The Pentagon’s ‘temporary battlefields’ proposal burns constitutional war powers to the ground

By Bonnie Kristian

The Trump White House is reportedly considering a secret Pentagon proposal to designate “temporary areas of active hostility”—“temporary battlefields,” The Guardian dubbed them—in which the military could launch what amounts to six-month wars without congressional approval. This is a perversion of the Constitution of the highest order.

According to the guidance, once the president signs off on a temporary battlefield, commanders would be given “the same latitude to launch strikes, raids and campaigns” as they now have in active U.S. warzones like Iraq. Protections for innocents in these areas would also be lowered from the “near certainty” of civilian safety currently required to a “reasonable certainty” safety standard typical of official warfare.

The bureaucratic language in play here makes this plan sound like a mere simplification of too-complex rules instituted by President Trump’s predecessor. The reality is much more serious, suggesting a dangerous course for American foreign policy which redoubles the worst excesses of the Obama administration and further undercuts the rule of law. To understand the recklessness of this proposal, a little history is in order. You see, though it names the president “Commander in Chief” of the U.S. military, it is only Congress, the Constitution says, that “shall have Power … To declare War.”

The choice of the word “declare” was a careful one, James Madison’s notes from the Constitutional Convention reveal. Originally written as the power to “make war,” it was amended to communicate that while the executive is permitted “the power to repel sudden attacks” on American soil, it is not allowed to “commence war” independent of the legislature.

George Mason, the “father of the Bill of Rights,” was against “giving the power of war to the Executive, because [it was not] safely to be trusted with it,” Madison records, and Mason supported using “declare” as a means of “clogging rather than facilitating war [and instead] facilitating peace.”

In the years since the Constitution’s ratification, perhaps few of its provisions have been so thoroughly gutted of such well-established original intent as the War Powers Clause. The United States has engaged in military conflict in nearly every year of her existence, but just five times has Congress made a formal declaration of war: the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II.

Following 1941’s declaration of war against the Axis nations, Congress has all but abandoned its constitutional role in foreign policy. In 1973, the War Powers Act was passed in a half-hearted measure to regain some portion of the war authority seized by an already-overgrown executive. It provided that the president could commence war on his own, but he must notify Congress within 48 hours and withdraw U.S. troops from battle within 90 days if Congress declined to declare war or at least pass an Authorization for Use of Military Force (AUMF) in that timespan.

Well before the close of Obama’s tenure, it had become abundantly clear the War Powers Act is all bark and no bite thanks to a Congress unwilling to enforce the law’s demands on an imperial executive. Today, the U.S. military has commenced war in Yemen, Syria, Libya, and Somalia with neither a formal declaration or an AUMF, and the AUMFs authorizing action in Afghanistan, Pakistan, and especially the fight against the Islamic State in Iraq are strained beyond all reasonable limits.

With this “temporary battlefields” idea, any lingering congressional responsibility for our military is burned to the ground. The executive usurpation of power would be is completed and foreign policy almost entirely removed from the control of the American people.

What specifically makes this new plan different from the operations of administrations past is, as The Guardian notes, the new autonomy it gives the military from civilian control—certainly in terms of congressional oversight but also in terms of presidential direction. In Obama’s scheme, which was already far afield from the constitutional war powers framework, “the president and his counter-terrorism adviser at the National Security Council played a substantial role in approving life-or-death strikes on suspected terrorists on undeclared battlefields.” With the new plan, military commanders would be able to make these decisions independently during (apparently endlessly renewable) 180-day periods.

What is odd in all this is that Defense Secretary James Mattis seems to understand the importance constitutional congressional authority over military action. “Following more than a decade of fighting for poorly articulated political goals,” he wrote in a 2015 op-ed about ISIS, “the Congress needs to restore clarity to our policy if we are to gain the American people’s confidence and enlist the assistance of potential allies, while sending a chilling note that we mean business to our enemies.”

Mattis reiterated this point Wednesday in a Senate committee meeting. “I would take no issue with the Congress stepping forward with an AUMF," he said. "I thought the same thing for the last several years, I might add, and have not understood why the Congress hasn't come forward with this, at least to debate."

So why is the Pentagon, now under his direction, apparently proposing this “temporary battlefields” plan?

The Trump administration need not maintain President Obama’s policies and procedures—in fact, it should not—but this proposal is regression, not reform. It demolishes the last remnants of one our Founders’ most necessary constitutional protections, and it opens the gate to a host of dangerous, imprudent military interventions with no demonstrable connection to U.S. national security interests.

After the last 15-plus years of imprudent executive war-making, what we need is not less oversight of our foreign policy, but more—more open debate about our goals and strategy, more realistic risk analysis, and more careful determination of what political outcomes we can achieve through military force.

Bonnie Kristian is a fellow at Defense Priorities. She is a weekend editor at The Week and a columnist at Rare, and her writing has also appeared at Time Magazine, CNN, Politico, Relevant Magazine, The Hill, and The American Conservative, among other outlets.

This piece was originally published by Politico on April 3, 2017. Read more HERE