Taming the Dogs of War: Why Parliament Should Authorize Major Deployments

Embedded Scribd iPaper - Requires Javascript and Flash Player
FEATURE
TAMING THE DOGS OF WAR: WHY PARLIAMENT SHOULD AUTHORISE MAJOR DEPLOYMENTS
Parliament and the courts could spare Australia from ill-advised military action, argues Sukrit Sabhlok
The growth of constitutional liberties has largely consisted in the reduction of the discretionary power of the  executive, and in the extension of Parliamentary protection in favour of the subject, under a series of  statutoryenactments.    — Lord Parmoor1 he 2003 invasion of Iraq generated controversy because of the means by which the conflict was initiated. Instead of seeking permission from Parliament, the Howard government deployed military personnel to Iraq of its own volition. Though the government  was not strictly speaking breaking the law, minor parties and some academic  commentators began to question whether politicians should be able to make momentous foreign policy commitments without  parliamentaryapproval.2 Constitutional lawyers have supported some form of parliamentary oversight over the  decision to go to war. Some, such as Professor George Williams, have favoured a joint sitting of both houses of Parliament.3 Others have advocated a simple majority vote taken in each house individually. The aim ultimately is to instituteproceduralchecksandbalances. Certainly, there is no legal obstacle to Parliament seizing control of the Executive’s
T
war power if it chooses. In 2008, the Greens introduced legislation transferring the war  power from the Executive to the Parliament, whose vote would be a prerequisite for  specifiedoverseasmilitarydeployments.4 Should the Executive be stripped of its  power to initiate hostilities?The temptation for governments to wage war has been a perennial issue through the ages; greater parliamentary scrutiny would at least partly remedy this  problem. The Upper House—where minor  parties are more influential—could serve as a potent check on warmongering. Had a parliamentary authorisation requirement been in place in the lead up to the war in Iraq,  Australian troops would not have been sent  therebecausetheSenatewasopposedtoit. In an ideal world, Parliament would wield the war power because it is less secretive than  the Executive and considers a diverse range of views. The rationale for war ought to be thoroughly debated and examined by the most representative institution of government. This
Sukrit Sabhlok is an Arts/Law student at the University of Melbourne and editor of Liberty Australia (la.org.au). Endnotes for this article can be found at www.policymagazine.com.
Policy• Vol. 27 No. 1 • Autumn 2011
11
TAMING THE DOGS OF WAR
makes it more likely that Australians will be  spared the consequences of ill-informed decisions. Regulating the war power  This essay will examine the arguments for and against regulating war power in the  context of the Greens’ bill. The Greens, whose anti-war views are in line with strong elements of liberal thinking,5 have for years been trying  to rein in the Executive by requiring the approval of both Houses of Parliament for the   deployment of Australian defence forces overseas. Their 2008 bill continues in this tradition.  Though their proposal requires the Executive to gain Parliament’s approval, it also permits the Governor-General (in effect, the Prime Minister) to disregard the requirement wheneverhedeemsa‘stateofemergency’toexist. A proclamation of an emergency necessitating
most submitters that the Australian people, through their elected representatives, have a right to be informed and heard on these  importantmatters.7 This is typical of much debate in this  area. Opponents grudgingly accept that the principle behind war powers reform is sound, but take issue with the details. In the long  run, this gridlock can be solved through consultation with stakeholders. By arriving at a compromise, defence chiefs, government  departments, and other interested parties should be able to devise a workable piece of legislation. The senate committee also raised three  main objections. First, it claimed that the bill  did not define terms with sufficient precision. Second, the bill ignored problems associated  with releasing classified information. And  third, the bill could hamper the military’s  abilitytoquicklydeploycombatpersonnel.  On the first point, the committee felt that the wording of the bill was not precise enough to take account of exigencies. It contended that the list of exempted activities was not comprehensive, and raised concerns that  non-warlike activities could inadvertently be broughtunderthebill. There is an easy way around this criticism: change the bill to make it reflect its true purpose of increasing parliamentary  involvement in major conflicts, while leaving minor, routine and covert matters to Executive discretion. The bill should not regulate  small-scale defence force functions, nor should it regulate any other government agency apart from the ADF. Activities such as official visits, attendanceatconferences,rescuingorextracting Australian citizens from threatening situations overseas, combined exercises with the forces  of other countries, and anti-piracy operations shouldnotbebroughtunderthebill’sprovisions. The best means of ensuring that only  desired ADF activities are covered by the bill is tosetatriggerfora‘majorconflict.’Forexample, parliamentary authorisation would be required  only when at least 200 ADF personnel are to
Opponents grudgingly accept that the principle behind war powers reform is sound, but take issue with the details.
