Panetta & Obama vs. the Constitution & the Rule of Law

Yesterday, 7 March 2012, SecDef Leon Panetta testified before Congress that the President of the United States may in fact be constrained by international law when deploying American military forces into combat, but is neither constrained by, nor subject to, nor must even inform the Congress of the United States when taking American citizens to combat to kill and to die in the name of the United States of America.

In fact, in the view of the Secretary of Defense of the United States of America, America requires permission from international bodies but NOT from the United States.

Bluntly, this Administration sees the military America organizes, trains and equips as a lethal tool under international control and NOT under American control. So my taxes are paying for it because….?

Leaving aside the ahistorical & ignorant refrain from the Left since 1968 that the GOP is the “War Party,” which I have dealt with here, Panetta’s testimony shows yet again the total and complete disregard by this Administration for the Rule of Law and the Constitution Panetta has sworn on multiple locations, in multiple times and for multiple offices to support and defend.

Some on the Left and Right have commented that Panetta’s comments are correct – that the President can take America to war if it’s too “small” to be a real war. That this excuse is not available in law in either the Constitution or the War Powers Resolution (which no president has accepted the legality of, but all presidents until Obama have obeyed since its passage in 1973), and has flaws making the excuse entirely outside the realm of logic or law.

The problems – errors – with this view are many. Here are two:

1. Who gets to decide what is meant by “small”? Opening this decision to ambiguity, to anything other than the law means we are subjecting the United States, its citizens and its soldiers to the whim of a single man. Our Constitution was written specifically to avoid this. We are not under the Rule of Man. We are a nation under the Rule of Law. One man deciding to deploy American forces into combat is a direct violation of the spirit and the letter of the Law of the Land, as well as legislation modernizing the ability to conduct war in the era of ICBMs and a direct attack on the United States in minutes, something unforeseen for obvious reasons by the Founders.

2. Nothing in the Constitution or War Powers Resolution makes distinctions regarding the size of a conflict. To do so is specious and self-serving. Those referring to the War Powers Resolution (Often called the ‘War Powers Act’) as legal justification for the president to deploy forces into combat seem unaware of the specifics of that Resolution, which clearly states that the Resolution is to “insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities,” and that the president’s powers as Commander in Chief are exercised only pursuant to a declaration of war, a specific statutory authorization from Congress, or a national emergency created by an attack upon the United States.

“Collective judgement.”

Of “both the Congress and the President.”


Panetta talks about legal issues around American military deployment in to combat. As you watch his testimony it is crystal clear that he thinks we must have a legal basis for war. Fine. There are ONLY two. The first is the Constitution, requiring a Congressional Declaration (Article 1, Section 8), and the second the War Powers Resolution (WPR). There is NOTHING in ANY legislation of the United States placing our military under the control of ANY foreign or international organization.

In fact, if you read even a cursory history of WW1, the first major foreign deployment of large numbers of American military forces (by a Democrat who ran specifically promising to stay out of it), you will find that the biggest job, and one undertaken successfully by General Pershing, the head of the American Expeditionary Forces, was to ensure that our military was NOT co-opted by foreign powers, in that case the French, who wanted to continue shoving troops into the maw of machine gun warfare that they did not understand. Pershing refused, with the full backing of President Wilson, our troops were used ONLY under our command, and the war (very) shortly ended in our favor.

Never in the history of American military have we agreed to put forces under the control of ANY foreign or international power or organization. Even NATO has a statutory requirement that the top of the NATO military chain of command is an American commander. (This is why it was so specious when Obama said during the Libyan exercise that America was placing its military under the international control of NATO.)

For the first time since the War Powers Resolution was passed, we have an Administration not only introducing forces into combat without the permission of Congress, but doing so without asking for a vote by Congress for this deployment.

Worse, they now are testifying before Congress that neither the War Powers Resolution nor the Constitution apply to them. Obama absolutely believes he can deploy HIS military into combat against ANY foe HE, all by himself, decides HE wants to, and has found a SecDef willing to go along with this utter nonsense.

To the military’s everlasting discredit they have allowed themselves to be sent to combat in situations other than a direct attack on the United States, absent a Declaration when there is no legal basis without it.

Tangentially to this discussion of defense, but for the purposes of how each Party abides by the Law, I refer you to the Saturday Night Massacre. For those too young to recall, one Saturday night in 1973, President Richard Nixon told his AG, Elliot Richardson, to fire Special Prosecutor Archibald Cox, then investigating Watergate. Richardson refused under threat of being fired, and was fired. The DoJ #2, William Ruckelshaus, was then ordered by Nixon to fire the Special Prosecutor under pain of being fired. He, too, refused and was fired. The #3 @ DoJ then was ordered, again on pain of firing, to fire Cox. He, too, was going to refuse, but was told by Richardson and Ruckelshaus that someone knowledgeable needed to remain in place to clean up the certain mess to follow, so he agreed to fire Cox under duress.

It is quite clear which party obeys the law and which party does not. And which party, when disobeying the law (Nixon) takes the consequences, and which party does not.

In accepting these deployments America’s military leaders have acted extra-Constitutionally and in complete and total violation of their oath of office to protect and defend the Constitution against all enemies foreign and domestic. Not to protect and defend the president. To protect and defend the Constitution.

I have taken this oath, as have tens of millions of other men and women. All of them still on active service to the United States are in violation of this oath each and every time they agree to deploy absent a Declaration or in direct response to a direct attack on the United States.

To hold otherwise, e.g. to hold that the Executive can, at his whim, deploy the military forces of the United States of America into combat, to kill and to die, is to say that the US military is nothing more nor less than a Palace Guard subject to deployment into combat at and where decided by a single man unconstrained by law.

That is called many things, among them tyranny, despotism, dictatorship. But it is NOT called a Constitutional government under the Rule of Law.

So – which do you want? An unconstrained executive attacking whomever whenever, wherever?

Or the Rule of Law?

Because you can’t have both.

About Alex Scipio

About Alex Scipio: Alex moved out of the People's Republic of California to the Free State of Arizona, finally tiring of the lack of the Bill of Rights, the overgrown idiocracy, and the catering to non-Americans & welfare recipients. He still wonders how America got from Truman, Eisenhower, and Daniel Patrick Moynihan to the Liberal and Conservative extremes so badly managing America today. And, yes, islam DOES need to be annihilated. And doing what he can to get folks away from the extremes of political life.
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