ေဒၚနယ္ထရန္ ့ စစ္တိုက္ျပီး သမိုင္းစာမ်တ္နွာသစ္ဖြင့္ဦးမလား ဆိုတာလဲ စဥ္းစားစရာ ။ သမိုင္းတေလ်ာက္ လည္း အဲလိုပဲ အပ်က္အပ်က္နဲ ့ဲ အေျခခံဥပေဒကို ေက်ာ္ျပီးလုပ္သြားတဲ့ သမတေတြ ဒုနဲ ့ေဒး ။ ကိုရီယား ၊ ဗီယက္နမ္စတဲ့စစ္ေတြကို သမတေတြ စစ္မေၾကျငာပဲတိုက္ခဲ့တယ္။ အေျခအေနအရလည္း ျဖစ္ခ်င္ျဖစ္ခဲ့မယ္။ ေသခ်ာတာကေတာ့ စစ္တိုက္ရင္ ကြန္ဂရက္ကို သမတက သိပ္ထည့္မစဥ္းစားတာအမွန္ ။ အေျခခံဥအေဒအရ စစ္ေၾကညာခြင့္ရွိတဲ ့ ကြန္ဂရက္ဟာ စစ္ေရးမွာ အျမဲတမ္းလိုလို သမတေနာက္ကလိုက္ေနရတာၾကာေပါ့ ။ ထရူးမင္းရဲ့ ကိုရီးယားစစ္ပြဲမွသည္ ကလင္တန္ရဲ့ ကိုဆိုဗိုစစ္ပြဲအလယ္ အိုဗားမားရဲ့ ဗင္လာဒင္အဆံုးပဲ ။
၁၉၆၈ တုံကင္းပင္လယ္ေကြ ့တိုက္ခိုက္ခံရမွူမွာ ဗီယက္နမ္စစ္စျဖစ္တယ္။ ေလေၾကာင္းနဲ ့လက္တံု ့ျပန္တယ္ ။ စစ္ျဖစ္ျပီး ၂ ရက္ေလာက္ေနမွ ကြန္ဂရက္ခြင့္ျပ ုခ်က္ရတာျဖစ္ျပီး စစ္ဦးစီးခ်ုဳပ္ျဖစ္တဲ့ သမတကို အေမရိကားအားဘယ္လို ရန္လိုတဲ့ တိုက္ခိုက္မွုမ်ိ ုးမဆို လိုအပ္သလို အေရးယူေဆာင္ရြက္ခြင့္ေပးခဲ့တာမ်ိ ုးျဖစ္ေလေတာ့ သမတဂ်ြန္ဆင္ဟာ (Prerogative Power) ကို အျပည့္အ၀အသံုးခ်ျပီး စစ္ကို အမုန္းတိုက္ခဲ့တယ္ ။ သမိုင္းစာမ်တ္နွာသစ္ဖြင့္လွစ္ခဲ့တယ္ ။
နစ္ဆင္လက္ထက္ ၁၉၇၁ ေရာက္ေတာ့ လူထုအသံညံလာမွ ကြန္ဂရက္က (Ton kin Gulf Resolution) ကို ျပန္ရုတ္သိမ္းခဲ့တာျဖစ္တယ္ ။ အဲေနာက္ပိုင္းလည္း ကြန္ဂရက္နဲ ့ သမတနစ္ဆင္တို ့ သူတျပန္ကိုယ္တျပန္ war power လုတဲ့ပြဲေတြဆက္တိုက္ျဖစ္ခဲ့တယ္။ ျငင္း၇င္းခုန္ရင္း ဗံုးေတြလည္းဆက္တိုက္ၾကဲခဲ့တယ္ ။ ဥပမာ ၁၉၆၄ နဲ ့ ၁၉၇၃ အတြင္း လာအုိနယ္ထဲက်ဲတဲ့ဗုံးတင္ တန္ခ်ိန္ ၂ သန္းခြဲရွိခဲ့ျပီး ဒုတိယကမၻာစစ္ထဲ ဂ်ာမန္နဲ ဂ်ပန္ေျမေပၚ အေမရိကန္ ၾကဲခ်တဲ့ ဗံုးထက္မ်ားခဲ့တယ္ ။တကယ္ေတာ့ စစ္ေရးမွာ ဘယ္သမတမွ ကြန္ဂရက္ကို သိပ္ဂရုစိုက္ခဲ့တာမဟုတ္ဘူး ။ အမ်ားေလးစားပါတယ္ဆိုတဲ့ သမတ လင္ကြန္းကိုေတာင္မွ အေမရိကန္ ျပည္တြင္းစစ္မွာ ( Constitutional Dictatorship) လို ့ သမုတ္ခဲ့ၾကတယ္ မဟုတ္လား ။
