War Powers Act: Right problem, wrong tool
posted at 4:16 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.