Tag: war powers

War Powers in the Bush-Obama Era

Over at the National Interest, I have a piece examining President Obama’s claim, in his nationally televised address Wednesday night, that “I have the authority to address the threat from ISI[S].” 

Just where he’s supposed to get that authority isn’t clear—even to the Obama administration itself. In the last week, Obama officials have invoked (1) the War Powers Resolution, (2) the 2002 Authorization of Military Force (AUMF) against Iraq, and (3) the AUMF that Congress passed three days after 9/11. Any AUMF in a storm, it seems. 

As I explain in the article, not one of those claims survives a good-faith reading of the relevant legislative text. The WPR specifically forecloses any interpretation that it grants the president a “free pass” for elective bombing. And invoking the 2001 or 2002 AUMF for a new war against a new enemy over a decade later is the sort of statute-stretching that makes using TARP to bail out car companies look timid by comparison. 

You could describe the president’s approach as “three bad arguments in search of a theme.” Near as I can discern it, that theme is, “I’m not George W. Bush.” 

Apparently, it’s very important to Barack Obama to make clear that he doesn’t subscribe to the Congress-be-damned, I’m the “Decider” approach of his predecessor. Justifying war on a pure presidential power theory is for bad people like Dick Cheney and John Yoo, the legal architect of the Bush-Cheney “Terror Presidency.” (Though, of course, Bush went to Congress for authorization in Iraq and Afghanistan, even while denying he needed it).

Obama’s nothing like that, he’ll have you know. He’s the guy who told us on the campaign trail that “The separation of powers works. Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers,” and affirmed that the president lacks the power to launch military attacks absent an “actual or imminent threat to the nation.”  (His eventual veep, Joe Biden, went further, promising to “impeach [Bush] if he takes the nation to war against Iran without congressional approval.”)

And yet, it’s hard to escape the echoes of Obama’s predecessor in Wednesday night’s speech, from his case for preventive war against an enemy that “if left unchecked… could pose a growing threat beyond that region—including to the United States,” to his promise to “support Iraq’s efforts to stand up National Guard Units” (When they stand up, we will stand down). As John Yoo himself said last week: “Obama has adopted the same view of war powers as the Bush administration.”

Tortured, bad-faith constructions of authorization passed by past Congresses for different wars can’t hide that underlying reality. Obama may not be George W. Bush, but he’s doing a pretty decent imitation.

The Senate’s Draft AUMF: Don’t Fix What the President Shouldn’t Have

Yesterday, I commented on the strikingly broad authority the Obama administration proposed in its draft Authorization for the Use of Military Force in Syria, and argued that Senate leaders’ attempts to narrow the proposed authorization were misguided: “Congress shouldn’t ‘fix’ what the president shouldn’t have.”

The Senate Foreign Relations Committee’s revised AUMF, released this morning, hasn’t changed my mind. 

  • They’ve added some adjectives to the operative clause, authorizing the president “to use the Armed Forces of the United States as he determines to be necessary and appropriate in a limited and tailored manner” (bespoke airstrikes?) against “legitimate military targets,” and tightened the stated goals somewhat. But again “he determines” whether those conditions have been met. 
  • Worst of all, despite purporting to bar “the use of the United States Armed Forces on the ground in Syria for the purpose of combat operations” (Sec. 3) and limit airstrikes to targets “in Syria,” (Sec. 2(a)), the draft (unwittingly?) undermines those restrictions at the outset. The revised AUMF gives away the game in the last clause of Section 1 with a gratuitous and overbroad concession about the scope of the president’s authority to use force without congressional authorization: “the President has authority under the Constitution to use force in order to defend the national security interests of the United States.” That’s far broader than the WPR’s description of the president’s independent constitutional authority to take action in “a national emergency created by attack upon the United States… or its armed forces”–and broader than the original understanding that the president retained the power to “repel sudden attacks.” The language in the Commitee’s draft AUMF implicitly endorses a power to launch sudden attacks when the president deems them in “the national security interests of the United States.” 

