One of the most overused clichés in the English language is “history repeats itself.” Yet the events of the past several months seem to prove the point. Trouble with pirates in the Mediterranean? Conflict between the west and Islam? The aftereffects of nuclear power in Japan? We’ve seen all of these before. But most recently, North Africa has recaptured the attention of the United States. There is, of course, a long history there–not just with Colonel Muammar Qaddafi, with whom Washington has had a long and complicated engagement, but going back to the early days of the republic. Indeed, Thomas Jefferson’s war against the Barbary pirates provided the basis for the Marine Corps hymn–which recalls the exploits of Lieutenant Presley N. O’Bannon and his Marine detachment at the Battle of Derne in 1805–and was one of the earliest examples of the use of military force by an American president without a declaration of war. Over two centuries later, after a 10-0 vote of the UN Security Council (with five abstentions, including China, Germany, and Russia), it became clear that the United States would again be sending its troops back to the shores of Tripoli–or at least into the skies overhead.
Does Qaddafi deserve to be removed from power? Arguably, yes. His authoritarian regime, in place since overthrowing King Idris in a coup in September 1969, has been characterized by widespread repression, support for international terrorism (at least until recently), and efforts to acquire weapons of mass destruction. Should the United States be involved in the multinational effort to support the rebels seeking Qaddafi’s ouster? Again, perhaps. U.S. interests would certainly be served by stability and a western-oriented government in the region, although neither would necessarily result from the overthrow of the long-time dictator. But President Obama has moved past those questions and is now engaged in military action in and over Libya. While America’s European allies have taken the lead initially, it is likely that U.S. forces will eventually play a central role. That reality raises an important issue: can (and should) the Obama administration commit U.S. forces to this effort without congressional sanction?
The answer to that question is complex and fraught with political implications. In the 224 year history of the United States, Congress has declared war a mere five times: the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II. Yet U.S. military forces have engaged in police actions, the protection of American citizens and interests, occupations, and a wide variety of conflicts on well over three hundred separate occasions.[i] Part of the explanation for this disparity is that many of these interventions were relatively minor and did not require an official declaration of war. But a more pivotal consideration is that war is, as the Prussian strategist Carl von Clausewitz famously argued, an inherently political act, one that has significant ramifications.[ii] Only crises of major proportions rise to that level in the American political context.
Complicating the issue further is the convergence of international law and the U.S. constitution. In Article 51 of the United Nations Charter, war is outlawed, although the “inherent right of individual or collective self-defence if an armed attack occurs” is preserved.[iii] As a result, during the post-World War II period, the United States moved away from de jure declarations of war in favor of de facto expressions of authorization for use of military force. The congressional resolutions dealing with Taiwan and Lebanon during the Eisenhower administration, and the Tonkin Gulf resolution that served as the legal justification for the Vietnam War, to cite but three examples, all provided authority for the use of U.S. military force while keeping faith with the letter, if not the spirit, of the Charter’s requirements….not to mention avoiding messy domestic political complications.
These alternative declarations of war also reflect the spirit of the U.S. constitution. The constitution, according to Edward Corwin in his classic study of the presidency, is “an invitation to struggle for the privilege of directing American foreign policy.”[iv] This struggle is manifest in the way in which the United States is supposed to engage in military action. Only Congress possesses the power to declare war and to “raise and support” military forces (as provided for in Article I, Section 8), and only the president acting in his capacity as commander-in-chief of the military can order U.S. troops into harm’s way (as codified in Article II, Section 2).[v] These stipulations make the executive and legislative branches reliant on one another in situations calling for the use of force, especially in the long term. Moreover, it makes the president and Congress politically accountable to the American people for these decisions, which ideally means that the resort to force will be the result of careful and deliberative consideration rather than a knee-jerk reaction to events.
This relationship has not been without its challenges. During the first two decades of the Cold War, Congress seemed quite content to cede control over foreign relations to the president, helping to spur the emergence of the imperial presidency. But the escalation of the Vietnam War under the aegis of the Tonkin Gulf resolution brought that to a screeching halt. In the wake of the Paris Peace Accords, Congress acted to reassert its constitutional role in the decision-making process through the passage of the War Powers Resolution in 1973 and subsequently overrode Richard Nixon’s veto of the legislation. By requiring the president to either consult with Congress prior to the use of military force or receive congressional sanction within sixty days of the beginning of hostilities, Congress hoped to exert influence in America’s foreign conflicts to avoid a repeat of the Vietnam experience.[vi]
In the four decades since the War Powers Act became law, the United States has sent troops into combat or dangerous situations on numerous occasions–including twenty-five years ago when Ronald Reagan ordered U.S. planes to attack targets in Libya to retaliate for the deaths of American citizens in a terrorist attack supported by Qaddafi–with the executive branch adhering to the spirit of the law while steadfastly maintaining its unconstitutionality.[vii] A kind of unspoken détente has evolved, with latitude granted to the president in exigent circumstances with understanding that consultations will follow. Practically, politically, and constitutionally, Congress must at some point ratify the president’s decision to commit the U.S. military to foreign hostilities. It is easy to forget that this pattern played out with the 1991 and 2003 decisions for war with Iraq, as well as in the wake of the 9/11 attacks. Indeed, Barack Obama owes his presidency in large measure to his opposition to the 2003 congressional resolution.
