I said last week I was going to spend some time talking about the frightening notion of how many people have embraced the idea that the president would have the power to bomb Syria even if Congress disapproved and that I'd talk about it because this will remain an important issue no matter what happens in the immediate case of Syria. Even if there is a peaceful settlement, even if there is an agreement that does not involve US bombs, this issue of the president's unilateral power remains. So let's have that talk now.
Because the White House has certainly made the argument. It has insisted, repeatedly, loudly, persistently, arrogantly, that Barack Obama, our Nobel Peace Prize president, the Very Amazing Mr. O himself, would have the authority to make war on Syria not only without Congressional authorization but even if Congress were to specifically deny him that authority.
The New York Times reported it: "Obama might still authorize force even if Congress rejected it.”
CBS News reported it: "Senior officials said that President Obama may still decide to strike Syria even if Congress disapproves of military action."
Time magazine reported it: Obama "might still attack Syria even if Congress issues a rejection."
And they said it themselves:
Caitlin Hayden, a spokeswoman for the White House and the National Security Council, said Obama's "decision-making will be guided by what is in the best interests of the United States" - which apparently only he gets to define.
White House counsel Kathryn Ruemmler said a strike without Congressional approval would be lawful under both domestic and international law because of the “important national interests” involved even if it “may not fit under a traditionally recognized legal basis under international law.” That is, it's not legal under international law, but it is anyway.
Deputy National Security Adviser Tony Blinken argued that “the president has authority to act” if Congress voted down the Syria resolution, as it surely would have.
Secretary of State John Kerry said Obama "has the right to do this no matter what Congress does."
Offical presidential Liar to the Press Jay Carney said Obama "has authority as commander-in-chief to take action" and Congressional approval "enhances the argument" but isn't required.
Obama himself said he wouldn’t speculate on how he might act.
What they are actually saying, as I said last week, is that the president, any president, has the power to ignore the Constitution and the Congress and attack any country, anywhere, anytime, whenever that president on their own authority, answerable to no one, decides it’s a good idea.
And it's not only the administration and its flunkies saying this:
John McCain, who has never met a Middle East war he didn't want to make bigger, said it would be "harder" for Obama to intervene in Syria if Congress votes it, but not impossible because he has "ample precedent" for "acting without the approval of Congress" - and, it appears, even in the face of Congress's direct disapproval.
And it's not just on the right, there are voices on the left - or at least among the supposed liberals - saying the same thing.
Josh Marshall, this great, liberal journalist who runs one of big more-or-less liberal news sites on the web called Talking Points Memo (or just TPM) had this to say:
I would put the War Powers Act to one side because no sitting President of either party has ever accepted that the War Powers Act is actually binding on the President.And that's the thing that keeps coming up. He's the Commander-in-Chief! The Commander-in-Chief! That's what he is, he's the Commander-in-Chief!
On the constitutional front, you frequently hear that only the Congress has the power to declare wars. But the President’s role as commander-in-chief of the armed forces gives him effective power to use the armed forces in various ways without a declaration. The really big grant of power in the Commander-in-Chief role isn’t something you can simply write off.
You know, I remember that back during the Watergate days, there was a moment when the Nixon gang tried to shut down the investigation by having Nixon send his chief of staff, Alexander Haig, to tell Attorney-General Elliot Richardson to fire special prosecutor Archibald Cox. When Richardson refused, Haig told him "Your commander in chief has given you an order."
The quote became infamous. Even though Haig was still active military at the time, he was still in a civilian office: chief of staff. And people were genuinely shocked to hear someone filling a civilian office, addressing a civilian, refer to Nixon as "your commander in chief" rather than as "president."
But that was then and times have, it seems changed and now it's considered proper, indeed reasonable, indeed it would be unreasonable for it to be otherwise, to think of Obama as "your commander in chief" even when dealing with civilian authority and to think of that role as commander in chief as overriding that authority.
I ask you, what could ultimately be more dangerous to the Constitution, what could be more dangerous to any constitutional form of government, to have military authority outrank civilian authority, for military authority to be able to do as it thinks best not only in the absence of approval but in the presence of active disapproval?
Glenn Greenwald noted that "it's a potent sign of how low the American political bar is set" that we're supposed to be, and a lot of us are, grateful that Obama even deigned to ask Congress to vote before he starts bombing another country even though he says the vote is meaningless because he can do what he pleases anyway.
And please don't give me that bull about "implied powers" or "implied authority under the Constitution." Bluntly, it's all crap.
