Congressional oversight is necessary for a pragmatic, flexible approach to threats executive discretion results in knee-jerk policy failure



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Stronger statutory checks on Presidential war powers increase America’s deterrence capabilities by providing credibility behind threats


Matthew C. Waxman 13, Professor of Law at Columbia Law School; Adjunct Senior Fellow for Law and Foreign Policy, Council on Foreign Relations, “The Constitutional Power to Threaten War”, Forthcoming in Yale Law Journal, vol. 123 (2014), 8/25/2013, PDF

A second argument, this one advanced by some congressionalists, is that stronger legislative checks on presidential uses of force would improve deterrent and coercive strategies by making them more selective and credible. The most credible U.S. threats, this argument holds, are those that carry formal approval by Congress, which reflects strong public support and willingness to bear the costs of war; requiring express legislative backing to make good on threats might therefore be thought to enhance the potency of threats by encouraging the President to seek congressional authorization before acting.181 A frequently cited instance is President Eisenhower’s request (soon granted) for standing congressional authorization to use force in the Taiwan Straits crises of the mid- and late-1950s – an authorization he claimed at the time was important to bolstering the credibility of U.S. threats to protect Formosa from Chinese aggression.182 (Eisenhower did not go so far as to suggest that congressional authorization ought to be legally required, however.) “It was [Eisenhower’s] seasoned judgment … that a commitment the United States would have much greater impact on allies and enemies alike because it would represent the collective judgment of the President and Congress,” concludes Louis Fisher. “Single-handed actions taken by a President, without the support of Congress and the people, can threaten national prestige and undermine the presidency. Eisenhower’s position was sound then. It is sound now.”183 A critical assumption here is that legal requirements of congressional participation in decisions to use force filters out unpopular uses of force, the threats of which are unlikely to be credible and which, if unsuccessful, undermine the credibility of future U.S. threatsA third view is that legal clarity is important to U.S. coercive and deterrent strategies; that ambiguity as to the President’s powers to use force undermines the credibility of threats. Michael Reisman observed, for example, in 1989: “Lack of clarity in the allocation of competence and the uncertain congressional role will sow uncertainty among those who depend on U.S. effectiveness for security and the maintenance of world order. Some reduction in U.S. credibility and diplomatic effectiveness may result.”184 Such stress on legal clarity is common among lawyers, who usually regard it as important to planning, whereas strategists tend to see possible value in “constructive ambiguity”, or deliberate fudging of drawn lines as a negotiating tactic or for domestic political purposes.185 A critical assumption here is that clarity of constitutional or statutory design with respect to decisions about force exerts significant effects on foreign perceptions of U.S. resolve to make good on threats, if not by affecting the substance of U.S. policy commitments with regard to force then by pointing foreign actors to the appropriate institution or process for reading them.

Any alternative locks in the war system---an infinite number of non-falsifiable ‘root causes’ mean empirics and incentive theory are the only adequate methods to understand war


John Norton Moore 4, Dir. Center for Security Law @ University of Virginia, 7-time Presidential appointee, & Honorary Editor of the American Journal of International Law, Solving the War Puzzle: Beyond the Democratic Peace, pages 41-2.

