Tuesday, March 29, 2011
Conservative & Liberal Agree: War Powers Act Should Apply!
In ordering air and naval strikes on a country that neither threatened nor attacked the United States, did President Obama commit an impeachable act? So it would seem. For the framers of the Constitution were precise. The power to declare war is entrusted solely to Congress. From King William’s War to Queen Anne’s War to King George’s War to the Seven Years’ War, the colonists had had their fill of royal wars. To no principle were they more committed than that the power to declare war must be separate from the power to wage it.
And Obama usurped that power.
His defenders argue that under the War Powers Act he can wage war for 60 days before going to Congress. But that applies only if the president is responding to an attack or has determined that the nation is under imminent threat. Had JFK ordered air strikes on the Cuban missile sites, he would have been responding to an imminent and potentially mortal threat. When Ronald Reagan ordered the liberation of Grenada after Marxist thugs murdered the president and 500 American medical students there seemed in danger of being taken hostage, he acted within the War Powers Act. Some 100,000 AK-47 automatic rifles were found stockpiled on the island. Reagan again acted within the spirit and letter of the act when he used the New Jersey and carrier-based air to retaliate against the terrorist camps of those who engineered the massacre of the 241 Marines in Beirut and when he retaliated against Libya and Moammar Gadhafi for the attack on U.S. soldiers at the Berlin discotheque.
But before George H.W. Bush went to war to liberate Kuwait and George W. Bush took us to war against Iraq, each went to Congress and got roll-call votes authorizing those wars. Obama worked the phones to get the approval of 10 of 15 members of the Security Council, but not Russia, China, Germany, India or Brazil. He then sought the benediction of the Arab League, which reveals much about where Obama thinks real moral authority in this world resides. The president described his reasoning: “(W)hen innocent people are being brutalized; when someone like Gadhafi threatens a bloodbath that could destabilize an entire region; and when the international community is prepared to come together to save many thousands of lives — then it’s in our national interest to act. And it’s our responsibility.”
But if Obama’s U.N. mandate was to “protect civilians” in besieged Benghazi, why did we put a Tomahawk cruise missile down the chimney of Gadhafi’s compound, 600 miles away? Saturday, Ajdabiya fell to the rebels after U.S. planes pulverized its defenders. If civilians were in danger in Ajdabiya, it was because of a rebel attack that could not have been mounted had U.S. planes not conducted air strikes on tanks and troops defending the town. What civilians were we protecting in Ajdabiya — or Brega and Ras Lanuf, all of which fell over the weekend?
A time for truth. U.S. intervention prevented Gadhafi victories in a campaign to crush an insurgency. We have since destroyed his air force and smashed his armor and decimated his ground forces to demoralize and cripple his army until its officers realize they cannot survive weeks of U.S. bombing — and they move to remove or kill him. America is fighting the rebels’ war. So the questions arise that were never answered when Obama ignored Congress to start his war. Who are these rebels, some of whom belong to al-Qaida, as others show their hatred of Gadhafi by smearing his posters with a Star of David?
When we win the rebels’ war for them, whom do we put in power? Who is our Hamid Karzai? What allied troops come to occupy Libya? Many NATO nations have spotty records there. The Turks ruled it in Ottoman days. Benito Mussolini held it for 20 years. Gen. Erwin Rommel, a Hitler favorite, used it for his desert campaign against the British. What credibility will our Libyan proteges have when all in Libya know they hold office because Americans came and killed their army?
How many troops will it take to police the smashed cities and prevent reprisals? Who provides those troops? If a Battle of Algiers war begins, as happened in Iraq and Afghanistan and are still going on, who fights that war? And if a regime’s use of violence against protesters justifies a U.S. attack, does Obama have carte blanche to attack Syria and Iran?
Israeli Foreign Minister Avigdor Lieberman thinks so. As he said in Paris: “The same principles, activities, the Western world has taken in Libya … I hope to see those regarding the Iranian regime and the Syrian regime.”
Is Libya the dress rehearsal for Syria and Iran?
Neocons could not be giddier. Weekly Standard editor William Kristol is ebullient: “Despite his doubts and dithering, President Obama is taking us to war in another Muslim country. Good for him.” Perhaps. But will bloodying another Muslim country be good for America?