Obviously, then, Obama did not learn these lessons of history very well…or at the very least did not apply them in regard to the emerging situation in Libya. From a constitutional perspective, the UN Security Council possesses no authority to authorize a platoon of new recruits to march in a straight line on the parade ground at Fort Benning, let alone serve as the basis for American combat operations against the Qaddafi regime. Nor did the president heed his own advice. As he kicked off his campaign for the White House in December 2007, Obama stated, “History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.”[viii] No such consent has been granted in the present circumstance, nor does a request for congressional authorization appear to be immediately forthcoming. That lack of political awareness could easily come back to haunt him during the 2012 presidential campaign, particularly if the situation evolves in a direction inimical to U.S. interests.
So what is the solution? Representative Dennis Kucinich (D-OH)–he of the olive pit lawsuit against the congressional cafeteria–suggested that in moving ahead without congressional sanction, the president “has gone against the Constitution” in what “would appear on its face to be an impeachable offense.”[ix] Of course, the iconoclastic Kucinich wanted to impeach both President George W. Bush and Vice President Dick Cheney for taking the United States to war in Iraq (ironically with an authorizing resolution) and for the conduct of the war (again, implicitly approved through repeated congressional appropriations), but his point is valid. There is no realistic or imminent military threat to U.S. interests from Libya, no exigent circumstances that would permit the commitment of U.S. forces without congressional consent. It would behoove the administration to recall Obama’s position on this very scenario during the 2008 campaign: “The President does not have the power under the Constitution to unilaterally authorize military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”[x]
Alexis de Tocqueville wrote that “There are two things that will always be very difficult for a democratic nation: to start a war and to end it.” We have seen over the past decade the truth of latter portion of that sentiment in Iraq and Afghanistan. Unfortunately, the administration has made it all too easy to initiate a conflict with Libya. But taking the United States to war should be hard when the lives of American soldiers and the resources and reputation of the nation are at stake…especially when, as Andrew McCarthy of National Review put it, “In terms of American national security, there is no emergency.” If Libya and Qaddafi are truly a threat worthy of U.S. military intervention, the administration “should be able to make that case to Congress quickly and persuasively.” The fear of failure is no excuse, McCarthy concludes, because “it is terrible policy to go to war without public support. If the president and proponents of intervention cannot win congressional approval, that is a reason to refrain from going to war, not a reason to refrain from asking for approval.”[xi] With the perilous state of the U.S. economy, the continued and increasing presence of American forces in Afghanistan, and the scope of existing foreign policy commitments, let’s not back in to another open-ended conflict without the approval of Congress and, by extension, the American people.
[i]. For a comprehensive and annotated list of U.S. military actions, see Richard F. Grimmett, “Instances of Use of United States Armed Forces Abroad, 1798-2009,” Congressional Research Service, 27 January 2010. Technically, the United States has declared war on eleven occasions, but did so against multiple adversaries in World War I (Germany and Austria-Hungary) and World War II (Japan, Germany, Italy, Bulgaria, Hungary, and Romania).
[ii]. Clausewitz wrote, “We see, therefore, that War is not merely a political act, but also a real political instrument, a continuation of political commerce, a carrying out of the same by other means….for the political view is the object, War is the means, and the means must always include the object in our conception.” See Carl von Clausewitz, On War, ed. by Anatol Rapoport (New York: Penguin Books, 1968), 119.
[iii]. United Nations Charter, http://www.un.org/en/documents/charter/index.shtml. Accessed 23 March 2011.
[iv]. Quoted in Cecil V. Crabb, Jr. and Pat M. Holt, Invitation to Struggle: Congress, the President, and Foreign Policy, 4th ed. (Washington, D.C.: CQ Press, 1992), ix.
[v]. Constitution of the United States, http://www.archives.gov/exhibits/charters/constitution.html. Accessed 22 March 2011.
[vi]. War Powers Resolution, 7 November 1973, http://avalon.law.yale.edu/20th_century/warpower.asp. Accessed 21 March 2011.
[vii]. Of course, neither the executive nor the legislative branches wants to take the question of the constitutionality of the War Powers Act to the Supreme Court for obvious reasons.
[viii]. Boston Globe, 20 December 2007.
[ix]. Quoted in Jennifer Epstein, “Kucinich: Libya action ‘impeachable,’” Politico.com, 21 March 2011.
[x]. Boston Globe, 20 December 2007.
[xi]. Andrew C. McCarthy, “Go to Congress First,” www.nationalreview.com, 19 March 2011.