Today has been full of a lot of very striking military news on two fronts: the Burmese Civil War of 2011, which is now being waged across several provinces of Burma (including one province that I am supposed to be visiting for a visa run in a little over a month), as well as the constitutionality (or not) of the United States Libyan operation.

When Is A War Not A War?

It looks like the Supreme Court may have an interesting case on its hands about the War Powers Resolution, written in response to concern about the lack of Congressional oversight of the Vietnam War. In the President’s latest briefing of military activities, the following is said about the US effort in Libya by the President of the United States:

“MILITARY OPERATIONS IN LIBYA

As I reported on March 21, and at my direction, consistent with a request from the Arab League, and as authorized by the United Nations Security Council under the provisions of U.N. Security Council Resolutions 1970 and 1973, U.S. military forces commenced operations on March 19, 2011, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya and to protect the people of Libya from the Qadhafi regime. The initial phase of U.S. military involvement in Libya was conducted under the command of the U.S. Africa Command. By April 4, however, the United States had transferred responsibility for the military operations in Libya to NATO and the U.S. involvement has assumed a supporting role in the coalition’s efforts. Since April 4, U.S. participation has consisted of: (1) non kinetic support to the NATO led operation, including intelligence, logistical support, and search and rescue assistance; (2) aircraft that have assisted in the suppression and destruction of air defenses in support of the no fly zone; and (3) since April 23, precision strikes by unmanned aerial vehicles against a limited set of clearly defined targets in support of the NATO led coalition’s efforts. Although we are no longer in the lead, U.S. support for the NATO based coalition remains crucial to assuring the success of international efforts to protect civilians and civilian populated areas from the actions of the Qadhafi regime, and to address the threat to international peace and security posed by the crisis in Libya. With the exception of operations to rescue the crew of a U.S. aircraft on March 21, 2011, the United States has deployed no ground forces to Libya [1].”

Despite the fact that several of the elements of this report would appear to refer to American role in hostilities, including “search and rescue assistance,” “the suppression and destruction of air defenses,” and “precision strikes by unmanned aerial vehicles,” the White House is adamant that the United States military’s action in Libya does not fall under what the War Powers Resolution would consider “hostilities,” despite a bipartisan lawsuit being filed against the administration’s activities:

A senior administration official said Wednesday the White House is not debating the resolution’s constitutionality.

But the official said the United States is not engaged in what the law would consider hostilities. He said there has been no exchange of fire with hostile forces, no American troops on the ground, and little chance that the fighting will escalate [2].”

Unfortunately, that would not appear to be the case, according to a reading of the War Powers Resolution itself [3], which states that Congressional authorization of a military effort is required when certain circumstances occur, one of which is certainly true here in the Libya operation (highlighted in bold):

“REPORTING

SEC. 4. (a) In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the president shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth–
(A) the circumstances necessitating the introduction of United States Armed Forces;
(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement.

(b) The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad

(c) Whenever United States Armed Forces are introduced into hostilities or into any situation described in subsection (a) of this section, the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once every six months.”

No one from the administration denies that American forces are involved in the airspace of Libya for military purposes going beyond purely training, supply, and reinforcement. This is important, because the War Powers act prevents just such activities as are currently going on from going on for more than 60 days without a Congressional resolution:
(b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.”

So, unless President Obama wants to be in violation of the War Power Resolution, he’d better ask Congress for some permission to stay in Libya, or else it looks like Congress has a very good court case that may test the constitutionality of the War Powers Resolution to ensure that the president has the “advice and consent” of Congress in foreign operations, even in a “secondary” but still hostile role.

The Burmese Civil War of 2011

As of the end of last week, there has been a civil war in several provinces of Burma (Kachin State, Shan State, and Karen State), in the areas where Burma borders China and Thailand. So far these conflicts have not caused the borders to close (I must make my first visa run to the Burmese border by August 3), or have they spilled over into the border areas of Thailand, but given the fact that Legacy Institute has a Kachin and a couple of Karen students (including one whose family are involved with the Free Burma Rangers supporting the efforts of ethnic rebel forces in Burma), clearly this conflict is something all of us here at Legacy are paying close attention to.

The war looks very serious [4]. The Kachin Independence Army (KIA) has destroyed two key bridges in the Shan State that sit on the main routes into Kachin State and to the nation of China. The goal of the Kachin army appears to be removing the ability of the Burmese to bring their troops (and especially their tanks or jeeps) into the Kachin State. The fact that the Burmese army has broken their agreement and sent Kachin “loyalists” who signed the agreement with the Burmese on the condition that they would only defend Burma against external enemies into the civil war conflict to fight against their own people means that Burma recognized the seriousness of the situation while also showing themselves to be truce-breakers, predictably enough. Expect no democratic reform in Burma while the military runs the show and attacks its own peoples.

Military operations between the Kachin army and the Burmese army have broken out in the Northern Shan State, in the border regions of the Kachin State, and at a hydroelectric dam along the Shweli River built by the Chinese to bring electricity to China. 30 Chinese workers escaped into China after being held hostage in a firefight between Burmese and Kachin forces along the river. Mercifully (or strategically) the Kachin forces did not destroy the dam, which might have been catastrophic, but who knows how long that restraint will last? And who knows how many more Burmese, Kachin, Shan, Karen, and other peoples will suffer as a result of the folly of the Burmese military dictatorship?

[1] http://www.globalsecurity.org/military/library/news/2011/06/mil-110615-whitehouse01.htm?_m=3n%2e002a%2e224%2epu0ao0048a%2e79f

[2] http://www.globalsecurity.org/military/library/news/2011/06/mil-110615-voa07.htm?_m=3n%2e002a%2e224%2epu0ao0048a%2e79k

[3] http://www.policyalmanac.org/world/archive/war_powers_resolution.shtml

[4] http://asiancorrespondent.com/57509/war-spreads-out-in-kachin-state-of-burma/