On Friday, I spoke on Capitol Hill at the Federalist Society’s symposium “The Constitutional War Powers of the Executive and Legislative Branches.” This weekend’s column is adapted from those remarks.
As we gather here on Capitol Hill today, the United States armed forces are engaged in combat operations in several global hot spots. In Syria, we have not only conducted attacks against the regime without any congressional authorization; we are now occupying territory as well.
Ostensibly, we are there to fight not the regime or its Russian and Iranian allies but the Islamic State jihadist organization (also known as ISIS). But to the extent that is a legally “authorized” conflict, it is against an enemy that arguably did not exist when the relevant authorizations for the use of military force (AUMF) were debated and enacted about 15 years ago.
Now, you could say, as we have been saying, that ISIS is merely a breakaway faction of al-Qaeda — it began as the terror network’s Iraqi franchise. Consequently, it is covered under the existing AUMF. This, however, ignores the inconvenience that al-Qaeda, along with its allied Islamist factions, is also fighting ISIS and the Assad regime in Syria. Essentially, the enemy that we started out fighting after it attacked America in 2001, and that still regards the United States as its mortal enemy, is nevertheless fighting in Syria alongside the “rebel” elements that we support.
In that sense, the situation mirrors our misadventure in Libya. That was another recent conflict in which a president, without congressional authorization, launched an aggressive war against a foreign sovereign that not only posed no threat to the United States but was actually regarded as a key counterterrorism ally — precisely because, for all its many flaws, the Qaddafi regime was providing us with intelligence about militants in places like Benghazi and Derna, the Libyan support hubs for the jihad against the United States in Iraq and Afghanistan.
That is to say, in Libya, we initiated an unnecessary war without any debate among the people’s representatives, much less any congressional authorization, and the result was a catastrophe: the undoing of a counterterrorism ally in a dangerous neighborhood, the empowerment of our jihadist enemies, a failed state, and an administration reduced to absurd rationalizations about how its aerial bombing raids on regime targets were somehow not acts of war.
It is tempting on this record to draw the conclusion that modern practice has superseded the Constitution’s separation of war powers and division of war-making authorities between the commander-in-chief and the Congress. But when we get down to brass tacks, this simply is not true.
It is not true for a reason that is often forgotten in our debates about war powers, which are dominated by lawyers. They tend to take place under the auspices of legal academic institutions or organizations like our host today, my good friends and colleagues of the Federalist Society.
The Constitution is basically a political document, not a legal one.
The reason is this: We are a body politic, not a legal community — at least, not in the main. For any free society to flourish, it must of course be undergirded by the rule of law. But the Constitution is basically a political document, not a legal one. It is the assignment and division of political authority among actors who compete and collude based on the attendant circumstances.
This is critical because war is a political exercise — “politics by other means,” as Carl von Clausewitz memorably put it. There are legal elements to it, but it is basically a political endeavor — the use of government power, in this instance force, against a foreign enemy in order to break the enemy’s will. Though you wouldn’t know it to listen to most war-powers discussions, there is a limit to how much war can be “judicialized” or subjected to antecedent legal rules and procedures.
A state of war, after all, is the antithesis of our domestic peacetime footing. It is the proud boast of our legal system that we would rather see the guilty go free than have a single person wrongly convicted. Thus, we presume against the government. The accused is presumed to be innocent and has no burden to prove anything. The government must meet weighty standards of proof to conduct a search, obtain a wiretap, make an arrest, or secure a conviction. Our bottom line, as former Bush-41 attorney general William Barr has observed, is that we would rather see the government lose — i.e., justice is not the conviction of the guilty; it is a government forced to meet its burden under strict due-process rules.
War is entirely different. In war, we don’t want the government to lose, and we cannot give the enemy the presumption of innocence. In war, it is in the national interest that the government prevail. Yes, our troops are the world’s best trained and most disciplined, and we demand of them adherence to the laws and customs of civilized warfare. But the highest national interest is to defeat the enemy and to achieve the objective so vital that it was worth going to war over.
War is thus a very different paradigm. Far more than legal niceties, it is driven by the public’s perception of threats to the homeland and to vital American interests.
Our division of war powers is a reflection of this political reality. As we discovered painfully in Vietnam, and to a lesser extent in Iraq, a war effort needs strong political support to be successful in a democracy. If there is not public consensus that our security is at risk, or that high-order American interests are at stake, support for war at home and in Congress will flag.
At that point, we can debate until the end of time whether the use of force was lawful and authorized. The only salient point will be that the public does not regard the war effort as a necessary sacrifice of blood and treasure — that will be the practical and dispositive test of legitimacy.
Our Constitution’s war powers are geared in just this way.
The Constitution vests in Congress the power to declare war. The executive, however, is chiefly tasked with our national defense against foreign threats, and it is for the commander-in-chief to prosecute war. This means that when the United States is under attack, or the real threat of attack, no authorization from Congress is needed. The president may take whatever military action is necessary to quell the threat.