ခမည္းေတာ္ ဘြတ္ရွ္ လက္ထက္တုန္းကလည္း ပင္လယ္ေကြ ့ထဲကို စစ္သား ငါးသိန္းေလာက္လြတ္တာ ငါးလေလာက္ၾကာမွ ကြန္ဂရက္ခြင့္ျပုခ်က္ရတာပါ ။ သမတရဲ့ စစ္ေရးအရအေရးယူပိုင္ခြင့္ (AUMF) ကိုကြန္ဂရက္မွာ ဖိအားေပး ျပဌာန္းနိုင္ခဲ့ျပီး သမတလုပ္ပိုင္ခြင့္ စာမ်တ္ႏွာသစ္ဖြင့္ခဲ့တယ္ ။ တခ်ိန္ထဲမွာ ကုလသမဂၢကလည္း အီရက္တို ့ရဲ့ က်ူးေက်ာ္မွုကို ရွုတ္ခ်ျပီး ကူ၀ိတ္ထဲက တပ္ေတြကိုခ်က္ခ်င္းရုပ္သိမ္းဖို ့မီးစိမ္းျပလိုက္တာမို ့ စီနီယာဘြတ္ရွ္အေနနဲ ့ promote လုပ္ဖို ့ အခြင့္အေရးေကာင္းေကာင္းရသြားခဲ့ဘူးတယ္ ။
သားေတာ္ေမာင္ ဂ်ဴနီယာဘုရွ္လက္ထက္ (War on Terror) မွာ ဂ်ီနီဗာ ကြန္ဗန္းရွင္းတို ့ အေျခခံလူ ့အခြင့္အေရးတို ့အကုန္ ေျမာင္းထဲေရာက္တာပဲ။ 9/11 ကို လက္တုံ ့ျပန္ဖို ့ Patriotic Act ကို ျပဌာန္းလိုက္နိုင္တယ္ ။အဲ ေနာက္ပိုင္း တိုက္လိုက္တဲ့စစ္ တကမၻာလံုး နီးပါးပဲ ။ ဖစ္လပင္း ၊ ေဂ်ာ္ဂ်ီယာ ၊ ယီမင္ ၊ ဂ်စ္ဘူတီ ၊ ကင္ညာ၊ အီသီယိုပီးယား၊ အီရက္၊ အာဖဂန္၊ ဆိုမာလီယာ ။ ဒါတင္မက ပင္လယ္ျပင္ေတြမွာလည္း ေတြ ့ရာသခ်ိဳီင္း ဒါးမဆိုင္းဆိုလို လက္ဦးမွူယူျပီးစစ္ဆင္တယ္ ။ ျပည္တြင္းမွာလည္း ဖုန္းၾကားျဖတ္နားေထာင္တာတို ့ ၀ရမ္းမပါပဲ ဖမ္းဆိီးနိုင္တာတို ့အကုန္လုပ္ခဲ့ျပီး သမတရဲ့ စစ္ေရးလုပ္ပိုင္ခြင့္ အထူးစာမ်တ္နွာသစ္ေတြဖြင့္ ခဲ့တယ္ ။
ေက်ာင္းဆရာေလး အိုဗားမားရဲ့ (Kill and Capture Policy) ကလည္း နိုင္ငံေတြရဲ့ နယ္နိမိတ္နဲ ့ အခ် ုပ္အျခာကို ကိုေခါင္းထဲ ထည့္တာမ်ိ ုးမဟုတ္ခဲ့ဘူး ။ တပ္ေတြရုပ္သိမ္းမယ္ေျပာျပီး patriotic act ကို ေနာက္ထပ္ ၂ ႏွစ္ေလာက္ထပ္ သက္တမ္းတိုးခဲ့ျပီး စစ္စခန္းဆက္သြားခဲ့တယ္ ။ နည္းပညာပိုမိုထြန္းကားလာတာနဲ ့အမွ် Drone strikes ေတြ ပက္ပက္စက္စက္အသံုးမ်ားခဲ့တယ္ ။ ထို ့နည္းတူ အရပ္သားေသဆံုးမွူေတြလည္း စံခ်ိန္တင္ခဲ့တယ္ ။ အျခားတဘက္ကလည္း အျကမ္းဖက္သမား သံုးခ်ိ ုးနွစ္ခ်ိ ုးေလာက္ ေျပာင္သြားျပီေျပာျပီး သမိုင္းစာမ်တ္နွာသစ္ဖြင့္ခဲ့ျပန္တယ္ ။
