War Powers

I’m baffled by a conservatism that proudly proclaims the righteousness of Bush’s war of impulse, yet denounces the current Libya adventure as “illegal.” Granted, the Iraq War was duly authorized — albeit on knowingly incomplete information, recklessly relied on — but this is the conservative movement that trumpeted Congress’ 9/11 authorization of the use of military force (AUMF) as sufficient to cover (1) torture, (2) indefinite detention, (3) domestic wiretapping, (4) congressional blacksites, and even (5) the Iraq War itself, making the separate congressional vote essentially a box-checking exercise. Truly, if you’re not disgusted by the empty and ad hoc nature of modern Republicans — to wit, “we’re for what they’re against, and nothing else” — you’re not paying attention.

It is a separate question altogether of whether Obama should have sought broader consultation before committing American firepower, if not American troops, to depose a dictator; and whether he’s broken a campaign promise. Regardless of the same, left and right ought to be able to agree on the following, and apply it equally to a conflict entered into by either “side”:

This sort of exercise, committing American arms but not American lives, is exactly the sort of thing the Constitution’s drafters had in mind when they crafted the Presidency. The President can and must respond with “energy” to protect American interests. Democracy in an otherwise hostile region is one such interest, as our honourable friends opposite would surely tell you, were the man behind the Resolute Desk not a Democrat.

Neither established law, nor history are to the contrary. The War Powers Act specifically authorizes the executive to conduct limited war without Congress’ involvement. Granted, the Act’s constitutionality is not entirely clear. I for one rather expect that we meant what we said, when we committed the power to declare war specifically to the Congress. But nor is this a war as Jefferson would’ve understood it. There are no boots on the ground, nor will there be any. Instead, missiles and planes represent precisely the kind of quick-strike force that the President has always had at his disposal, except here, the risk of lost American lives is even smaller than the one that Jefferson unilaterally undertook when attacking Tripoli. And although the President has greatly increased the chance of a shooting war, this is a risk that we entrust to him and his cabinet on a daily basis. What else is foreign policy?

Reactions on left and right demonstrate two things, respectively: the right will never trust this President, and the left will never fully trust presidential power (even when exercised pursuant to a United Nations resolution, diplomacy’s get-out-of-jail-free card). Both need to get over it.

Update: the National Review, per knee-jerk Ramesh Ponnuru, joins the Washington Times in calling the firing of some missiles unconstitutional.


  1. “This sort of exercise, committing American arms but not American lives, is exactly the sort of thing the Constitution’s drafters had in mind when they crafted the Presidency.”

    Really? War in the early 19th century was a much more dangerous pursuit than today. My understanding was that the ability for the executive to pursue limited wars was meant to be an extension of his treaty-making powers and also to protect trade. I don’t think it would be correct though to assume the Founding Fathers allowed it because it was low-risk. If anything, low-risk wars are dangerous for the simple fact that they seem like a short-term and easy commitment. Clinton loved them for that reason. The problem is that they often just kick the can down the road.

  2. While it’s certainly… interesting to see the Washington Times develop such a keen interest in the details of international law all of a sudden, it’s not surprising that they get it wrong even when they try it.

    In recent decades, a very strong precedent has been established for including situations under the umbrella of international law, even though they’re not strictly speaking ‘international’ events, in the sense of involving more than one sovereign state. Just a few examples are the interventions in Kosovo, East Timor, or the DR Congo.

    Of course, that’s why the WT have to go all the way back to an obscure and non-enforcable 30 years old General Assembly declaration to back up their argument, while conveniently ignoring the fundamental Charter’s Art. 1 with its language of “…take effective collective measures for the prevention and removal of threats to the peace … in conformity with the principles of justice and international law…” or “…promoting and encouraging respect for human rights and for fundamental freedoms for all…”. So total fail on that one, basically.

    That said, I don’t think it’s fair to phrase this as a Republican position. For instance, Sen. Sessions on Meet the Gregory Press yesterday seemed pretty supportive of the whole thing. He grumbled a bit about how Congress hadn’t been “briefed properly”, sure, but that seemed almost like just for show. Nor am I aware of any other significant Republican complaints specifically about the legality of the intervention.

  3. Also on the Constitution point, if anything, it’s notable how little time the Philadelphia Convention actually spent discussing military matters and war powers. The most important point I can remember off-hand is a certain uneasyness among some of the delegates about making the Executive a single person rather than a council, precisely because they assumed (probably following a British precedent) he would possess extensive war powers.

    It all seems a little bit beside the point, though, since the concept of a “limited war” is in itself very much a post-WWII invention. The nearest 18th or 19th-century equivalent would be actions against pirates or unlawful privateers, such as during the French Quasi-war or the Barbary Wars, which would not generally have required a declaration or war – on the contrary, that was considered one of the things the C-in-C was expected to do to defend national interests in general.

    And of course, that leads to a third point, which is that the concept of equal national sovereignty was really quite different at that time. Specifically, there was a world of a difference between on the one hand declaring war on a “proper civilized” country such as France, and on the other, a more marginal political entity such as the Sultanate of Morocco.

    So all in all, it’s problematic to make these sorts of historical parallels.