If major interstate war is predominantly a product of a synergy between a potential nondemocratic aggressor and an absence of effective deterrence, what is the role of the many traditional "causes" of war? Past, and many contemporary, theories of war have focused on the role of specific disputes between nations, ethnic and religious differences, arms races, poverty or social injustice, competition for resources, incidents and accidents, greed, fear, and perceptions of "honor," or many other such factors. Such factors may well play a role in motivating aggression or in serving as a means for generating fear and manipulating public opinion. The reality, however, is that while some of these may have more potential to contribute to war than others, there may well be an infinite set of motivating factors, or human wants, motivating aggression. It is not the independent existence of such motivating factors for war but rather the circumstances permitting or encouraging high risk decisions leading to war that is the key to more effectively controlling war. And the same may also be true of democide. The early focus in the Rwanda slaughter on "ethnic conflict," as though Hutus and Tutsis had begun to slaughter each other through spontaneous combustion, distracted our attention from the reality that a nondemocratic Hutu regime had carefully planned and orchestrated a genocide against Rwandan Tutsis as well as its Hutu opponents.I1 Certainly if we were able to press a button and end poverty, racism, religious intolerance, injustice, and endless disputes, we would want to do so. Indeed, democratic governments must remain committed to policies that will produce a better world by all measures of human progress. The broader achievement of democracy and the rule of law will itself assist in this progress. No one, however, has yet been able to demonstrate the kind of robust correlation with any of these "traditional" causes of war as is reflected in the "democratic peace." Further, given the difficulties in overcoming many of these social problems, an approach to war exclusively dependent on their solution may be to doom us to war for generations to come. A useful framework in thinking about the war puzzle is provided in the Kenneth Waltz classic Man, the State, and War,12 first published in 1954 for the Institute of War and Peace Studies, in which he notes that previous thinkers about the causes of war have tended to assign responsibility at one of the three levels of individual psychology, the nature of the state, or the nature of the international system. This tripartite level of analysis has subsequently been widely copied in the study of international relations. We might summarize my analysis in this classical construct by suggesting that the most critical variables are the second and third levels, or "images," of analysis. Government structures, at the second level, seem to play a central role in levels of aggressiveness in high risk behavior leading to major war. In this, the "democratic peace" is an essential insight. The third level of analysis, the international system, or totality of external incentives influencing the decision for war, is also critical when government structures do not restrain such high risk behavior ¶ on their own. Indeed, nondemocratic systems may not only fail to constrain inappropriate aggressive behavior, they may even massively enable it by placing the resources of the state at the disposal of a ruthless regime elite. It is not that the first level of analysis, the individual, is unimportant. I have already argued that it is important in elite perceptions about the permissibility and feasibility of force and resultant necessary levels of deterrence. It is, instead, that the second level of analysis, government structures, may be a powerful proxy for settings bringing to power those who may be disposed to aggressive military adventures and in creating incentive structures predisposing to high risk behavior. We should keep before us, however, the possibility, indeed probability, that a war/peace model focused on democracy and deterrence might be further usefully refined by adding psychological profiles of particular leaders, and systematically applying other findings of cognitive psychology, as we assess the likelihood of aggression and levels of necessary deterrence in context. ¶ A post-Gulf War edition of Gordon Craig and Alexander George's classic, Force and Statecraft,13 presents an important discussion of the inability of the pre-war coercive diplomacy effort to get Saddam Hussein to withdraw from Kuwait without war.14 This discussion, by two of the recognized masters of deterrence theory, reminds us of the many important psychological and other factors operating at the individual level of analysis that may well have been crucial in that failure to get Hussein to withdraw without war. We should also remember that nondemocracies can have differences between leaders as to the necessity or usefulness of force and, as Marcus Aurelius should remind us, not all absolute leaders are Caligulas or Neros. Further, the history of ancient Egypt reminds us that not all Pharaohs were disposed to make war on their neighbors. Despite the importance of individual leaders, however, we should also keep before us that major international war is predominantly and critically an interaction, or synergy, of certain characteristics at levels two and three, specifically an absence of democracy and an absence of¶ effective deterrence.¶ Yet another way to conceptualize the importance of democracy and deterrence in war avoidance is to note that each in its own way internalizes the costs to decision elites of engaging in high risk aggressive behavior. Democracy internalizes these costs in a variety of ways including displeasure of the electorate at having war imposed upon it by its own government. And deterrence either prevents achievement of the objective altogether or imposes punishing costs making the gamble not worth the risk.I5¶ VI¶ Testing the Hypothesis¶ Theory without truth is but costly entertainment.¶ HYPOTHESES, OR PARADIGMS, are useful if they reflect the real world better than previously held paradigms. In the complex world of foreign affairs and the war puzzle, perfection is unlikely. No general construct will fit all cases even in the restricted category of "major interstate war"; there are simply too many variables. We should insist, however, on testing against the real world and on results that suggest enhanced usefulness over other constructs. In testing the hypothesis, we can test it for consistency with major wars; that is, in looking, for example, at the principal interstate wars in the twentieth century, did they present both a nondemocratic aggressor and an absence of effective deterrence?' And although it is by itself not going to prove causation, we might also want to test the hypothesis against settings of potential wars that did not occur. That is, in nonwar settings, was there an absence of at least one element of the synergy? We might also ask questions about the effect of changes on the international system in either element of the synergy; that is, what, in general, happens when a totalitarian state makes a transition to stable democracy or vice versa? And what, in general, happens when levels of deterrence are dramatically increased or decreased?

