Posted by: theoptimisticconservative | June 22, 2011

War Powers Act: Right problem, wrong tool

Senators McCain and Kerry have probably made moot (at least for now) the War Powers threat that has been fitfully gathering steam in the House.  And that’s probably fine, as a War Powers showdown is a low-payoff proposition between now and November 2012.  It is correct to worry about Obama’s non-hostile kinetic military action in Libya being mishandled and problematic,  but the War Powers Act is a bad tool that would make things worse, not better.

In its own way, the War Powers Act is part of the same problem posed by the NHKMA in Libya: it tries to denature and bureaucratize war.  The principal reason it is bad law derives from the fact that it is unenforceable – and ultimately unnecessary – on its own terms.  To enforce the War Powers Act when a president refuses to comply with it, Congress must do what the Constitution already empowered it to do, before the War Powers Act was ever thought of:  deny funds to the president’s military operations.

The War Powers Act was an attempt to interpolate a less explosive option for stage-managing this form of confrontation, by imposing a deadline by which negotiations would have to start.  The problem with this isn’t the demand for inter-branch negotiation, however – that is actually a given.  The problem is that military action, while it’s in progress, is peculiarly unsuited to being argued about and temporized on in this manner.

Many Americans have recognized – mainly because of the Vietnam War – that the ambivalent use of force, subject to unnatural constraints and open-ended vetoes, is a doomed enterprise.  The War Powers Act tries, however, to impose an inherent ambivalence on any form of military action that does not involve a Congressional declaration of war.

That attempt ignores the summary nature of military action (and does so, ironically, on a principle similar to that governing Obama’s action in Libya).  The War Powers Act pretends that military action can, as a matter of routine, be made subject to arbitrary deadlines, or renegotiated as it goes along, without significant losses to the coherence and strategic integrity of national policy.  It treats the use of force as if it is a fully “domesticable” arm of policy – as if the intrinsic implications of employing force abroad do not require respect and adjustment from partisan politics.

But military force can’t be domesticated in this way, nor should we want it to be.  It gets people killed and summarily resets the relations between nations – and that’s the whole point of it.  If the president and Congress can’t agree on its use, then having recourse only to the Constitution’s “nuclear option,” whereby Congress withholds funds, is the best guarantee that decisions about military action will be made, by both branches, with the prior consultation and the extreme seriousness they merit.

Oddly enough, Obama’s characterization of his action in Libya – so bizarre to the ears of the American people – is the same kind of attempt to treat military action as if it is not the high-risk, transformative barn-burner it inherently is.  When Obama says the US is not engaged in “hostilities” with Libya, he is speaking from the same text used by Samantha Power when she advocated intervening in Libya based on the putative “responsibility to protect” (R2P).  According to this text, it is indeed possible to bomb another country for three months without being in “hostilities”:  the key is pursuing an objective that makes moot the political factors of recognized sovereignty and national borders.

R2P, as defined by its proponents, is just such an objective.  By the R2P formulation, endangered civilian populations (except those in Syria) trump sovereignty.  Bombs and killing are not hostilities, if your intention is to protect a civilian population with them – and if you explicitly disavow any intention of producing regime change with them, as Obama has done.

This rightly seems absurd to us; it is an attempt to redefine some very basic concepts, like sovereignty and hostilities.  Indeed, it’s more than an attempt:  the Obama administration is behaving as if the redefinition is already a fait accompli, in spite of the fact that no such consensus has ever developed among the nations.

But the current result of the NHKMA in Libya is the best counter-evidence to the Obama postulate.  Libya’s civilians are not being protected; NATO, Qaddafi, and the rebel forces have all been killing and injuring them.  Bombs are bombs, and they do what bombs do.  They can’t protect civilians independently of the political situation.  The decisive factor is who has sovereignty over Libya; the quickest, most effective way to improve conditions for Libyans is to do the thing Obama has sworn he won’t use force to do:  change the regime for the better.

That is a human reality that cannot be suspended.  But Obama is trying to redefine the nature of both politics and force, to fit an ideological perspective on the nation-state.  The War Powers Act is also an attempt to redefine the nature of force – to fit internal politics.  Neither enterprise can survive contact with reality.

I agree with those who believe Obama is prosecuting the action in Libya very poorly.  Qaddafi could have been gone 10 weeks ago – or the US could have declined to participate.  Either would have been preferable to the state of affairs Obama’s “leadership from behind” has produced at the 90-day mark.  But compliance with the War Powers Act would not change that for the better.  It would only add a layer of bloviating bureaucratic oversight, which is invariably injurious to the effective use of force.

This doesn’t mean presidents shouldn’t need congressional agreement to commit to military action.  What presidents have done heretofore is present purposes to Congress and seek authorization – which they know they have to do because Congress holds the power of the purse.

