U.S. Congress whiffs on war pow­ers

Antelope Valley Press - - OPINION - Ge­orge Will

There are 99 bet­ter, or at least less ab­ject, sen­a­tors. How­ever, Lind­sey O. Gra­ham (R-S.C.) is in­ad­ver­tently use­ful by in­ces­santly demon­strat­ing the depths to which sen­a­tors sink when they jet­ti­son in­sti­tu­tional re­spon­si­bil­i­ties to fa­cil­i­tate sub­servience to pres­i­dents of their party. Con­sider the con­trast be­tween Gra­ham and Sen. Mike Lee (R-Utah) con­cern­ing Congress’s re­spon­si­bil­i­ties re­gard­ing war.

Last Wed­nes­day, ad­min­is­tra­tion of­fi­cials, in what they ev­i­dently con­sid­ered an op­tional con­ces­sion to in­fe­ri­ors, gave a short (75 min­utes), closed-door con­gres­sional briefing on mil­i­tary ac­tion against sup­pos­edly im­mi­nent threats from Iran. Pres­i­den­tial free­dom to uni­lat­er­ally com­mit acts of war un­re­lated to im­mi­nent threats would amount to an un­cir­cum­scribed power to un­der­take not just lim­ited pre­emp­tive ac­tions but to wage pre­ven­tive war when­ever a pres­i­dent uni­lat­er­ally de­cides this might en­hance na­tional se­cu­rity.

Lee is fa­mously mild-man­nered but wasn’t af­ter what he called an “in­sult­ing and de­mean­ing” briefing in which ex­ec­u­tive branch of­fi­cials in­structed Congress con­cern­ing what it can de­bate: The briefers, who in­cluded Sec­re­tary of State Mike Pom­peo and De­fense Sec­re­tary Mark T. Esper, warned that mak­ing mil­i­tary ac­tion sub­ject to con­gres­sional autho­riza­tion might en­cour­age Ira­nian ag­gres­sion. Sen. Christo­pher A. Coons (D-Del.) asked whether, if the ad­min­is­tra­tion de­cided to take the ex­treme ac­tion of as­sas­si­nat­ing Ay­a­tol­lah Ali Khamenei, Iran’s supreme leader, it would at least no­tify Congress. The briefers would not say so.

Congress last de­clared war on June 5, 1942, against Hun­gary, Bul­garia and Ro­ma­nia, with a war al­ready rag­ing. This was 78 years and many wars ago. A power ne­glected, like a mus­cle never ex­er­cised, at­ro­phies. Now, Gra­ham ex­plic­itly says that even de­bat­ing, not a dec­la­ra­tion of war but merely the wis­dom of past mil­i­tary ac­tions and nec­es­sary autho­riza­tion for fu­ture ones, means “em­pow­er­ing the en­emy.”

Last April, Pom­peo was asked dur­ing a Se­nate hear­ing: Is the 2001 Autho­riza­tion for Use of Mil­i­tary Force against al-Qaeda and other non­state ac­tors re­spon­si­ble for 9/11 suf­fi­cient autho­riza­tion for the pres­i­dent to wage war more than 18 years later against Iran? Pom­peo la­con­i­cally said he would pre­fer to “leave that to lawyers” — pre­sum­ably those he em­ploys.

With a few ex­em­plary ex­cep­tions, no­tably Sen. Tim Kaine (Va.), con­gres­sional Democrats, too, have been sit­u­a­tional ethi­cists about their re­spon­si­bil­i­ties re­gard­ing war. The Obama ad­min­is­tra­tion’s sham­bolic in­ter­ven­tion in Libya’s civil war, the costs of which are still mount­ing, pro­ceeded un­ac­com­pa­nied by con­gres­sional autho­riza­tion but swad­dled in ex­ec­u­tive branch sophistrie­s. Barack Obama’s Jus­tice Depart­ment vig­or­ously de­fended what no one de­nied — that pres­i­dents may ini­ti­ate mil­i­tary ac­tion with­out con­gres­sional ap­proval. The is­sue, how­ever, was that the ad­min­is­tra­tion, which had said the in­ter­ven­tion would last “days, not weeks,” then said that thou­sands of air strikes, which caused nu­mer­ous ca­su­al­ties over seven months and had the in­tended re­sult of regime change, did not con­sti­tute “hos­til­i­ties.”

Wed­nes­day’s briefing caused Lee to en­dorse Kaine’s pro­posal to di­rect the pres­i­dent to stop en­gag­ing in hos­til­i­ties against Iran or any por­tion of its gov­ern­ment or mil­i­tary un­less con­tin­u­a­tion is ex­plic­itly au­tho­rized by a con­gres­sional dec­la­ra­tion of war or other autho­riza­tion of force. Se­nate pas­sage of this would take Demo­cratic una­nim­ity and two more Re­pub­li­cans join­ing Lee and Ken­tucky’s Rand Paul in sup­port­ing it. The House pre­sum­ably would con­cur. Though Se­nate Re­pub­li­cans would sub­se­quently sus­tain a pres­i­den­tial veto, virtues are habits, and this ex­er­cise might be the be­gin­ning of con­gres­sional in­volve­ment in de­ci­sions about war and peace be­com­ing ha­bit­ual.

Pres­i­den­tial dis­cre­tion is pre­sump­tively great­est re­gard­ing for­eign re­la­tions. And many as­pects of the mod­ern age — weapons of mass de­struc­tion; the swift, per­haps sur­rep­ti­tious and po­ten­tially in­tercon­ti­nen­tal de­liv­ery of such weapons; the mul­ti­pli­ca­tion of vi­o­lent non­state ac­tors — have rad­i­cally al­tered the con­text in which the Framers’ spare lan­guage in the Con­sti­tu­tion’s per­ti­nent pro­vi­sions must be con­strued: The Congress has the power “to de­clare war” (also to “raise and sup­port armies” and “main­tain a navy”); the pres­i­dent is com­man­der in chief of the armed forces.

Con­cern­ing lim­its on pres­i­den­tial dis­cre­tion, there is a large gray area. How­ever, the ac­tiv­ity of uni­lat­er­ally pre­ven­tive wars is not in it.

Coons asked the briefers this: Sup­pose that in com­ing months the ad­min­is­tra­tion con­cludes that Iran, hav­ing shed the nu­clear agree­ment’s con­straints, is about to ac­quire a nu­clear weapon. Would you need autho­riza­tion from Congress prior to strikes meant to pre­vent this? The briefers would not agree even to con­sul­ta­tion with Congress, though Coons sev­eral times re­stated and nar­rowed the ques­tion. Congress should not be sur­prised when the ex­ec­u­tive branch takes Congress’s re­spon­si­bil­i­ties re­gard­ing war no more se­ri­ously than Congress does.

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