Only deterrence is an empirically verifiable solution to war

John Norton Moore 4, Dir. Center for Security Law @ University of Virginia, 7-time Presidential appointee, & Honorary Editor of the American Journal of International Law, Solving the War Puzzle: Beyond the Democratic Peace, page 27-31



As so broadly conceived, there is strong evidence that deterrence, that is, the effect of external factors on the decision to go to war, is the missing link in the war/peace equation. In my War/Peace Seminar, I have undertaken to examine the level of deterrence before the principal wars of the twentieth century.10 This examination has led me to believe that in every case the potential aggressor made a rational calculation that the war would be won, and won promptly.11 In fact, the longest period of time calculated for victory through conventional attack seems to be the roughly six reeks predicted by the German General Staff as the time necessary ) prevail on the Western front in World War I under the Schlieffen Plan. Hitler believed in his attack on Poland that Britain and France could not take the occasion to go to war with him. And he believed his 1941 Operation Barbarossa against the Soviet Union that “[w]e have only to kick in the door and the whole rotten structure will come crashing down."12 In contrast, following Hermann Goering's failure to obtain air superiority in the Battle of Britain, Hitler called off the invasion of Britain and shifted strategy to the nighttime bombing of population centers, which became known as the Blitz, in a mistaken effort to compel Britain to sue for peace. Calculations in the North Korean attack on South Korea and Hussein’s attack on Kuwait were that the operations would be completed in a matter of days. Indeed, virtually all principal wars in the twentieth century, at least those involving conventional invasion, were preceded by what I refer to as a "double deterrence absence." That is, the potential aggressor believed that they had the military force in place to prevail promptly and that nations that might have the military or diplomatic power to prevent this were not dined to intervene. This analysis has also shown that many of the perceptions we have about the origins of particular wars are flatly wrong. Anyone who seriously believes that World War I was begun by competing alliances drawing tighter should examine the al historical record of British unwillingness to enter a clear military alliance with the French or to so inform the Kaiser! Indeed, this pre-World War I absence of effective alliance and resultant war contrasts sharply with the later robust NATO alliance and absence of World War III.14 Considerable other evidence seems to support this historical analysis as to the importance of deterrence. Of particular note, Yale Professor Donald Kagan, a preeminent United States historian who has long taught a seminar on war, published in 1995 a superb book On the Origins of War and the Preservation of Peace.15 In this book he conducts a detailed examination of the Peloponnesian War, World War I, Hannibal's War, and World War II, among other case studies. A careful reading of these studies suggests that each war could have been prevented by achievable deterrence and that each occurred in the absence of such deterrence.16 Game theory seems to offer yet further support for the proposition that appropriate deterrence can prevent war. For example, Robert Axelrod's famous 1980s experiment in an iterated prisoner's dilemma, which is a reasonably close proxy for many conflict settings in international relations, repeatedly showed the effectiveness of a simple tit for tat strategy.17 Such a strategy is at core simply a basic deterrent strategy of influencing behavior through incentives. Similarly, much of the game-theoretic work on crisis bargaining (and danger of asymmetric information) in relation to war and the democratic peace assumes the importance of deterrence through communication of incentives.18 The well-known correlation between war and territorial contiguity seems also to underscore the importance of deterrence and is likely principally a proxy for levels of perceived profit and military achievability of aggression in many such settings.¶ It should further be noted that the democratic peace is not the only significant correlation with respect to war and peace, although it seems to be the most robust. Professors Russett and Oneal, in recently exploring the other elements of the Kantian proposal for "Perpetual Peace," have also shown a strong and statistically significant correlation between economically important bilateral trade between two nations and a reduction in the risk of war between them. Contrary to the arguments of "dependency theorists," such economically important trade seems to reduce the risk of war regardless of the size relationship or asymmetry in the trade balance between the two states. In addition, there is a statistically significant association between economic openness generally and reduction in the risk of war, although this association is not as strong as the effect of an economically important bilateral trade relationship.