Go to Congress First

Going into Libya is bad enough; doing it without congressional approval is worse.

By Andrew C. McCarthy
http://www.nationalreview.com
March 19, 2011 4:00 A.M.

Photo credit: AP This Saturday, March 19, 2011 photo provided by the U.S. Navy shows the Arleigh Burke-class guided-missile destroyer USS Barry (DDG 52) as it launches a Tomahawk missile in support of Operation Odyssey Dawn from the Mediterranean Sea . The U.S. fired more than 100 cruise missiles from the sea while French fighter jets targeted Moammar Gadhafi's forces from the air on Saturday, launching the broadest international military effort since the Iraq war in support of an uprising that had seemed on the verge of defeat. (AP Photo/U.S. Navy, Fireman Roderick Eubanks)


Conservative infighting over whether the United States should intervene militarily in Libya is sign of good health. To remain vital, an ideological movement needs to have its basic assumptions challenged occasionally. We need to correct our wayward courses rather than allow mistakes based on faulty strategy to serve as precedents for the next missteps.

Many conservatives (particularly neoconservatives) are strong supporters of intervention, out of a deep conviction that the global advance of freedom promotes American security. I happen to disagree, at least insofar as the “freedom agenda” relies on the U.S. military as its agent. Regardless of where one comes out on the policy, though, we all ought to agree on at least one thing: The Constitution must control the implementation of whatever policy wins the day. Yet it has become necessary to ask whether even this principle, so fundamental to a free, self-determining people, is still unanimously honored.

On Thursday evening, the U.N. Security Council voted 10–0 (with five abstentions, including China, Russia, and Germany) to authorize the use of military force (i.e., “all necessary measures”) against Libya. Ostensibly, the resolution is designed to protect the Libyan people. But not to mince words, it is a license for war against the regime of Moammar Qaddafi. It would kick hostilities off with a no-fly zone over Libya. As a practical matter, American armed forces must do the heavy lifting if the strategy is to have a prayer, and indications are that President Obama intends to oblige.

There is a catch: The Security Council is powerless to “authorize” the U.S. military to do a damned thing. The validity of American combat operations is a matter of American law, and that means Congress must authorize them.

Our Constitution vests Congress with the power to declare war. That authority cannot be delegated to an international tribunal that lacks political accountability to the American people. The decision to go to war is the most significant one a body politic can make. Thus the Framers designed our system to make certain that the responsible officials are answerable to the people whose lives are at stake and who are expected to foot the bills.

Contrary to the insistence of many on the right and the left, this has never meant that military operations may not be launched in the absence of a declaration of war. Indeed, although the United States has engaged in many wars and lesser conflicts, war has been formally declared only five times. Still, the circumstances for departing from this formality are narrowly defined.

The first is obvious: an actual or imminent strike against the United States. There is no question that the government’s principal responsibility is the security of the governed. The president, as commander-in-chief, has not only the authority but the duty to order the use of any force necessary to protect the United States from hostile powers that attack or are preparing to attack. The principle is clear, and the Supreme Court has endorsed it since the 19th century.

But this is not a blank check for the president. At a certain point in time — which may vary with the peculiar circumstances of different armed conflicts — Congress must weigh in and either endorse or put a stop to presidential war-making. It may do the latter by refusing to support the president’s actions and calling for military operations to cease. If the president refuses to honor this expression of disfavor by the people’s representatives, Congress may use its power of the purse to defund military operations. If the president tries to persist, Congress may even impeach him. The central point is that the commander-in-chief’s brute power is not a limitless authority. To be valid, combat operations must at some early, practical point be blessed by Congress, even if the president has righteously ordered them in response to an attack on our country.

The other circumstance of departure from the formal declaration of war occurs when Congress functionally declares war by approving combat without using the magic words “declare war.” A good example of this is the authorization for the use of military force Congress enacted, and President Bush signed, in the days after 9/11. Some on the left — largely to bolster their contention that terrorism should be treated as a law-enforcement issue — take the position that sovereign nations cannot truly engage in war with sub-sovereign terrorist organizations. Furthermore, it was unknown right after 9/11 (in fact, it remains unknown today) whether any foreign nation knowingly assisted al-Qaeda in the 9/11 plot. To avoid bogging down over such matters, Congress substantially declared war without using those words: It provided the president with sweeping authority to attack the enemy and reaffirmed that authorization several times with funding.

