Wednesday, June 22, 2011

A Does It Make Sense to be Outraged by Presidents' "Illegal Wars"

The Constitution states, "The Congress shall have Power... To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water...." As everybody reading this is aware, the United States has not entered a declared war since WWII. We didn't declare war in Korea, Vietnam, Grenada, Iraq (either time), Afghanistan, Panama.... it's simply no longer done. Congress doesn't want that responsibility, so it finds ways to grant broad war-making powers that a President can use to justify starting a war (even if Congress later protests that it didn't intend to authorize an actual war), or chooses to sit on its hands when the President acts unilaterally. The War Powers Resolution is not an impressive piece of legislation - it's an attempt to formalize the delegation of Congress's war-making power to the President, while keeping the President at least modestly accountable. It says something that Congress has never attempted to enforce that law against a President, and has not amended the law in response to past abuses.

So the President involves the U.S. in a war in Libya and comes up with a tortured rationale for why he doesn't have to go before Congress under the War Powers Resolution if he wishes to continue that war? Par for the course (and you know how presidents like golf). The Democrats seem content to let the President take the heat if things go wrong, and fear looking weak if they oppose war, while the Republicans seem to fear looking weak and fearful if things go right. The Republican majority in the House would love to hurt or embarrass the President over a violation of the War Powers Resolution, but... not if it means being depicted as weak on terrorism, pro-dictator, anti-democracy, or any of the other accusations they so recently hurled at anybody who dared question the wisdom of the wars in Iran and Afghanistan.

A worst case scenario for the Republicans is to successfully end the war in Libya and have Gadafi remain in power. Meanwhile the Democrats want to be able to ride Obama's coattails in the event of a victory, but don't want to be accountable if they approve military action and it does not succeed. It looks like I could count on my fingers, perhaps on one hand, the number of Members of Congress who would vote on this war without first checking how the various outcomes might affect their reelection bids. So as it stands neither side will take any meaningful action.

I suspect that when Robert Gates was angrily complaining that Europe wasn't able to do its part in the war in Libya, it was in no small part due to the fact that the war isn't over. I expect that President Obama entered the conflict with the assurance that France and Britain were up to the task, and that the bombing campaign would succeed within a month, two at the outside. Now he has to explain why he's not going before Congress - a Congress that could take action on its own, and which by all appearances doesn't want the President to seek approval for the war - for a war that's supposed to already be over.

Do you expect that Congress will act? That it will defund the war in Libya? That it will amend the War Powers Resolution to impose real consequences if a President ignores its terms - such as automatically defunding the dubious military action? If not, do you truly perceive the war in Libya as inconsistent with the intent and wishes of Congress? Not so much in terms of, "Congress would have voted for the war," but "Congress doesn't want this, or any, responsibility for war"? If you want to be angry at somebody over an "illegal war", it seems that the most suitable target for that anger is Congress.

Update: Ilya Somin observes,
Regardless, for the foreseeable future, the main constraints on unconstitutional presidential activity must come from outside executive branch — that is, from Congress, the courts, and public opinion. These constraints are highly imperfect. But they do impose genuine costs on presidents who cross the line. Ackerman cites the Watergate scandal, Iran-Contra and the “torture memo” as examples of the sorts of abuses of executive power that need to be restricted. True enough. But it’s worth remembering that Nixon was forced to resign over Watergate, Reagan paid a high political price for Iran-Contra, and the torture memo was a public relations disaster for Bush, whose administration eventually ended up withdrawing it (thanks in large part to the efforts of Jack Goldsmith). On the other side of the ledger, Bill Clinton paid little price for waging an illegal war in Kosovo, though he avoided it in part by keeping that conflict short and limited. It remains to be seen whether President Obama will suffer any political damage over Libya.
The greatest damage President Obama could suffer in Libya would be if he were to end the conflict while leaving Gadafi in power. That's not going to happen. If Congress acts, I expect it will be to authorize the President's action (even if he doesn't ask them to do so).

Update II: Digby quotes Matt Taibi and shares some thoughts on the Repubiblican candidates' "sudden change of heart" on war.

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