° Russett and Oneal also show a modest independent correlation between reduction in the risk of war and higher levels of common membership in international organizations.20 And they show that a large imbalance of power between two states significantly lessens the risk of major war between them.21 All of these empirical findings about war also seem to directly reflect incentives; that is, a higher level of trade would, if foregone in war, impose higher costs in the aggregate than without such trade,22 though we know that not all wars terminate trade. Moreover, with respect to trade, a, classic study, Economic Interdependence and War, suggests that the historic record shows that it is not simply aggregate levels of bilateral trade that matters, but expectations as to the level of trade into the future.23 This directly implicates expectations of the war decision maker as does incentive theory, and it importantly adds to the general finding about trade and war that even with existing high levels of bilateral trade, changing expectations from trade sanctions or other factors affecting the flow of trade can directly affect incentives and influence for or against war. A large imbalance of power in a relationship rather obviously impacts deterrence and incentives. Similarly, one might incur higher costs with high levels of common membership in international organizations through foregoing some of the heightened benefits of such participation or otherwise being presented with different options through the actions or effects of such organizations.¶ These external deterrence elements may also be yet another reason why democracies have a lower risk of war with one another. For their freer markets, trade, commerce, and international engagement may place them in a position where their generally higher level of interaction means that aggression will incur substantial opportunity costs. Thus, the "mechanism" of the democratic peace may be an aggregate of factors affecting incentives, both external as well as internal factors. Because of the underlying truth in the relationship between higher levels of trade and lower levels of war, it is not surprising that theorists throughout human history, including Baron de Montesquieu in 1748, Thomas Paine in 1792, John Stuart Mill in 1848, and, most recently, the founders of the European Union, have argued that increasing commerce and interactions among nations would end war. Though by themselves these arguments have been overoptimistic, it may well be that some level of "globalization" may make the costs of war and the gains of peace so high as to powerfully predispose to peace. Indeed, a 1989 book by John Mueller, Retreat From Doomsday,24 postulates the obsolescence of major war between developed nations (at least those nations within the "first and second worlds") as they become increasingly conscious of the rising costs of war and the rising gains of peace.¶ In assessing levels of democracy, there are indexes readily available, for example, the Polity III25 and Freedom House 26 indexes. I am unaware of any comparable index with respect to levels of deterrence that might be used to test the importance of deterrence in war avoidance?' Absent such an accepted index, discussion about the importance of deterrence is subject to the skeptical observation that one simply defines effective deterrence by whether a war did or did not occur. In order to begin to deal with this objection and encourage a more objective methodology for assessing deterrence, I encouraged a project to seek to develop a rough but objective measure of deterrence with a scale from minus ten to plus ten based on a large variety of contextual features that would be given relative weighting in a complex deterrence equation before applying the scaling to different war and nonwar settings.28 On the disincentive side of the scale, the methodology used a weighted calculation of local deterrence, including the chance to prevent a short- and intermediate-term military victory, and economic and political disincentives; extended deterrence with these same elements; and contextual communication and credibility multipliers. On the incentive side of the scale, the methodology also used a weighted calculation of perceived military, economic, and political benefits. The scales were then combined into an overall deterrence score, including, an estimate for any effect of prospect theory where applicable.2 This innovative first effort uniformly showed high deterrence scores in settings where war did not, in fact, occur. Deterring a Soviet first strike in the Cuban Missile Crisis produced a score of +8.5 and preventing a Soviet attack against NATO produced a score of +6. War settings, however, produced scores ranging from -2.29 (Saddam Hussein's decision to invade Kuwait in the Gulf War), -2.18 (North Korea's decision to invade South Korea in the Korean War), -1.85 (Hitler's decision to invade Poland in World War II), -1.54 (North Vietnam's decision to invade South Vietnam following the Paris Accords), -0.65 (Milosevic's decision to defy NATO in Kosovo), +0.5 (the Japanese decision to attack Pearl Harbor), +1.25 (the Austrian decision, egged on by Germany, to attack Serbia, which was the real beginning of World War I), to +1.75 (the German decision to invade Belgium and France in World