Tag: war powers

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.”

War Is Too Easy, but a Draft Is Not the Solution

In yesterday’s New York Times, Thomas Ricks penned an op-ed calling for the draft to be reinstituted. Ricks offers that under his plan for military conscription, libertarians who object could opt out provided they don’t partake of Uncle Sam’s other goodies such as federally subsidized mortgages, Medicare, and college loans. As a libertarian who objects to a draft, but who also received an NROTC scholarship in exchange for an active-duty commission, I think that Ricks is offering conscientious objectors a raw deal.

Those opting out, of course, could not refuse to pay the taxes that are used to fund government programs. That would be great for the government—compel people to pay for services that they will never use—but it is profoundly unfair, especially to young adults.

Mr. Ricks’s plan will certainly cost more money than our current all-volunteer force, especially in the near term. For example, we can expect tuition to skyrocket as soon as college administrators realize that the taxpayers are on the hook to pay for these new conscripts’ secondary education. The long-term savings that Ricks anticipates from changes to the military retirement are likely to prove equally elusive; past attempts to rein in costs for military retirees, including changes to eligibility rules, have repeatedly failed. There are sensible ideas for fixing the problem, but the politics are still really tough.

A draft is unlikely to save us money, but it will certainly abridge young people’s freedom. It is unfair to older adults, too, who would see their taxes rise. To add insult to injury, many older adults would see their tax dollars go to pay low-wage workers who would then be competing with them for jobs. Mr. Ricks thinks it’s outrageous that a 50-year old janitor earns $106,000 a year, plus overtime; the janitor would disagree. Others who would suddenly be forced to compete with a taxpayer-funded horde of 18-year olds include day care providers, nurses, and construction workers.

Libertarians want minimal government, as Mr. Ricks claims, but his plan would dramatically expand government power, abridge individual liberty, and distort the labor market. Despite his claims that this will be beneficial to the economy, economists long ago concluded that the all-volunteer force is superior to conscription. Conscription is a superficially great deal for the government, but a net loss for the taxpayer and draftee in hidden costs, and lost freedom.

I am sympathetic to Mr. Ricks’s desire to avoid rushing headlong into other foolish wars. It is too easy for the United States to wage war and send resources—drones, special operations forces—to low-level conflicts. Congress has abdicated its responsibility to declare war and deficit spending kicks the monetary costs down the road. But the draft is not the answer. Instead, let’s begin our search for a solution by forcing the advocates for such wars to a higher standard of proof, and holding them accountable when their rosy predictions of quick success prove erroneous.

Cross-posted from the Skeptics at the National Interest.

Drones, Special Operations, and Whimsical Wars

Asked the last week on 60 Minutes how many shooting wars the United States is in, Secretary of Defense Leon Panetta took a moment to answer. He eventually said we are going after al Qaeda in Pakistan and its “nodes” in Somalia, Yemen, and North Africa. Somehow, he left out the indefinite war we have going in Afghanistan.

It’s no wonder that Panetta can’t keep track of the wars he’s supposed to manage. On top of Afghanistan and the drone campaigns, 12,000 U.S. special operations forces are distributed around dozens of countries, increasingly outside declared war zones, where they train foreign militaries, collect intelligence, and occasionally launch lethal raids. As just reported in the Washington Post, some of these forces are now operating a dozen bases across Northern Africa, where their activities include overseeing contractors flying surveillance aircraft. Despite the Obama administration’s claims of great progress in fighting al Qaeda, the global shadow war shows no signs of abating.

