Mass Communication Specialist 3rd Class Brian Stephens/Navy
What Does the Constitution Say About the War on ISIS?
The legislature refuses to discharge its constitutionally assigned responsibilities. What happens now?
“To see what is in front of one’s nose needs a constant struggle,” George Orwell wrote in 1946. Here’s a corollary: The real scandal in any given system is usually the thing there’s no argument about.
We hear a lot of discussion about executive power and the military these days. The Internet is flooded with discussions of whether President Obama has the authority to send troops to Texas. The true constitutional crisis, however, is not Jade Helm, it’s Inherent Resolve, the so-called war against the Islamic State. I’m not hearing much about that
Almost exactly two years ago, President Obama proclaimed that the national interest required intervention in Syria to punish the Assad government for using chemical weapons against its own people—not only a war crime, but, Obama said, a “red line” for the international community. Shortly afterwards, though, Obama unexpectedly announced that he would first seek congressional authorization. “After careful deliberation, I have decided that the United States should take military action against Syrian regime targets,” he said on August 31, 2013. “Having made my decision as Commander-in-Chief based on what I am convinced is our national security interests, I’m also mindful that I’m the President of the world’s oldest constitutional democracy … And that’s why I’ve made a second decision: I will seek authorization for the use of force from the American people’s representatives in Congress.”
It was an unusual moment in American history: a president pausing to acknowledge that Congress’s war power was not an obstacle but an asset to a democratic system. Obama knew very well that, if he sought an authorization vote, he might lose. (If he had lost, it would, as near as I can tell, have been the first time since the Wilson administration that Congress denied a president’s request for prior authority to use force.)
As it happened, the need for a vote never arose; Russian diplomatic intervention produced a genuine settlement to the chemical-weapons problem. But flash forward to today. For the past year, the United States has been in a much wider conflict with the non-state that calls itself the Islamic State. This military operation dwarfs the proposed Syria bombing. We have put together a rickety, complex, and partly secret “alliance” with a number of seemingly incompatible players in the region, ranging from Britain and France to Turkey, Jordan, Saudi Arabia, and, under cover, at least the tacit cooperation of Iran and even Syria. We are training “moderate” Syrian rebels and our troops are advising and training the Iraqi Army. The operation has spread from Iraq to Syria and perhaps now Egypt. It is taking place amidst—and arguably exacerbating—a refugee crisis that is engulfing not just the region but the Western European countries. And General Raymond Odierno, who retired last week as the Army chief of staff, said on his way out that “if we find in the next several months that we aren’t making progress, we should absolutely consider embedding some soldiers (in Iraq).”
A spreading conflict, regional instability, pressure for deepening involvement—and no end ahead that I can see. I am an authority on the Middle East to the extent Donald Trump is an expert on men’s hairstyles. We may have a clear definition of “victory” and a smart path toward it. But if I don’t know that plan, it’s really not my fault. The government hasn’t explained itself to me and the rest of the country; and for that reason, I can’t hold anybody accountable for what goes right, or wrong, in the months ahead.
There is a way that the government could explain itself; indeed, the government is required to do that by Article I of the Constitution, which assigns to Congress the power to “declare war.” It’s true that nations don’t “declare war” anymore; but the grant of power in that clause isn’t a formality, an empty box to be checked off. Read the words in context with the subsequent clauses—Congress has the power to fund or defund the military and to set the rules “for the government and regulation of the land and naval forces.”
In other words, the military belongs to Congress, and through them to the people. When the President wants to borrow it, he has to ask for permission and explain why.
Obviously there are exceptions; when an emergency occurs (what Madison called a “sudden attack,” but also an emergent threat to Americans or American interests abroad), the president can respond first and ask for permission later. But the “war” on the Islamic State isn’t like that at all; it was a policy decision carefully arrived at. The Islamic State is a frightening enemy; but it was not immediately menacing the U.S.
This war is an ongoing violation of the Constitution, one of the most severe of the 21st century. But it is a violation in which both parties are happy to collaborate. The administration claims it already has authority for the intervention, in the Authorization for the Use of Military Force passed in 2001, which gave the president authority to attack “nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” That enemy was al-Qaeda; now, administration officials say, the Islamic State is (as one anonymously put it) “the true inheritor of Usama bin Laden’s legacy.” In other words, the Islamic State is the cow with the crumpled horn, and if you follow the chain back far enough, you eventually get to the House that Jack Built. That chain may be faulty or even fanciful; but this analysis at least complies with the forms.
The administration has requested specific authorization for the effort to combat the Islamic State, submitting a complex draft resolution that authorizes the president to use force against the Islamic State and “associated forces”—but that also forbids the use of U.S. ground troops and requires reauthorization after three years.
The draft is plainly aimed at preventing the war from spreading out of control—and, at least in part, at limiting the options of Obama’s successor. For this reason among others, the Republican leadership has balked at passing it, preferring something far more open ended and sweeping. Senator Marco Rubio, for example, reacted to the draft this way: “I would say that there is a pretty simple authorization he could ask for and it would read one sentence: ‘We authorize the president to defeat and destroy ISIL.’ Period.” Senator Lindsey Graham said the limitations would “harm the war effort.” Both of them imagine they may be using a future authorization, and want it to be as wide as possible. But to Obama, an over-broad resolution would be the nightmare of permanent war that he has tried to escape for the past six years.
Some Democrats, meanwhile, believe that even Obama’s language is too broad. So we have stalemate—a stalemate the administration can live with. It has its claim of authority already in place, and it’s unwilling to rock the military boat while a vote is pending on the Iran nuclear deal.
The scandal in this is that almost nobody is really working to resolve the impasse. Senators Timothy Kaine of Virginia, a Democrat, and Jeff Flake of Arizona, a Republican, have submitted a draft which would provide limited authorization, but their colleagues aren’t beating down their doors to cosponsor the bill. Kaine recently told The Hill that the Senate “has hardly had more than 90 minutes of discussion about this” since the Obama draft arrived.
The administration has at least done the minimum. And if the administration isn’t pushing, it’s at least in part because this Congress has demonstrated that it will discard settled norms in foreign policy—witness the genuinely shocking attempt to sabotage the Iran deal by writing to the Iranian leadership while negotiations were still pending. Right now, that deal is the administration’s top priority.
Congress is abdicating an important role. Congress always prefers to remain mum about a war until it sees whether it’s going well, but the Constitution doesn’t have a “wait for the polls” clause.
But this war is already too wide to be proceed any further without a serious discussion of the aims and dangers of the effort. American soldiers, whether they are “advisers” or “embeds” or anything else, are at risk, and beyond that, international stability is at stake. There are institutional reasons why the two branches are content to make war-and-peace decisions in silence. But we the people don’t have to accept that. We can insist that Congress take this matter up, and we can also insist that they treat this life-and-death issue as if they were grown-ups.NEXT STORY: Here's What It Takes to Become an Army Ranger