War I). As a further effort at scaling and as a point of comparison, I undertook to simply provide an impressionistic rating based on my study of each pre-crisis setting. That produced high positive scores of +9 for both deterring a Soviet first strike during the Cuban Missile Crisis and NATO's deterrence of a Warsaw Pact attack and even lower scores than the more objective effort in settings where wars had occurred. Thus, I scored North Vietnam's decision to invade South Vietnam following the Paris Accords and the German decision to invade Poland at the beginning of World War II as -6; the North Korean/Stalin decision to invade South Korea in the Korean War as -5; the Iraqi decision to invade the State of Kuwait as -4; Milosevic's decision to defy NATO in Kosovo and the German decision to invade Belgium and France in World War I as -2; and the Austrian decision to attack Serbia and the Japanese decision to attack Pearl Harbor as -1. Certainly even knowledgeable experts would be likely to differ in their impressionistic scores on such pre-crisis settings, and the effort at a more objective methodology for scoring deterrence leaves much to be desired. Nevertheless, both exercises did seem to suggest that deterrence matters and that high levels of deterrence can prevent future war. Following up on this initial effort to produce a more objective measure of deterrence, two years later I encouraged another project to undertake the same effort, building on what had been learned in the first iteration. The result was a second project that developed a modified scoring system, also incorporating local deterrence, extended deterrence, and communication of intent and credibility multipliers on one side of a scale, and weighing these factors against a potential aggressor's overall subjective incentives for action on the other side of the scale.3° The result, with a potential range of -5.5 to +10, produced no score higher than +2.5 for eighteen major wars studied between 1939 and the 1990 Gulf War.31 Twelve of the eighteen wars produced a score of zero or below, with the 1950-53 Korean War at -3.94, the 1965-75 Vietnam War at -0.25, the 1980-88 Iran-Iraq War at -1.53, and the 1990-91 Gulf War at -3.83. The study concluded that in more than fifty years of conflict there was "no situation in which a regime elite/decision making body subjectively faced substantial disincentives to aggressive military action and yet attacked."32¶ Yet another piece of the puzzle, which may clarify the extent of deterrence necessary in certain settings, may also assist in building a broader hypothesis about war. In fact, it has been incorporated into the just-discussed efforts at scoring deterrence. ¶ That is, newer studies of human behavior from cognitive psychology are increasingly showing that certain perceptions of decision makers can influence the level of risk they may be willing to undertake, or otherwise affect their decisions.33 It now seems likely that a number of such insights about human behavior in decision making may be useful in considering and fashioning deterrence strategies. Perhaps of greatest relevance is the insight of "prospect theory," which posits that individuals evaluate outcomes with respect to deviations from a reference point and that they may be more risk averse in settings posing potential gain than in settings posing potential loss.34 The evidence of this "cognitive bias," whether in gambling, trading, or, as is increasingly being argued, foreign policy decisions generally, is significant. Because of the newness of efforts to apply a laboratory based "prospect theory" to the complex foreign policy process generally, and ¶ particularly ambiguities and uncertainties in framing such complex events, our consideration of it in the war/peace process should certainly be cautious. It does, however, seem to elucidate some of the case studies.¶ In the war/peace setting, "prospect theory" suggests that deterrence may not need to be as strong to prevent aggressive action leading to perceived gain. For example, there is credible evidence that even an informal warning to Kaiser Wilhelm II from British Foreign Secretary Sir Edward Grey, if it had come early in the crisis before events had moved too far, might have averted World War I. And even a modicum of deterrence in Kuwait, as was provided by a small British contingent when Kuwait was earlier threatened by an irredentist Iraqi government in 1961, might have been sufficient to deter Saddam Hussein from his 1990 attack on Kuwait. Similarly, even a clear United States pledge for the defense of South Korea before the attack might have prevented the Korean War. Conversely, following the July 28 Austrian mobilization and declaration of war against Serbia in World War I, the issue for Austria may have begun to be perceived as loss avoidance, thus requiring much higher levels of deterrence to avoid the resulting war. Similarly, the Rambouillet Agreement may have been perceived by Milosevic as risking loss of Kosovo and his continued rule of Serbia and, as a result, may have required higher levels of NA-TO deterrence to have prevented Milosevic's actions in defiance. Certainly NATO's previous hesitant responses in 1995 against Milosevic in the