စစ္ေရးနဲ ့ပတ္သက္လာရင္ အေျခခံဥပေဒအရ အုပ္ခ်ဳပ္ေရးမဏုိင္နဲ ့ဥပေဒျပဳေရးမဏိုင္ ကို လုပ္ပိုင္ခြင့္ မွွ်ေ၀ေပးထားေပမယ္ ့ သမတေတြဟာ လုပ္ပိုင္ခြင့္လစ္မစ္ေဘာင္ကို ေက်ာ္သြားေလ့ရွိတယ္။ ။ အေမရိကန္ျပည္သူေကာင္းၾကို းခ်မ္းသာအတြက္ဆိုရင္ တကမၻာလံုးမွာရွိတဲ့ ဘယ္သူကိုမဆို ဘယ္ေနရာမွာမဆို အေရးယူပိုင္ခြင့္ prerogative power သမတမွာရွိေနတယ္ ။ အဲဒီလို အေျခခံဥပေဒထဲက (Necessary and Proper Clause) ေမွ်ာ့့ ့ ့ၾကိဳ းကို သမတက သံုးျပီဆိုတာနဲ ့အကုန္ေျမြကိုက္ေတာ့တယ္ ။ မူရင္း အေျခခံဥပေဒကိုေတာင္ဆန္ ့က်င္သလိုျဖစ္ကုန္ျပီး အေျခခံလူ ့အခြင့္အေရးအပါအ၀င္ နိုင္ငံတကာ ဥပေဒေတြကိုလည္းေျမာင္းထဲပို ့သလို ျဖစ္ကုန္တယ္ ။ ထို ့အတူ နိုင္ငံသားေတြရဲ့အခြင့္အေရးေတြလည္း က်ြဲကူးေရပါ ဆံုးရွဳ ံးကုန္တယ္ ။ ေကာင္းေပ့ဆို တဲ့ အေမ၇ိကန္ အေျခခံဥပေဒမွာလည္း အဲလို စိန္ေခၚမွူေတြ ရွိတယ္ ။ အဲဒီ ေပ်ာ ့ကြက္ကိုနင္းျပီး သမတ ေဒၚနယ္ထရန္ ့လည္း စာမ်တ္နွာသစ္ဖြင့္မလားဆိုတာ ေစာင့္ၾကည့္ၾကတာေပါ့ ။
Aung Myat Thu
(1) "Tonkin Gulf Resolution." www.ourdocument.gov. U.S. National Archives & Records Administration, 07 August 1964. Web. 2 Dec 2013. <700 Pennsylvania Avenue NW, Washington, DC 20408 >.
(2) Gilmore, Eugene A. "WAR POWER-EXECUTIVE POWER AND THE CONSTITUTION." Iowa Law Review. 1943: 463. Print.
(3) Yoo, John C. "The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11." University of Chicago Press. 2005: 1. Print.
(4) Jon , Swaine. "Barak Obama has the Authority to use drone strike to kill Americans on US soil." Telegraph. 06 03 2013: n. page. Print.
(5) Michael, S. Paulsen. "How to Avoid an Unconstitutional War: A Beginner’s Guide for Presidents and Congresses." Public Discourse. 09 09 2013: n. page. Web. 7 Dec. 2013.
(6) Adrianne, Jeffries. "US has been monitoring German chancellor Angela Merkel's phone since 2002, report says." Verge. 26 10 2013: n. page. Web. 7 Dec. 2013. <theverge.com>.