action outside the approval process must be  placed before Parliament within two days, otherwise it is of no effect and expires after  seven days. The bill also expressly excludes   specified Australian Defence Force (ADF) 6 activitiesfromfallingwithinitsscope. But the Senate Foreign Affairs, Defence  and Trade Legislation Committee was not impressed, concluding that the bill was unacceptably radical. Although the committee rejected the bill, it also noted its in-principle agreement: The committee is not in any way  against the involvement of both  Houses of Parliament in open and public debates about the deployment  of Australian service personnel to  warlike operations or potential  hostilities. It agrees with the views of 
12
Policy• Vol. 27 No. 1 • Autumn 2011
TAMING THE DOGS OF WAR
bedeployedabroad.Activitiesofacovertnature, or any deployment fewer than 200 (e.g. 199), wouldnotbeaffected.  Let’s apply this principle to two concrete cases. Would Parliament have had to authorise  war against North Vietnam if proposed reforms were in place then? Our participation  in the Vietnam conflict began as an advisory detachment and then later was supplemented  withcombatforces.Inthissituation,Parliament should have interfered in the initial advisory  build-up only if it exceeded the 200 personnel  threshold. As we now know, in Vietnam, a large number of combat troops were sent to  the subsequent war, and these would definitely havehadtobeauthorised. To take another example, the Australian government deployed 1,400 ADF personnel as part of its nation-building efforts in the  Solomon Islands in 2003.8 Although not all  were combat troops (some offered technical  advice to the government), the deployment  should have been authorised by Parliament because it numerically exceeded the preferred thresholdfora‘majorconflict.’ So much for definitional issues. The committee also said it was unrealistic to present classified military information to every Member  of Parliament to enable an informed decision onwhethertoapproveawar: Much of the information under consideration would be classified, for example risks to personnel, Defence  or AFP assets, their strength and location, their force readiness, as well  as the level of commitment and  capabilities of likely allies, and the compatibility and complementarity of their forces. Clearly much of this information could not be disclosed and, if so, would have the potential to compromise the safety and security of any proposed operation or adversely affect diplomatic relations with  potentialallies.9 This criticism reflects a fundamental misunderstanding of what supporters of war
powers reform are asking for. They are not advocating a perfectly informed decision.  AstheGreens’dissentingreportnotes: An argument made by opponents of the Bill is repeated in the Committee’s report implying that a parliamentary debate necessarily involves the  disclosure of classified military and strategic information. Proponents of  this argument miss the point that it is not a military decision to go to war,  it is a political decision. This Bill calls for the government of the day to  make the case as to why peaceful diplomatic efforts are exhausted and
The decision to wage war does not require detailed operational information.
