Readings — From the June 2013 issue

Congressional Abdication

( 3 of 4 )

The failure of Congress to meet its historical obligations while the president unilaterally engaged in combat operations in Libya promises even more serious consequences for future crises. The right to self-defense allows the president, as commander in chief, to order strikes anywhere in the world against legitimate terrorist targets if the country in which they operate either cannot or will not take appropriate action itself. But this is different from deciding to commence hostilities when our country is not directly threatened. At issue in Libya was not simply whether the president should ask Congress for a declaration of war. Nor was it wholly about whether Obama had violated the edicts of the War Powers Act, which in my view he clearly did. The issue is whether a president can unilaterally begin, and continue, a military campaign for reasons that he alone defines as being vital to the national interest and worthy of risking American lives and expending billions of dollars of taxpayer money.

What was the standard in this case? The initial justification was that a dictator might retaliate against people who had rebelled against him. No thinking person would make light of the tragedy possible in Libya (or, at present, in Syria). But it should be pointed out that there are a lot of dictators in the world and very few democracies in that particular region. Predictably, once military operations began, the administration’s avowed concern became “human suffering” and the stated goal became regime change, with combat dragging on for months. In a world filled with cruelty, should a president be allowed to pick and choose when and where to use military force on the basis of such a vague standard? In our system of government, who should decide? Even if a president should decide unilaterally on the basis of an overwhelming, vital national interest that requires immediate action, to what lengths should our military go before the matter comes under the proper scrutiny — and boundaries — of Congress?

As a measure for evaluating future crises, it is useful to review the logic that led to our actions in Libya. What did it look like when President Obama ordered our military into action in that country, and what has happened since? Was our country under attack or under the threat of imminent attack? No. Was a clearly vital national interest at stake? No. Were we invoking the inherent right to self-defense as outlined in the U.N. Charter? No. Were we called upon by treaty commitments to come to the aid of an ally? No. Were we responding in kind to an attack on our forces elsewhere, as we did in the 1986 raids in Libya after American soldiers were killed in a Berlin disco? No. Were we rescuing Americans in distress, as we did in Grenada in 1983? No. The president followed no clear historical standard at all. Once this action continued beyond his original definition of “days, not weeks,” into months and months, he did not seek the approval of Congress to continue military activities. And while administration officials may have discussed this matter with some members of Congress, they never formally conferred with the legislative branch as a coequal partner in our constitutional system.

Obviously, I do not raise these points out of any lasting love for the late Libyan leader Muammar Qaddafi. But this is not about Qaddafi; it is about the manner in which our nation decides to use lethal military force abroad. Libya represented the extreme (at least so far) of executive decision in the absence of congressional approval. We took military action against a regime that we continued to recognize diplomatically, on behalf of disparate groups of opposing forces whose only real point of agreement was that they wished to rid Libya of Qaddafi. The end result was not only the rampant lawlessness that possibly contributed to the assassination of our ambassador and three other U.S. officials in Benghazi in September 2012 but also the region-wide dispersion of thousands of weapons from Qaddafi’s armories.

The passivity of key congressional leaders during this period has ensured that the president’s actions now constitute a troubling precedent. Under the objectively undefinable rubric of “humanitarian intervention,” President Obama has arguably established the authority of the president to intervene militarily almost anywhere without the consent or the approval of Congress. It is not hyperbolic to say that the president can now bomb a country with which we maintain diplomatic relations in support of loosely aligned opposition groups that do not represent any coalition that we actually recognize as an alternative. We know he can do it because he already has done it. Few leaders in the legislative branch even asked for a formal debate over this exercise of unilateral presidential power, and in the Senate any legislation pertaining to the issue was prevented from reaching the floor.

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