By
Robert E. Kelly
Syria may have been a bridge too far
for untrammeled executive war powers. That’s good for democracy.
For decades, particularly since the Korean War,
American presidents have insisted that they may deploy force on behalf of the
nation without much Congressional oversight and, at best, vague Congressional
consent. Call it the “resolution system,” for lack of a better term: The
president deems a conflict worthy of U.S. involvement, but he wants to duck the
formalism and high stakes of a de jure Congressional war declaration per
the Constitution (Article 1, section 8, clause 11). So he asks instead for a
“resolution” which expresses the “sense” of the Congress or something suitably
vague like that.
Next, the president insists that he
is permitted to use force without Congress approval, as President Obama did in his Syria television address in September. This makes the Congressional vote “constitutional
theater,” as Senator Rand Paul described the Syria debate, because no one really knows if the vote is binding.
Ideally Congress votes for the war effort. Second best for the president would
be that Congress backs down on a formal vote, and the president can fight with
silent semi-approval in the legislature, as in Korea and Vietnam. Worst would
be a clear Congressional vote against U.S. involvement, which the president
then chooses to simply ignore. (As the first President Bush put it:
“I didn’t have to get permission from some old goat in Congress to kick Saddam
Hussein out of Kuwait.”) Such an outcome would threaten a genuine
Constitutional crisis over war powers that would likely end before the Supreme
Count. This has never explicitly happened, although Obama flirted with it
twice: once in Libya,
where the House of Representatives voted down U.S. involvement, and second in
Syria recently, where the scheduled votes in the Congress were likely to go
against the president before Putin “rescued” Obama from a serious separation of
powers confrontation.
Finally, the president refuses to
accept the 1973 War Powers Resolution with its 90-day troop deployment limit,
and tries to budget his conflict to avoid any special funding votes that might
informally become a referendum on his wars. Both Johnson in Vietnam and George W. Bush in Iraq pushed this financing principle to the limit. The imperial
presidency is a bipartisan phenomenon. Ideally, all this flim-flam keeps the
political noise down long enough for the not-quite-declared non-war to be
concluded on favorable terms. In turn, this reinforces the next White House
occupant’s willingness to pursue “resolutions” instead of Constitutional war
declarations.
The constitutionality of this cyclic resolution
system is murky at best,
particularly given the clear war powers clause already in the Constitution and
the Framers’ well-documented fear of kings (or presidents) going to war too easily. Like the
recent efflorescence of presidential signing statements, war resolutions are
executive branch legal freelancing with hotly contested legitimacy that has
never been tested at the Supreme Court. It is widely understood that wily Obama
went to Congress on Syria only after the politics shifted dramatically against
him, responding to the combined weight of Prime Minister David Cameron’s lost
Syria vote in the House of Commons, the refusal of the UN and the Arab League
to back strikes, and high public resistance at home to involvement. In early
September, Obama really had only the French government – not even its people,
who also opposed strikes and wanted a parliamentary vote – and the U.S. foreign policy community, with its unshakeable conventional wisdom that the exertion of U.S. power is good, especially in the
Middle East. Had the British come through as expected, Obama would likely have
stuck to the French path of claiming executive privilege to use force,
regardless of legislative and public opinion.
In this, the House of Commons’
no-vote, and Cameron’s respect for its decision, has done a great service to rule of law and the
accountability of the executive branch in the West, and perhaps turned a page in the recent Western way of
war. It should go without saying that elected presidents and prime ministers
are not elected monarchs with a blank check. It may be that Western
constitutions give executives wide latitude – although this is usually
contested – but executive branch unilateralism is always distasteful, as it is
essentially undemocratic. And when that unilateralism involves the use of major
force, the killing of other people in the public’s name, it is simply improper
regardless of the clever legalisms executive branch lawyers may spin.
There are of course instances when
presidents must use force without legislative approval. National emergencies
such as 9/11 and Pearl Harbor are obvious examples. In such moments of high
peril, when the state is clearly under attack, the unity, speed and efficiency
of the executive branch is critical. Indeed these qualities are the very reason
the Framers gave the war-making power to the president as commander-in-chief.
No one accepts that hundreds of legislators, many with no military training,
should run wars, even in a democracy. But where time is not pressing, where
there is no imminent threat to the homeland or a crucial U.S. asset overseas,
why not consult the people’s representatives? What possible justification is
there to avoid democratic consultation in a participative debate, besides the
antidemocratic pretensions of the "imperial
presidency?" Does anyone genuinely believe it is
healthy for democracies to foreclose public and legislative debate on a
question as momentous as the use of force? To my mind, the burden of proof should
in fact run the other way: only where there is a clear and present national
danger, where time is critical (such as in now-outdated Cold War nuclear war
scenarios) should executives be permitted use major force without meaningful
legislative debate and, ideally, approval.
Two presidentialist arguments
deserve consideration. First, one might suggest that when the U.S. Constitution
was written, “sub-war” conflicts were less current. Hence there is no clear
constitutional guidance on the president’s authority in situations like Kosovo,
Libya or Syria. None of those were “wars,” commonly-defined, for Americans.
There was no danger to the U.S., no U.S. boots on the ground, and U.S.
costs in blood and treasure were slight. But there is no obvious reason why the
president should have such extensive combat-initiation rights in such
scenarios, but not if we call them “wars.” To accept that logic simply tells
the president to avoid calling anything a “war” in order to side-step Congress.
That may be constitutional or legal – and that is in fact how Johnson fought
Vietnam and Bush fought Iraq 2 until things really soured – but does anyone
really think a democracy should be characterized by executives so blatantly
skirting the spirit of the law with gimmicky legalisms? This is precisely why
the War Powers Resolution was passed.
Second, one could note the disunity
of the legislature, its weak foreign and security policy skills, its
willingness to hold votes hostage for narrow side-payments and so on. By contrast, unitary executives see
farther, act more coherently, and aggregate the national interest into one
voice. The executive is the only nationally elected figure and enjoys a unique
legitimacy, particularly in dealing with foreigners. All this is indeed true,
but to accept it as cause for independent executive military action without the
legislature is to brush with dictatorship. For these arguments are precisely
those of the Beijing Consensus. Democracies do not privilege speed and efficiency
in decision-making, no matter how much frustrated foreign policy
elites may wish it so.
Democracies are to be the opposite –
deliberative and participative and, inevitably, slow. This is not a flaw;
this is wisdom and the prudence of consensual rather than oligarchic
government. And the track record of elite war choices is hardly stellar.
Vietnam and Iraq were both elite pet-projects pushed onto a wary legislature
and public, suggestive of the Framer’s wisdom in removing the war decision from
one person. As the U.S. pivots to Asia with the obvious possibility
of armed conflict with China,
do we really want a presidency with weakly tethered war-making powers?
So resist the shallow media
caricature of Cameron’s defeat in the House and Obama’s likely defeat in the
Congress as the end of Britain’s role in the world or the premature
lame-ducking of the president. A deeper, richer interpretation is that these
moments are the return of democratic checks-and-balances in a competency where
they have been dormant too long and have given us catastrophes like Vietnam, Iraq
and a drone war that murders overseas Americans without due-process. These votes may be bad for this or that passing occupant
of the West’s high offices, but there are healthy for our democracies and
public control of government.
Robert E. Kelly (@Robert_E_Kelly)
is an associate professor of international relations in the Department of
Political Science and Diplomacy at Pusan National University. More of his work
may be found at his website, AsianSecurityBlog.wordpress.com.
The
entire article may be found at: http://thediplomat.com/2013/10/07/syria-and-the-capping-of-executive-war-powers/?all=true
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