force is the only option. This is a  political debate, not a military one. Arguments, clear goals, a risk and cost benefit analysis are envisaged, not the disclosure of classified military information about the placement of military assets or personnel that would compromisethecountry’ssecurity.10 In other words, the decision to wage war does not require detailed operational   information because it is fundamentally a strategic choice made at a high and abstract level of policy. In the case of Iraq, the  Australian government informed the public that Saddam Hussein was a threat to national   security at a theoretical level, and the public was asked to trust intelligence reports whose accuracy they had no way of verifying. This  reform does not propose to do away with  suchsecrecy. The resolution to go to war would be made by Parliament using publicly available  information because that is all that is needed  in most cases. Parliament would be asked to   vote on whether it trusts the Executive to honestlyinterprettheintelligenceatitsdisposal,
Policy• Vol. 27 No. 1 • Autumn 2011
13
TAMING THE DOGS OF WAR
just as the public is currently asked to do.  In extreme circumstances, the Executive may want to release information to the Leader  of the Opposition after receiving assurances of confidentiality. A secret session of Parliament could be held, with records being released in  (say) one year. There are numerous ways to overcome the committee’s concerns, but in general, Parliament would not need to peruse classifiedmaterial. Lastly, the committee was concerned that the proposed legislation would detract from operational efficiency and flexibility in military operations. The Solomon Islands intervention  was cited as an example where prompt and decisive action was needed, and where a parliamentary approval process would have disadvantagedAustralia’sstrategicposition.  Again, this criticism is off the mark. First of all, why is speed considered to be an unambiguously good thing? Parliament’s slow deliberationcanbeviewednotaliability,butas a strength because it leads to more considered decision-making. Second, emergencies requiring  quick action are already covered by the bill. The bill not only allows for such emergencies,   but generously places discretion with the Executive to decide when a state of emergency applies.Third,thereislittlecauseforalarmsince major wars are usually planned well in advance, leavingsufficienttimeforanapprovalprocess.
There is no basis for the committee’s fears, since the bill as written allows flexibility for  the Executive to ignore the authorisation requirement provided it reports back to  Parliament within two days. This provides  enough leeway for quick action in those rare  caseswhereplanningisnotpossible. Enforcing a War Powers Act Suppose the Greens’ proposed legislation  becomes law in Australia. Then what? Should  a failure by the Executive to gain authorisation   for a major war be actionable in the courts? What if government ignores the legislation,  orasismorelikely,exploitsgreyareas? The House of Lords Committee, in  considering similar reform in the United Kingdom, has argued that the courts should   not have the final say in such situations. According to the committee, the Executive shouldnotbesubjecttopubliclawremediesfor waging a war not authorised by Parliament.11 I am inclined to disagree. Although foreign   affairs is an area that has traditionally been seen as too political for legal intervention,  there is nothing inherently unjusticiable about this area. The real issue is whether the  particular question before the court is  justiciable;somethingsare,andothersarenot. A comparative look at America provides instances where the courts have been willing to intervene. American war powers expert Louis Fisher observes that until the Vietnam War,   the doctrine that foreign affairs is an unjusticiablequestionbestlefttopoliticianswas not uncritically accepted by American courts.12 Fisherwrites: A close examination of judicial rulings revealsthattheautomaticassociationof war power with the political question category is overboard. Not only have courts decided war powers issues, they sometimesspokeagainsttheauthorityof thePresidenttoventureinwarmaking activitiesagainsttheexpresswillorthe silenceofCongress.13
Parliament’s slow deliberation leads to more considered decision-making.
Military threats do not materialise out of  thin air; there is typically a build-up. Pressure for regime change in Iraq began in 1998 at the behest of President Bill Clinton when the American Congress passed the Iraq Liberation Act, and the war only started in 2003 under PresidentGeorgeW.Bush.Thatleftagoodfive years for the Australian government to consider its options. The Solomons intervention too required planning, and there was ample time  foraparliamentaryapprovalprocess.
