Trust Obama?

We have to, because his "war powers" have no effective bounds

Last week, Sen. Rand Paul (R-Ky.) tried to get the Senate to adopt candidate Barack Obama's core principle of presidential warmaking powers.

Paul added an amendment to a bill that would adopt as the "sense of the Senate" the following quote from candidate Obama: "The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."

Senate Majority Leader Harry Reid (D-Nev.) was having none of it, refusing to let the bill come to a vote. Sen. Paul wrote him a letter explaining why it was so important, which read in part:

The motion Senator Paul made has the vote as the pending business in the Senate, ready for a vote at any time. He did not ask for extended debate…

It will be the only 30 minutes spent on discussing and voting on whether or not the President has the power under the Constitution to attack another country without congressional authorization.

We believe the answer is that he does not. We also believe Congress has an obligation to stand up and declare whether or not we intend to hold the President to his constitutional oath…..

Voting for whether or not to send our sons and daughters to war is the most important and most difficult decision we should ever make as a nation and as senators. We do not take this responsibility lightly, and we believe the Senate is abdicating its responsibility at this very moment.

The bombing and military action against the Libyan government will be two weeks old by the time we return to session next week. That means congressional debate on this war is two weeks overdue.

Yesterday the Senate did vote—90-10—to table the proposal. It was, said Sen. Dianne Feinstein (D-Calif.), who was one of the 90, "too cute by half" to even rhetorically hold the president to either the views he was elected on, or to the Constitution. Paul said, of congressional pusillanimity on their warmaking powers, "The new motto of Congress appears to be, 'Tread on me. Please, tread on me.'"

Not that it would have mattered to the Obama administration. Secretary of State Hillary Clinton had already told Congress that the executive would not feel constrained by any attempt by Congress to assert its authority. She magnanimously offered, though, for the legislative branch to become part of the team—"the administration welcomes the support of Congress in whatever form that they want to express that support."

The president can't wage this war in Libya legally. The Constitution prohibits it, giving the power to start non-defensive wars unequivocally to Congress. So, theoretically, does the 1973 War Powers Resolution (WPR), even though it's far more forgiving of executive power than the Constitution.

Sec. 1541 of the WPR lists a specific set of circumstances under which a president can deploy combat troops. Libya doesn't qualify. It says that minus specific congressional declaration or authorization the president needs "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."

That didn't happen. Even on a looser conception of "threat," and although it's obvious and didn't need saying, Secretary of Defense Robert Gates admits that the Libya situation was no threat to the United States. (And while it has nothing to do with his authority to send American troops into action, even the president's claims that he was stopping a reasonably expectable humanitarian catastrophe doesn't hold up.) Still, the WPR goes on in Sect. 1544(b) to give the president carte blanche for 90 days worth of free warmaking. And presidents have mostly ignored the WPR since it passed anyway. Reagan sent troops into Lebanon and Grenada and bombed Libya without asking congressional sanction. On his own recognizance, Clinton hit Iraq, Somali, and Bosnia with American military might.

As detailed in Louis Fisher and David Grey Adler's 1998 article"The War Powers Resolution: Time to Say Goodbye," a fascinating essay on how the WPR gives presidents more war powers than they constitutionally deserve, various congressmen tried to sue the Reagan administration for violating the act, but courts dismissed the cases as beyond their jurisdiction.

Even Obama's official notification to Congress that the Libyan intervention was beginning used the phrase "consistent with" the WPR, not "pursuant to"—a technicality that means that even the 90 day clock (60 days plus a 30 day extension) of unlimited presidential authority isn't even technically triggered.

Congress can choose to sit back and do nothing, like it has so far, or rubber stamp Obama's decision. Either way the president does what he likes with his usurped warmaking powers. Congress can start the clock themselves via concurrent resolution, but despite a smattering of expressions of anger from individual members, our representatives show no signs of caring enough in the case of the current war.

Obama is utterly unashamed of his total reversal on presidential war powers. He's offered a set of confused justifications that would be a recipe for war all the time if he actually took them seriously as a set of principles. The real principle behind them is simply: I'll start a war when I damn well feel like it.

That suits some of his most devoted fans just fine, even if they think it's likely he'll make mistakes. The Washington Monthly's Kevin Drum stated this most baldly:

If it had been my call, I wouldn't have gone into Libya. But the reason I voted for Obama in 2008 is because I trust his judgment. And not in any merely abstract way, either: I mean that if he and I were in a room and disagreed about some issue on which I had any doubt at all, I'd literally trust his judgment over my own. I think he's smarter than me, better informed, better able to understand the consequences of his actions, and more farsighted. I voted for him because I trust his judgment, and I still do.

This sort of attitude (which Drum tried to finesse later) is what imperial presidents are made of. Obama has fortuitously announced his re-election campaign in the midst of violating one of the key selling points of his first victory. And though a majority of Americans doubt there's a meaningful plan at work in Libya, an Obama who wants to collect every possible penny from his base for his billion dollar campaign clearly did not think that assuming imperial warmaking powers would cause him electoral harm. Sadly, I suspect he's right.

Predictably, the Libya mission has extended beyond just enforcing a no-fly zone to targeting Qadaffi forces on the ground. Innocent civilians are being killed by our actions, as are some of the rebels, who we are ipso facto (but not quite officially) on the side of in a civil war. As of today, it's allegedly not a U.S. operation anymore but a NATO one, and we'll see how significant that ends up being as this few-days turned few-weeks operation stretches into the future. And, surprise, we've had secret agents on the ground in Libya even before Obama told us we were entering it.

In the end, despite the alleged set of high-value purposes behind the expensive and murderous dropping of bombs from the air, we are by no means committed to actually insuring it stops the fantasized bad end it was supposed to prevent. And naturally in our all-American world, the whole operation is waged against a country that cooperated with us on weapons programs and was the recipient of nearly $5 million in aid from the U.S., including military aid, in the past few years.

The Libya operation is a full-service debacle—moral and strategic and constitutional—and still many of the president's ideological allies who hated Bush's Iraq war love Obama's Libyan one, with John Judis in The New Republic pretty much openly declaring the necessity and propriety of shedding blood for oil.

Why is Obama imperial when it comes to war? I wish I could understand the actual mental and emotional motivations, but what matters for us as citizens is that he's imperial because he can be. Congress doesn't want to stop him. (They get to disapprove later if they choose while giving him his way now.) Both Obama's and other presidents' history of outright lies about their foreign policy intentions shows that voters are powerless to effectively choose a president based on his foreign policy views. The Constitution should stop him, but the Constitution is not self-enforcing. If the people and Congress treat it as if it's dead, then it is. And that's one thing that "constitutional scholar" and trustworthy genius Obama understands very well.

Senior Editor Brian Doherty is author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs) and Gun Control on Trial (Cato Institute).