Wampum

In this moring's NYTimes has an amusing piece by Scott Shane. The reason that Donald Rumsfeld is right, and the handful of O6+ who've come out of the closet, but only after they are safely retired, are wrong, is because Rumsfeld is a civilian, and the O6+ covey are not.

The idea that civilian leaders, as representatives of the people, should have the ultimate say in how the country's military power is wielded dates to colonial resentment of British rule and is embedded in the Constitution.

Does the Constitution really say that? No.

Art. I, § 1 is:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Art. 1, § 8 is:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

And the War Powers themselves, enumerated in Art. 1, § 8, clauses 11, 12, 13, and 14 are:

11. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

12. To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

13. To provide and maintain a Navy;

14. To make Rules for the Government and Regulation of the land and naval Forces;

Those are the textual War Powers. It gets more complicated, but the NYT is using paper to unhang Donald, so I won't give up time that should be spent making brunch for the kids to discuss the inherent doctrine or the implied doctrine, and the Times isn't trying to make the case that McAurther should have relieved Truman, rather than the reverse, so nothing after the National Defense Act of 1916 exists in the Gray Lady's ConLaw universe this Sunday.

Art. II, § 2, reads in part:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Mr. Rumsfield has a constitutional duty to provide his opinion. His execution of that duty is unexceptional, even though his opinons are exceptional -- replace the Navy with gun boats, replace the institutional Army with situational forces, retaining the 1950 -- 1960 bomber/missile forces, and squeezing the standard armor force unit down to the 19 ton limit of the C-130, eliminating allied pre-conditions upon, and RoRo dependencies for, the articulation of force at a distance.

He's an idiot, but that presents no Constitional issue.

No, the Consitutional issue is that he is not a completely adequate substitute for the Senate and House of Representatives.

This is the point of my series on the current BRAC round. The problem of pork in the Defense portion of the Federal budget isn't really solved by transfering the Art. I, § 8, clause 11 appropriation authority to the SecDef. It is Congress, not the Executive, that decides if there are more carriers in the fleet, or less, if there are fewer MIRV'd launchers and packages to go on the launchers, or more, if the Army is funded to remain in Europe and Korea, or is funded to move to Saudi Arabia, Iraq and the Persian Gulf. If service pay and veterans benefits are increassed, or the money dumped into the boardrooms of the Iron Triangle, in the CA-50 and its cognates -- the DefTek PAC plantations.

Donald Rumsfeld is a civilian, but he's the head of a department of the Executive Branch, a sucessor to the office created by George Washington, and first held by Sec. of War Knox. He's not the "civilian leaders" who "represents the people" and who "should have the ultimate say" on anything, outside the execution of his department. He's a government employee.

Now the Rubber Stamp Congress does, for the most part, with some exceptions in the current BRAC round recommendations for base closures and realignments, do just what they're told, but Congress has the right to be as credulous as a three year old impatiently waiting on brunch.

And that is who is "right" because they are civilians, when in disagreement a covey of O6+, or the head of the military department, who is a civilian employee of the Executive Branch, because they are "military".

And if your eye runs down past the fourteenth clause of the eight section of the first article of the document the NYTimes writer cited to defend Donald Rumsfeld from a covey of disarmed quail, the fifteenth could poke your eye out. It is the sharpest stick in the bundle. Absent riot, insurrection or invasion, any State may recall its Guard from Donald Rumsfeld's grand adventure.

Which is why I'm working my ass off to get Chris Miller competitive with John Baldacci in the June primary in Maine. I'd like just one State to have an executive underwhelmed by the Beltway's badly dated theory of global uber-importance, and the DeLay Riot co-conspirators and the Patriotic Cult. Then we could work on a second.

Now off to the kitchen.