Beyond West Point: Congressional Authorization and Obama's Afghanistan Surge
Posted:
12/15/09
President Obama went to West Point to explain to the Corps his decision to escalate the war in Afghanistan. He went to Copenhagen to make America's case to the world. He should make one more stop before the surging boots hit the ground next year. Motivated by respect for both the Constitution and political prudence, the president should formally request authority from Congress to carry out the new policy. The West Point speech has been treated as the endpoint of deliberation, as if the decision for war or peace resided solely within the executive branch. A better reading of the Constitution would regard Obama's decision as the beginning of deliberations by those with the legitimate power of decision: the people and their representatives in Congress.
Most people assume that Obama needs no new congressional assent. Obama himself took that position at West Point: "Just days after 9/11, Congress authorized the use of force against al Qaeda and those who harbored them -- an authorization that continues to this day." Writing in Slate, Yale scholars Bruce Ackerman and Oona Hathaway echoed this point. "Eight years later, this resolution gives the president the legal authority to act on his own." They suggest that Congress position itself to exercise its war power if the president chooses to change the mission again -- letting the horse run away this time, but locking the barn door afterwards.
This view is formally correct--the 9/11 authorization will never actually expire. The view also fits a broad view of presidential military power that has become conventional wisdom in Washington, and that is accepted even among many political scientists and constitutional scholars. Eight presidents in a row have complied with the War Powers Resolution of 1973, requiring congressional authorization for military actions over 60 days in length; but all of them have insisted officially that the resolution is unconstitutional. Opinion polls usually indicate that voters believe in the president's military prerogatives as well.
But the spirit of the Constitution, and the very idea of a self-governing republic, requires calling the country to a higher politics than focus groups and opinion polls; it means genuine consultation with those elected to represent the people.
Why should the president consider himself bound to consult at this moment, when the war has been underway for eight years? Here's one reason: The word "Afghanistan" does not appear in the 2001 Authorization for the Use of Military Force. The text says that "the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
No one doubted that the first step in this pursuit would be a move into Afghanistan. But that intervention was eight years ago -- two Civil Wars, two World War IIs, nearly three Koreas -- longer, in fact, than any U. S. war except Vietnam. And Obama's decision now fundamentally changes the war. The new mission is at once broader -- to create a viable Afghan state and stabilize the existing government of Pakistan -- and narrower: to begin a withdrawal within 18 months. Are we in fact still pursuing the architects of 9/11, or moving into a broader geopolitical strategy? Does a timetable amend the commitment "to use all necessary and appropriate force"? These are questions that could not have been answered or foreseen in 2001. The proper place to air the answers is in Congress.
The only clear thing about the War Power provisions of the Constitution is their ambiguity. Congress has the power to "declare war" and to "raise and support armies." The President is by text commander in chief of the armed forces and, by interpretation, the lead force in conducting American foreign relations.
Since the beginning of the Republic, presidents have exploited this ambiguity. Washington in 1793 unilaterally proclaimed American neutrality between Britain and France; Jefferson sent the marines to deal with the Barbary Pirates. Congressional tradition allows presidents a relatively free hand in short-term interventions, while claiming a legal role in authorizing longer-term commitments. Presidents tend to ask for such authorization while insisting that they aren't required to. That's what George W. Bush did with Afghanistan and, separately, with Iraq.
Things go badly when presidents overstep. In 1950, President Harry S Truman ordered U.S. troops into Korea and refused to submit his decision to Congress, claiming unilateral authority under the U.N. Charter. In December 1992 (after his defeat for re-election), George H.W. Bush ordered troops into Somalia on an ill-defined humanitarian mission. Both episodes were disastrous, either for U.S. foreign policy or for the president involved, or both. (Bill Clinton did not seek War Powers authorization for his bombing campaign against Kosovo in 1999. That worked out all right, but it's hardly a reassuring model -- Clinton had been impeached and acquitted only a few weeks before.)
Generations of executive-branch lawyers, beginning with Alexander Hamilton and ending with John Yoo, have insisted that the President would have the power to begin and pursue war even if Congress forbade it. Under George W. Bush, at least, a feeling grew among these lawyers that it was better to act without authorization than to ask for it even though Congress would give it. As Jack Goldsmith reports in his book The Terror Presidency, Vice Presidential counsel David Addington would respond to such suggestions by saying, "Why are you trying to give away the President's power?"
Obama's position on executive power is softer than Bush's; but even Democratic lawyers are trained not to give up any advantage their client has won.
But technical legality is not enough. Lyndon Johnson insisted that the Gulf of Tonkin resolution justified everything he did in Vietnam. Congress and the country rightly came to regard the resolution as a trick. The covenant between Obama and the American people -- that he will "take care that the laws be faithfully executed" -- is not a software shrink-wrap agreement. It is a political pact to comply with the spirit of the Constitution as well as its ambiguous letter. To pursue an unforeseen course of action just because words can be tortured to justify it is neither honorable nor wise.
As was so often the case for George W. Bush, Obama has no real need to cut Congress out of the loop. Can you cite one example in American history when Congress has refused an executive request for military authorization? (Don't worry if you can't – they are rare. The Democratic Congress may have barred Ronald Reagan from pursuing a covert war in Central America, but does anyone think that the Republican Congress in 1950 would have ordered Truman to pull out of Korea? Democrats under two Bushes meekly authorized their wars. Would Republicans in Congress really vote to pull out of Afghanistan immediately just because Obama has promised to pull out later?)
Authorization is not just good constitutional law, it is good policy and good politics. At the policy level, it offers a chance to clarify war aims. How serious is the administration about the 2011 pullout? How will we know whether the surge is working? What is the American role in the fighting in Pakistan? Does that represent a new, wider war or simply a necessary part of the Afghan mission? We have read breathless accounts of Obama's advisers wrestling with those questions. Let's hear their answers on the record; they will be useful as we assess success or failure in the months ahead.
Consultation also rallies the country in a meaningful way. We are making a new wartime commitment, one that will demand sacrifice of all of us. If Congress conducts a debate and a formal vote, even opponents of the war must admit that the country has been asked. The surge becomes a national commitment rather than a risky executive gamble, and it will be harder for the country to disavow it later.
Executive officials often note that Congress can stop even an authorized war anytime it likes, by refusing appropriations under its "raise and support armies" power. That has happened once, in 1975, and it ended the Vietnam War -- but hardly satisfactorily. Would we really want to see in Kabul a replay of the ignominious evacuation of Saigon?
If Obama does consult Congress, there is a very slight chance that lawmakers would balk. That would probably be bad policy; it would unquestionably be bad politics for Obama. All the more reason, then, why he should not be the sole voice deciding on the surge. As early as 1787, James Madison noted at the Philadelphia convention that "the President . . . would necessarily derive so much power and importance from a state of war" that he might be tempted to prolong it despite Congress' will. It is far too easy for even an honorable President to confuse the national interest with his own.
Barack Obama has summoned the country -- and, in Copenhagen, the world -- to support a complex and risky mission. Sending our troops into a wider war without the full support of Congress, the country and the Constitution is as risky as sending them to war without body armor or bullets.
Garrett Epps, a former reporter for The Washington Post, teaches Constitutional Law at the University of Baltimore. He is the author of Peyote v the State, The First Amendment: Freedom of the Press, and Democracy Reborn.