The official rationale for using force across the world is that al Qaeda is global. But that’s true only thanks to a capacious definition of al Qaeda that imposes a sense of false unity of disparate groups. The always-overrated remnant of the organization that sponsored the 9/11 attacks barely exists anymore, even in Pakistan. Our counterterrorism efforts are directed mostly against others: terrorists that take up al Qaeda’s name and desire to kill westerners but have limited links to the real McCoy, as in Yemen and North Africa, and insurgents friendly to jihadists but mostly consumed by local disputes, like the Taliban in Afghanistanal Shabaab in Somalia, and al Qaeda’s Islamist allies in southern Yemen. Like the phony Communist monolith in the Cold War, the myth of a unified, global “al Qaeda” makes actions against vaguely-linked entities—many with no obvious interest in the United States—seem like a coherent campaign against globe trotting menace bent on our destruction.

The real reason we are fighting so much these days is that war is too easy. International and domestic restraints on the use of U.S. military power are few. And unrestrained power tends to be exercised. Presidents can use it whimsically, at least until they do something costly that creates a backlash and wakes up public opposition. Drones and special operations forces made this problem worse.

Most of the world is what the military calls a permissive environment, especially since the end of the Cold War. Most places lack forces capable of keeping our military out. Many potential allies invite it. The risks traditionally associated with war—invasion, mass death, etc.—are now alien to Americans. Since the draft ended, the consequences of even bad wars for most of us are minor: unsettling media stories and mildly higher taxes deferred by deficits. That’s why, as Nuno Monteiro argues, the U.S. military was already quite busy in the 1990s despite the absence of real enemies.

Because war is so cheap, the public has little reason to worry much about it. That leaves elected representatives without any electoral incentive to restrain presidential war powers. No surprise then that the imperial presidency grew as American power did. Technology gains and secrecy exacerbate the problem. Even more than strategic bombing from high altitude, which already prevented U.S. casualties, drones cheapen warfare. Covert raids are riskier, of course, but secrecy limits public appreciation of those risks.

The president and his advisors assure us that they use these forces only after solemn debate and nights spent (badly) reading just war theory. But a White House that debates the use of force only with itself short-circuits the democratic process. That is not just a constitutional problem but a practical one. Broad debate among competing powers generally produces better decisions than narrower, unilateral ones. That is why is it is naïve to suggest, as John Fabian Witt did last week in a New York Times op-ed, that the executive branch is developing sensible legal institutions to manage the gray area between war and peace occupied by drone strikes. What’s needed are checks and balances. That means Congress needs to use its war powers.

First, Congress should rewrite the 2001 Authorization of Military Force, which has morphed into a legal rationale for doing whatever presidents want in the name of counterterrorism. That bill authorized force against the organizers of the September 11 attacks and those who aided them, which seemed to mean al Qaeda and the Taliban in Afghanistan and maybe Pakistan. The new law should state that acts of war, including drone strikes, in other places require a new authorization of force. If Congress is for bombing stuff in Yemen and Somalia, it should debate those missions. Second, Congress should reform the convoluted laws governing the deployment of special operations forces, making their use more onerous and transparent. Those forces should engage in covert action only after a presidential finding, as with the CIA. Third, Congress should require that taxes or offsets fund wars. That would increase debate about their worth.

The trouble, as already noted, is that Congress has no interest in doing these things. Congressional leaders are today more interested in policing leaks about the president’s unilateral exercise of war powers than in restraining them. Short of a military disaster involving special operations forces or drones, this seems unlikely to change in the short term. In the longer term, we need a restoration of Congress’ institutional identity. Even without an electoral reason, politicians should want to exercise war powers simply because they can—because people like power. That’s the assumption behind Edward Corwin’s notion that the constitution’s is an “invitation to struggle” over foreign policy. Something has obstructed Congress’ desire to struggle. Those concerned by the president’s promiscuous use of force should try to identify and remove the obstruction.

Cross-posted from the Skeptics at the National Interest.

To (Ironically) Avoid Sequestration, Congress Could Declare War

The Senate is back in session this week as the battle over military spending, and the prospect of sequestration, continues to sizzle. Last Friday the Office of Management and Budget concluded  that war funding—also known as Overseas Contingency Operations (OCO)—would not be exempted from sequestration, contradicting the Pentagon’s earlier claims. Predictably, this has angered the GOP and provided fodder for those who oppose military spending cuts on any grounds.