  4. Those are interesting and good points. Is there even any use you think, then, in looking to historical practice to answer questions like these?

    I’ll tell you, even if there is not, you probably won’t convince the legal academy of that :)

    1. I would say no – if you look at all US wars and the way they came about every one of them came about very differently both in the popular process and the legal one.

    2. Presumably, though, we can still take lessons from those, unless the nature of warfare has so changed since the relevant time period as to render it something less than academic.

      1. You can take lessons regarding the actual military action (i.e. Vietnam is still the template for analyzing guerilla wars)but as for the legal/political case surrounding each war I don’t know how much can really be applied to current events.

        1. I should check that by saying that the Powell Doctrine, which came out of the Gulf War, is still applicable (or should be).

    3. As always, I guess it depends on what sort of questions you’re asking. Pace Ron Perlman, war does change a lot, and so does the politics of which it’s a continuation. So it follows that the more specifically you’re looking at a specific situation and the further removed in time you get from that situation, the less useful historical parallels would be.

      Or to put another spin on it, the further back you go, the more you have to look for general principles rather than specific lessons. So in this case, comparisons between the current intervention and, say, the First Barbary War are not particularly useful – but you could of course ask e.g. which general interpretations of the Executive powers that the Philadelphia delegates drew on, and how you can apply that starting point towards an analysis of the present-day Executive powers.

      Or something. I don’t know, it’s a bit difficult for me to find an angle on it, partly because it still feels a bit like an argument in want of a question or controversy.

  5. A few points:

    1) Judging by the public statements of Congressional leaders, if Obama asked for a vote he’d get what he wanted.

    2) Despite a lot of tap dancing by those same Congressional leaders, we are at war with Libya. (I personally am not in favor of this war.)

    3) The Quasi War with France and the Barbary Pirates wars were both started by attacks on the United States. Libya has not attacked the United States.

    1. I’m with Chris on this one. Involvement on this one was a REALLY bad idea IMO.

  6. It’s an interesting question whether the nature of warfare has so changed since the relevant time period as to render it something less than academic, certainly as applies to founder-era warfare. On the one hand, back then they had little-to-no written treaty-based jus ad bellum or jus in bello, there was regular use of letters of marque & reprisal, there was regular use of mercenaries, there was regular warfare against marginal political entities like the Sultanate of Morrocco or the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. On the other hand, today there’s regular use of private military contractors (and of outright mercenaries in places like, oh, Libya) and there’s regular warfare against marginal (non-state or quasi-state) political entities like the Taliban or the Great Socialist People’s Libyan Arab Jamahiriya. So the only difference is that idiots that we were, we’ve been signing on to mostly-asinine treaties and conventions about the “laws of war” since the mid-1800s. Hell, we even abide by treaties we haven’t signed, like the Paris Declaration Respecting Maritime Law. But international law, being a matter of contracts between sovereign states, is subordinate to the constitutions that create those sovereign states, and every treaty or convention is abrogatable (if for no other reason than that there’s no way to make a country that doesn’t want to abide by one do so short of war). So… I don’t think the nature of war really has changed so much, constitutionally speaking.

    That said, I really would like to see the U.S. formally declare war more often.

    And I’d really like to know what’s changed to make war with the Great Socialist People’s Libyan Arab Jamahiriya sensible and pressing now as opposed to at any point in the past… hell, let’s just say 19 years ’cause of that whole Cold War thing. Is it just that there’s been an uprising? We could’ve instigated one before now if we wanted to – and we’re perfectly capable of conquering a united Libya anyway.

    1. And I’d really like to know what’s changed to make war with the Great Socialist People’s Libyan Arab Jamahiriya sensible and pressing now

      Well, there’s the whole uprising thing, and politicians being afraid of dropping the ball again like in Kosovo, and everything sort of coming together to create a new casus belli against a universally despised leader – but to be frank, if you really want to understand this war, I’d suggest taking a look at President Sarkozy’s recent poll numbers. (A hint: they’re really, really poor.)

      1. So the US and UK went to war to help Sarkozy capitalize on latent French imperialism?

      2. It’s certainly an important element in the process that got us where we are now. I wouldn’t use the word ‘imperialism’, though. It’s rather that France has a large Maghreb Arab population, and of course close ties to the region in general, so I suspect that Sarkozy would stand to gain significantly from being perceived as the grand statesman who pushes for Liberté and Fraternité and all that – especially since his administration handled the previous situations in Tunisia and Egypt extremely poorly, so there’s something to make up for there as well. Also note that France is the only country to formally recognise the rebels as a legitimate government so far.

        The British motivations are a bit less obvious, but I wouldn’t rule out that they joined up because Cameron is actually an idealist. He does have a bit of that whole “Eton boy noblesse oblige” thing going on.

        So now we have two major powers in Europe working strongly for intervention, which I guess would make it mighty awkward for our good ally the US to just stay on the sidelines and do nothing. Combine that with a strong lobbying effort from a part of the administration (Susan Rice, Samantha Powers) and you get the present situation where the US couldn’t really avoid getting into this, but are obviously looking to hand over the whole thing to anyone else as soon as possible.

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