The government can seize the phone records and emails of investigative journalists; those who expose US war crimes, such as Private Chelsea Manning, are jailed or, like WikiLeaks editor Julian Assange, are threatened with imprisonment. And the president can order alleged terrorists to be detained indefinitely and without trial in military prisons.

The massive scale of the spying—targeting every man, woman and child in the country—raises the question: what is the corporate-financial-military elite afraid of? The capitalist ruling class is haunted by the sense that it is socially and politically isolated, that the policies it is pursuing lack any serious base of support and that war can provide an impulse to social revolution, as it did in Russia in 1917 and Germany in 1918.

Is democracy compatible with war?

One of the United States’ most influential geo-political strategists suggested that democracy was an obstacle to going to war. In his book, The Grand Chessboard, Zbigniew Brzezinski, security adviser to Democratic President Jimmy Carter and a long-time proponent of an aggressive strategy for asserting US global hegemony, wrote:

America is too democratic at home to be autocratic abroad. This limits the use of America’s power, especially its capacity for military intimidation. Never before has a populist democracy attained international supremacy. But the pursuit of power is not a goal that commands popular passion, except in conditions of a sudden threat or challenge to the public’s sense of domestic well-being. The economic self-denial (that is, defense spending) and the human sacrifices (casualties even among professional soldiers) required in the effort are uncongenial to democratic instincts. Democracy is inimical to imperial mobilization.

(Brzezinski 1997a: 35–36)

Four years later, on 11 September 2001—9/11—the ‘sudden threat or challenge to the public’s sense of domestic well-being’ that the former national security adviser saw as a necessary precondition for launching a global campaign of American militarism was served up by Islamic fundamentalist forces that he and the CIA had promoted in Afghanistan during the 1970s. Al Qaeda, with its historic ties to US intelligence, claimed credit for the attacks on New York City and Washington, DC, which were carried out by individuals who were able to move remarkably unhindered in and out of the United States.

During his four-year tenure in the Carter White House, Brzezinski was involved in many criminal operations carried out in the name of US imperialism around the globe, from support for the Shah’s attempts to suppress the Iranian Revolution, to the initiation of a US policy in Central America that led to bloody counterinsurgency campaigns that claimed the lives of hundreds of thousands (Andrianopoulos 1991).

Perhaps the greatest of these crimes, and one for which Brzezinski unashamedly took credit, was the orchestration and support of a dirty war waged by Islamist mujahedeen against the Soviet-backed government of Afghanistan at the end of the 1970s. This war, which sowed the seeds for decades of catastrophe in that country and across the Middle East, is another devastating illustration of the unbridled exercise of war powers by the United States and its allies.

In an interview with the French news magazine Le Nouvel Observateur in January 1998, Brzezinski acknowledged that he had initiated a policy under which the CIA had covertly begun arming the mujahedeen in July 1978—six months before Soviet troops intervened in Afghanistan—with the explicit aim of dragging the Soviet Union into a debilitating war.

Asked whether he regretted the policy he championed in Afghanistan, given the catastrophe unleashed upon Afghanistan and the subsequent growth of Islamist terrorist groups such as Al Qaeda, Brzezinski replied:

Regret what? That secret operation was an excellent idea. It had the effect of drawing the Russians into the Afghan trap and you want me to regret it? The day that the Soviets officially crossed the border, I wrote to President Carter: We now have the opportunity of giving to the USSR its Vietnam War. Indeed, for almost 10 years, Moscow had to carry on a war unsupportable by the government, a conflict that brought about the demoralization and finally the breakup of the Soviet empire.

(Gibbs 2000: 241–42)

Asked specifically whether he regretted the CIA’s collaboration with, and arming of, Islamist extremists, including Al Qaeda, in fomenting the war in Afghanistan, Brzezinski responded contemptuously: ‘What is most important to the history of the world? The Taliban or the collapse of the Soviet empire? Some stirred-up Moslems or the liberation of Central Europe and the end of the cold war?’ (Gibbs 2000: 241–42).

