Congressional Abdication, by Jim Webb

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June 2013 Issue [Readings]

Congressional Abdication


By Jim Webb, from the March/April issue of The National Interest. Webb, a Virginia Democrat, served in the U.S. Senate from 2007 to 2013.

In matters of foreign policy, Congress, and especially the Senate, was designed as a hedge against the abuses exhibited by European monarchs who for centuries had whimsically entangled their countries in misguided adventures. The Constitution would prevent the overreach of a president tempted to risk our country’s blood, treasure, and international prestige. Congress was given the power to declare war and appropriate funds. The commander in chief would execute policies within the boundaries of legislative powers and in some cases would be required to obtain the “Advice and Consent” of two thirds of the Senate. Congress, not the president, would “raise and support Armies,” with the Constitution limiting appropriations for such armies to durations of no more than two years. This was a clear signal that in our new country there would be no standing army to be sent off to war at the whim of a pseudomonarch. The United States would not engage in unchecked, perpetual military campaigns.

Practical circumstances have changed, but basic philosophical principles should not. The growth of the military–industrial complex and the development of new national-security policies after the Cold War contributed to a mammoth defense structure and an atrophied role for Congress, yet perhaps the greatest decrease in congressional control occurred after September 11, 2001. Powers quickly shifted to the presidency as a traumatized nation called for quick, decisive action. It was considered politically dangerous and even unpatriotic to question this shift or the judgment of military leaders, many of whom were untested and almost all of whom continually asked for more troops, more money, and more authority. Members of Congress fell over themselves to prove they were behind the troops and behind the wars in Iraq and Afghanistan. Hundreds of billions of dollars were voted for in a series of barely examined “emergency” supplemental appropriations. Party loyalties became so strong that we often seemed to be mimicking the British parliamentary system, with members of Congress lining up behind the president as if he were a prime minister — first among Republicans, with George W. Bush, and then among Democrats, with Barack Obama.

This is not the same Congress that eventually asserted itself in the debate over the war in Vietnam when I was serving there as a Marine infantry officer. It is not the Congress in which I served as a full committee counsel during the Carter Administration. It is not the Congress, fiercely protective of its powers, that I dealt with regularly during the four years I spent as an assistant secretary of defense and as secretary of the Navy under Ronald Reagan. As in so many other cases when powers disappear through erosion rather than revolution, many members of Congress do not appreciate the power that they actually hold, while others have no objection to the ever-expanding authority of the presidency. During my time in the Senate as a member of both the Armed Services and the Foreign Relations Committees, I repeatedly raised concerns about the growing assertion of executive power by the Bush and Obama Administrations, as well as about the lack of full accountability in the Department of Defense. These issues remain and still call for resolution.

When it comes to foreign policy, today’s Americans are often a romantic and rather eager lot. Our country’s constantly changing, multicultural demographics and relatively short history tend to free our strategic thinkers from the entangled sense of the distant past that haunts Germany, France, and Russia in Europe, or China, Korea, Japan, and Russia in East Asia. When our security is threatened we often take a snapshot view of how to respond, based on the data of the moment rather than the historical forces that our actions might unleash down the road. This reliance on data-based solutions and short-term victories was Robert McNamara’s great weakness as he designed our military policy in Vietnam during Lyndon Johnson’s administration. It was also Donald Rumsfeld’s strategic flaw as the Bush Administration planned and executed the “cakewalk” that soon became a predictable quagmire following the invasion of Iraq.

The need for historical perspective may seem obvious to people who devote their professional lives to foreign affairs, but many American political leaders tend to lose sight of it once the cameras roll and the microphones are thrust in their faces, putting them mere minutes away from a YouTube blast that might ruin a career. As former House Speaker Thomas P. “Tip” O’Neill famously put it decades ago, most politics is local. Most politicians learn about the essentials of foreign policy only after they have been elected, if at all. This explains the near total absence of any real foreign-policy debate in our electoral process, whether at the congressional or the presidential level.

Nowhere is this more evident than in the national discussions that have followed in the wake of 9/11. Despite more than ten years of sustained combat operations, and despite frequent congressional trips to such places as Iraq and Afghanistan (usually highly structured visits lasting only a few hours, or at the most a day or two), Congress has become largely irrelevant to the shaping and execution of our foreign policy. Detailed PowerPoint briefings might be given to legislators by colonels and generals in the “battle zones.” Adversarial confrontations might mark certain congressional hearings. Reports might be demanded. Passionate speeches might be made on the floors of the House and the Senate. But on the issues of when and where to use force and for how long, and what our country’s long-term postwar relations should be, Congress is frequently ignored.