14
Policy• Vol. 27 No. 1 • Autumn 2011
TAMING THE DOGS OF WAR
David Jenkins’ excellent article ‘Judicial  Review Under a British War Powers Act’   is perhaps more relevant to the Australian context.InJenkins’view: Judicialinterpretationandenforcement of a war powers act would carry out  the will of the elected Parliament and thus would be just as democratically legitimate as any other statutorily based judicial review. Indeed it would  arguably be even more legitimate  than the judicial review of prerogative actions, as it would be premised upon anactofParliament.14 In rejecting judicial review, the House of  Lords Committee failed to appreciate two important counter-arguments. First, judicial review acts as a deterrent by enabling affected individuals to obtain declaratory relief.15  This is invaluable in upholding the rule of law. Second, the Greens’ proposal—or an adaptation of it—would not involve the  judiciaryindetailedanalysisofExecutiveaction. For those worried about courts  second-guessing the Executive on whether a particulardeploymentwaswisepolicy,itshould   be noted that the focus of any judicial review would be upon ensuring the procedural requirements established by the Act are carried out. Such limited oversight should be eminently within the domain of the courts. As Jenkins writes, ‘a statutory reform of the war  prerogative … would not necessarily lead to  unduejudicialinvolvementinmattersofwar.’16 Currently, the war power is wielded  unilaterally by the Prime Minister and the   cabinet. If the power were transferred to Parliament in strictly defined circumstances, 
thenonecanexpectthatscrutinyofthedecision to go to war would become an interaction  betweenthecourts,ParliamentandtheExecutive,  with each branch playing a distinct role. The Executive would present its case for going  to war, the Parliament would weigh up the  merits, and the courts would declare whether   the approval process had been followed. How isthisradical? Conclusions Is there really a need for war powers reform?   After all, can’t Parliament simply cut funding forawarandcontroltheExecutiveinthatway?  No, because Parliament rarely works up the political courage to cut funding once a war has begun. Requiring authorisation of the
Parliamentary authorisation serves an important symbolic purpose too.
initial deployment, as argued for in this essay, is a good way to fill in the accountability gap. Parliamentary authorisation serves an important symbolic purpose too. It alerts the nation that anactofmajorimportanceisbeingundertaken. Parliament’s involvement increases the odds  of a majority of citizens having their views respected.  Of course, democracy—as libertarian scholar Hans-Hermann Hoppe reminds us—is far from perfect.17 Even wars that have been approved by Parliament may end up being  unjust and evil. Transferring the power to  make war from the Executive to the Parliament would not be a cure-all, but it would at least reduce the ability of a secretive group to thrust Australiaintoitsmostvitalmoment.
Policy• Vol. 27 No. 1 • Autumn 2011
15
tAmiNg the Dogs of wAr
Endnotes
1 Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508, 568. 2 Constitutionally, the position is as follows. Section 51(vi) authorises Parliament to pass laws for the national defence. However, the Executive has prerogative powers under sections 61 and 68 that enable it to decide when to go to war without parliamentary approval, unless Parliament chooses to regulate or extinguish the prerogative power. For a full discussion, see Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (fourth edition, 2006), 533. 3 George Williams, ‘The Power to Go to War: Australia in Iraq,’ Public Law Review 15 (2004), 8. 4 The Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No.2], which would have amended section 50C of the Defence Act 1903 (Cth). 5 For more on liberalism’s anti-war tradition, see Ludwig von Mises, Liberalism: The Classical Tradition (Indianapolis: Liberty Fund, 2005), 76. 6 Section 11 of the bill, above, provides the following exemptions: For the purpose of this section, service beyond the territorial limits of Australia does not include service by members of the Defence Force: (a) pursuant to their temporary attachment as provided by section 116B; or (b) as part of an Australian diplomatic or consular mission; or (c) on an Australian vessel or aircraft not engaged in hostilities or in operations during which hostilities are likely to occur; or (d) for the purpose of their education or training; or (e) for purposes related to the procurement of equipment or stores. 7 Foreign Affairs, Defence and Trade Legislation Committee, Parliament of Australia, Report on the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2] (2010), 28. 8 Nautilus Institute Australia, ‘ADF Elements in Solomon Islands.’ 9 Foreign Affairs, Defence and Trade Legislation Committee, as above, 13. 10 Foreign Affairs, Defence and Trade Legislation Committee (Dissenting Report), as above, 31. 11 House of Lords Select Committee on the Constitution, ‘Waging War: Parliament’s Role and Responsibility.’ 12 Louis Fisher and Nada Sabbah, Is War a Political Question? (2001), 45. 13 As above, ix. 14 David Jenkins, ‘Judicial Review Under a British War Powers Act,’ Vanderbilt Journal of Transnational Law 43 (2010), 621. 15 A declaration is a legal remedy that does not require the Executive to do anything, but simply lets it be known that the law has been breached. Typically, governments voluntarily comply with declarations. 16 David Jenkins, as above, 623. 17 Hans-Hermann Hoppe, Democracy: The God That Failed (2003).
15b Policy • Vol. 27 No. 1 • Autumn 2011