In the four decades of nearly uninterrupted fighting that flowed from Brzezinski’s ‘excellent idea’, more than 2 million Afghans have lost their lives and millions more have been turned into refugees.

In the aftermath of the Moscow Stalinist bureaucracy’s formal dissolution of the Soviet Union in December 1991, Brzezinski refocused his attention on a strategy to assert undisputed US hegemony over Eurasia. In an article published in the September–October 1997 issue of Foreign Affairs, Brzezinski argued:

Eurasia is the world’s axial supercontinent. A power that dominated Eurasia would exercise decisive influence over two of the world’s three most economically productive regions, Western Europe and East Asia. A glance at the map also suggests that a country dominant in Eurasia would almost automatically control the Middle East and Africa. With Eurasia now serving as the decisive geopolitical chessboard, it no longer suffices to fashion one policy for Europe and another for Asia. What happens with the distribution of power on the Eurasian landmass will be of decisive importance to America’s global primacy and historical legacy . . . In a volatile Eurasia, the immediate task is to ensure that no state or combination of states gains the ability to expel the United States or even diminish its decisive role.

(Brzezinski 1997b)

Brzezinski was among the more influential strategists in shaping a policy of attempting to offset the long-term decline in the world position of American capitalism by resorting to Washington’s unchallenged supremacy in terms of military might. This turn would lead to unending wars in the Middle East and Central Asia designed to assert undisputed American dominance in the regions containing the lion’s share of the world’s oil and natural gas reserves.

The driving forces of war

Even more fundamental questions can be posed. The history of the 20th century, during which two calamitous world wars were fought, suggests that the essential cause of militarism and war does not rest in the personalities of the political, corporate and military leaders involved. Nor does it rest even in the immediate profit calculations of the military-industrial complexes of the rival powers.

Rather, it lies in the deep-seated contradictions of the world capitalist system, none of which were resolved by two world wars—contradictions primarily between:

• a globally integrated and interdependent economy and its division into antagonistic national states; and

• the socialised character of global production and its subordination, through the private ownership of the means of production, to the accumulation of private profit by the ruling capitalist class.

Powerful capitalist banks and corporations utilise ‘their’ states to wage commercial and ultimately military struggles for control of the raw materials, oil and gas pipelines, trade routes, and access to cheap labour and markets that are critical to the accumulation of profit. They also regard such struggles—and war itself—as necessary to quell the social discontent generated by the ever-greater inequality produced by the capitalist accumulation of wealth, and they divert the disaffection along nationalistic, jingoist and patriotic channels.

Politicians and historians from the conflicting powers in the first ‘Great War’, World War I, have long sought to cover over these driving forces. The devastating four years of war arose almost inadvertently, according to wartime British Prime Minister Lloyd George. The war was something into which the great powers ‘glided, or rather staggered and stumbled’ and nations ‘slithered over the brink into the boiling cauldron of war’ (quoted in Hamilton and Herwig 2004: 19). One historian encapsulated this claim i...

Table of contents

• Cover Page
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Introduction: What is at Stake?
• 1 War and Democracy
• 2 Vietnam, Iraq and the ‘War on Terror’: Deception, War Propaganda and Legislative Approval
• 3 Increasingly Unrestrained War Powers in the United States: From Truman to Trump
• 4 Britain’s Royal War Prerogative Reasserted and Reinforced
• 5 From Whitehall to the White House: The War Power in Australia—from Legal Subordination to Political Subservience
• 6 The Failure of Reform Proposals: An Australian Case Study
• 7 War and Dissent: Sweeping Domestic Powers
• 8 Contemporary Preparations for Wartime Measures
• 9 Martial Law, Official Lawlessness and Judicial Complicity
• 10 Can International Law Stop Wars of Aggression?
• 11 Would Referenda Provide any Alternative?
• 12 Conclusions
• Index