War Powers Act: Right problem, wrong tool

posted at 8:22 pm on June 22, 2011 by J.E. Dyer

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 The Green Room, Commentary’s “contentions,Patheos, The Weekly Standard online, and her own blog, The Optimistic Conservative.

This post was promoted from GreenRoom to HotAir.com.
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Does that “responsibility to protect” extend to selling weapons to Mexican drug cartels?

Just asking.

GarandFan on June 22, 2011 at 8:38 PM

*facepalm

equanimous on June 22, 2011 at 8:43 PM

I thought the title was talking about Obama when it mentioned a tool.

MadisonConservative on June 22, 2011 at 8:45 PM

Wrong tool is right, wrong tool sitting in the White House admiring himself in the mirror.

Bishop on June 22, 2011 at 8:46 PM

Any small nation with any sort of inner turmoil should be scared $$$$less right now.

The American Colossus has gone completely rogue.

The people have lost control of the government, and the elected president is acting like a tyrannical king.

Just like when you see a really drunk, out of control, very large young man at a bar, TAKE A BIG STEP BACK!

0bama’s incompetence makes his unbridled will-to-power that much more dangerous and terrifying on the global stage….

cane_loader on June 22, 2011 at 8:48 PM

Kaddafi must be overjoyed to find Ron Paul and Dennis Kookcynic turn our Congressional Quislings into his own private mob of terrorism appeasers.

George Soros and Code Pink couldn’t have done better.

Terp Mole on June 22, 2011 at 8:49 PM

Bishop on June 22, 2011 at 8:46 PM

dang it, beat me to the punch.

A whole Harbor Freight store is less of a tool than what is sitting in the oval office…

Wolftech on June 22, 2011 at 8:50 PM

Wrong tool is right, wrong tool sitting in the White House admiring himself in the mirror.

Bishop on June 22, 2011 at 8:46 PM

Bishop:Captain Tire Pressure Gauge,me thinks!:)

canopfor on June 22, 2011 at 8:52 PM

The War Powers Act only applies to the US Military which no longer exist. We are now part of the New World Alliance Military lead by Emperor Obama amd NATO.

Badbrucskie on June 22, 2011 at 8:58 PM

How many more innocents must Kaddafi slaughter before non-interventionists stop defending this terrorist klan?

Munich Olympic Massacre
London Constable Murder
Rome Airport Massacre
Vienna Airport Massacre
Berlin Disco Massacre
TWA840 Massacre
PA73 Massacre
PA103 Massacre
UTA772 Massacre
IRA proxy massacres
Libyan opposition massacres
Abdullah targeting plot
EU Nurse Prison Rape-Extortion
Swiss hostage extortion
Swiss jihad fatwa
Civilian Airliner threat
More Libyan opposition massacres

Nemo me impune lacessit?

Terp Mole on June 22, 2011 at 8:59 PM

The Whole Obama Administration,needs to be
re-aligned,decked,honed,and to make sure,
reamed,

and a new administration,can come in with new
tools,and Mangna-Flux all Repeal Hopey’s Programs
with new Blue-Printing!

Oh,and all Senate and Congress seats ,that are not
Republican,

should be,re-ground,straightened,and re-seated too!!
(snark).

canopfor on June 22, 2011 at 8:59 PM

Terp Mole on June 22, 2011 at 8:59 PM

I think

equanimous on June 22, 2011 at 9:01 PM

Wrong tool is right, wrong tool sitting in the White House admiring himself in the mirror.

Bishop on June 22, 2011 at 8:46 PM

Bishop:Le Bingo!:)

canopfor on June 22, 2011 at 9:01 PM

Terp Mole on June 22, 2011 at 8:59 PM

Not saying that scum bag Qaddafi doesn’t need an immediate cranial lead infusion, but Zero is not getting it done and has piddled away his time to do so without an act of congress to go to war.

Wolftech on June 22, 2011 at 9:03 PM

Terp Mole on June 22, 2011 at 8:59 PM

I think

equanimous on June 22, 2011 at 9:01 PM

don’t know what happened there geez…anyway

I think a lot of laws are stupid…but they are the law so I have to obey them…

equanimous on June 22, 2011 at 9:03 PM

Obama should be held accountable for his own words:

Obama:

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.

Obama rode into the White House claiming he was going to restore Americas standing abroad and abide by the “rule of law”….not abuse executive power like Bush supposedly did.
Now he is launching wars from the beaches in Rio without so much as a hint to the American people or much less respecting our checks and balances by getting Congressional approval.

Obama:

“Democratic presidential hopeful Barack Obama said Thursday the United States cannot use its military to solve humanitarian problems and that preventing a potential genocide in Iraq isn’t a good enough reason to keep US forces there,”

Obama told us that our military cannot solve “humanitarian” problems and was more than ready to abandon Iraq even though it meant thousands would be slaughtered.

