US NEWS & WORLD REPORT 09/11/13
By Michael Shank
One of the most disturbing dynamics about President Barack Obama’s speech to the American people and what’s gone down in the last week in Washington – vis-à-vis military strikes in Syria – is the Obama administration’s willingness to break constitutional and international law to, ostensibly, uphold the law on chemical weapons and the morality enshrouding that law. Senator Rand Paul, R-Ky., in his response to the president’s speech, rightly called out the Obama administration on this point exactly.
The fact that Obama buried the lede (i.e. that Syria is now willing to sign the Chemical Weapons Treaty and turn over its chemical stockpiles to the international community) and led, instead, with an emotional appeal for a military strike and an assertion that the executive branch has the supreme authority on the military front, not the legislative branch, shows how wrong he is – legally speaking – and how right Paul was with his post-speech counter.
The White House, and its pro-invasion advocates in Congress, believes that as long as the military action is not deemed a “war,” the endeavor can escape the strictures secured by both America’s founding fathers and the international community after World War II. This is wrong-headed.
Irrespective of Congress’s now-delayed vote on whether or not to authorize the use of military force in Syria, the president’s public statement that Congressional approval is an unnecessary prerequisite shows just how little regard the White House has for legal precedents and precepts.
This is a dangerous and slippery slope for the executive branch. Remember, President Obama and Vice President Joe Biden were very much against the breaking of constitutional law when Congressional approval is not present for a president’s war of choice (i.e. when not in self-defense). Serving as senators at the time, Biden and Obama commented, unequivocally, on the Constitution’s categorical role, with Biden going furthest in his opposition, saying that the founding fathers were “profoundly right,” and that “if the president takes us to [war] without Congressional approval, I will call for his impeachment … the Constitution is clear. And so am I.”
Then-Senator Obama was no less clear, noting that the U.S. 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.” As senators, they were correct. According to Thomas Jefferson, in 1801, the president is, in fact, “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.”
Jefferson pulled directly from the Constitution. Article I, Section 8, Clause 11 of the Constitution reads: “[Congress shall have Power…] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Moreover, Jefferson was not alone in insisting this point. As James Madison wrote to Jefferson: “The constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the legislature.” Madison recognized the proclivity and propensity of presidential powers to go above and beyond what was prudent.
Those who claim, then, that the president is commander in chief and thus the commencer of all wars, are incorrect. What the founders intended with Article II, Section 2 of the Constitution, which refers to the president as the “commander-in-chief of the army and navy of the United States” is that – as Tenth Amendment Center founder Michael Boldin has noted – “once war was declared, it would then be the responsibility of the President, as the commander-in-chief, to direct the war”.
One wonders why the White House is so willing to flout American constitutional law, let alone international law, the latter of which requires a vote by the United Nations Security Council, according to the U.N. Charter of 1945, on par with what the U.S. government facilitated with Libya. The Libya resolution passed the U.N. Security Council by a vote of 10 in favor, with five abstentions (Brazil, China, Germany, India and Russia), authorizing member states “to take all necessary measure to protect civilians under threat of attack in the country.”
The first lesson from Libya is that, even if China and Russia have played, in the past, recalcitrant negotiators within the council, they can always abstain and fail to obfuscate a vote. In this case, however, ideally the U.S. would court the council for an indictment through the International Criminal Court, which is the optimal venue for reaffirming and reinforcing international law. Several members of Congress are now pursuing legislation along these lines.
The second lesson from Libya is that after raining down 7,700 missiles and bombs to rid the country of Col. Moammar Gaddhafi, and after supplying much money and munitions to myriad rebel groups, we have not left the country better off. The problem of arms trafficking is still rife in the region, rebel groups remain splintered, the government is still fractious and stability and security issues are still prevalent.
Syria poses many of the same problems, with the potential for regional arms trafficking, fractious government and perpetual rebel warfare ever-present. The conviction, then, by the White House to still prosecute this invasion is confounding.
Remember, there is no direct threat to American national security (and we can think of plenty others deserving the White House’s full-throttled attention, like the national debt), despite how much Secretary of State John Kerry or Barack Obama has claimed that our allies on the ground will be threatened. The truth here is that these allies will be under greater threat if we invade. Blowback is certain.
There is no clear strategy for post-invasion, including the securing of any additional existing chemical weapons, the prevention of massive casualties associated with chemical explosions in the attack and the potential for serious regional and international blowback by allies of the Syria government. There is not even a plan for installing a ceasefire or a transitional government.
There is no accurate cost calculation for this invasion. While Secretary of Defense Chuck Hagel noted in a House Foreign Affairs Committee hearing that it’d run in the “tens of millions” this not dissimilar from pre-Iraq war advocates who claimed that the invasion in Baghdad would cost a similar low amount. We learned quickly how that was utter spin and absolute misrepresentation.
There is no American support for this invasion. Constituents have not changed their mind in the past few weeks, no matter how many times the White House has communicated the case. While the American people are deeply saddened by the deaths of Syrians, they recognize that we should not incur further Syrian deaths by inflicting more violence on an already violence-ridden landscape.
We are not, nor should we be, the world’s policeman. It is about time we realized that, not only because the world doesn’t want us to play that role, but also because we cannot afford to finance that position. Upholding law and order is essential, but it is equally critical that we uphold the law while trying to enforce the law. Anything else sets a bad precedent for those who want to do bad things in the world. It is about time we lead by example.
Michael Shank is the director of foreign policy at the Friends Committee on National Legislation. Follow him on Twitter: @Michael_Shank.