- - Wednesday, February 15, 2023

Which is more destructive to personal liberty: a government that engages in secret acts of war, or a public and news media that are indifferent to it? In the current American toxic stew of anti-Russian hatred and beating the drums of war — in President Biden’s America — we have both.

Here is the backstory.

The war in Ukraine is now in its 12th month. It has become a slow, inexorable movement westward for Russian military forces and the painful migration of 5 million Ukrainians out of their country, to say nothing of the loss of between 130,000 and 150,000 Ukraine troops.

Congress has authorized the president to spend up to $100 billion in borrowed money to support the doomed Ukraine forces. He has thus far wasted about half of that in donated military equipment and cash.

Much of the military equipment has come not from American surplus. but from America’s storehouses of equipment for self-defense. And much of the equipment the U.S. has furnished is so sophisticated that Ukraine troops are in Oklahoma learning to use, maintain and repair it. Some of it is so sophisticated that U.S. troops are on the ground in Ukraine, out of uniform, instructing Ukrainians on using and maintaining the equipment. And some of the equipment requires American soldiers to target Russian troops and dispatch missiles at them.

American troops out of uniform pose a double-edged sword for Mr. Biden. If they are unarmed and out of uniform, he can legally deny that the U.S. has “boots on the ground.” But because they are out of uniform and supporting hostilities, they can legally be shot at by Russian troops, captured and executed as spies working for Ukraine. This is how the U.S. began its disastrous and criminal war in Vietnam.

What is Mr. Biden’s goal? Is it the expulsion of Russian troops from Ukraine and even from Russian-speaking Crimea, or is it the expulsion of Russian President Vladimir Putin from office? The White House can’t or won’t be precise on this because neither goal is militarily attainable, moral or constitutional.

Congress cannot fund a war involving Americans that it has not declared, as the constitutional language is clear. Moreover, Russian ground forces are about to expand by somewhere between 300,000 and 500,000. Those troops will simply overwhelm the Ukraine forces and their American instructors, no matter what equipment the U.S. provides and operates.

But the use of troops out of uniform and the expenditure of $50 billion without a clear, attainable goal is not the worst decision Mr. Biden has made in this conflict. All of that waste is well known. What was not known until last week was the act of war the Biden administration waged against Germany and Russia. Against Germany? Yes.

German and Russian industry built a natural gas pipeline in the Baltic Sea called the Nord Stream Pipeline. The pipeline enabled the Russian government to sell and deliver cheap Russian natural gas to German utilities.

According to the famed investigative journalist Seymour Hersh — he of My Lai massacre, Watergate, CIA spying, American torture and Pulitzer Prize fame — Mr. Biden ordered a joint CIA/Navy operation last June to prepare the pipeline for detonation. Navy SEALs dove down to the seabed and lined the pipeline with explosives.

In September, Mr. Biden gave the order to the CIA to deploy the explosives, which it did, according to Mr. Hersh’s reporting, causing $10 billion in damage to the pipeline and much more to the German and Russian economies and to the Baltics.

If true, this was an act of war on an ally, Germany, and on a putative adversary, but one with which the U.S. has never been at war, Russia.

Can the president legally deploy violence to another country, whether ally or adversary, without a clear military need? In a word, no.

Under the Constitution, only Congress can declare war. Under the treaties to which the U.S. is a party, there must be a moral, legal basis — a credible military threat from a foreign military — for such a declaration. The War Powers Resolution of 1973 requires the president to notify Congress of all violent military deployments. Not only was this violence without notice, it was not defensive, nor was it intended to save lives in immediate harm from a foreign military. And it was against an ally.

Stated differently, attacking Germany and Russia so as to weaken their economies, knowing there was no moral military purpose to it, has made this act of war a criminal act — a war crime — as well.

The use of the CIA was, of course, no accident. The War Powers Resolution requires only reporting and seeking congressional approval for military violence. By putting the CIA in charge, if he ever owns up to this, Mr. Biden can argue that this was an intelligence operation.

The CIA’s lawless, amoral, Constitution-be-damned, murderous culture, and the willingness of every American president since Harry Truman to cover for it, has given post-World War II presidents a secret personal army that all of them have used to destroy and kill.

But if Mr. Hersh’s reporting is true, Mr. Biden will be the first known American president to use the CIA and the Navy to attack an ally. Isn’t it mysterious that German authorities have been silent about this attack? And where is the mainstream American media? My guess is that Mr. Hersh embarrassed the Germans and the American media.

The press is the eyes and ears of the public. But if the press is cowed or is in bed with the government, who will expose the government when it fights secret wars? Where are members of Congress? Where is the public outrage?

Mr. Biden really wants a war to fortify his weak presidential stewardship. Apparently, the public will stand for it because the elites in government, the media and the military-industrial-banking complex who buy and mold public opinion have no moral compass, no understanding of history, no fidelity to the Constitution and no qualms about the annihilation of innocents.

• Andrew P. Napolitano is a former professor of law and judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution.

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