Even under these circumstances, however, congressional authorization is desirable. It becomes not only desirable but increasingly essential as the immediacy of the threat fades. For congressional endorsement of combat operations not only reflects public support for the war; it further defines the parameters of the conflict — including, critically, who the enemy is. This is necessary because it delineates the operation of the laws of war, determining who may be regarded as an enemy combatant, subject to lethal force, capture, detention without trial, and potentially even military commission if provable war crimes have been committed. A congressional authorization controls where and against whom military operations may be conducted.
Congressional authorization of use of force is desirable. It becomes not only desirable but increasingly essential as the immediacy of the threat fades.
Here is the main point: The further removed the use of force is from an identifiable threat to vital American interests, the more imperative it is that Congress weighs in, endorses or withholds authorization for combat operations, and use its other constitutional authorities — particularly, the power of the purse — to ensure that military force is employed only for political ends that are worth fighting for, and that the public will perceive as worth fighting for.
Now, it is fair enough to say that our contemporary practice has not conformed to these constitutional guidelines. As a practical matter, we have permanent military forces and there is no stopping a president from ordering them into battle. As we’ve noted, President Obama did not seek congressional authorization for the Libya campaign, just as President Clinton did not seek it for the bombings in the Balkans, and President Reagan did not seek it prior to the invasion of Grenada. After insisting as candidate Trump that Obama needed Congress’s assent to attack regime targets in Syria, President Trump has attacked regime targets in Syria without Congress’s assent. Congress’s war powers seem not to be much of a hindrance on the executive.
Nor does Congress’s power of the purse seem to have much bite. It is simply a political reality — it is common sense — that the American people have a deep attachment to their sons and daughters in harm’s way, regardless of their commitment, or lack of commitment, to a war and its objectives. Congress may disapprove of a unilateral presidential use of force; but unless the public is not merely indifferent but deeply opposed to American participation in a conflict, lawmakers will be very leery of being seen as cutting off support for the troops.
So here is the dynamic: The president has a relatively free hand, and Congress abdicates its responsibilities — content to wave the pom-poms when things go well, and to excoriate the incumbent administration, but not cut off funding, when the going gets tough.
Still, we can see the Constitution at work as a political document, even if the resulting legal arrangements are untidy. The lack of political support that induces presidents to refrain from seeking congressional authorization also operates as a severe political impediment to presidential war-making. The perception that war-making is of dubious legitimacy serves to rein in executive ambitions. And over time, Congress does assert itself.
We saw how this worked in Iraq. There was strong public support for the mission of removing Saddam Hussein, on the grounds — very powerful in the post-9/11 environment — that he had weapons of mass destruction and might be inclined to share them with jihadists. The mission was sufficiently popular that congressional Democrats, with the 2004 election on the horizon, sought out the opportunity to vote in favor authorizing force.
But after a swift and spectacularly successful toppling of the regime, it became increasingly evident that there was another, very different and very ambitious war aim. It was more a Washington enterprise than a mission the American people believed in. It became prioritized when weapons of mass destruction were not found in the quantities advertised.
The point that is relevant to constitutional war powers is the political imperative of public support for military operations.
This was the effort to sow Western democracy, principles, and institutions in an Islamic sharia society that was hostile to them — hostility that grew more intense as the joy of liberation from Saddam transitioned into American occupation and a savage civil war between Sunni and Shiite factions.
Alas, we did not learn and apply the lesson of this folly in Libya. And I fear we are well on the way toward making the same mistake in Syria, where the consequence of folly could be disastrous given the players involved — Russia, Iran, and Turkey included — and the complexity of the multi-layered conflict.
President Trump gave a very interesting speech in Poland on Thursday about preserving Western society. Except he didn’t call it “Western society.” He referred instead to Western civilization. He was right, just as Samuel Huntington was right.
Our conflict with radical Islam — with what I prefer to call “sharia supremacism” — is a clash of civilizations. To prevail, the West has to decide that the West is worth defending, and we have a lot of work to do to repair that self-perception. But we also have to realize that the enemy is the product of a rival civilization with starkly different principles. It is not enough to say that fundamentalist Islam (the mainstream Islam of the Middle East) does not wish to be westernized. It considers the intrusion of Western armies and institutions to be a deep provocation — even if we see ourselves as do-gooders just trying to improve people’s lives. That is a product of spending a generation in willful blindness of their animating ideology, which could be a subject of a symposium unto itself.
The point that is relevant to constitutional war powers is the political imperative of public support for military operations. If there are vital American security interests at stake, the American people will be on board. Congressional authorization and endorsement will then make it possible to achieve crucial military victories.
Americans, however, are simply not interested in trying to democratize Islamic societies through military force. On this score, it is essential that Congress do its job: Demand that any president who lurches into these conflicts seek congressional authorization for clearly stated objectives, and satisfy the people’s representatives that we are pursuing real security objectives, not conducting a sociology experiment at the expense of our best and bravest young people.
As a practical matter, the Constitution may not be able to prevent an overly adventurous president from enmeshing us in conflicts against our interests. But congressional war powers can still have much to say about the legitimacy of the use of force, and therefore about its extent and duration. Moreover, where the use of force is clearly in America’s vital interests, congressional war powers — used to issue a powerful endorsement of a clear, necessary mission — can help us achieve something that has eluded us since 1945: victory.