The Tokin Gulf Resolution of 1964
From the end of WWII to 1968, America pursued the doctrine of containment to control communism for more than two decades. When U.S ships in the Gulf of Tokin had been attacked by North Vietnamese on August 4, 1964, President Lyndon Johnson dispatched U.S planes against the attackers. As the Chief of State and Chief of executive, he newly reopened the presidential era. Two days later, he asked Congress to pass a resolution to support his actions. That resolution was called the Tonkin Gulf Resolution. That joint resolution was to promote the maintenance of international peace and security in Southeast Asia and passed on August 7.
In fact, President Johnson’s order to dispatch U.S plane against attackers was illegal and unilateral. After that, it became the subject of great political controversy in the course of the undeclared war that followed. Congress approved and supported the determination of the President as Commander in Chief to take “all necessary measure to repeal any armed attack against the forces of the United States and to prevent further aggression” (Tonkin Gulf Resolution, 1964). As a result, President Johnson, and later President Nixon got the legal basis for their military policies in Vietnam. As public resistance to the war heightened, the resolution was repealed by Congress in January 1971.
Were all the wars what the U.S waged constitutional or not? Do we need to rethink about the role of president as Commander in Chief? In the constitution, this role is specifically enumerated in Article 2, section 2, paragraph 1: “The President shall be Commander in Chief of the Army and Navy of United States, and the Militia of the several States, when called into the actual Services of the United States”. On the other hand, the Constitution stipulates that the legislative and executive branches share the war power. However, presidents have initiated the use of force far more frequently than they have awaited congressional authorization, and they continued to wage war sometimes without a congressional declaration of war. It sometimes seems that the executive branch goes against the legitimacy of the constitution. Moreover, it goes against the international laws and privacy of own citizens.
The federal constitution contains explicit provisions concerning with war, rebellions, invasions, and domestic violence within a state. It contains no such provisions for emergency in general (Gilmore, 463). So, Gilmore pointed out that in order to act efficiently, presidents goes outside the limits and act unconstitutionally. I agree with him. The federal constitution needs explicit provisions concerning with emergency situations. Without those provisions, U.S Presidents played times and again the implied powers in which the "general welfare clause" and the "necessary and proper clause" gave elasticity to the constitution. The Tokin Gulf Resolution was approved by Congress in 1964 and it was repeal by Congress in 1971. After that President waged wars without Congress’s approval.
The War Power Resolution of 1973
In fact, the United States spent many years in war conflicts without declaration of war during the Korean and Vietnam wars. President Nixon conducted secret bombings of Cambodia during Vietnam War without telling Congress. Many members of Congress became concerned with the use of armed forces of executive power and they tried to limit it by legislative power because they felt that the president had too much power. Under the United States Constitution, war powers are divided. According to the Article I, Section 8, Congress has the power to declare war, raise and support the armed forces, control the war funding. On the other hand, the President is commander-in-chief of the military, and militia according to Article II, Section 2. Moreover, the President has the right to sign or veto congressional acts, such as declaration of war. The War Powers Resolution was passed by both the House of Representatives and Senate, but vetoed by President Richard Nixon. By a two-thirds vote in each house, Congress overrode the veto and enacted the joint resolution into law on November 7, 1973. In this case, as a head of Democratic Party, President Nixon applied his legislative power by using veto.
According to the War Powers Resolution, the President requires to notify Congress within 48 hours of committing armed forces to military action. Moreover, it forbids armed forces from remaining for more than 60 days, with a further 30 days withdrawal period. In fact, it limits the President’s use of military force or a declaration of war without an authorization of Congress. The War Power Resolution showed that Congress tried to control the presidential power concerning with war.
Even though, Congress partly limited the President’s war power, American presidents waged many wars. Looking to American history, Yoo pointed out that from Truman and Korea to Clinton's intervention in Kosovo; American presidents have had to act decisively on the world stage without a declaration of war. They are able to do so, Yoo argues, because the Constitution grants the president, Congress, and the courts very different powers, requiring them to negotiate the country's foreign policy (John C. Yoo, 2005).
