Monday, June 20, 2011

Obama/Libya/War Powers 1

What should we make of Barack Obama's actions with respect to Libya and War Powers?

I'm going to split my comments into two posts. In this one, I'll talk about the specific question of War Powers. The bottom line on that, to me, is that it's not nearly as big a deal as some believe.

Here's my thinking about it. The constitutionally mandated balance between the president and Congress turned out, in practice, and perhaps increasing over time, to favor the executive. Congress tried to redress this by passing new procedures in the 1970s, but the mechanism involved has pretty much been useless from the very start. Indeed, I agree with Scott Lemieux that Congress mostly likes it that way. 

So is that tyranny? And is Barack Obama's decision that the hostilities in Libya are not "hostilities" in ways that trigger action under the War Powers Resolution a further step along that tyranny?

In my view, no, albeit a qualified no. 

The main hesitation I have is that I'd certainly be happy to see Congress take a more active role in foreign and military policy, including decisions to go to war. To the extent that questions of war and peace are far more concentrated in the presidency than the Constitution envisioned, that's a bad thing, in my view.

However, there's little that can be done about Congress's preference for ducking these things.

The question is when presidential actions go too far, and it seems to me that there are two very important types of action to be concerned about, neither of which appears to apply here. The first would be cases in which the president authorizes new conflicts in secret -- perhaps the greatest historical example is the bombing of Cambodia, but there are other examples. It's one thing for Congress to (in most cases) passively acquiesce with whatever the president wants; it's a much more serious business for Congress to not even know what it's going along with. 

The second type of case would be ones in which the president circumvents what Congress says: that's the Iran-Contra case. Again, it's too bad that Congress normally takes a passive role, but it's important that when it does properly assert its Constitutional authority that the executive follows Congressional restrictions. 

The Libya case doesn't fit into either of those; it certainly isn't secret, and there hasn't been any Congressional action for the administration to contest. Congress is perfectly free to act (and, as far as we know, to take informed and binding actions), regardless of whether Obama follows the War Powers Resolution procedures or not. So while I do not dispute those who say that Obama is wrong on the law here, I'm not at all convinced that that's a distinction that matters very much. What saves the US from presidential tyranny is an active, engaged, independent Congress. If we have that, then the War Powers Resolution is unnecessary; without it, the War Powers Resolution won't really help, regardless of how the president acts. 

I'm far more concerned, to tell the truth, about extensions of the "War on Terror" into various locations outside of Afghanistan. Since those actions are covert operations, it's far too easy for the president to keep Congress in the dark. If that's happening, and I worry it is, it's a far more serious violation of the Constitutional balance even if the president could make a decent case that those actions are authorized by Congressional action way back in 2001, because if Congress is ignorant of important actions then Members cannot judge for themselves, as they are entitled to do, whether they want those actions to continue. 

But with Libya...if Members of Congress want to act, they can do so, regardless of whether the president considers what's happening "hostilities" or not. 

As for what Obama's getting wrong here...I'll save that for the next post.


  1. I must say I like your second post quite a bit more than this one. I completely agree with your point here that Congress has the ability to act and the best outcome would be for Congress to take a more active role in these sort of matters. And the extensions of the War on Terror are indeed disturbing, perhaps more so than the war in Libya. But I think it's odd to limit the problematic "going too far" actions only to those that are done in secret or which directly contravene the expressed will of Congress, basically because other actions do not amount to "tyranny."

    That may well be true, but it's a rather extreme way to view it which I read as "not tyranny and therefore not really something to worry about." It's the dismissal of the "hostilities" question that really strikes me as a bad conclusion.

    Obviously warfare is changing dramatically, to the point where unmanned devices are going to be doing a lot of the warfare in future years. Obama seems to be clearly articulating a viewpoint of the WPR whereby if American service members are not being shot at then we are not engaged in hostilities (perhaps the formulation is not quite that strong, but close, I think). Basically if a robot flies over a country and blows up a building and kills 25 people, that's not a form of war.

    I don't know how novel this argument is, but I think it's clearly a dangerous one. It's perhaps not technically unconstitutional--who knows since the courts never really weigh in on these issues--and calling it "tyranny" would likely go too far (I didn't realize anyone was framing it that way), but that doesn't mean it isn't a terrible reading not only of the "hostilities" phrase of the WPR, but also a terrible definition of what does or does not constitute warfare in the 21st century.

    Given that, what becomes especially problematic about Obama's policy here is the potential for it to set a precedent, and that potential seems high. Here we have a liberal, one time outspoken opponent of the Iraq War (and of Libya type actions) ratifying a view of warfare and hostilities that gives license to the president to engage in significant bombing campaigns without ever needing to re-read the WPR. Again, that strikes me as very dangerous.

    So if one concedes that this isn't tyranny, that Congress isn't doing its job, and that the constitutional questions are at least debatable, we are still left with a president who offers an interpretation of "hostilities" that seems to fly in the face of reality and which will likely make it easy for future presidents to engage in significant warfare whilst making rather Orwellian claims that it is not warfare. To me the legal niceties of this issue are less important than that basic point.