This is not an accusation or a condemnation; it is an observation. Consider a few recent examples. In December 2008, after more than a year of largely secret negotiations with the Iraqi government, the outgoing Bush Administration signed an ambitious, far-reaching plan called the Strategic Framework Agreement (SFA). Not to be confused with the mundanely technical Status of Forces Agreement, a common document that with minor variations governs jurisdiction over U.S. forces serving in nearly ninety countries around the world, the SFA addressed a broad range of issues regarding the future relationship between Iraq and the United States. This was not quite a treaty, which would have required debate on the Senate floor and the approval of sixty-seven senators, but neither was it a typical executive-branch negotiation designed to implement current policy and law. Included in the SFA, as summarized in 2008 by the Council on Foreign Relations, were provisions outlining “the U.S. role in defending Iraq from internal and external threats; U.S. support of political reconciliation; and U.S. efforts to confront terrorist groups,” as well as measures “shaping future cooperation on cultural, energy, economic, environmental, and other issues of mutual interest.”

Despite the deep divisions that remained in the American body politic regarding our future role in the Middle East, Congress was not consulted in any meaningful way as the SFA was negotiated. The draft agreement was kept from public and media scrutiny, to minimize any debate that might have put it in jeopardy. Once the document was finalized, Congress was not given any opportunity to debate its merits, nor did the congressional leadership even ask to do so. When I asked to read the full document in the weeks before it was signed, I was required to consult it in a soundproof room normally reserved for reviewing classified materials, even though the proposed agreement was not itself classified. And according to the logbook I signed before being allowed to read the agreement, I was the only member of the Senate who had actually read it at that point. Congress did not debate or vote on this agreement, which set U.S. policy toward an unstable regime in an unstable region of the world. By contrast, the Iraqi parliament voted on it twice.

A few years later the executive branch, headed by a new president, followed a similar pattern with respect to Afghanistan. In May 2012, after a year and a half of negotiations, President Obama signed a strategic partnership agreement with Afghan president Hamid Karzai, characterized by the White House as “a legally binding executive agreement, undertaken between two sovereign nations.” Its purpose was to define the future relationship between the United States and Afghanistan, including American commitments to that country’s security and development, as well as an American military presence that was expected to continue after 2014. Afghanistan was designated a “Major Non-NATO Ally” in order to “provide a long-term framework for security and defense cooperation.”

Unless Americans accept that we have devolved into a political system where the president has become a de facto prime minister, it is difficult to understand why Congress has remained so complacent when the executive branch has made its own agreements affecting long-term security and economic issues. Congress did not participate in the development of the strategic partnership agreement with Afghanistan, nor did congressional leaders from either chamber or either political party even ask for a debate, much less a vote. As with the SFA in Iraq, the Afghan parliament voted on this agreement, while our Congress was not even formally consulted.

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.

What we have witnessed is a breakdown of our constitutional process. Opinions will surely vary as to the merits of the outcome in each case, but this sort of disagreement is the precise reason each of these cases and others should have been properly debated and voted on by Congress. In none of these situations was the consideration of time or emergency so great as to have precluded congressional deliberation. In each, Congress was ignored or circumvented, while key congressional leaders were reluctant, at best, to assert the authority that forms the basis of our governmental structure.

Making long-term commitments in the international arena can be a complicated and sometimes frustrating process. But that is exactly why our Founding Fathers placed checks and counterchecks in our constitutional system. The congressional “nuisance factor” is supposed to help ensure that our leaders — and especially our commander in chief — do not succumb to the emotions of the moment or the persuasions of a very few. One hopes Congress will regain the wisdom to reassert the authority so wisely given it so many years ago. As for the presidency, a final thought is worth pondering. From a political standpoint, it is far smarter to seek congressional approval on controversial matters of foreign policy, as was done in the October 2002 authorization to invade Iraq, than to attempt to circumvent the legislative branch. At home, Congress and the president will then share accountability. Abroad, the international community will know that America is united and not acting merely at the discretion of one individual.


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