Congress Has War Powers, Too

And it is time to start using them.

Andrew C. McCarthy
Wednesday, June 01, 2011

Which is worse: bad leadership or no leadership? That’s a question for a Congress that remains AWOL while young Americans continue to be placed in harm’s way in military missions increasingly divorced from American national interests. Like developments in Afghanistan and Iraq that cry out for a public examination of what U.S. forces are doing overseas, President Obama’s incoherent war in Libya brings increasing urgency to the question.

To recap, the president unilaterally ordered air strikes in Libya despite the fact that Moammar Qaddafi’s regime had neither attacked nor threatened the United States and that the regime was considered a valuable American ally in the war on terror by the Obama administration, just as it had been by the Bush administration. Indeed, the Bush State Department had opened the foreign-aid spigot to Qaddafi, and settled past terrorism claims against him, after the dictator forswore the pursuit of nuclear weapons and shared intelligence on al-Qaeda supporters in his country. Those supporters largely hail from eastern Libya, which — surprise! — is now the stronghold of an opposition affectionately called “the rebels” by pro-interventionists. That opposition is better understood as the Libyan mujahideen — Libya having sent more jihadists to fight against American forces in Iraq than any other country proportional to its population.

If you’re not dizzy enough yet, President Obama started out even more enthusiastic about Qaddafi (an Obama admirer) than was his predecessor. Foreign aid, including military aid to the brutal regime, was increased. Moreover, when violent unrest broke out, Obama gave Qaddafi the same kid-gloves treatment he extended to anti-American dictators repressing their opponents in Iran and Syria.

Soon, though, Obama convinced himself that Qaddafi was about to fall. This misimpression was compounded by European pressure (driven by the continent’s dependency on Libyan oil reserves) and by what Victor Davis Hanson sagely diagnosed as a desire to avoid being seen as once again trailing rather than leading events, as in the case of Egypt. All this together induced a lethal flip-turn, and the president announced that it was time for Qaddafi to go.

Yet, Obama’s unprovoked military offensive, in conjunction with NATO, is ostensibly divorced from this stated American goal. We began attacking Qaddafi’s forces and his compound while disavowing any intention to oust him. We are there only to protect civilians, administration officials maintain. Meanwhile, attacks against Qaddafi intensify, “rebel” atrocities against black Africans are ignored, and intervention hawks like Sen. John McCain (until recently a supporter of the U.S. embrace of Qaddafi) advocate that the rebels be armed and trained, notwithstanding their known terrorism ties.

Obama did not seek congressional authorization to commence combat operations in Libya. In compliance with the 1973 War Powers Act (WPA), however, he notified Congress about his commitment of U.S. forces. This triggered the 60-day time limit within which the WPA instructs a president to either obtain congressional approval or withdraw U.S. forces. That deadline came and went on May 21 with no congressional authorization and no movement to wind down the mission — even though, when he began bombing, Obama had assured Americans that the mission would last “days, not weeks.”

The WPA is probably unconstitutional. It was enacted over the veto of an embattled Pres. Richard Nixon, and, ever since, presidents of both parties have regarded it as non-binding, though they have substantially complied with its terms to avoid a constitutional showdown. I could exhaust you with a couple of thousand words on the relative merits of the arguments pro and con, but that would be pointless, for two reasons. First, WPA disputes between the political branches are not justiciable. The federal courts are not going to intervene, certainly not with a left-wing Democrat in the White House. Such controversies were meant by the Framers to be worked out politically, not by resort to the courts.

Which gets us to the second and more important point: The WPA is craven. It is designed to allow Congress to carp from the sidelines or stay silent without being accountable. Presidents are implicitly encouraged to initiate hostilities, and the issue becomes whether they comply with the WPA’s arbitrary deadlines. Of course, in the absence of an attack (or at least the threat of an attack) on the United States, presidents should never take the nation to war without the approval of the people’s representatives; the salient issue in debates over the use of force is whether war is necessary to advance some vital American interest. If the stakes involve something important enough to go to war over, fidgeting over 60-day time frames is frivolous.

The WPA is sideshow. The Framers vested Congress with not only the power to declare war but also with the power of the purse. Federal legislators don’t need to wait 60 days. They can vote at any time to deny public funds to a presidentially initiated war, and they can deny the aggression political legitimacy by voting against the use of force. But such congressional action requires leadership rather than gamesmanship. With rare exceptions, today’s lawmakers would rather lie low in the tall grass.

Our young men and women deserve much better. In the absence of congressional debate over the Libyan intervention, the administration has not been compelled to clarify American goals. If the true objective is protecting civilians, how does doing so in Libya advance American interests? Are there limiting principles, or is our financially strapped nation now obliged to be the world’s policeman and, ultimately, the world’s nation-builder? Why Libya but not Iran, Syria, Yemen, Tunisia, Bahrain, Sudan, etc.? And if, as Stanley Kurtz persuasively argues, the Obama administration is stealthily sowing a novel “responsibility to protect” doctrine into international law, what are its ramifications? Why wouldn’t it, for example, justify other uninvolved nations to impose their policy preferences on American allies (such as Israel) under the cover of protecting “oppressed civilians” (such as the Palestinians)?

The road to jihadist terror is paved from here to Afghanistan, Gaza, and Kosovo with good intentions toward besieged Muslim “rebels” who invariably turn out to be virulently anti-Western and allied with Islamic militants. How do we know Libya is not a rerun of that costly error?

With a few honorable exceptions, Congress is sitting on its hands rather than pressing for answers. Meanwhile, President Obama takes the imperial presidency to warmaking heights George W. Bush would have been flayed for even contemplating, much less trying. The antiwar Left has gone mute — proving yet again that its main objection is not to war but to commanders-in-chief whose names are followed by the designation “R.” The Republican leadership is feckless — making very little noise, and doing even less.

As we learned in the Bush years, lawmakers love to yap about Congress’s constitutional war power. That power, however, is a duty not a debating point. It’s a duty on which the current Congress is derelict.