Cross Border Authority

[SSI01]

Has anyone who can read this ever heard of this term?

[TeaSea]

Depends on the context because there's a legal jurisdiction application, and a Military Authority Application.

I'm going to assume you mean the latter since the Benghazi story is in the news and there's lots of chatter. To get to this issue we need to step back a bit...and please, do not make this a political commentary, it's just how the United States does stuff, no matter who's in charge.

First off, no member of the U.S. Military may depart the borders of the U.S. without federal authority to perform any kind of "official" duties. That authority derives from the Executive Branch and is generally executed through the SECDEF to the various service Chiefs or Joint Combatant or Functional Commands. That's regardless of whether we're talking peace or war. Now, those "authorities" take on various aspects. If for instance, you're the lucky recipient of orders to Stuttgart Germany, then those orders are your "authority" to make that move. There's lots of differing considerations that come into play before you get those orders...for one, there is a cap on the number of personnel the United States may have in Germany, generally executed through a Status of Forces Agreement, or SOFA. The United States by treaty may not exceed that cap without going to the Nation of Germany and requesting permission (sometimes this is done through the exercise planning process, through a NATO process since Germany is a member, or even through an actual personal call from the President to the Prime Minister in the case of an emergency). If the Military exceeds that cap, then the U.S. is in violation of a treaty which Congress has ratified, making the Executive branch guilty of breaking our own laws.

Now, I know everyone watches a lot of movies and reads a lot of books....but the United States Defense Department does not go about violating our own countries laws on purpose, and we don't go about breaking treaties with friendly nations. Even the French.....(sorry, it was too tempting).

Okay, so point is....you have your orders to proceed with the frau and all your kid to Stuttgart which is a form of "cross border authority".

So what about war?

Well, we don't care about what the other nation thinks...I mean, we're trying to kick their ass... but we do care about what our own nation thinks. Forces of the United States may not prosecute combat operations without due authority from the Executive branch. That authority can be in the form of a contingency (think Air Defense options), but simply put, field commanders may not go running around prosecuting their own wars, especially if it involves crossing the border of a government we recognize without the authority to do so.


If I'm off and you meant the legal version...simply put....to cross a border and enter another jurisdiction you have to trip a couple of switches. Normally this is found in the inter-state commerce clause.

[SSI01]

Makes sense to me. I'm given to understand it essentially means no US military force of any size can cross another nation's border and enter that nation for any mission without the expressed verbal and (later) written authority of the POTUS. US military units that are already within that nation's borders, on the other hand, can be ordered by their area commanders (SACEUR, COMAFRICOM, CIA Chief of Station, etc) to carry out operations within the borders of the country they are already inside of, with the knowledge of the host nation, to protect American interests within that nation. Like you said, this keeps some area commander, or individual unit commander, or red hot throttle jockey in hot pursuit of another aircraft, or a mixed-up SEAL team, from entering another country on their own or at their commander's behest - that authority has got to come from the President, and no one else. I'm told this authority can not be delegated.

[TeaSea]

Makes sense to me. I'm given to understand it essentially means no US military force of any size can cross another nation's border and enter that nation for any mission without the expressed verbal and (later) written authority of the POTUS. US military units that are already within that nation's borders, on the other hand, can be ordered by their area commanders (SACEUR, COMAFRICOM, CIA Chief of Station, etc) to carry out operations within the borders of the country they are already inside of, with the knowledge of the host nation, to protect American interests within that nation. Like you said, this keeps some area commander, or individual unit commander, or red hot throttle jockey in hot pursuit of another aircraft, or a mixed-up SEAL team, from entering another country on their own or at their commander's behest - that authority has got to come from the President, and no one else. I'm told this authority can not be delegated.

Believe this is all true...although the "delegation" piece may not be TOTALLY accurate. There are plans where forces can act without direct verbal approval, however that generally implies a certain set of conditions...i.e. "If this, then this" (takes you back to programming with Basic doesn't it?). So, the Executive can stipulate conditions where a military option may be exercised given a certain circumstance. Now, is that delegation? Sort of depends on how you view it.

Now, if you're freaking out over the seemingly overwhelming authority of the Executive Branch of the U.S....you can relax a bit. There is the Legislative Branch to consider. They do not have the authority to execute foreign policy, that belongs to the Executive....but the Legislative Branch owns the pocket book and through the so called "power of the purse" halt any military operation it wants by de-funding it, or any portion of the Federal Budget. Does not necessarily have to be military spending either. Lots of Americans believe only Congress can authorize the use of military power...that is categorically false. Only Congress can declare War, but there's no reference to any military action short of war. As a result the legislative branch proposed, and passed over presidential veto, the "War Powers Act" which essentially limited all military operations to 60 days, with an additional 30 days after the formal notification of Congress. Frankly, this joint resolution from Congress is dead in the water since it has never been used, nor is there any real teeth in it. The teeth is in the funding, which was already in place prior to the Act....so, sort of a feel good piece, with not much muscle.

There is another option ....the legislative branch could enact a joint resolution (assuming with enough votes to override an executive branch veto) to prevent any operation or halt it by making it against the law to proceed. This assumes they can rustle up the votes of course. This has been done. When the North Vietnamese government violated their treaty obligation and invaded the former South Viet Nam in 1975, a joint resolution from Congress prevented President Ford from taking any action to intervene.

I remember this very specifically because my father, a two tour veteran of the Viet Nam war, spent the evening crying.