Executive war powers up under Obama


Congressional interference signals a diluted American commitment to force – that emboldens enemies



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Congressional interference signals a diluted American commitment to force – that emboldens enemies


Newton ’12 Michael A. Newton, professor at Vanderbilt Law, “Inadvertent Implications of the War Powers Resolution,” Case Western Reserve Journal of International Law, Vol. 45, No. 1, 2012, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2232354

The corollary to this modern reality, and the second of three inadvertent implications of the Resolution, is that our enemies now focus on American political will as the Achilles heel of our vast capabilities. Prior to the War Powers Resolution, President Eisenhower understood that it was necessary to “seek the cooperation of the Congress. Only with that can we give the reassurance needed to deter aggression.”62 President Clinton understood the importance of clear communication with the Congress and the American people in order to sustain the political legitimacy that is a vital element of modern military operations. Justifying his bombing of targets in Sudan, he argued that the “risks from inaction, to America and the world, would be far greater than action, for that would embolden our enemies, leaving their ability and their willingness to strike us intact.”63 In his letter to Congress “consistent with the War Powers Resolution,” the president reported that the strikes “were a necessary and proportionate response to the imminent threat of further terrorist attacks against U.S. personnel and facilities” and “were intended to prevent and deter additional attacks by a clearly identified terrorist threat.”64 The following day, in a radio address to the nation, the president explained his decision to take military action, stating, “Our goals were to disrupt bin Laden’s terrorist network and destroy elements of its infrastructure in Afghanistan and Sudan. And our goal was to destroy, in Sudan, the factory with which bin Laden’s network is associated, which was producing an ingredient essential for nerve gas.”65 Citing “compelling evidence that the bin Laden network was poised to strike at us again” and was seeking to acquire chemical weapons, the president declared that we simply could not ignore the threat posed, and hence ordered the strikes.66 Similarly, President Clinton understood that intervention in Bosnia could not be successful absent some national consensus, which had been slow to form during the long Bosnian civil war.67 Secretary of State George Schultz provided perhaps the most poignant and pointed example of this truism in his testimony to Congress regarding the deployment of US Marines into Lebanon to separate the warring factions in 1982. On September 21, 1983, he testified before the Senate Foreign Relations Committee and provided a chilling premonition of the bombing that would come only one month later and kill 241 Americans, which was the bloodiest day in the Marine Corps since the battle of Iwo Jima.68 Seeking to bolster legislative support and to better explain the strategic objectives, he explained that: It is not the mission of our marines or of the [Multinational Force in Lebanon] as a whole to maintain the military balance in Lebanon by themselves. Nevertheless, their presence remains one crucial pillar of the structure of stability. They are an important deterrent, a symbol of the international backing behind the legitimate Government of Lebanon, and an important weight in the scales. To remove the marines would put both the Government and what we are trying to achieve in jeopardy. This is why our domestic controversy over the war powers has been so disturbing. Uncertainty about the American commitment can only weaken our effectiveness. Doubts about our staying power can only cause political aggressors to discount our presence or to intensify their attacks in hopes of hastening our departure. An accommodation between the President and Congress to resolve this dispute will help dispel those doubts about our staying power and strengthen our political hand.69 Following the spectacularly successful terrorist attack on the Marine barracks in Beirut, President Reagan withdrew the Marines. Osama bin Laden later cited this as an example of American weakness that could not withstand the jihadist fury he sought.70 The legal battles over the scope and effect of the War Powers Resolution have highlighted the focus on national political will as the fulcrum of successful military operations by requiring assurances that military operations are limited in nature, duration, and scope, and therefore well within the president’s constitutional authority as Commander-in-Chief and chief executive. President Obama’s report to Congress in the context of the Libya operations in 2011 cited precedent from air strikes in Bosnia that took just over two weeks and involved more than 2,300 US sorties and the deployment of US forces in Somalia in 1992 and Haiti in 1993.71 The White House released a memorandum from the OLC, similar to previous interventions, explaining how the authorization to use such force was constitutional on the basis that “‘war’ within the meaning of the [Constitution’s] Declaration of War Clause” does not encompass all military engagements, but only those that are “prolonged and substantial . . . typically involving exposure of U.S. military personnel to significant risk over a substantial period.”72 President Obama consistently maintained that the US role in Libya was limited, unlikely to expose any US persons to attack (especially given the role of missiles and drones and the utter inability of Qaddafi’s forces to strike back with conventional means), and likely to end expeditiously.73 By that logic, it did not require authorization from Congress. The administration ultimately adopted a legal analysis that the US military’s activities fell short of “hostilities,” and thus, the president needed no permission from Congress to continue the mission after the expiration of the sixty-day reporting window specified in the War Powers Resolution.74 The president’s reasoning rested on previous OLC opinions that what counts as war depends on “a fact- specific assessment of the ‘anticipated nature, scope, and duration’ of the planned military operations.”75 Present justifications for bypassing the War Powers Resolution hinge on interpretations that it requires “prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.”76 The OLC engaged in similar reasoning in the Bosnia intervention in 1995, explaining that in deciding whether the proposed deployment into Bosnia amounted to a “‘war’ in the constitutional sense, considerable weight was given to the consensual nature and protective purposes of the operation.”77 That deployment was similarly intended to be a limited mission but that mission, in contrast to the present one, was in support of an agreement that the warring parties had reached and it was at the invitation of the parties that led to the belief that little or no resistance to the deployment would occur. Though some scholars argued that the Libya OLC Memorandum defended its reasoning for why the operation did not amount to “war,” it did not address whether the administration believed that it will have to stop operations upon expiration of the sixty-ninety-day clock under the War Powers Resolution.78 The deadline passed with little fanfare. The memorandum also relied upon quite distinguishable precedent to serve as a guiding point in this intervention. Professor Goldsmith argued the opinion broke “new ground . . . in its extension of the ‘no war’ precedents beyond the Bosnia and Haiti situations—which involved consensual peacekeeping-like introductions of ground troops but no significant uses of force—to cover two weeks of non-consensual aerial bombardments.”79 Thus, even as it incentivizes short term, limited deployments, the War Powers Resolution embeds an inevitable constitutional collision between the coordinate branches. Our enemies can rely upon constitutional carping from Congress, and in fact can adapt tactics and statements that seek to undermine political will in the US Congress and among the American people from the first days of an operation. The Resolution helps to ensure that such debates over the national political will take center stage sooner rather than later, and an asymmetric enemy can in theory erode our political will even before it solidifies.


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