These might be related:
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It’s Their War, Not Ours ... By Patrick J. Buch anan
The Generals’ War ... By Patrick J. Buch anan
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What War With Iran Means ... by Patrick J. Buch anan
Why is Kosovo’s Rebellion Our War? ... by Patrick J. Buch anan
To Lose a War ... By Patrick J. Buch anan
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Will Obama Play the War Card? ... By Patrick J. Buch anan
Obama's Humpty-Dumpty war
By MICHAEL KINSLEY | 3/29/11 4:45 AM EDT
It really couldn’t be clearer. “The Congress shall have power … to declare war.” These are probably the most egregiously ignored words in the Constitution. You would think that Republicans, especially, with their showy fondness for “originalism” and “plain meaning” in interpreting the Constitution, would have no problem interpreting the meaning of these words: If a president wants to go to war, he must get the approval of Congress.
Presidents of both parties traditionally ignore the congressional war power when they feel like it. Or they wait until the troops are poised for battle, putting Congress in an impossible position, before asking permission. One good thing that may come out of our Libyan adventure is a renewed appreciation by Republicans of the Constitution’s limits on a president’s power to take the country into battle. Of course, this must be balanced against the Democrats’ renewed amnesia about the same thing.
Then there is the War Powers Act, enacted by a Democratic Congress over President Richard Nixon’s veto, basically giving the president 90 days from the start of hostilities to come to Congress for approval. At the time, this was widely believed to be unconstitutional because it gave too much independent power to the president. More recently, presidents have felt free to ignore the War Powers Act because, they say, it unconstitutionally restrains the commander in chief. It’s the Constitution that anoints the president “commander in chief.” But the notion that this gives a president unilateral authority to take this country into war — while, by contrast, the congressional power to “declare war” places no limits on someone else’s (say, the president’s) authority to do the same — puts you in Humpty-Dumpty territory, where a word “means just what I choose it to mean, neither more nor less.” A commander at any level doesn’t get to choose the enemy.
It used to be argued, before presidents stopped even bothering to argue the point, that the congressional war power was outmoded in a century in which the characteristic war was or would be a surprise attack. The Russians could obliterate 20 American cities in the time it took for Sen. Slowbrain to conclude his opening remarks at the first of a half-dozen hearings.
Constitutional provisions don’t disappear just because they seem outmoded. But in this case, the provision is not even outmoded. As it develops, the characteristic American war of the 21st century is perfectly suited to the constitutional requirements. Typically, something horrible is going on far away, and we have to decide whether to intervene. There is no element of surprise on either side. The decision to go to war is ours. That decision is usually made slowly, deliberately and more or less publicly, with officials popping up all over TV explaining and justifying. Libya was a bit hastier than average, but there still could have been time for a congressional resolution, if the president thought it was required, which he didn’t, though it is.
But he used to. As John Dickerson points out in Slate, President Barack Obama has flip-flopped on this issue just as egregiously as Newt Gingrich (although not as quickly). He said 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.” As Bruce Ackerman points out in Foreign Policy, Obama’s flouting of the war power is arguably more egregious than George W. Bush’s, because Bush did in the end get authorization (claiming all along that he didn’t need to).
You might ask why, if this is all so clear, the Supreme Court has never said so. How have so many presidents gotten away with it? Goodness, with all the lawyers around, can’t someone sue? The answer is that yes, of course you can sue. Anybody can sue anyone about anything. But that doesn’t mean you can win. No court, certainly not the Supreme Court, will try to stop a presidential war in progress. They’ll say it’s a “political question.” Or it’s a dispute between the other two branches, and the court won’t interfere. Or the plaintiff lacks “standing to sue.” We’re so used to judicial review — judges overturning laws and other actions by the government — that we tend to think that judges always get the last word on what the law is. And we find it hard to wrap our heads around the idea that something can be the law, even when it can’t be enforced. Judges usually do get the last word, but sometimes they beg off before someone starts asking, “How many divisions has the Supreme Court?” Intervening in an argument between the president and Congress and trying to stop a war in progress is something they will never do. And that’s OK — provided that the other two branches fulfill their own independent duty to uphold the Constitution.
It’s a mystery why presidents even want the unilateral power to take this country into war. That must surely be the most terrible decision a president has to make. You would think that having to share the credit is a small price to pay for getting to share the risk. And why should members of Congress get to mouth off about war all day but not have to take shared responsibility for the yes-or-no decision?
Michael Kinsley is a columnist for POLITICO. The founder of Slate, Kinsley has also served as editor of The New Republic, editor-in-chief of Harper’s, editorial and opinion editor of the Los Angeles Times and a columnist for The Atlantic.