I find George Friedman’s latest offering frustrating. Here’s a snippet:
In other words, technological advancements have rendered the 18th-century framework of war declaration obsolete. A congressional debate over the strike on Iran’s nuclear facilities would have eliminated a fundamental necessity of war: surprise. It would also undermine a fundamental element in diplomacy: the ability to credibly threaten military action unless the other side makes concessions. If the president cannot make such threats without a public congressional debate, then the threat becomes less immediate and less persuasive. Both the secrecy and ambiguity essential to war and diplomacy are compromised.
Shorter: if you think the law is obsolete, ignore it.
I see no way that such a view is compatible with the rule of law. Clearly, Mr. Friedman doesn’t, either, and provides no remedy in his piece. His observation is not a new one. For more than 200 years we have recognized that autocracies can be more decisive than democracies. Somehow we’ve managed to muddle along.
George Washington oversaw military operations against the Wabash Indians in 1790, the first of many undeclared wars against Indians. The U.S. was in an undeclared war with France from 1798-1800. The First Barbary war from 1801-1805 was also undeclared. Scholars point to supporting legislation that had the effect of authorizing military action (even if taking place after military action had been taken), but that basically means that there is something called “war” that is separate from military actions that are undeclared.
This is a summary of the Office of Legal Counsel’s position from Jack Goldsmith:
“OLC has said the president has Article II authority to use military force without congressional authorization when “the President could reasonably determine that the action serves important national interests.” What counts as a national interest? As relevant here, OLC has recognized (1) “preserving peace in the region and forestalling the threat of a wider conflict”; (2) the protection of U.S. persons and property; (3) preserving regional stability, and (4) “the deterrence of the use and proliferation of chemical weapons” (which in the Iran case would be nuclear weapons). All of these rationales potentially apply to the Iran strike.”
“OLC has recognized one possible limit on this presidential authority that purports to be grounded in the declare war clause and Congress’s authority to fund military operations. If the “anticipated nature, scope, and duration of the planned military operations, analyzed in light of the applicable historical precedent,” (internal quotations cleaned up) amount to “war,” the president must secure prior congressional approval. The executive branch has stated that “[t]his standard generally will be satisfied only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period,” and that “military operations that do not include the introduction of ground troops are less likely to constitute a ‘war’” that requires congressional authorization.”
https://executivefunctions.substack.com/p/was-the-iran-strike-constitutional
I think the Constitution created a strong-Presidential system in which a legislature, meeting a couple of months a year has a limited role. This doesn’t mean Congress has no role (oversight and appropriations matter), but it has to affirmatively do things to not support military action.