General Hayden on why the Constitution is optional and America always loses wars

General Michael Hayden is a man I respect and admire, but one with whom I disagree on several issues. Some are ephemera, but two that do matter are defending and abiding by the Constitution and answering the question “Why does America wage war?” In a recent television interview with Bill Maher, General Hayden words were described as follows by the New York Times:

[General] Hayden cited Trump’s pledge to kill family members as being among his most troubling campaign statements.

“That never even occurred to you, right?” [Bill] Maher asked.

“God, no!” Hayden replied. “Let me give you a punchline: If he were to order that once in government, the American armed forces would refuse to act.”

“That’s quite a statement, sir,” Maher said.

“You are required not to follow an unlawful order,” Hayden added. “That would be in violation of all the international laws of armed conflict.”

Now recall that General Hayden approved of and ran NSA’s domestic collection programs that unquestionably violated — one might say shattered — the 4th Amendment. The supporters of that program argue that such collection is the only way to keep America safe; that is to say, it seems to me, the national government wages electronic war against all Americans, curtails their civil liberties, but still cannot stop domestic attacks such as those at Fort Hood, Garland, Texas, and San Bernardino. This seems a somewhat specious argument.

A much better and more truthful — though politically unacceptable — position would be simply to state that if senior U.S. military officers were to disobey an order from Mr. Trump to “kill anything that moved and anything that stood on the field of battle with the Islamists” they would only be continuing their unconstitutional behavior.

The U.S. military has not once balked at waging unconstitutional wars since the surrender of Imperial Japan. Every one of those wars has been unconstitutional, and in almost every one of them America has been defeated. Now, there are those who will argue that congressional resolutions allowing post-1945 presidents to use military force at their discretion are equivalent to the formal, congressional declaration of wars that are mandated by the Constitution, and which are the sole prerogative of the Congress. But they would be wrong.

The power to declare war, you see, was assigned in the Founders’ constitution only to the Congress, and that power can never be delegated onward to others in the other branches the national government — especially not to the chief executive. The Founders’ knew that vesting that power in one man, either directly through the constitution’s words or via the process of illegal delegation existing today, would transform the president into a tyrant — not unlike King George III or Louis XIV — by empowering one man to decide why, when, and where to take the republic to war. From President Truman’s unconstitutional decision to go to war in Korea, to Lyndon Johnson’s unconstitutional and personal war in Vietnam, to George W. Bush’s unconstitutional and disastrous invasion of Iraq, to Barack Obama’s equivalent and unconstitutional madness in destroying Qaddafi’s regime, all have been illegal wars and yet the senior generals of the U.S. military have never flinched at waging them without the sanction irrefutably mandated by the Constitution.

Let us, however, leave this issue aside for the moment and move on to General Hayden’s explanation that waging war to protect the United States and annihilate the enemy — as did FDR, Eisenhower, Marshall, Patton, and Nimitz — “would be in violation of all the international laws of armed conflict.” What General Hayden is acknowledging with these words is the reality that since 1945 the Congress and U.S. presidents have progressively neutered America’s ability to win wars by an equally unconstitutional and destructive delegation of power to groups of foreign nations.

Now, there is no doubt that the president and senate are empowered by the Constitution to conclude treaties with another nation or nations if such treaties serve the interests of the United States and do not violate U.S. sovereignty or jeopardize America’s independence of action. But there is no sane manner in which the constitution’s treaty-making power can be said to delegate to those two entities the prerogative to reduce America’s ability to defend itself and defeat enemies if attacked, which is always the primary task of this republic’s government. And yet that is precisely what has been done by presidents and Congress since 1945 in deliberate acts that have negated much of America’s sovereign independence on the issue of war. Two examples will suffice.

NATO: While this treaty may have made sense in the late 1940s, it ceased to do so after the Cuban Missile Crisis demonstrated that while a confrontation between the United States and the USSR might well commence looking like a conventional-arms event, it would inevitably and probably quite quickly become a nuclear war. As this reality dawned on the world, the rest of NATO began spending less on their military, more on social services and the EU nightmare then aborning, and depending on diplomacy and the Anglo-American nuclear deterrent to keep the peace.

The United States thus became Europe’s sole defender and was, in essence, enslaved by the willingness of U.S. leaders to go to war automatically if any other NATO country was attacked. This reality deprived the United States of its independence of action and its sovereignty in foreign affairs in that Congress’s constitutional responsibility to declare war was negated because an attack on a NATO member put America at war automatically. It also contributed — obviously and massively — to the growth of the U.S. president’s unilateral war-making power, starting him down the road to the tyrant he is today.

After the demise of the USSR, moreover, President George H.W. Bush, instead of asking Congress to authorize America’s withdrawal from the NATO Treaty — thereby demonstrating the wisdom always attributed to him — proved terribly unwise and opened the door to NATO’s expansion to its current twenty-eight states, with two or more nations now on the edge of membership. As this expansion continued, Europe’s unilateral disarmament accelerated and today has left the United States on the hook to defend 27 militarily feeble countries with which — save, perhaps, for Britain and Canada — it has so little in common that they cannot be considered worth the loss of an American life or dollar. Indeed, why should the United States defend 27 countries that will not spend enough to defend themselves, and are willing to let the Islamic State (IS) send hundreds of its fighters to Europe disguised as migrants and do nothing to prevent IS’s consolidation in parts of Libya?

