Monday, March 28, 2011

Presidential War Powers Must Be Clarified

President Obama’s decision to militarily intervene in Libya has caused a backlash among both the left and right in America. Many in Congress are furious that the President acted without congressional authorization and have said that merely consulting congressional leaders and keeping them informed of developments is woefully insufficient. A debate about presidential war powers, which should have happened in the aftermath of the invasion of Iraq in 2003, seems about to begin.

This is not to say that Obama’s decision to use force in Libya was necessarily wrong. The United States is acting under the authority of a resolution from the United Nations Security Council, which is more than President Bush could say when he unilaterally invaded Iraq in 2003. More to the point, it appears that the allied air strikes and implementation of a no-fly zone prevented a wholesale massacre of innocent civilians in Benghazi. Still, the congressional critics of the action are making an excellent point, and a national debate on presidential war powers would do the country a great deal of good.

The Constitution is crystal clear that only Congress has the power to declare war. Not the President, not the courts, not the states. Congress, and Congress alone. The 55 men who created the United States Constitution invested the power to declare war with Congress rather than with the President because they did not want the President to have so much power that he would become a de facto monarch. But the Constitution also says that the President is commander-in-chief of the armed forces, and does not provide an exact definition of the word “war”.

Technically-speaking, the United States has declared war only five times in its history: the War of 1812, the Mexican-American War, the Spanish-American War, the First World War, and the Second World War. Since 1945, however, conflicts such as the Korean War, the Vietnam War, the two wars against Iraq and the campaign in Afghanistan have not been fought without a congressional declaration of war, but with congressional resolutions approving the action obtained at some point. On two other occasions, in Grenada in 1983 and Panama in 1989, the President ordered the military to occupy small but independent nations. In 1999, a limited war was fought against Serbia. Each of these post-1945 conflicts were initiated not by Congress, but by the President, with congressional approval only coming later and often only after a deceptive propaganda effort by the executive branch.

Of course, over the course of its history the country has undertaken literally hundreds of small-scale military operations for limited objectives. Examples include the naval campaign launched by Thomas Jefferson against the Barbary Pirates of North Africa in order to protect American ships, innumerable interventions in Latin American countries to protect American economic interests, and such operations as the American participation in the suppression of the Boxer Rebellion in 1900 or the failed attempt to rescue the hostages in Iran in 1980. It would make no sense to classify these limited operations as full-scale wars.

The last time we had a serious debate on presidential war powers was in the wake of the American defeat in the Vietnam War, when Congress passed the War Powers Resolution of 1973. This requires the President to notify Congress within two days of the beginning of any military action that such an action is taking place, and gives a 60 day window (with an additional 30 days for a withdrawal) for combat operations to last, after which Congress must approve of any further continuation o the operation.

But because the War Powers Resolution has never been tested in the courts, its constitutionality is open to question. Most administrations have been of the opinion that it is, in fact, an unconstitutional infringmenet on the President's powers as commander-in-chief. Besides which, even if it is constitutional, it still gives the President a blank check to launch military operations that last less than two months. Does the President have the constitutional right to bomb Canada if the mood so strikes him?

Our country is in desperate need of a comprehensive clarification of presidential war powers. If the congressional power to declare war is reduced to a mere legalistic footnote, then any President will have the ability to initiate major military action on a whim. This not only increases the likelihood of our troops being put in harm’s way for dubious reasons, but threatens to further drain our financial resources just at the very moment when the national fiscal crisis is coming to a head.

A clear distinction must be drawn between a full-scale war, in which the United States seeks the complete defeat of another nation, and more limited military operations. A limited military operation might be against a non-state entity such as Al Qaeda or a brief operation against a state to achieve limited objectives, such as the current campaign against Libya. No one doubts that only Congress can initiate a full-scale war, but what role should Congress play in initiating limited military operations? Surely the need to preserve the separation of powers and ensure proper checks and balances requires that Congress possess some sort of veto on such operations.

In some cases, the President clearly needs the ability to respond with military force quickly, such as in the event of a surprise attack or the need to launch a mission to rescue American hostages whose lives are in danger. No one disputes this, but the protocols should be clarified by appropriate legislation to prevent presidential abuse.

Likely to be more controversial are those limited operations that are planned ahead of time and which may involve action against another sovereign nation. In this category would fall the cruise missile attacks launch by President Clinton against targets in Sudan and Afghanistan in 1998, and the hypothetical strike against Iran or North Korea in order to neutralize their nuclear weapons programs. From a practical point of view, it would be impossible to have a long, drawn-out public debate in Congress before launching such operations, the success of which depends on the element of surprise, but neither can the country simply delegate the power to do so to the President.

Perhaps legislation could be crafted requiring the President to obtain the approval the recognized leaders of Congress (the Speaker of the House, the President pro tem of the Senate, and the majority and minority leaders of both chambers) before launching a limited military operation, with exceptions obviously being made for responding to surprise attacks or rescuing endangered American citizens. In this way, Congress can regain some of its constitutional war-making authority, while not interfering with the practical aspects of military operations.

A central plank of any rational foreign policy must be the need to avoid war unless it is absolutely necessary. Wars endanger the lives of our men and women in uniform, are ruinously expensive, and have a tendency to run out of control. Therefore, a national debate about the extent of presidential war making powers should be placed near the front of our national discourse.

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