Why not ask Barack Obama? For that matter, as the New York Times’ Bret Stephens notes, why not ask Bill Clinton or George Bush Sr? Sen. Tim Kaine (D-VA) sent a letter to Secretary of State Rex Tillerson demanding the release of internal memos that frame the executive branch’s authority to use military force without congressional authorization. Needless to say, this takes a lot of chutzpah:
There is a new urgency to obtain the memo given increasing U.S. involvement in Syria and recent Trump administration rhetoric on North Korea. Shortly after the 2017 bombing raid, several members of Congress called on Trump to justify it under U.S. and international law. Article I of the U.S. Constitution gives Congress the power to declare war.
“The fact that there is a lengthy memo with a more detailed legal justification that has not been shared with Congress, or the American public, is unacceptable,” Kaine said in the letter to Tillerson, obtained by NBC News.
“I am also concerned that this legal justification may now become precedent for additional executive unilateral military action, including this week’s U.S. airstrikes in Syria against pro-Assad forces or even an extremely risky ‘bloody nose’ strike against North Korea,” wrote Kaine.
According to a court filing provided by Protect Democracy, a bipartisan group of lawyers, Attorney General Jeff Sessions was briefed last April on the substance of the memo. Sessions received the briefing so he could know “how to advise the president on future actions,” the filing said, citing a DOJ attorney.
Is the use of executive authority to initiate military action without congressional approval a problem? Yes, it is. Did that start with a “secret” memo within the Trump administration? Come on, man. Even the actions to which Kaine specifically objects — the targeting of Syrian forces using chemical weapons — was an action that Barack Obama nearly did on his own before losing his nerve and passing the buck to Congress, which rejected the idea. Trump conducted similar strikes last year to little controversy.
More to the point, though, at least Syria has been on our radar for military action. Where was Tim Kaine when Barack Obama ordered military action in 2011 against a cooperative regime in Libya without seeking congressional support — even afterward? Obama claimed executive authority under a “responsibility to protect” the civilian population in Benghazi, which (as it turns out) was already turning into a radical-Islamist terror center. Obama’s personal war on Moammar Qaddafi without any plan for shaping the post-regime battlefield created a failed state on the Mediterranean, and a launching point for ISIS and al-Qaeda at the belly of Europe.
Did Kaine ever rebuke Obama or the then-Secretary of State and demand an accountability for that action? Nope. In fact, Kaine wound up being the running mate for former Secretary of State Hillary Clinton in the 2016 election. Of all people in the US Senate, Kaine has the least standing for making this kind of sanctimonious stunt.
That’s not to say that the issues surrounding the War Powers Act are not serious and worthy of discussion. It’s to say that Kaine is hardly a serious person, and this is hardly a serious request. As Stephens notes below on Morning Joe, administrations routinely conduct these internal debates and craft guidance documents for presidents and their top staff. If push came to shove, it falls under executive privilege, but Stephens is right in that the White House could just release it as yet another example of feckless Democratic hysteria.
If Congress wants a serious debate on the limits of the War Powers Act, they can open that debate for themselves, and the memo Kaine seeks would have little impact on it. But if we’re going to have that debate, some will need to grow up and accept responsibility for their roles in perpetuating the problem rather than pretend it just arrived with Trump.