B. The Power to Initiate War
3. The Role of the United Nations and Multilateral
BEHAVIORAL WAR POWERS
countervailing behavioral factors ought to inform the current debate of whether humanitarian interests suffice as a national interest under OLC's framework of independent presidential powers.
3. The Role of the United Nations and Multilateral Coalitions
commit forces to U.N. police actions without congressional authoriza-
tion.211 Third is the "political accommodation" approach, under which"the President needs congressional approval before committing U.S.
forces to combat in U.N. authorized military actions that raise the risk of war or great physical sacrifice.
'212Fourth is the "Take Care" argu- ment, that the President can use force without congressional approval in order to "take Care that the Laws" (in this case, the U.N. Charter, a duly ratified treaty and thus law under the Supremacy Clause) are
"faithfully executed.
' 213Of course, even without wading into deeper academic arguments about the applicability of the Take Care Clause to treaties,
214one rejoinder to this argument is that the U.N. does not require U.S. action when it authorizes force; it only permits
it.215Last is OLC's current position: The U.N. Security Council's credibility is an important national interest that can justify the President's use of force without prior congressional approval.
21 6The lessons of behavioral psychology suggest that situations in which the U.N. authorizes the use of force may be less troubling than situations in which the U.N. does not authorize force. As a functional matter, it may therefore be less problematic in situations of U.N.
authorization for the President to use force absent prior congressional authorization. Social science identifies lack of diversity in information and perspectives as an important flaw in decisionmaking.
21 7Thus, individuals can suffer from groupthink or credulous Bayesianism, in which they assume others' perspectives are based on independent information. Multiple people participating in a decision may therefore not be helpful in reaching better decisions. Similarly, to the extent that congressional participation in decisions about war and peace is helpful because it involves additional-and presumably diverse-voices in the decisionmaking process, unified government under one political party might undermine the independent voice that Congress could bring to
211 See id. at 600-01 (describing how the President has unilateral authority to send U.S.
forces to combat in U.N.-authorized "police actions" under the political actions model); see also Thomas M. Franck & Faiza Patel, UN Police Action in Lieu of War: "The Old Order Changeth," 85 AM. J. INT'L L. 63, 63-70 (1991) (discussing the relationship of the U.N.
Charter regime of police actions and Congress's power to declare war).
212 Stromseth, supra note 208, at 601.
213 U.S. CONST. art. II, § 3; Stromseth, supra note 196, at 153-56; Stromseth, supra note 208, at 661; see also Korea Opinion, supra note 193, at 176-77 (adopting the Take Care argument as justification for use of force in Korea).
214 For a discussion, see Swaine, supra note 196.
215 Stromseth, supra note 208, at 661.
216 See supra notes 187-93 (discussing OLC's use of the U.N.-credibility justification).
217 See supra Part I.G (discussing group polarization).
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war powers decisions.
218Though it is by no means guaranteed, U.N.
authorization is more likely to bring diverse viewpoints to decisions about the use of force. The Security Council is composed of members from a variety of countries around the world, with different perspec- tives, from different regions, and with different national interests. Per- haps more importantly, the veto power of the permanent five means that China and Russia-countries with different approaches to world affairs than the United States-have to approve of any action. Agree- ment among the permanent five would be a strong signal that deci- sions to use force are not suffering from variations on groupthink.
To be sure, the presence of both U.N. and congressional authori- zation would be an even stronger signal that decisions do not suffer from uniformity-based group decisionmaking errors. Indeed, the liter- ature on two-level games suggests that incorporating two different vetogates-the U.N. and Congress-is likely to reduce the scope of possible agreement,
219but at the same time, behavioral lessons sug- gest that agreement from a diverse set of actors will be less likely to suffer from bias and polarization.
Second, the diversity of perspectives inherent in securing U.N.
authorization may mitigate hawkish biases. Not all of the countries participating in the use of force decision will contribute meaningfully to the military operation, making it less likely that they will suffer from the illusion of control or other positive illusions. Indeed, some countries-in the targeted region, for example-might be extremely skeptical about the ability of distant powers to affect change in their neighborhood. In situations in which two countries have been at odds for a period of time, the participation of third-party countries is likely to mitigate the fundamental attribution error and reactive devaluation bias. Because third-party countries have not been involved in the dis- pute or the back-and-forth of high-stakes negotiations, they are less likely to attribute negative dispositional characteristics to either country.