Imagine, if you will, sitting here in North America and seeing the current Turkey-vs-Russia confrontation turn into a shooting war in which America’s NATO membership would force it to charge off to the aid of Turkey and its Islamic State ally. There would be no presidential request for a declaration of war, no congressional vote on a declaration of war, and no public debate over whether America should fight or wish a pox on both combatants. Indeed, nothing would occur except America being launched — like a mindless automaton — into a great war based on a treaty obligation that probably was unwise when Turkey joined the alliance in 1952, and certainly is nothing less than suicidal today. And if NATO is not bad enough, recall that the national government would act in the same manner if Israel, Saudi Arabia, Japan, or South Korea were attacked in any serious way. These obligations — like illegal immigration — make an absolute mockery of any claim that America is an independent and sovereign nation that controls its own fate.

“The international laws of armed conflict”: As noted above, these are the laws that General Hayden argues make it impossible to annihilate America’s enemies in the manner FDR, Marshall, Eisenhower, and Nimitz employed in annihilating Germany and Imperial Japan. To all appearances, he also believes that it is perfectly legitimate for the United States to be so legally hamstrung by its association with foreigners that it consistently is being defeated by Islamist forces that have no air cover and little in the way of mechanized forces. This seems an odd position for any U.S. military officer charged with defending the republic and destroying the enemies who attack it.

The question, of course, is why would U.S. politicians, statesmen, and generals enter into such legal arrangements knowing full well that — like NATO and other international pacts — they undermine U.S. sovereignty by constraining the national government’s independence to choose to respond to those who attack the republic in the most lethal, destructive, and decisive manner possible.

The question posed above — “Why does America wage war?” — can be answered quite simply: America fights only to defend itself and to utterly defeat the enemy so that the fight will not have to be resumed at a later date. It also fights in a manner characterized by commonsense; that is, once the enemy attacks America, he, his patrons, and his supporters have voluntarily surrendered any right to expect the United States to regard them as fellow human beings rather than classifying them for what they are: masses of soon-to-be-dead belligerents.

This may sound a bit harsh, but a casual review of the way the world has worked since 1945 will show that the United States, some of the other NATO states, Japan, Australia, New Zealand and South Korea are about the only ones who have followed General Hayden’s “international laws of armed conflict”. Such a review also will show that those countries have lost almost every war they have engaged in, and that some of those wars — Vietnam, Iraq, and Afghanistan — took decades before they were finally lost.

Why? Because the enemy did not follow — indeed, they laughed at and denigrated — the “international laws of armed conflict”, and were eager to kill as many of its opponents as necessary, with whatever means came to hand. The “international laws of armed conflict”, in short, are the products of well-educated but foolish theorists who believe that men today are different and better human beings than they were in Caesar’s and Hitler’s time, and that they can be further perfected. Well, they are not better and they can never be perfected. It is best to accept that as a hard but accurate and intellectually emancipating fact. It is more than safe to assume that the world always has been and always will be a place where you will be killed if you do not kill those who want to kill you.

So what to do? Well, first, the next president — if he is an adult, which leaves aside most the candidates — ought to find a few other constitutionally obedient and nationalist adults and begin to review NATO and other pacts, treaties, agreements, and emotional attachments that will automatically trigger the entry of America into unnecessary wars. (NB: Unnecessary wars are those in which America is not attacked first or has no severe threat to preempt. If its own genuine national security interests are not concerned, America ought never to go to war to save or serve either abstract ideas — freedom, democracy, human or women’s rights, etc. — or the interests of others, be they foreign nations, peoples, or the favorites of domestic U.S. lobbies.) Traditionally, most of these arrangements require a year’s notice of the intention to withdraw. There is nothing more important to U.S. national security than to start the withdrawal clock ticking on NATO and all other arrangements requiring America to go to war in any manner but that which the Constitution prescribes, and national sovereignty and independence demands.

Second, the next president’s team ought to begin the process of cordially withdrawing the United States from international legal arrangements — General Hayden’s “international laws of armed conflict” — that limit the national government’s independence to decide to annihilate any enemy that attacks the United States by using any or all of the resources it commands. Although it may require a clear demonstration or two, once those who want, or think they want, to be America’s enemies come to believe that America will wage war in a manner that features everything but mercy, they will have second thoughts. And if they are not wise enough to decide not to attack, not to worry, they and theirs soon will be dead among smoking ruins.

“For unless treaties are mutually beneficial to the parties,” George Washington wrote to Gouverneur Morris on 28 July 1791, “it is vain to hope for a continuance of them beyond the moment when the one which conceives itself over reached is in a situation to break off the connection.” The United States has long since reached the point where it has far “over reached” in making binding and automatic war commitments, and is now in “a situation to break off the connection[s]”, especially in terms of NATO, other treaties or agreements denying America freedom of action, and many of the “international laws of armed conflict”.

There is nothing selfish or ignoble about such actions. Indeed, they would halt America’ slide toward tyrannical one-man war making and restore what our post-1945 politicians, statesmen, and generals have unconstitutionally given away. And they would again allow the national government to reassert in fact, rather than in knowingly false rhetoric, that America truly is an independent and sovereign republic in the conduct of foreign affairs, that it fights only to defend itself, and that the only liberty that matters to it is that which exists — and is meant to be expanded — within the confines of this republic.

Author: Michael F. Scheuer

Michael F. Scheuer worked at the CIA as an intelligence officer for 22 years. He was the first chief of its Osama bin Laden unit, and he helped create its rendition program, which he ran for 40 months. He is an American blogger, historian, foreign policy critic, and political analyst.