  2. Geoff,

    Thanks for the thoughtful comment. My disagreement is basically with the idea that the War Powers Act is important. As far as I'm concerned, it's never worked, there's no reason to think it will work in the future, and so making a mockery of it (as Obama is certainly doing) doesn't really matter -- as long as Congress retains the capacity for action.

    What matters is when the president undermines the capacity of Congress to act. Oh, I should mention: in addition to what I talk about above, another type of problem is when the president flat-out lies to Congress, as was the case with Vietnam and Iraq.

    As long as Congress is able to challenge the president, I'm really not concerned about the WPR procedures. Presidents can make all the silly "not warfare" claims they want, but those claims are only meaningful with respect to WPR procedures. Nothing else. OTOH, if the president keeps drone activity secret, or tells (substantive) lies about the situation, well, that's a very big problem.

  3. Thanks for your response, allow me to type some more stuff here because I think this is a BFD, as they say. I agree that the War Powers Resolution has not worked and probably never will, and maybe it's thus worthy of mockery in a sense.

    While it might not have any real authority, it's certainly part of how the current discussion is framed--a discussion which matters a great deal both now and going forward. Obama is the president and any "reading" by him of the WPR is automatically influential (above and beyond the WPR itself even), in part because presidents don't regularly offer legal opinions as to what they are allowed to do under the constitution in terms of ordering military action.

    Whether or not we have a WPR, that will always be an open question, particularly as it relates to the involvement of Congress. Obviously some situations are not really controversial. Scrambling fighters to shoot down Chinese planes that come out of nowhere and attack California, no problem if the president doesn't go to Congress first. Ordering a massive land invasion of China because we don't like their Middle East policy, Congress better have given the okay.

    But that's not what we'll usually be dealing with, rather it will more often be a situation like the one in Libya and that's why I'm emphasizing the precedent aspect. Hypothetically speaking, if the WPR was struck down by the Supreme Court next year (it won't be obviously), and then in 2014 President Romney decided to start bombing Hezbollah in Lebanon without there being an imminent threat from them, he might well argue that he didn't need to deal with Congress because we were only going to use drones and missiles and they wouldn't really be able to shoot back at us. He also very likely would cite the arguments the Obama administration made about the WPR with respect to Libya, and would say that, while made only in the context of the WPR, those were a good guide for how presidents can deploy military assets in the 21st century (and that's coming from the most liberal president ever! or something).

    Could Congress, in that case, still step in and refuse to fund any of the operations? Probably yes, but there would still be a debate about the constitutional issues with or without the WPR, and the Obama folks are outlining a view that offers strong fodder for anyone arguing for a pretty maximalist view of executive power in the area of warmaking (except not really because drones shooting missiles is not really a form of war, and boy do I agree with Boehner on the "smell test" comment here).

    I think that's a big deal and perhaps a new argument coming from a president (I really don't know). Again putting aside the WPR and all other technical arguments, I find the notion that unmanned machines killing people abroad should not really be considered a form of warfare to be a genuinely terrifying argument, and I think that's clearly the logical conclusion to what Obama's lawyers are saying. If John Yoo makes that argument then it doesn't mean much, but Barack Obama making that argument is big, bad news.

  4. "But that's not what..."

    Here's what I think: if in 2014 Pres. Romney attacks Lebanon, he makes the same arguments regardless of what Obama says now; Congress has the same options in response regardless of what Obama says now; and while I'm sure in that circumstance some people will note the hypocrisy of Democrats who supported Obama's argument now (if there are any) flipping, so what? I don't see that it will affect anyone, so I'm not going to care about it.

    Just to be clear: I definitely do think that new technologies and new circumstances raise new issues about who can influence policy, and how. I just don't see this Obama decision as a major precedent of any kind.

  5. No need for a response here Jonathan--thank you kindly for responding already--and anyway you might not notice this comment, but I guess our difference comes in terms of who it effects and how. If Obama says this is okay, then a lot of people who really like Obama will have that "okayness" stick with them for awhile, maybe into 2014 and Romney in Lebanon (and well beyond).

    I'm admittedly more in the activist mode of thinking on this one, and as active opposition to overweening executive authority is already difficult as it is, I see Obama's stance as particularly problematic. It will likely influence a lot of young "liberals" who would no doubt be singing a different tune if McCain was president, or if Obama had approached this differently.

    Those kind of folks will continue to influence our politics for a long time, which is part of why I above emphasized the fact that this is an ongoing part of our political debate.

    Obama's stance is a big setback for my (already pretty damn weak) side on this particular political question. It's extremely difficult to organize against the idea of presidents having huge war authority when both Bush and Obama are largely on the same page.

  6. Please Obama stop the Libyan war and emmediately pull your troops back home. Your economy is in shambles and employment rate low.Otherwize you are gona lose badly next election.



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