Congress saddled itself with the War Powers Act, however, and had to make some kind of gesture at the 90-day mark.  The better option is what Congress can do regardless of whether there’s a War Powers Act or not.  McCain-Kerry is not a bad start, but it will require vigilance and teeth.

Congress should wait, for a time, to see if Qaddafi’s exit can be procured in some way; it might be.  Congress should watch Obama’s commitment of force with a critical eye, and a clear idea of what it has the votes to declare “too much.”  And if Qaddafi hangs on through the summer, and Obama persists in the fiction that NATO dropping bombs on Libya is a sovereignty-neutral means of “protecting civilians,” then Congress can – and should – cut his funding.

All of that can be done based on the original law of our nation.  Using military force is too significant, risky, and inherently transformative an act of policy to be undertaken on the basis of tentative permissions and arbitrary deadlines.  There is no place in it either for exotic philosophical distinctions:  the normal definitions of sovereignty and hostilities, and the traditional justifications for force, are a network of conventions that we rely on to guard against breaches of the peace.

The American people in 2011 seem to understand these things better than those in office, reacting with a traditional and very proper disquiet to the proliferation of military actions abroad.  The people are right about that.  And military force, above all others, is a matter in which a disagreement between the president and Congress merits a crisis of government and an unambiguous resolution.

J.E. Dyer’s articles have appeared at Hot Air’s Green Room, Commentary’s “contentions,Patheos, and The Weekly Standard online.

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Responses

  1. Well, Miss Character. This is just another silly opinion, from a silly lady, who is nothing more than a useful idiot.

    Ok, give me a break. I just wanted to beat fuster to the punch.

    Ok, ok, it’s a slow news day. :-)

    • thanks Jim. you might be useful yourownself !

      but I’m not gonna cal this one silly. it’s a mixed bag and some of it quite good.

    • and BTW,Jim, if you want preformed comment, read Juan Cole.

  2. Golly, there’s civilians being treated badly all over the globe, North Korea, Myanmar, Sudan, Cuba, Syria, Iran but the Obamans haven’t talked NATO into blowing up those places. What gives? Did some officers leading a rebellion on the other side of the country push Libya to the top of the list? Maybe we can get regime change in China if we talk a couple of generals into repudiating their chain of command and asking for a little drone support.

    • chuck, the Obama administration didn’t push the Libya thing onto NATO, but short-term, it’s in our interest to join in.
      the horse is just about to hit the fan in Syria AND Lebanon and we’re really, really gonna want the French and others involved in cracking the nuts of Hezbollah and others allied with the Iranians.
      Hezbollah is likely to start some diversionary incidents against the Israelis very shortly as things grow hotter in Syria and as the Special Tribunal for Lebanon indictments in the Harari case get unsealed.

      • Does that have something to do with R2P?

  3. I understand your reasoning but you lost me in the first. I’m so sick and tired of sentences like this: “And that’s probably fine, as a War Powers showdown is a low-payoff proposition between now and November 2012″. Could we once just follow the law and have firm beliefs? Yes, I realize that we have an important election coming up. However, playing to the crowd and playing safe is what got us in this mess. Unfortunately, it’s something that the big R Republicans haven’t learned nor will they. There’s a word for a group of people who’s morals and beliefs depend on a focus group and it’s called Democrats. Can’t we at least have a little conviction? Regardless of the blowback or look of it, we must hold the President accountable to the rule of law. Yes, I realize that the media is going to try to crucify us over it. But what you have to realize is that they are going to try to crucify us over everything. There is no playing nice or getting good press. Bush jumped through all those hoops to get approval in Iraq and did everything they asked. In the end it didn’t matter because they still lie over what he did. I don’t care if the President doesn’t cater to this or that constituency, but if he doesn’t follow the law then he should be held accountable. Even if it means a complete shutdown and 50 years out of power for our side. Why? Because it’s the right thing to do. Can’t we just start leading without trying to be popular? If the law is unnecessary then the people who don’t like it can try to change it. But obey it they must until it’s changed /yoda.

    • doc, I don’t think that “leading without trying to be popular” really works for a political party in a democracy..

      • Then we’re screwed. That’s the problem, everyone is worried about their reelection instead of doing the right, common sense thing. If that’s the case then I’d rather just get it all over with and reelect the quicker solution. There was a little hope with the tea party but I guess it was mostly talk. Unfortunately talk isn’t fixing the problem. Apparently we’ve reached a tipping point where nothing can be done anymore other than talk and more spending. I won’t be a part of it if that’s the case. No more McCains or the Liberal spender Bush for my support. If you elites want to keep trying to play to the brain dead 50% babies who do absolutely nothing then fine. But you won’t be doing it with my tax dollars, because this is the last chance before I shrug and go cash only. And I guarantee you that I’m not the only one.

        • those that you call “the brain dead 50%” have always been with us, doc.
          democracy has always offered no end to sharp edges for those you call “you elites” and for folks such as yourself.
          happy trails and before you go, trade your dollars for diamonds or something.


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