It is well known that, when faced with a legal prohibition the first instinct of lawyers is often to seek a loophole around it. For example, the strictures of Obamacare inadvertently gave birth to classes of evaders known as the “29ers” and their close cousins, the “49ers”.
The Wall Street Journal last week had an editorial about the strategic reactions of businesses to Obamacare. One strategy is the “49er” strategy, keeping the number of full time employees under 50 to avoid penalties. The other is the “29er” strategy, reducing a worker’s hours below 30, the threshold for full-time employment. … The employer mandate basically says (1) if an organization has 50 or more full time or full time equivalent employees, (2) then it must offer government approved insurance to its full time employees.
To be full time, a worker must average 30 or more hours per week.
The 29ers and 49ers become ‘invisible’ to the law and therefore escape its clutch. This works in international affairs also. Readers may also have noticed the extraordinary lengths to which the president has gone in order to avoid calling his planned actions in Syria/Iraq ‘war’. The Wall Street Journal describes his remarkable zig-zags:
The President tries to avoid the ‘W’ word as he heads back to Iraq. … So counterterrorism isn’t war, even if it already involves more than 1,000 U.S. military personnel inside Iraq.
So long as he can avoid the word “war”, his actions will be invisible to Congress and still better, invisible to the more gullible members of the public. No war, no criticism. The same “loophole” mentality that serves employers with 29ers will serve him. Since War is so legally complicated, any lawyer must be thinking, why not just fight without calling it that?
It’s such a good idea that even Russia is doing it. NATO Chief Warns Moscow: No More Stealth Invasions. Eli Lake reports:
On Monday, NATO Commander Gen. Philip Breedlove had a not-so-subtle message for Russia: it will consider stealth and unofficial invasions to be a trigger for war.
Europe knows these stealth invasions all too well. Russia first sent teams of special operations forces wearing uniforms without insignia in February into Crimea and then later into eastern Ukraine to work with Russian minorities inside the country to begin an insurrection. Ukraine’s military has been fighting these “little green men” ever since. But until recently, Russia has not even acknowledged sending anyone into the country.
But why should Russia give up something so advantageous as legal invisibility? Everyone is now trying to avoid the “W” word because of the advantages it confers. The attack on New York on September 11, 2001, Clinton’s bombing of the Balkans, Obama’s what-ever-you-call-it in Libya against Khadaffy and now the whats-it in Syria/Iraq, as well as the watchamacallit in Ukraine are part of the new style of non-war War.
And its working! Proxy warfare worked so well — for Pakistan with its LET and Saudi with its al-Qaeda and Iran with its Hezbollah — that everybody’s doing it. We’ve incentivized proxy warfare and unsurprisingly getting more of it.
Future historians will probably conclude that the biggest mistake George W. Bush ever committed was getting Congress to authorize his military actions. His next worst mistake was to send over people wearing a uniform to do the fighting. Now if he had been so clever as to dispatch “little green men” where would the problem be? George W. Bush accepted the onus of the “W” word and has been paying for it ever since.
And now he’ll be the patsy forever. President Obama just argued that he doesn’t need Congressional authority to undertake … whatever … because sometime in the past Congress gave Bush the authority to wage war.
President Obama’s first initiated war against an Islamic terrorist group is authorized, the White House says, by George W. Bush-signed legislation that Mr. Obama has criticized and wanted to repeal since last year.
Since beginning airstrikes last month against the Islamic State, also known by the acronyms ISIS and ISIL, the White House has said it does not need congressional approval to carry out such missions.
Obama can claim with lawyerly accuracy in his memoirs that he never engaged in War like that rascal Bush did. This charade can go all the way into the 22nd century and all conflict, legally speaking, will be George Bush’s fault. The modern Western world has managed to abolish war simply by refusing to use the word. It’s word magic by modern shamans. You may say it is self deception: yes, but it is self deception that we like, as with those mirrors which make you seem slimmer. It is made easier by our lack of historical memory.
Many people think that “war” has mostly always been like World War 2. World War 2 is “old fashioned” war. As it turns out, it was more of an exception than a rule. Through most of history combatants merely fell to without any preliminaries or declarations.
In his study Hostilities without Declaration of War (1883), the British scholar John Frederick Maurice showed that between 1700 and 1870 war was declared in only 10 cases, while in another 107 cases war was waged without such declaration (these figures include only wars waged in Europe and between European states and the United States, not including colonial wars in Africa and Asia)….
In classical times, Thucydides condemned the Thebans, allies of Sparta, for launching a surprise attack without a declaration of war against Plataea, Athens’ ally – an event that touched off the Peloponnesian War.
The utility of formal declarations of war has always been questioned, either as sentimental remnants of a long-gone age of chivalry or as imprudent warnings to the enemy.
The usages of war we have all been taught to hate by the Left, including but not limited to uniforms, ranks, discipline and ceremonies, were actually innovations designed to protect noncombatants from the bands of marauders in mufti so characteristic of ISIS today. Now, having gotten rid of these noisome things we are once again, like our barbarian ancestors, back in the state of the noble savage, cutting each others throats without so much as a by-your-leave.
Perhaps the trend will continue until proxy warfare — undeclared warfare — becomes the norm. When the novelty wears off, then all the opprobrium which used to attach to War will transfer over to these legally innocent endeavors. And then we will go back to declaring war as a way of evading the benefits of legal peace.
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