Sunday, June 26, 2011

War Powers Resolution is not optional

Barack Obama is following an ugly tradition
by Mark Sumner

The president is the Commander in Chief. We get that. It's right there in Article II, Section 2 of the Constitution. The Army, the Navy, and all the other branches of service are his to command. Nobody disputes it.

Muammar Muhammad al-Gaddafi is a despot. A violent, egotistical, sociopath who under the guise of creating a democracy instead fashioned a surveillance state where one Libyan in five is charged by the government to keep tabs on his neighbors. Under Gaddafi's control, Libya became a place where all dissent was crushed through imprisonment, torture, and murder. It also became not just a breeding ground for terrorists, but a financier for terrorist activity. Nobody seriously disputes this.

Those Libyans in rebellion against Gaddafi are fighting for some measure of the freedom that has been denied them for over four decades. There's no doubt their cause is worthy, and no doubt that without external intervention Gaddafi would use military forces to destroy all opposition, no matter what the body count. Anyone who disputes that better have one hell of a good argument on their side.

For these reasons, it is completely understandable that the United States, along with many other nations, would feel compelled to reach out to those involved in the Libyan uprising. After a decade of what appears to be worse than fruitless military activity in Iraq and Afghanistan, many Americans are reluctant to see our forces engaged anywhere overseas, but the president was certainly within the powers of his office and acting from a understandable desire to do the right thing when he ordered the use of American aircraft and missiles in the defense of Libyan civilians under threat from Gaddafi. Personally, I applaud this action.

But my applause ends when the president refuses to take the case for action before Congress in accordance with the War Powers Resolution.

Granted, no president likes this act. It was passed over the veto of Richard Nixon. Numerous administrations have failed to answer to the War Powers Resolution at all, and those that have filed reports under the act – as in the letters sent to Congress when the US invaded Haiti and Bosnia during the Clinton administration – have often been carefully circumspect when it comes to admitting the constitutionality of the War Powers Resolution. Even in actions as large as the First Gulf War, going before Congress happened long after troops had been deployed and action was certain; well after the deadline for the act had passed. Multiple presidents have either openly scorned the act, or pretended that it did not exist.

It can be argued that actions using military forces in atypical roles, like the Desert One rescue attempt, should not be subject to the act. It might even be argued that military actions that begin and end within the 60-day window the act provides for "unavoidable military necessity," such as the invasion of Grenada, can ignore the reporting requirements without consequence.

The actions in Libya fit neither of those descriptions. US military involvement in Libya has passed both the initial 60 day window of the War Powers Resolution and the optional 30 day extension.  There's no doubt it has gone on long enough to fall outside the bounds of emergency action.

The other argument, the "this isn't really a military action" argument, would be laughable, were it not so dangerous. The use of automated weapon systems and remote-controlled drones is increasingly the way that the United States fights its wars. President Obama, in his speech announcing the impending reduction of forces in Afghanistan, held up the Libyan model as an example for future conflicts. Violence done by push button is no less violence. Not having boots on the ground does not absolve the United States of involvement, and doesn't absolve the president of owning up to his responsibility.

The reporting requirements of the War Powers Resolution require that the president face Congress whenever United States forces are introduced
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; 
(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces;
Arguing that "forces" doesn't apply when pilots are seated half a world away and only their weapons are slashing through Libyan skies is not only disingenuous, it's another step toward making any action appropriate so long as the human costs are limited to the other side. It's a step toward not just "us and them," but "we who can fight without danger to ourselves, and those who must sit and take it." Arguing that it's not military action if we can inflict damage without taking damage is not a position the United States should find comfortable.

But making war safe for robots is not the real reason that the Obama administration has failed to follow the reporting requirements of the War Powers Resolution.

The real reason is that this administration, like several predecessors, wants to behave as if the president were not only commander in chief, but commander and only. They feel as if reporting to Congress on this matter would mean giving the president's opponents the opportunity to question the way this action is being prosecuted, give the Congress a chance to monkey with the president's vision of the path ahead, and force them to clearly surrender a non-insubstantial claim to power. At the same time, many in Congress would just as soon dodge the responsibility for sending troops into action and incurring the cost of military action in both dollars and blood. They'd rather complain about the president not following the law, than actually get their hands dirty in dealing with the root issues.

But they can't. They can't because back in Section I of the Constitution it's the Congress, not the president, which is given the right to declare war. If they think failing to declare war can avoid the issue, they're also wrong about that. Congress is also charged with dealing with the actions of pirates, with international criminals, and with other actions necessary to secure and enforce international law. The president may be the commander when action is underway, but choosing to engage in action is clearly a task assigned to the Congress. The president may really want the job, the Congress may be more than happy to let him have it, even as they whine about it. That doesn't mean this should continue.

In refusing to report to the Congress under the War Powers Resolution, President Obama is following in a ugly tradition. He's upholding the president's claim to extraordinary powers, rather than submitting to the Constitution and the law.

Mitch McConnell and John Boehner may find it acceptable that their feelings on the president's war powers change with the party of the president. It isn't.

Is it possible that if the president does report to Congress, he'd get his nose bloodied in public? Yes. Is it possible that he could take a punch from members of his own party for how he's gone about this action? Yes. It's even possible that through some chain of events this could lead to ending actions in Libya and the abandonment of those Libyans who have risked their lives to confront Gaddafi. It's not likely, and if it happened it  would be both regrettable and tragic. But it would also be far better than continuing to pretend that this is not military action, or that the president is above the law.

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