The President, the Constitution, and National Security

A response to Lindsey Graham

Andrew C. McCarthy
Saturday, November 12, 2011

Position One: The president has the authority to launch war unilaterally — without any authorization from Congress — in the absence of an attack, or even a threat of aggression, against the United States; and he may do so by invading a country with which the United States is not only at peace but in alliance — a counterterrorism alliance subsidized by American taxpayers.

Position Two (and this one is worth quoting): “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

So which is the right stance? It’s a salient question for Republican presidential contenders, who often claim the mantle of “constitutional conservative” — fidelity to our founding law being a worthy litmus test of conservative bona fides. It is also a pressing question: The GOP candidates are preparing for a November 22 debate that will focus on foreign policy.

That is a crucial topic in any presidential contest, but one oddly overlooked in this election season. That is understandable. The ravaged state of the Obama economy is foremost in the minds of voters, and thus makes disproportionate demands on the candidates’ attention. Still, the Constitution these candidates claim to champion contemplates a modest executive role in domestic policy. We have a president, rather than a parliament or a committee, primarily to pursue and defend American interests in the international arena. Surely, in wartime, a would-be commander-in-chief’s conception of presidential war power ought to rank high among our concerns — maybe even as high as whether Herman Cain vanishes when it’s time to pay the wine tab.

The first of the afore-described positions on war powers is the one taken by Sen. Lindsey Graham during the recent Libya misadventure. It is particularly worth noting because the South Carolina Republican has just penned a lengthy disquisition on what he sees as the foundation of a conservative foreign policy. That foundation, which he ardently urges GOP candidates to embrace, does not mention, much less address, the Constitution. There is a single, fleeting reference to the “constitutional” rights of alien enemy-combatant terrorists. Yet nowhere, in over 5,000 words, does the senator see fit to address whether the Constitution the president takes an oath to defend might actually inform how he should carry out his constitutional responsibilities.

Executive foreign-affairs powers are not exactly defined. The Constitution marks no black-and-white boundary beyond which the president must give way to congressional authority. The framers’ handiwork is ingeniously flexible in that regard, a testament to their sage humility — an attribute sadly lacking in today’s central planners. “If a Federal Constitution could chain the ambition, or set bounds to the exertions of all other nations,” Madison observed in Federalist 41, “then indeed might it prudently chain the discretion of its own Government, and set bounds to the exertions of its own safety.” But in the real world, he knew, “security can only be regulated by the means and danger of attack. They will in fact be ever determined by these rules, and by no others.” Because “it is impossible to foresee or define the extent and variety of national exigencies,” Hamilton added (in Federalist 23), “no constitutional shackles can wisely be imposed” on those responsible for the nation’s security.

So yes: Potential threats are unpredictable, the power to be marshaled in response is illimitable, and the division of labor between the political branches is not fixed with certainty. But the fact that these matters defy apodictic knowledge does not justify a policymaker’s ignoring them. There is a constitutional order of things — an order designed to achieve practical success. A president’s foreign policy works best when it commands the political support of the people’s representatives. If the political branches oppose each other, it does not necessarily mean either is acting illegitimately; but it is very likely to mean a president’s foreign policy is ill fated, and probably ill designed.

Senator Graham’s Constitution-free advice thus undermines a number of good points he makes. Ironically, his principal complaint about Obama’s foreign policy — the flaw he exhorts GOP candidates to avoid — is the elevation of raw political expediency over long-term national-security strategy. But if that is the pitfall, then the senator himself is deep in the pit.

With the Constitution as our guide, Libya can be explained by nothing other than raw political expediency. The unprovoked executive aggression was bad constitutional law and even worse constitutional policy. On the law, the Constitution envisions a significant congressional role in the determination of whether to resort to force. True, it does not explicitly bar unilateral presidential war-making, and the commander-in-chief obviously has the power to repel attacks and serious threats without waiting for a congressional imprimatur — the Constitution is not a suicide pact. Nevertheless, the Constitution does not authorize the president to launch a war without congressional approval in the absence of an actual threat to vital American interests.

This doctrinal pronouncement is not without controversy among conservatives. Our views on the abstract question of war powers run the gamut: From John Yoo’s theory that Congress’s power to declare war is trivial (Professor Yoo believes the president may unilaterally order the use of force and is mainly constrained by Congress’s power of the purse) to other legal historians’ belief that congressional authorization is a prerequisite to any use of force other than defense against a foreign invasion. This wide divergence on the legal bottom line, though, is not seen in the more salient matter of policy: Regardless of whether they have to, there is broad consensus that presidents should seek congressional authorization for the use of force when it is practical to do so — as President Bush did after 9/11 and before invading Iraq. Moreover, the more ambiguous the American interests at stake, the more imperative it is for the president to seek and win political support.

This is so because, in making his case to the people’s representatives, a president is forced to think through and compellingly articulate the American interest that is purportedly worth the risk of blood and treasure. He must make clear what the immediate objective is and what the likely long-term consequences of the military action will be. If he obtains Congress’s approval, the war’s aims have legitimacy — the approval of the people, the sovereign on whose behalf war is conducted. In steering the administration, the president can then be guided by the approved war aims and avoid the politically lethal consequences of unpopular war — and a war is apt to become unpopular when its guise is stretched to cover policies for which there is little public appetite (e.g., sharia-lite “democracy” building).