But now going into Libya to stop civilian casualties that would not be a blip on the radar screen in Iraq much less Syria and Iran…..is so vitally important that the American people or Congress shall have no say.

Obama:

But the fact of the matter is that when we don’t talk to the American people — we’re debating the most important foreign policy issues that we face, and the American people have a right to know. It is not just Washington insiders that — (cheers, applause) — are part of the debate that has to take place with respect to how we’re going to shift our foreign policy. This is a seminal question.

Apparently the “American People” only have a right to know when it is politically convenient for Obama.

If the sheer hypocrisy and arrogance of Obama’s handling of Libya is not enough…he has to compound this deceit and Foreign policy disaster by constantly changing his rationales in being there:

In March 2011 Barack Obama told the American people that regime change would be a mistake in Libya,

“But broadening our military mission to include regime change would be a mistake.”

….but wait…there is an expiration date here:

The New York Times reported:

President Obama has subtly shifted Washington’s public explanation of its goals in Libya, declaring now that he wants to assure the Libyan people are “finally free of 40 years of tyranny” at the hands of Col. Muammar el-Qaddafi, after first stating he wanted to protect civilians from massacres.

This whole episode from beginning to end has been full of deceit…massive hypocrisy…..and a total lack of mission direction and goals.
To have a man ride into the White House on a wave of anti-war support and pompous claims of governing by the “rule of law” carry out such inept and deceitful policies is beyond reprehensible.
The American people deserve better than this and our elected officials should be on record as supporting or rejecting this obvious abuse of executive power.

Baxter Greene on June 22, 2011 at 9:08 PM

How many more innocents must Kaddafi slaughter before non-interventionists stop defending this terrorist klan?

Terp Mole on June 22, 2011 at 8:59 PM

If this was about protecting innocents and avenging terrorist attacks…than we should be in Iran or pursuing regime change in Pakistan…not Libya.

Baxter Greene on June 22, 2011 at 9:10 PM

Obama wants to provoke this crisis. Barry is instigating (if not orchestrating) “both sides” outrage over mission creep– all the better to push new binding legislation on any future POTUS.

Progressives and neo-isolationist libertarians both desire cynical restraints on American power enacted by Congress. Imagine America reduced to defending ourselves with a pre-WWII Polish Legislature-in-Chief.

Will conservatives see this trap and counter it?

Terp Mole on June 22, 2011 at 9:12 PM

we should be in Iran or pursuing regime change in Pakistan

fine with me

We should invade their countries, kill their leaders and convert them to Christianity

Terp Mole on June 22, 2011 at 9:20 PM

Did anyone really imagine The Obamateur would invoke Article 51 and dust off Reagan’s speech?

He counted on America to be passive. He counted wrong.”

Terp Mole on June 22, 2011 at 9:36 PM

fine with me

We should invade their countries, kill their leaders and convert them to Christianity

Terp Mole on June 22, 2011 at 9:20 PM

So Ann Coulter directs your foreign policy.
Explains why being in Libya is such a great idea to you.

Baxter Greene on June 22, 2011 at 9:37 PM

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.

Congress has the power to declare war. Their permission must be sought. If there is a real threat, the President will get the authority. If not, then, no go.

No go for Libya.

AshleyTKing on June 22, 2011 at 9:49 PM

Baxter Greene: Explains why being in Libya is such a great idea to you.

Yeah well, you know thats just like, your opinion, man.

Terp Mole on June 22, 2011 at 9:49 PM

AshleyTKing: Their permission must be sought.

FLASHBACK Lebanon (9/82): Reagan deploys 1,200 U.S. Marines to Beirut.

President Reagan reported the first deployment without referring to [the War Powers Act], despite a warning from the chairman of the House Foreign Affairs Committee that the deployment should be reported with specific reference to Section 4(a)(1) of the War Powers Resolution.

President Reagan also reported the second deployment without reference to the War Powers Resolution, stating that the Marines would not engage in combat unless attacked.

In June 1983, *Congress passed the Lebanon Emergency Assistance Act of 1983 (P.L. 98-43), requiring statutory authority for the President to significantly expand the number or role of U.S. military personnel in Lebanon. As a result of the continuing War Powers debate, on September 20, 1993, *Congress passed a joint resolution (P.L. 98-119) authorizing the Marines to remain in Lebanon for 18 months. The resolution specifically invoked section 4(a)(1) of the War Powers Resolution.

[Note: Reagan was never impeached for awaiting *Congressional action.]

Terp Mole on June 22, 2011 at 9:52 PM

The decisive factor is who has sovereignty over Libya

Exactly. NATO’s mission is not against the government of Libya.