Former Bush OLC head Jack Goldsmith calls it “the broadest such clause I have ever seen”–“the draft AUMF enhances, through congressional recognition, the President’s claims of independent constitutional authority to use force in Syria.” Coupled with other provisions in Section 1 affirming that Syria’s possession and use of unconventional weapons “constitute a grave threat to … the national security interests of the United States,”–that phrase again–it gives President Obama additional cover to go beyond what’s authorized in the resolution–flouting the time limits, introducing ground troops, striking targets outside of Syria, and the like.

Goldsmith sums up: “If the Senate draft becomes law, the President should be very pleased.” Americans, who are rightly sick of Middle Eastern entanglements and Tomahawk humanitarianism, will likely have a very different view  

The Syria AUMF: Be Careful What You Vote For

Whatever his motivations, it’s good that President Barack Obama has departed from past practicelet the Tomahawks fly and Congress be damnedand gone to the people’s representatives so they can stand and be counted. 

But, as I note in today’s Washington Examinerthat vote isn’t without danger. The draft authorization for the use of military force the administration circulated Saturday is strikingly broad. And if we know anything from the history of past AUMFs, it’s that presidents will push the authority they’re given as far as language will allow—and possibly further. 

In his Rose Garden press conference Saturday, Obama said “we would not put boots on the ground.” The action he’s contemplating would be “limited in duration and scope.” Just a “shot across the bow”—a light dusting of cruise missiles.  

The draft AUMF says no such thing:

  • It authorizes the president to use U.S. “armed forces,” not just air power. 
  • He can do that “as he determines to be necessary and appropriate,” so long as it’s “in connection” with use of unconventional weapons in Syria—and again, he determines what connection exists.
  • It doesn’t limit him to striking Syrian government forces, and it doesn’t limit him to Syria. It’s loose enough, as former Bush Office of Legal Council head Jack Goldsmith points out, to allow the president to wage war against Iran or Hezbollah in Lebanon, so long as “he determines” there’s some connection to WMD in Syria.
  • And it doesn’t contain a “sunset clause” time-limiting the authority granted—which means that authority will be available for future presidents as well. 

As a reminder, here’s LBJ announcing his decision to go to Congress for the Gulf of Tonkin Resolution, piously intoning that “we Americans know, though others appear to forget, the risks of spreading conflict. We still seek no wider war.”

 

On Syria, Attention Shifts to Congress

President Obama’s abrupt decision to seek authorization from Congress before ordering attacks on Syria has elicited speculation about what motivated this apparent change of heart. After all, the president didn’t seek Congress’s approval before ordering attacks against Muammar Qaddafi’s forces in Libya in March 2011. Back then, members of the administration claimederroneously, as Louis Fisher points out here (.pdf)that they had all the authority they needed from UN Security Council resolution 1973It was a very thin reed on which to build a case for war, but administration officials teamed up with hawks on both the left and right to turn aside the objections of dovish Democrats and “Kucinich Republicans,” as the Wall Street Journal’s editors called them.

Obama couldn’t shelter behind the UN this time around, and Congressional opposition arose much faster and stronger than I anticipated as recently as last week. Even some Democrats, most notably Virginia’s Sen. Tim Kaine, voiced concern about the president’s apparent intention to circumvent the people’s elected representatives. The British Parliament’s rejection of Prime Minister David Cameron’s call for air strikes was a further blow, both in that it denied the United States a credible ally (only France remains), and highlighted the uncomfortable fact that most democracies have a debate before going to war. 

So now the attention turns to Congress, with many members still on recess, but a number returning early to Capitol Hill for briefings and hearings. Those handicapping the sentiment in Congress claim that the president lacks the votes today to secure a victory, but he has a full week to change minds and twist arms. Some of the 190+ members who signed at least one of two letters, or issued a statement, calling on the president to go to Congress before launching an attack will be satisfied to have been included in the process. Sen. Kaine expressed this sentiment today. Party leaders may not whip the vote, but Obama will be assisted by the pro-intervention chorus, led by Sens. John McCain (R-AZ) and Lindsey Graham (R-SC), and by the signatories to this letter issued last week by the Foreign Policy Initiative. The pro-Obama team will include an unlikely ally: Weekly Standard editor William Kristol, who declared last night on CNN’s Anderson Cooper 360 that a vote against Obama would be effectively a vote for Assad. There will be more of this in the week ahead.