But war funding—$88.5 billion for FY 2013—should never have been considered separate from military spending. This is a practice, gradually accepted in the past 10-15 years, that distorts the size of the defense budget, making it appear smaller. It provides the illusion that Congress and the current administration are fiscally responsible.

The irony of current flap over OMB’s ruling is that Congress could undo sequestration if it simply declared war. In today’s Cato podcast, Benjamin Friedman, research fellow for defense and homeland security studies, explains that the federal code, going back to the 1980s, holds that a declaration of war will reverse sequestration. But Congress doesn’t declare war anymore; members routinely ignore their constitutionally mandated obligation. Those who are the most vocal opponents of sequestration—Rep. Howard “Buck” McKeon (R-CA) and others—have a tool at their disposal that they will never consider.

Listen to the podcast below to hear Friedman provide a primer on the battle over war funding (OCO), sequestration, and the defense budget bills.

The End of the War Powers Resolution

Today is the 60th day since President Barack Obama notified Congress “U.S. military forces commenced operations to assist an international effort authorized by the United Nations (U.N.) Security Council and undertaken with the support of European allies and Arab partners, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya.”

The War Powers Resolution of 1973 said that within 60 days of notifying the Congress of the use of force “the President shall terminate the use of United States Armed Forces” unless Congress has declared war or authorized the use of force, extended the 60 day period, or is physically unable to meet because the nation has been attacked.

President Obama has a few hours to go, but I doubt that he will stop American air attacks in Libya. Indeed, the attacks have spread to Libyan ships to counter Qadaffi’s forces.

Like earlier presidents, Obama said his notification of hostilities in Libya was “consistent with the War Powers Resolution.” Now the administration has apparently decided to ignore the law completely. Obama has not sought congressional approval for the bombing. He follows the example of Bill Clinton, who ordered air strikes in Bosnia in 1995 without seeking congressional approval.

Even if you put aside the War Powers Resolution, the U.S. Constitution clearly requires congressional approval of our war in Libya. The legal scholar Michael Ramsey notes:

Every major figure from the founding era who commented on the matter said that the Constitution gave Congress the exclusive power to commit the nation to hostilities.  Notably, this included not only people with reservations about presidential power, such as James Madison and Thomas Jefferson, but also strong advocates of the President’s prerogatives, such as George Washington and Alexander Hamilton.  As President, Washington on several occasions said that he could not undertake offensive military actions without Congress’ approval.  Hamilton is especially significant, because his views on the need for a strong executive went far beyond those of his contemporaries.  Yet Hamilton made it very clear that he read the Constitution not to allow the President to begin a war — as he put it at one point, “it belongs to Congress only, to go to war.”

(See also Ramsey’s article “Textualism and War Powers,” 69 University of Chicago Law Review 1543 (2002)

Candidate Barack Obama agreed in 2007 that “the president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” Colonel Qaddafi’s forces, of course, posed an imminent threat to Libyan nationals engaged in the recent civil war in that nation. How did the Colonel or his army threaten Americans?

This time around, Congress has offered less resistance than in earlier presidential uses of force in Haiti, Bosnia, and Kosovo. They have not roused themselves even to pass a non-binding “sense of the Congress” resolution that the President should seek approval. In the 1990s, there were actual debates in Congress about the wisdom and constitutionality of various wars. Now, silence. It is easy to violate the constitutional domain of a body that is unwilling to collectively defend its powers and unwilling to take up the responsibility of their exercise.

The War Powers Resolution never worked in practice as intended. It is now moribund and should be replaced by a new effort in the courts or Congress to apply the original public meaning of the Constitution and thereby right the balance between starting and making war.