President Bush had deployed over 500,000 U.S. troops without Congressional authorization to Saudi Arabia and the Persian Gulf region in the preceding five months in response to Iraq's August 2, 1990 invasion of Kuwait. President Bush said that as Commander-in-chief he did not need Congressional authorization to use military force against Iraq and that his request for a Congressional joint resolution was merely a courtesy to Congress. It was called the Authorization for Use of Military Force (AUMF) and was approved in the United States Senate on January 12, 1991 by a vote of 52 to 47. After the Cold War, it was the first time of use of the forces without Congress’s approval. Like other American Presidents, George H W Bush reopened the new era of American Presidential power. The UNSC’s resolution 660, in which UN condemned the invasion in Kuwait and demanded Iraq withdraw immediately, was a green light for Bush to promote its role.
John Locke defined the concept of prerogative power in his Second Treatise of Government as the power to act according to discretion for the public good, without the prescription of the law, and sometimes even against it. In fact, the prerogative theory not only allows presidents to do anything that is not forbidden but allows them to do things that are explicitly forbidden when in the national interest. Lincoln exercised such prerogative power in the Civil War and this period has been described as a time of “constitutional dictatorship” (Pika, Maltese, 2013).
President Bush also exercised prerogative powers as part of “war on terror”. Moreover, he even violated the Geneva Conventions and basic human rights by authorizing CIA to establish secret prisons in several countries to detain and interrogate al-Qaida suspects. Additionally, Bush used that power domestically by authorizing the use of domestic wiretaps without warrants. Bush administration pointed out that it was justified and the same with what Lincoln and other president’s use of emergency war power. Finally, Obama approved the resumption of military trials for terror suspects after two-year suspension. He also signed into law an extension of the USA PATRIOT Act of 2001 in May 2011 that placed new limits on the use of surveillance of suspect terrorists.
America was attacked by a terrorist group masterminded by Bin laden on September 11, 2001. One week later, both Senate and Congress approved AUMF. The authorization granted the President the authority to use all "necessary and appropriate force" against those whom he determined "planned, authorized, committed or aided" the September 11th attacks, or who harbored said persons or groups. Did presidents make something more?
When we looked back the actions taken under that authority, based on this authorization, President George W. Bush took actions to Afghanistan, the Philippine, Georgia, Yemen, Djibouti, Kenya, Ethiopia, Eritrea, Iraq, and Somalia. It means that he engaged terrorists group “around the world” as well as “on the high sea”. Moreover, Bush admiration detained many individuals at Guantanamo Bay, Cuba, without trial. The AUMF allows the US government to wage war at any time, any place and on anyone deemed a threat to national security. It seemed the Constitution granted American President to wage war globally. There were many possible violation of international law in detaining suspects and conducting operations in these periods.
Bush not only used has war power internationally, but also domestically. He authorized the use of domestic wiretap without warrants. It was clearly the violation of the Foreign Intelligence Surveillance Act of 1978. However, the Bush admiration pointed out the use of emergency war power by Lincoln and other presidents as justification for the wiretaps and noted that the AUMF 2001 implicitly gave approval for the president to take broad measures in response to the war on terror. An extraordinary circumstances after 9/11 attacks allowed President to use more power in foreign affair as well as domestic affairs. Bush applied prerogative power internationally and domestically.
According to prerogative theory, John Lock defined that it was the power to act according to discretion for the public good, without the prescription of the law, and sometime even against it. In my point of view, using prerogative power seriously damaged the checks-in-valance system of the Constitution because president can use his power ultimately. Using it should be a limited time. According to the Shank and Southworth, it is time to send the 2001 AUMF into the sunset, and to return the checks and balances that policy-makers put in place: the executive and legislative branches must deliberate before waging war (The Guardian, May 2013).
The AUMF 2002 was enacted October 16, 2002 is a passed by the United States Congress in October 2002 and authorizing President Bush to use force to liberate Iraq. The resolution cited many factors to justify the use of military force against Iraq. On the other hand it "supported" and "encouraged" diplomatic efforts by President George W. Bush to "strictly enforce through the U.N. Security Council. However, in the 2002 AUMF, the Congress limited Presidents to report back to Congress within 48 hours if he waged war without Congress’s approval. According to War Power Act, President needs to report back to Congress in 60 days.