It will be hard for the opponents of intervention in Syria to prevail given that many Democrats can be expected to side with the president, and a number of Republicans still prefer the interventionists’ talking points, even if they know they are unpopular back home. 

Resisting the Calls for Action in Syria

After months of hand-wringing, the Obama administration appears poised to intervene militarily in Syria. Yesterday, Secretary of State John Kerry cited clear evidence of chemical weapons use by forces loyal to Syrian President Bashar al-Assad, and pledged that the United States would hold Assad accountable for a “moral obscenity.” Others have chimed in this morning in agreement. The editorial writers at USA Today declare that Assad’s action “demands” a “precise strike” in response.

As I explain in an “opposing view”:

The desire to “do something” in Syria is understandable. The gut-wrenching images of the dead, including the young, have rocketed around the world. To casual observers, it seems obvious that a country as rich and militarily powerful as the United States must be able to stop the violence.

But the truth is that not even the United States can solve Syria’s problems.

The American public remains strongly opposed to military intervention of any type, and the people’s representatives in Congress generally reflect these sentiments. Unfortunately, presidents can, and usually do, ignore the public’s wishes. President Obama, following the example of his predecessors, has undertaken numerous military operations without securing congressional approval, and he has done so even in the face of clear and bipartisan opposition. (Libya, for example).

A few on Capitol Hill will occasionally complain, as some did yesterday, but a groundswell among members of Congress to affirm their constitutional responsibilities is unlikely, and certainly won’t happen quickly enough to halt what appears to be imminent military action.

But the strongest reason why President Obama should ignore the voices calling for military action is because such intervention is unlikely to achieve anything constructive, and may well do great harm. While the president has the ability to launch air attacks, he is unable to affect the political realities on the ground in Syria that have sustained a brutal and bloody civil war for nearly two and a half years.

Will Congress Block Military Aid to the Syrian Rebels?

Other news has pushed Syria out of the headlines in the past two weeks, but some members of Congress have spent the time preparing for a showdown with the Obama administration over its decision to arm rebels in Syria. 

Late last month, a bipartisan group led by Rep. Chris Gibson (R-NY) put forward legislation (H.R. 2494) that would block military aid to Syria pending authorization by a joint congressional resolution. The legislation would allow non-lethal assistance to continue to flow, but would require the administration to report every 90 days on what groups are receiving the aid, and the character of the aid being provided. Similar legislation (S. 1201) was introduced in the Senate by two Democrats (Tom Udall, NM; and Chris Murphy, CT) and two Republicans (Rand Paul, KY; and Mike Lee, UT).

Last week, Gibson and bill co-sponsor Peter Welch (D-VT) appeared on C-Span to discuss the legislative initiative. More information can be found here.

The effort seems like a long shot given the steady erosion of the U.S. Congress’s control over the war powers. This regression was reflected most recently by the Obama administration’s decision to wage “kinetic military action” against Libya under a UN Security Council Resolution, and in the face of strong congressional opposition. On the other hand, the American people remain overwhelmingly opposed to deeper U.S. involvement in the Syrian civil war, and a mere 11 percent support arming the rebels, according to an NBC News/Wall Street Journal poll. In this case, at least, the people’s elected representatives are at least doing their jobs in representing their constituents’ views.  

As to the substance of the legislation, one can sympathize with the premise behind it without agreeing with co-sponsor Michele Bachmann (R-MN) that the Syrian rebels are “enemies” of the United States who could “defeat us and our way of life” (though a few might aspire to such grandiose aims). On policy grounds, limited military intervention in Syria is unlikely to turn the tide in favor of our prefered group (one that is presumably secular, pro-U.S., and capable of governing Syria), which means that arming the rebels is likely to extend the conflict and drag the United States more deeply into another civil war in the region. As Rep. Mike Nolan (D-MN) noted, “This matter, however tragic and sad, will not be resolved by the US’s involvement or intervention and will only invite resentment from both sides, as has been proven time and time again. We must get over the false notion that the enemy of our enemy is our friend.”