The Senate’s Interventionist Caucus and Libya

An interesting window into the politics of the Obama administration’s war in Libya may open this week, when Senators Kay Bailey Hutchison (R-TX) and Joe Manchin (D-WV) reintroduce a resolution expressing the sense of the Senate “that it is not in the vital interests of the United States to intervene militarily in Libya,” and calling on NATO member states and the Arab League, two parties who are directly threatened by the violence in Libya, to provide the necessary assets to the mission.

Such resolutions almost never have a direct impact on the conduct of military operations. Hutchison-Manchin isn’t even the first attempt to constrain President Obama’s ability to wage war in Libya. A resolution offered by freshman Senator Rand Paul (R-KY), and cosponsored by Senator Mike Lee (R-UT), went well beyond the question of whether the war advanced vital U.S. national interests, and attempted to reassert the legislature’s control over the warpowers generally. Borrowing from something that then-Senator Barack Obama said in 2007, the resolution read “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” This language, which likely strikes most Americans as eminently sensible, managed to garner just 10 votes, all from Republicans.

Still, the prospect of a vote on a much narrower resolution must worry the war’s advocates. At a minimum, an up or down vote on Libya will test the strength of the still-vocal interventionist caucus in the U.S. Senate.

These reliably pro-war members took to the Sunday shows to make the case for escalation. On CNN’s State of the Union, Sen. Lindsey Graham called on the Obama administration “to cut the head of the snake off. Go to Tripoli [and] start bombing Qaddafi’s inner circle.” Worries that the uprising might provide cover for al Qaeda to expand its operations in the Maghreb were unfounded, John McCain asserted. McCain’s long-time friend Sen. Joseph Lieberman agreed, explaining on the same program, “We’re in the fight and the political goal is to get Qaddafi out and to help the freedom fighters achieve their own independent Libya. You can’t get into a fight with one foot. You got to get into it.”

How many others in the Senate subscribe to the interventionists’ interpretation of what America’s role in Libya should be is unclear. I have never understood why Republicans would scramble to follow foreign policy advice from a Democrat, and Al Gore’s running mate, no less. Senators McCain and Graham hold more sway among their GOP colleagues, but their outspoken support for a number of other ill-considered ventures, including especially the war in Iraq, likely gives pause to some. Graham’s fellow South Carolinian Jim DeMint, for example, voted in favor of the Paul-Lee resolution, and has otherwise shown no great enthusiasm for adding to the U.S. military’s already full plate. The Boston Globe’s Theo Emery reports today that Massachusetts Senator Scott Brown isn’t yet ready to endorse an escalation of the war. Meanwhile, Maine’s Susan Collins told Emery that the U.S. military’s role in Libya should be limited to intelligence, logistics, and other capabilities that U.S. allies lack.

Who else might vote for Hutchison-Manchin? Presumably those within the Democratic caucus who still think that war is generally a bad thing, even when it is waged by a Democratic president. No Democrat voted for Paul-Lee, but Senator Manchin’s co-sponsorship of this much more narrowly worded resolution should provide cover for centrists, as well as progressives who once reliably opposed wars of choice.

One thing is clear with respect to the war in Libya: politics favors the skeptics. There is no groundswell of public opinion calling for yet another armed nation-building mission in a strategic backwater. Though the costs of the war are small relative to the gargantuan military budget, most Americans can be counted on to oppose wars that do not clearly advance U.S. national security interests, regardless of how much or how little they cost. They are doubly skeptical given that the costs of the wars in Iraq and Afghanistan have vastly exceeded even the most pessimistic of predictions, and have not delivered the security that the advocates for war claimed.

It is a truism that politics doesn’t generally drive foreign policy. People who celebrate America’s role as the world’s policeman don’t expect to reap great political rewards for taking such an unpopular stand. McCain, Graham and Lieberman have always stood apart in that regard. Recall, for example, that John McCain bragged that he would rather lose an election than lose a war. He never appeared to consider that both eventualities were possible. Perhaps some of his fellow senators will.

Cross-posted from The National Interest