Note that both situations warranting departure from the formal declaration of war involve actual danger to the United States (or, worse, completed attacks against the United States). That is common sense. Government cannot perform its essential security function unless the president can act in a true crisis. The nation could otherwise be destroyed. In due course, though, Congress must endorse or reject presidential action. The system is designed to ensure that the nation can protect itself but does not commit to war unless the American people consent.

I would like to assume that conservative proponents of intervention in Libya agree with this proposition. Earlier this week, in taking issue with my colleagues at National Review over an editorial calling for military operations against the Qaddafi regime, I voiced surprise at the editors’ suggestion that a request from the Arab League sufficed as justification for dispatching American armed forces. To be fair, however, no objection specifically based on the lack of congressional support had been brought to the editors’ attention. The passage to which I objected may merely have been meant to address the separate question of whether it was necessary or prudent to wait for additional international support.

Transnational progressives and national-security conservatives may hotly debate whether any endorsement from some international body (in particular, the U.N. Security Council) is necessary before the United States may legitimately take military action. But there should be no debating that absent a hostile invasion of our country, a forcible attack against our interests, or a clear threat against us so imminent that Americans may be harmed unless prompt action is taken, the United States should not launch combat operations without congressional approval.

That is especially true in Libya. There is no realistic prospect of harm to the United States from Qaddafi’s regime.

Concededly, I do not believe there is sufficient justification to use U.S. military force — I don’t even think it’s a close case, and I think proponents are seriously discounting the net harm using force could cause. But I am talking now about propriety, not policy. Let’s assume for argument’s sake that: a) U.S. interests are dangerously harmed by the instability caused when a dictator is allowed to murder his own people with impunity; b) Qaddafi’s opposition, even if it prominently includes anti-American Islamists, may turn out to be tolerably democratic and less anti-American than Qaddafi; c) the advance of freedom means the retreat of Islamic terror, and therefore promotes American national security; d) Qaddafi is a terrorist enemy of the United States who has committed acts of war that cry out for a response; e) in his current precarious straits, it will be in Qaddafi’s interest to renege on his commitment to abandon pursuit of mass-destruction weapons (WMD), and that could exacerbate a regional arms race, likely landing WMD in the hands not only of Qaddafi but of anti-American regimes and terrorist organizations; and f) the “international community” is more or less unified in asking the United States — the lone global superpower capable of crushing Qaddafi quickly — to act.

Even if all of that were true, there would be no good reason for President Obama to launch military action without congressional approval. Yet that appears to be exactly what he is doing. In his remarks Friday, committing to what he promised would be a limited military engagement (with no ground forces, basically just air power), the president never even hinted that he might seek Congress’s imprimatur. To the contrary, he asserted that the “use of force” was “authorized” by the “strong resolution” of the “U.N. Security Council,” which was acting “in response to a call for action by the Libyan people and the Arab League.”

Many of the Libyan people, to say nothing of the Arab League, do not mean the United States well. But even if they were strong allies, that would make no difference. Only the American people and their representatives in the United States Congress get to make the “call for action” that involves enmeshing our armed forces and our country in a war.

In terms of American national security, there is no emergency. The only threat here is to Libyans who oppose Qaddafi. If that threat is truly worthy of American military intervention, President Obama and intervention proponents should be able to make that case to Congress quickly and persuasively. The president’s party controls the Senate, and even though Republicans control the House, the GOP has consistently rallied to the support of Democratic presidents when American national security is clearly at stake.

But it’s not. Thus, it is highly likely that Congress cannot be persuaded, quickly or otherwise. But the dim prospect for success is not an acceptable reason to end-run the process. In the Libya situation, our constitutional system calls for seeking a congressional authorization of military force. Even if that weren’t so, 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. I used to think we all agreed about that. I hope we still do.

— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.