For these reasons, Position Two is a more prudent, conservative stance. To repeat: “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” This doctrine was so asserted by the notoriously conservative constitutional-law scholar . . . Barack Obama. Back then, he was a senator running for president and warning against an American attack against Iran — a country that, unlike Libya, was and remains an actual threat to the nation.

Clearly, as with much of what he says, Mr. Obama did not mean a word of it. Senator Graham is right: President Obama is a creature driven by politics. He is not, as Graham implies, without a strategy. The president is an ideological leftist, and his strategic arc bends relentlessly in that direction. His tactics, though, are raw political expediency. I believe Saul Alinsky may have written a book on how it all works.

In any event, as president, Obama did not follow his stated constitutional doctrine. He attacked Libya in the absence of any threat and without congressional authorization, and that was just fine by Senator Graham. There was no consideration of war aims and war’s aftermath — there was just war.

Bad precedent? Let us count the ways. The use of American military force was purportedly sanctioned by the United Nations as an end run around the United States Constitution. The nostrums of transnational progressives (such as the loopy “responsibility to protect” theory) were substituted for American interests. The administration lied to the American people about its objectives, pretending to limit itself to the protection of civilians while targeting Qaddafi and his regime (a regime the Obama and Bush administrations had theretofore supported, with a thumbs-up from Senator Graham). Without congressional assent, the administration was reduced to arguing that invading a country, bombing its government, killing at least 1,000 people, and hunting down its head of state were insufficient to be deemed “war” for purposes of federal law (specifically, the 1973 War Powers Act). It will be interesting to hear what the administration has to say when Khalid Sheikh Mohammed tells the next federal judge that, using Obama-administration calculus, 9/11 wasn’t a war either.

Furthermore, with no examination by Congress of who would benefit from Qaddafi’s ouster, we are now witnessing the rise of virulently anti-American Islamists as al-Qaeda flags are brandished across Libya, repressive sharia law is installed, and the Qaddafi regime’s storehouse of high-power weaponry disappears — apparently disbursed to jihadists in Gaza, the Maghreb, and Central Africa (for starters). Qaddafi was no prize: His terrorist history was atrocious, as was his brutal governance. But he’d abandoned his nuclear program, provided us with extensive intelligence cooperation regarding the jihadist multitudes in his country, and kept his regime’s arsenal under lock and key. In the wake of Obama’s war, the region and the world have gotten more dangerous for Americans.

And not solely for Americans: After all, what lessons are the savage regimes in Iran and Syria to draw? Fight to the death, that’s what. Do whatever you have to do to cling to power; kill as many of your people as necessary — don’t leave a critical mass of dissent around to give the U.S. or NATO any bright ideas about “protecting civilians”; and, whatever you do, make no deals whatsoever that involve surrendering your nuclear ambitions. The message is clear: The peril for a rogue lies in playing ball with America; better for a hostile to become a well-armed hostile than a friend.

To be sure, much of what happens in the Middle East and around the globe is beyond our control. It is the height of foolish arrogance to believe we can always shape events — even national destinies — in places where America and the West are reviled. There is nothing conservative about such a conceit. And a conservative foreign policy would take stock of Islamist ideology, the most salient reality in the places where threats to the United States are most immediate. Yet Senator Graham’s lengthy essay devotes as much attention to Islamist ideology as it does to the Constitution — which is to say, none.

When we ignore the moorings of sound foreign policy, we are sure to veer wildly, wherever the transient political winds take us: One day you’re paying a friendly visit to Qaddafi’s tent, the next day you’re wondering why we can’t just “drop a bomb” on him and “end this thing.” One day you’re demanding that Gitmo be closed as a show of bipartisan support for the absurd proposition that it causes terrorist recruitment, the next day you’re demanding that Gitmo be kept open so we can detain terrorists. One day you’re condemning al-Qaeda’s volunteer lawyers for shutting down interrogations, the next day you’re praising them for “ma[king] us all safer” by volunteering to represent al-Qaeda. One day you’re reading off the ACLU script and bemoaning “torture,” the next day you’re grousing that we no longer get precious intelligence because we’ve “allow[ed] the ACLU to hold hostage our detention and interrogation policies.”

Senator Graham is certainly right that foreign policy and the conduct of war against what he calls “radical Islam” are issues of great consequence in the upcoming presidential election. He is also correct that, as we size up the GOP candidates, we should probe where they stand on Iran; the future of Iraq and Afghanistan; the security of Israel; how much deference is owed to the judgment of military commanders in making foreign policy; and what is the correct legal paradigm against alien terrorists — the laws of war, the civilian justice system, some hybrid of the two, or all of the above?

To gauge whether a candidate will get strategy right, however, it is necessary to know what the candidate thinks about the nature of executive power in foreign affairs. It is critical to examine his understanding of the ideology that animates America’s enemies — and of the sobering fact that this ideology has an enormous following in the region that so vexes us. Senator Graham’s advice glides by these questions, but they are the central ones and they must be asked.