Another reason why the legislation is attracting bipartisan support has to do with the separation of powers, and a nascent movement within the Congress to reclaim at least some of its constitutional authority. We saw a glimmer of this opposition in the spring of 2011. The floor debate ultimately failed to halt U.S. military intervention in Libya, but at least we had such a debate. We need one with respect to arming the Syrian rebels.

Gibson, the author of legislation that would revise the War Powers Act, appears to be motivated primarily by those aims. A retired U.S. Army Colonel who served four tours in Iraq, Gibson earned a PhD in government from Cornell and later published a book on civil-military relations. He spoke on the subject in late 2011 at a Cato Capitol Hill Briefing.

In introducing the Syrian legislation, Gibson explained:

As I have long-maintained, the decision to engage overseas must be made with the utmost caution and with a full understanding of the dynamics. Most importantly, the American people, through their Congressional Representatives, must be part of this decision process….This bipartisan legislation will ensure we can maintain our diplomatic and humanitarian efforts to support the Syrian people without getting drawn into another engagement. Moving forward, it is vital that Congress be a part of this debate and provide authorization prior to any hostile action or escalation of our involvement. 

As I said, this is a long-shot effort given the extent to which power has shifted to the executive branch, and given that many of Gibson’s colleagues (both Republicans and Democrats) seem so willing to ignore their sacred oath to uphold the Constitution. But it is gratifying to see at least some members of Congress taking their responsibilities seriously. 

Rand Paul and Jim Webb on Congress’s Abdication of Foreign Policy Power

John Brennan’s confirmation as CIA director displayed Congress’s disinterest in checking the president’s runaway security powers. Two months ago, when I wrote an article with the unwieldy title, “Will Obama’s Brennan Pick Shed Some Much Needed Light on Drones?” I wouldn’t have guessed that the answer would be yes; it will bestir Congress to finally force the administration to say clearly that it does not reserve the right to kill Americans at home with drone strikes, insofar as they are not engaged in combat. That statement came only thanks to whomever leaked the Justice Department’s summary memo on the topic, Brennan and Attorney General Eric Holder’s impolitic reluctance to articulate limits on the president’s power to kill Americans by calling them terrorists, and, of course, Sen. Rand Paul’s (R-Ky.) resulting filibuster. The Senate predictably left Brennan’s other sins against civil liberties mostly unexamined. 

Paul’s hard-won “toehold of constitutionality” isn’t much to cheer about, even if we add to the spoils the administration’s vague agreement to be more open about its legal rationale for placing people on kill lists. This minimal defense of civil liberties and congressional privilege is what got Republican senators like Marco Rubio of Florida and Ted Cruz, Jr. of Texas, who seem to support unfettered executive discretion to kill in the name of counterterrorism outside the United States, to support the filibuster. 

Even that was too much restraint for the neoconservative right. Sen. John McCain (R-Ariz.) read on the Senate floor a Wall Street Journal editorial calling Paul’s effort a stunt meant to “fire up impressionable libertarian kids” and assuring us that those targeted by drones here or abroad will be “enemy combatants.” McCain and the Journal spectacularly miss Paul’s point: the issue is whether the president should make that designation, chucking due process rights, without being checked by another branch of government. 

As McCain amigo Sen. Lindsay Graham (R-S.C.) noted, the Republican caucus’ flirtation with civil libertarianism seems a situational consequence of partisanship. The same goes for Democrats. Were it President McCain doing what Obama is, far more than two Democratic senators (Jeff Merkley of Oregon and Pat Leahy of Vermont) would have voted against Brennan. During his filibuster, Paul asked what happened to the Senator Obama of 2007, who opposed torture and war by executive fiat. Paul suggests that those views were products of Obama’s then circumstance: not being president. Even that may be too generous. As I wrote in a recent book review concerning Obama’s counterterrorism record, “even when he took office, there was ample evidence that his dovish positions would not outlast their political convenience.” 

We can hope, I suppose, that Paul’s stance will increase Congress’s willingness to assert its constitutional war powers. Although he did not, as far as I know, propose specific restrictions on the use of military force outside of the United States, Paul did complain that the 2001 Authorization of Military Force against the perpetrators of the September 11 attacks and those that harbored them has become a permanent warrant for almost limitless executive war powers, a kind of escape hatch from the Constitution opened by presidential utterance of the word “terrorist.”