A behavioral approach suggests that U.N. authorization for the use of force can mitigate certain pervasive biases and thus improve decisionmaking on war and peace. Of course, these lessons cannot address the doctrinal debates between the five different approaches to the relationship between the U.N. and the Constitution, but they do provide functional support for robust U.N. participation. Indeed, if there is robust U.N. debate and ultimately authorization for the use of
218 See Levinson & Pildes, supra note 20, at 2344 (noting that interbranch checks are diminished in times of unified government).
219 See Putnam, supra note 8, 433-35 (outlining the theory of two-level games in international negotiations).
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force, there is a policy-based argument (though not a legal argument) that such participation could, in some ways, serve as a substitute for congressional participation, particularly during times of unified government.220
We should note that while U.N. authorization may be the pre- ferred mode of securing international support as a matter of interna- tional law, for behavioral purposes, a similar function might be played by other types of broad, multilateral coalitions. The Libya example aside, the persistent failure of the Security Council to act has given rise to the notion that some unauthorized interventions may be, as a matter of international law, "illegal but legitimate.''22 1 The United States' closest military ally has even dropped the "illegal" qualifica- tion and asserted a unilateral right to humanitarian intervention.2 22 For our purposes, what is important is not the forum per se but what it tells us about the quality of the underlying decisionmaking. Action by a small group of like-minded allies (a "coalition of the willing"223) may have limited utility as a safeguard against various decisionmaking biases. But while broad Security Council support (including at least the acquiescence of Russia and China) may be the most diverse coali-
220 See Eric A. Posner & Adrian Vermeule, The Credible Executive, 74 U. CHI. L. REV.
865, 906 (2007) ("[Mjultilateralism and bipartisan congressional authorization may be substitutes, in terms of generating credibility.").
221 INDEPENDENT INTERNATIONAL COMMISSION ON Kosovo, TiHE Kosovo REPORT:
CONFLICT, INTERNATIONAL RESPONSE, LESSONS LEARNED 4 (2000). The U.K.
Government and (after leaving his government post) Professor Koh have recently gone further in suggesting that certain unauthorized humanitarian interventions are internationally lawful. See PRIME MINISTER'S OFFICE, CHEMICAL WEAPON USE BY SYRIAN REGIME: U.K. GOVERNMENT LEGAL POSITION 1 (2013), available at https://
www.gov.uk/government/uploads/system/uploads/attachment-data/file/235098/Chemical- weapon-use-by-Syrian-regime-UK-government-legal-position.pdf (arguing that the U.K.
could lawfully intervene in Syria even if the U.N. blocked a resolution authorizing such an intervention); Harold Hongju Koh, Syria and the Law of Humanitarian Intervention (Part II: International Law and the Way Forward), JUST SECURITY (Oct. 2, 2013, 9:00 AM), http:// justsecurity.org/2013/1002/koh-syria-part2/ (arguing that President Obama did not violate international law by threatening to use force in Syria). Notably, both the U.K.
paper and Professor Koh emphasize the importance of multilateralism. See PRIME MINISTER'S OFFICE, supra, at 1 (requiring that there be convincing evidence of humanitarian distress that is "generally accepted by the international community"); Koh, supra (arguing that the legal basis for intervention is stronger where "the action was collective").
222 Letter from Rt. Hon. Hugh Robertson MP, Minister of State, U.K. Foreign and Commonwealth Office, to Rt. Hon. Sir Richard Ottaway MP, Chairman, U.K. House of Commons Select Committee on Foreign Affairs (Jan. 14, 2014), available at http://
justsecurity.org/wp-content/uploads/2014/01/Letter-from-UK-Foreign-CommonweaIth- Office-to-the-House-of-Commons-Foreign-Affairs-Committee-on-Humanitarian- Intervention-and-the-Responsibility-to-Protect.pdf.
223 Bush: Join "Coalition of Willing," CNN (Nov. 20, 2002, 6:13 PM), http://
edition.cnn.com/2002/WORLD/europe/11/20/prague.bush.nato/.
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tion, there is likely a spectrum between the two poles of unilateralism and full authorization. For example, the support of allies in the region (e.g., the African Union for an intervention in Africa, or the Arab League for an intervention in the Middle East) may go further in injecting diverse viewpoints, as well as perhaps escaping the illusion of control a more distant intervener may feel. The point here is not that, from a behavioral perspective, a specific type of authorization or mul- tilateral coalition is a good in itself, but rather that, depending on the particular circumstances, the degree of international participation may play a more or less useful role in mitigating decisionmaking errors because of the introduction of diverse viewpoints.
C. The Power to Fight and Terminate Wars