Comparing the two, the 2001 legislation was an open-ended resolution authorizing Bush to go after anyone responsible for the 9/11 attacks. It’s clear Bush was intentionally making that the Iraq-9/11 linked because he had the authorization to wage war. He intended to go to war and would have done so based solely upon powers granted under the War Powers Act, which allows the president to commit to war and report back to Congress within 60 days. The 2002 IWR laid out very strict criteria (48 hrs.), and Bush still violated the resolution. By the time when he signed AUMF 2002 was neither the war time nor the time when America was attacked. It was very different with all other resolutions I mentioned above. The future of America should not be in the hands of handful people and the constitutions has adopted for hundred years. However, there were many questions concerned with the constitution that if the Constitutions still going strong.
There were many wars that I explained above and all those wars were initiated by Presidents. Constitutionally, Congress starts wars and the president fights enemies. Final confirmation of Congress’s power over nation’s decision to go to war is provided by Article I, Section 10 of the Constitution. However, it forbids any state to “engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay of Congress. However, practically, many wars were initiated by Presidents even in the peace time. After 9/11 attacks they not only initiated wars but they also sometime used preemption. AUMF2002 shows that President Bush tried to apply Unliterary Theory as well as prerogative theory. The War Power resolution that congressional means to control military actions initiated by presidents appears even less effective in this case. There are raising questions that if there has being any others legislative means to control the borderless surprise attacks and if Obama heritages them all.
The Killing of Osama Bin Laden
There were many bad experiences in American history in conducting operations in foreign countries. The successes and failures were greatly depending on the ability of presidents because America security remains highly dependent on the quality of president. To kill Osama Bin Laden, Obama hold a series of national security meeting and order a full review of the intelligence collected. Despite its high risk of failure, the raid was ordered on April 28 and was successful. . It is clear that the killing of Osama Bin Laden was not the end of the terrorism. However, it was just the starting point of “Killing and Capture” policy for Obama. It is acceptable that constitutional for one country is unconstitutional for another. However, unconstitutional act for both countries is unacceptable.
It is sorrowful for Americans that instead of using preemptive policy, President Obama used “Killed and Capture Policy”. Both of them are controversial by the Constitution. America is not always in the extraordinary circumstances all the time. So, the use of military force is not always justified all the time. Instead of using conventional military forces, Obama used the smart forces to avoid international outcries. He started to use this method in the killing of Osama Bin Laden in the territory of Pakistan. Moreover, Obama has authorized the “targeted killing” against al-Qaida terrorist’s suspects using missile strike by unmanned drones for many years. Those secret campaigns have killed 4,700 people in Pakistan, Yemen, and Somalia. According to the research by Bureau of Investigative Journalism, drone strikes killed between 474 and 881 civilians including 176 children in Pakistan between 2004 and last year (The telegraph, March 6, 20013) The implementing one’s own national security should not be broken other’s ones.
Obama approved in March 2011 the resumption of military trials there for terror suspects after two year suspension. He also signed into law an extension of the USA PATRIOT Act of 2001 in May 2011 that placed no new limits on the use of surveillance of suspected terrorists. They were the legacy of what Obama accepted from Bush admiration. As the results, American faces many criticisms domestically and internationally today. I think, Obama conducts more than that in monitoring sector. Based on the internal documents from the National Security Agency (NSA), the U.S government might have been monitoring German chancellor Angela Merkel’s cell phone for more than 10 years. It was very shameful conducts in diplomacy among alliances. Such kinds of acts may effects on America’s future war in organizing alliances.
In exercising effective international leadership, it is difficult for the United States because of the power separations of government branches in the Constitution. Presidents’ personality and operation styles greatly affect on cohesiveness of the government branches because the President is the central policy maker in many international affairs. It shows that dependence on presidential leadership in international affairs carries many risks in domestic’s politics. On the other hand, dependence on presidential leadership in National Security policy also effects on foreign affairs and international politics.
In fact, both the president and Congress have formal constitutional powers in international affairs. However, nowadays in America, the powers of federal government in international affairs are “inherent, plenary, and exclusive”. They are not granted expressly by the Constitution. No matter what Obama has used the preemptive or “Killing and Capture” strategy, it will seriously effect on the Constitution. “It is an affront the constitution due process rights of all Americans, said Senator Rand Paul, a 50 year-old favorite of the anti-government Tea Party movement, who is expected to run for president in 2006 (The Telegraph, 06 March 2013). In this point, I agree with what the Piker explained. He points out that the long-standing practice and necessity have combined to make the president the sole organ of the United States in the conduct of external affair.