There is an old IBM presentation slide occasionally passed around social media, allegedly from 1979. It reads, “A COMPUTER CAN NEVER BE HELD ACCOUNTABLE … THEREFORE A COMPUTER MUST NEVER MAKE A MANAGEMENT DECISION.” It was a wise sentiment then, which—as our ability to violate the maxim has only grown with our digital technology—appears even wiser now. And if we drop “computer” from the phrase, we find a principle that may apply equally to all times and all places: Persons or things that can never be held accountable must never make a management decision.
Can a treaty declare war? Congress seems to think so. Of course, Congress has been happy to let presidents go to war without its declaration for a long time now, so maybe no one should be surprised. Usually, when leaving management decisions to others, not being accountable is the point.
You might, like me, have missed Sen. Rand Paul’s proposed Amendment 222 to the National Defense Authorization Act for Fiscal Year 2024 a couple weeks ago. It was short-lived. Joining Kentucky’s Paul in support were only fifteen senators, all Republicans, including Wisconsin’s Ron Johnson, Florida’s Marco Rubio, and Utah’s Mike Lee. The body of the amendment read as follows: “To express the sense of Congress that Article 5 of the North Atlantic Treaty does not supersede the constitutional requirement that Congress declare war before the United States engages in war.” Apparently eighty-three U.S. senators think that it is only a matter of semantics whether a president fulfilling American treaty obligations means the country is at war or not—or that it’s just up to him.
In an effort to be superhumanly charitable to these hand-washers, one could perhaps, sophistically, suggest that our NATO agreement, in being approved by the Senate in 1949, was a sort of congressional pre-declaration of war, a check to be cashed at the discretion of a future president. Congress has, after all, not declared war since 1942, satisfied instead with authorizing uses of military force. Nevertheless, if NATO had been signed off on by the House of Representatives in addition to the Senate, which is not how this works, the text of Article 5 leaves plenty of room for fulfillment to fall short of war, even undeclared. It does not demand on its own terms superseding the constitutional requirement of Congress to declare war:
The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.
Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.
An authorization for the use of military force, clearly up to a point, but an illimitable pre-declaration of war? Well, unless we as a nation start taking orders from this Security Council, not by a long shot.
In his failed amendment, Paul is continuing his father’s quixotic quest to restore congressional war powers. The unwillingness of the vast majority of his colleagues to affirm congressional responsibility for war is, as already suggested, typical of our legislators of both parties. But it is also typical of our entire culture, beyond deference to an out-of-control administrative state and security apparatus in the executive branch. Legislation, and treaties, are a kind of technology, and we Americans are as a rule highly deferential to our technologies.
Human tools are given ends by their makers, ends that shape the world and shape their users in turn. The American Constitution is such a tool, and in our three branches of government its framers sought to ensure human responsibility for the mechanisms constructed by our laws and institutions. Of course, the men and women who occupy the prescribed offices of authority must exercise their official powers if they are to be a check on that authority’s abuse. As we have discovered, especially in observing the legislative branch, they can in practice voluntarily resign those powers in an effort to evade accountability, and do.
This particular act of evasion makes obvious this legalism’s characteristic moral passivity. Congress’s willingness to let NATO’s Article 5 declare a future war by default, or to authorize a president to use military force without formal limits, is an ethical abdication as much as a constitutional one. It constructs a legal machine in which a future aggressor becomes the only moral agent, and the American people’s representatives need not deliberate over the national interest or consider what course prudence demands. Instead, the executive branch and the military will simply respond on their behalf. Business as usual, then.
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