Opinion: War powers shift undercuts Constitution

March 29, 2013


— “President Obama has arguably established the authority of the president to intervene militarily virtually anywhere without the consent or the approval of Congress, at his own discretion and for as long as he wishes.”

     — Jim Webb

As America tiptoes toward a fourth intervention in an opaque and uncontrollable conflict — now Syria, after Iraq, Afghanistan and Libya — Webb’s words require two minor modifications: Obama has demonstrated a power, not an authority; only the Constitution authorizes. And as Webb understands, Obama has been able to do so only because Congress, over many years, has become too supine to wield its constitutional powers.

Webb, a Virginia Democrat who declined to seek a second Senate term, vents his dismay in the essay “Congressional Abdication” (in The National Interest), a trenchant indictment of the irrelevance of an institution to which the Constitution gives “certain powers over the structure and use of the military.” The president, Webb says, is commander in chief but only in “executing policies shepherded within the boundaries of legislative powers.” Those powers have, however, atrophied from a disuse amounting to institutional malfeasance as Congress has forfeited its role in national-security policymaking.

Webb, who was a Marine infantry officer in Vietnam and Navy secretary for Ronald Reagan, remembers when Congress was “fiercely protective of its powers.” Webb vigorously opposed the invasion of Iraq before he entered the Senate, which he departed disgusted by Congress’ self-made irrelevance.

In December 2008, in its final hours, George W. Bush’s administration signed with Iraq a Strategic Framework Agreement that was, Webb says, “not quite a treaty” requiring two-thirds Senate approval, but neither was it merely implementing current policy and law. It outlined the U.S. role in defending Iraq from internal and external threats, in promoting reconciliation and combating terrorist groups.

For more than a year the SFA was negotiated and finalized, but there was no meaningful consultation with Congress, no congressional debate on its merits and none sought by congressional leaders. In contrast to Congress’ passivity regarding policy toward “an unstable regime in an unstable region,” Iraq’s parliament voted on the SFA — twice.

In May 2012, Obama visited Afghanistan to sign “a legally binding executive agreement” concerning the structure of future U.S.-Afghan relations, U.S. commitments to Afghan security and an anticipated U.S. presence beyond 2014. The agreement calls Afghanistan a “Major Non-NATO Ally.” Congress was not formally consulted about this, but Afghanistan’s parliament voted on it.

Noting that in foreign as well as domestic policy Obama is “acutely fond of executive orders designed to circumvent the legislative process,” Webb recalls that in 2009 the administration said it would return from the United Nations’ Copenhagen conference on climate change with a “binding” commitment for an emission-reduction program. So Webb wrote to remind the president that “only specific legislation agreed upon in the Congress, or a treaty ratified by the Senate, could actually create such a commitment.”

Webb notes that presidents now act as though they have become de facto prime ministers, unconstrained by the separation of powers. This transformation was dramatized in the Libya intervention:

“Was our country under attack, or under the threat of imminent attack? No. ... Were we invoking the inherent right of self-defense as outlined in the U.N. Charter? No. Were we called upon by treaty commitments to come to the aid of an ally? No. Were we responding in kind to an attack on our forces elsewhere, as we did in the 1986 raids in Libya after American soldiers had been killed in a Berlin disco? No. Were we rescuing Americans in distress, as we did in Grenada in 1983? No.”

Instead, “we took military action against a regime that we continued to recognize diplomatically, on behalf of disparate groups of opposing forces whose only real point of agreement was that they wished to rid Libya of (Moammar) Gaddafi. This was not even a civil war” because there was “no cohesive opposition facing a regime.” The result? “Rampant lawlessness” perhaps related to the murder of the U.S. ambassador and three other Americans, and “the regionwide dispersion of thousands of weapons from Gaddafi’s armories.”

The question, Webb says, is whether in “a world filled with cruelty,” presidents should be allowed to “pick and choose when and where to use military force” by merely citing the “undefinable rubric of ‘humanitarian intervention.’”

Imperial presidents and invertebrate legislators of both parties have produced what Webb correctly calls “a breakdown of our constitutional process.” Syria may be the next such bipartisan episode.  

— George Will is a columnist for Washington Post Writers Group.


skull 5 years ago

Anybody remember "the Decider" and our 2003 rushed Iraq invasion? That was Obama's fault too...

rtwngr 5 years ago

So what your saying is because Bush did something it is ok for Obama to err equally? I thought this was the smartest guy in the room and could be trusted to do it the correct way. I thought Obama was going lead the most transparent administration ever. He's nothing but a lying, lazy, golf playing, vacation taking, pontificating, community organizing, campaigner who doesn't know the first thing about economics.

jafs 5 years ago

Well, that carefully thought out and well presented argument convinced me, for sure.

What skull is saying is that despite the information presented by Will that Bush did these things, he seems to focus on Obama - why? It's one thing to criticize the actions, regardless of who does them, and another to criticize them only when one side or the other does.

tomatogrower 5 years ago

So you are admitting your golden boy screwed up? Finally.

UneasyRider 5 years ago

Twisty, obviously you consider W a very successful and great president?

Ron Holzwarth 5 years ago

It seems to me that the Constitution outlined certain powers for the President, but failed to specify adequate punishments for failing to adhere to them. In other words, laws without policemen, trials, judges, juries, or jails.

The framers of the Constitution could hardly have expected this. But, they were men of integrity, and I suppose they thought all future Presidents would be also. Perhaps the failings are ours, by our selection of Presidents. In fact, I'm almost sure that's the case. For years now, votes for the President have been for the lesser of two evils.

Perhaps a Constitutional amendment is in order. But that would be very difficult to pass in today's political climate.

jhawkinsf 5 years ago

I'd argue that for the past several decades, Congress and the President have conspired to circumvent the Constitution. This is especially true when it comes to the obligation to declare war, something that is within the sole Constitutional power of Congress. By passing the War Powers Act and then funding foreign military actions around the world, Congress has simply given to the President what the Constitution gave to Congress. Whatever condemnation needs to be given, it should be for both institutions and all who have occupied positions within those two institutions. And while I'm certainly no Constitutional scholar, if the courts have had the chance to rule and have failed to do so, then blame needs to be shared with them as well.

tomatogrower 5 years ago

George Will wasn't whining about the War Powers act when Bush was president, but he is now? What a hypocrite. If Obama was a Republican doing the exact same things, he would still be silent.

UneasyRider 5 years ago

Sums up what happened to Democratic party in the South.

Leslie Swearingen 5 years ago

Is there any chance we could just discuss what is going on today, maybe no further back than six months unless absolutely necessary, because that is quite enough?

Commenting has been disabled for this item.