Bosnia phase of the Yugoslav crisis and in 1998-99 in early attempts to deal with Kosovo did not create a high level of deterrence.35 One can only surmise whether the killing in Kosovo could have been avoided had NATO taken a different tack, both structuring the issue less as loss avoidance for Milosevic and considerably enhancing deterrence. Suppose, for example, NATO had emphasized that it had no interest in intervening in Serbia's civil conflict with the KLA but that it would emphatically take action to punish massive "ethnic cleansing" and other humanitarian outrages, as had been practiced in Bosnia. And on the deterrence side, it made clear in advance the severity of any NATO bombardment, the potential for introduction of ground troops if necessary, that in any assault it would pursue a "Leadership Strategy" focused on targets of importance to Milosevic and his principal henchmen (including their hold on power), and that it would immediately, unlike as earlier in Bosnia, seek to generate war crime indictments of all top Serbian leaders implicated in any atrocities. The point here is not to second-guess NATO's actions in Kosovo but to suggest that taking into account potential "cognitive bias," such as "prospect theory," may be useful in fashioning effective deterrence. "Prospect theory" may also have relevance in predicting that it may be easier to deter (that is, lower levels are necessary) an aggression than to undo that aggression. Thus, much higher levels of deterrence were probably required to compel Saddam Hussein to leave Kuwait than to prevent him initially from invading that state. In fact, not even the presence of a powerful Desert Storm military force and a Security Council Resolution directing him to leave caused Hussein to voluntarily withdraw. As this real-world example illustrates, there is considerable experimental evidence in "prospect theory" of an almost instant renormalization of reference point after a gain; that is, relatively quickly after Saddam Hussein took Kuwait, a withdrawal was framed as a loss setting, which he would take high risk to avoid. Indeed, we tend to think of such settings as settings of compellance, requiring higher levels of incentive to achieve compulsion producing an action, rather than deterrence needed for prevention.¶ One should also be careful not to overstate the effect of "prospect theory" or to fail to assess a threat in its complete context. We should remember that a belated pledge of Great Britain to defend Poland before the Nazi attack did not deter Hitler, who believed under the circumstances that the British pledge would not be honored. It is also possible that the greater relative wealth of democracies, which have less to gain in all out war, is yet another internal factor contributing to the "democratic peace."36 In turn, this also supports the extraordinary tenacity and general record of success of democracies fighting in defensive settings as they may also have more to lose.¶ In assessing adequacy of deterrence to prevent war, we might also want to consider whether extreme ideology, strongly at odds with reality, may be a factor requiring higher levels of deterrence for effectiveness. One example may be the extreme ideology of Pol Pot leading him to falsely believe that his Khmer Rouge forces could defeat Vietnam.37 He apparently acted on that belief in a series of border incursions against Vietnam that ultimately produced a losing war for him. Similarly, Osama bin Laden's 9/11 attack against America, hopelessly at odds with the reality of his defeating the Western World and producing for him a strategic disaster, seems to have been prompted by his extreme ideology rooted in a distorted concept of Islam at war with the enlightenment. The continuing suicide bombings against Israel, encouraged by radical rejectionists and leading to less and less for the Palestinians, may be another example. If extreme ideology is a factor to be considered in assessing levels of deterrence, it does not mean that deterrence is doomed to fail in such settings but only that it must be at higher levels (and properly targeted on the relevant decision elites behind the specific attacks) to be effective, as is also true in perceived loss or compellance settings.38 Even if major war in the modern world is predominantly a result of aggression by nondemocratic regimes, it does not mean that all nondemocracies pose a risk of war all, or even some, of the time. Salazar's Portugal did not commit aggression. Nor today do Singapore or Bahrain or countless other nondemocracies pose a threat. That is, today nondemocracy comes close to a necessary condition in generating the high risk behavior leading to major interstate war. But it is, by itself, not a sufficient condition for war. The many reasons for this, of course, include a plethora of internal factors, such as differences in leadership perspectives and values, size of military, and relative degree of the rule of law, as well as levels of external deterrence.39 But where an aggressive nondemocratic regime is present and poses a credible military threat, then it is the totality of external factors, that is, deterrence, that become crucial.
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