NATO forces are liberating Libya from Kaddafi’s hired mercs and are backing the legitimately recognized government of Libya.

Terp Mole on June 22, 2011 at 9:58 PM

Terp Mole on June 22, 2011 at 9:49 PM

After such brilliance…there is no mistaking who you take after:

http://www.youtube.com/watch?v=SqqGFoASs9s&feature=related

So let’s cut-n-run in Afghanistan so that we can go to war in Libya….dude…totally awesome…..

Baxter Greene on June 22, 2011 at 10:04 PM

NATO forces are liberating Libya from Kaddafi’s hired mercs and are backing the legitimately recognized government of Libya.

Terp Mole on June 22, 2011 at 9:58 PM

NATO’s mission has been ever changing and does not match the rationale that was presented as protecting civilians and enforcing a no fly zone.

Obama stated himself that “regime change would be stupid” only to endorse it later.

Our forces or now engaged in regime change without so much as an attempt to honor the checks and balances of our system.

Coalition members like Italy are dropping out and we are still carrying the major brunt of this still undefined mission.

Your spin about this so called “recognized government” is a joke.

The rebels are stock full of jihadist that have fought with al-qaeda/Taliban and pledged their allegiance to Osama:

Al Qaeda’s Libya Pilgrimage

by Sami Yousafzai
& Ron Moreau
http://www.thedailybeast.com/blogs-and-stories/2011-03-30/al-qaedas-libya-pilgrimage/#

As debate rages in Washington over whether to arm anti-Gaddafi rebels, an exclusive report by The Daily Beast indicates al Qaeda forces are gearing up to join the rebels and seize power in Libya.

EDITORIAL: Al Qaeda to Obama: Thanks
Toppling Arab governments feeds Islamist revolution
http://www.washingtontimes.com/news/2011/mar/30/al-qaeda-to-obama-thanks/print/

Al Qaeda central’s views are detailed in the latest issue of their English-language propaganda magazine Inspire, which features a special section on “The Revolution.” American-born cleric Anwar al-Awlaki writes in an essay entitled “The Tsunami of Change” that, “Our mujahideen brothers in Tunisia, Egypt, Libya and the rest of the Muslim world will get a chance to breathe again after three decades of suffocation. For the scholars and activists of Egypt to be able to speak again freely, it would represent a great leap forward for the mujahideen.”

Libyan rebel commander admits his fighters have al-Qaeda links
http://www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/8407047/Libyan-rebel-commander-admits-his-fighters-have-al-Qaeda-links.html

Abdel-Hakim al-Hasidi, the Libyan rebel leader, has said jihadists who fought against allied troops in Iraq are on the front lines of the battle against Muammar Gaddafi’s regime.

…Yea get those pom..poms out and start waving them Terp Mole…..just like the idiots who were falling all over themselves about how Obama was bringing democracy to Egypt only to see all “these guys with the beards” and their Muslim brotherhood friends taking control.

Baxter Greene on June 22, 2011 at 10:17 PM

Terp Mole on June 22, 2011 at 9:52 PM

Thanks but you have highlighted one of Reagan’s great failures: no clear mission, exposing our troops to harm, failing to crush or stop any terrorists, then going home, giving the impression that we would run if pushed. And then that thug Arafat and Fatah got a free pass to Libya to regroup.

AshleyTKing on June 22, 2011 at 10:26 PM

Nemo me impune lacessit?

Terp Mole on June 22, 2011 at 8:59 PM

That is a sad and evil list of deeds. And we did precious little about if for so long. If a President were to say today, “I have evidence that MQ is involved in such and such terrorist activities. I have deployed our forces to eliminate this threat” I would support taking him out. The President would still have to get Congress to approve of it in some manner. The whole development since the Korean War of not getting proper Congressional authority is a very dangerous and bad one.

AshleyTKing on June 22, 2011 at 10:30 PM

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.

What’s an NHKMA?

Anyway, the principle reason it is bad law is because it exceeds the Constitutional authority of the Legislature and it infringes on the Constitutional authority of the Executive.

MJBrutus on June 23, 2011 at 6:45 AM

What’s an NHKMA?

MJBrutus on June 23, 2011 at 6:45 AM

A non-hostile kinetic military action.

The longer it goes on, the longer the abbreviation is likely to get.

J.E. Dyer on June 23, 2011 at 12:51 PM

McCain-Kerry is not a bad start, but it will require vigilance and teeth.

Pardon me if I’m skeptical about anything that starts with “McCain-Kerry”.
So where’s the money for the Libyan fiasco coming from? Is there a Presidential slush fund for things like this? The money is always there until the Congress cuts the purse strings? That doesn’t make sense.

wb-33777 on June 25, 2011 at 3:54 PM