Article 2, Section 2 of the Constitution says, quoting, The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.The president thus is the highest-ranking officer in the military chain of command. Putting this power in the hands of a civilian office was a deliberate, conscious choice.
On the other hand, under Article 1, Section 8, Congress, yes, is given the power to declare war - but its role is much wider than that. Congress also has the power, among other things,
to provide for the common Defense and general Welfare of the United States;Under the Constitution, Congress is heavily involved in the structure and process of military activities, in raising, organizing, regulating, and - importantly - authorizing the military forces.
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.
For all of the blather and the "well, this case" and "well, that case" and "well, this interpretation," and all of the attempts to justify the unjustifiable by verbal hocus-pocus and hokum, the basic premise seems quite clear to me: The president decides how the armed forces will be used; the Congress decides when and if they are used and under what guidelines. That basic principle, one Barack Obama grossly violated in Libya and proposed to grossly violate in Syria, spitting on the Constitution and disgracing himself and his office in the process, that basic principle just doesn't seem that complicated to me.
But the real world is rarely as clean as basic principles and so, after "a long train of abuses and usurpations," Congress asserted its will in the War Powers Act in 1973, which was passed over a presidential veto.
Yeah, the War Powers Act, the one our liberal journalist Josh Marshall wants to "put aside" because presidents have just declared it as non-binding, as if a press release from the White House controlled the validity and force of a law. The War Powers Act was an attempt to re-establish the role of Congress while recognizing the reality that emergencies may arise.
The heart of it is Section 2(c), which reads, in full:
The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.That is, the president may commit forces only in the cases of specific grants of authority or to react to an emergency. Neither of those cases existed in Libya, neither exists in Syria. In fact, Obama himself said he was willing to go to Congress to seek his - as far as he's concerned, purely symbolic - war resolution precisely because Syria presented no immediate threat to the US.
Instead, we were faced - and may in a short time be faced again - with the prospect of a president ordering the bombing of a sovereign nation not because of an attack, not because of a threat, not even because of a claimed threat, but because of a desire to look "resolute," to maintain "credibility," to not look "weak" or "indecisive," while government officials say - such as John Kerry, still doing his best to run away from his Vietnam War days, said - that the president can do this because he is not bound by law. And we are all supposed passively to accept this as the normal, natural, proper way things are.
In April 1977, during his interviews with Richard Nixon, David Frost asked him about the limits of presidential authority.
Nixon's answer was "When the president does it, that means that it's not illegal."
"By definition?" Frost asked.
"Exactly," Nixon answered.
That exchange produced a collective gasp in the country. The idea that a president could declare himself above the law stunned people and sank any hope Nixon had of using these interviews to rebuild his shattered reputation. Again, times have apparently changed and now a president declaring in effect that neither the law nor the Constitutional powers of Congress can constrain his use of the military in any way or at any time he sees fit is a mainstream idea.
Not only is no "imminent" threat required, there need be no threat at all - and Congress not only need not give approval either before or after the fact but can and should be ignored completely.
I said this in the case of Libya, I say it again now: If that notion, if the continuing move in that direction that this represents and establishes, does not disturb you, then not only is your understanding of freedom quite different from mine, your understanding of democracy and the nature of a free republic is as well.
Because I see this idea, the growing acceptance of this idea, as truly, truly, dangerous. McCain said a couple of weeks ago that this is "a critical moment" for the U.S. It is, but not in the way he meant.
I will leave this with two last thoughts: One, a bit of hope in that NBC News poll that had a whopping 79 percent saying the president should be required to receive congressional approval before taking any military action on Syria.
The other is this quote:
The 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.Those were the words of then-candidate for president, Senator Barack Obama to the Boston Globe On December 20, 2007.
Footnote: The US has been taking steps to destroy its own stocks of chemical weapons since the 1990s. It promised to complete that process by 2012.
It failed. The US still has over 2600 tons of mustard gas and 524 tons of other lethal gases and nerve agents, many of which are contained within weaponry, including rockets, artillery shells, landmines, spray tanks and aerial bombs. The most recent forecast is that the process of "neutralizing" won't be completed until 2023.
Now yes, the US has been destroying its own stocks and has helped other nations to destroy theirs. The point here is that the difficulty of actually fulfilling that mission has proved to be much greater than was anticipated. Just be sure to keep that in mind when the talk comes up of "deadlines" for Syria to completely destroy its own stocks. They are likely to be much smaller, but the point of the difficulty involved - a level of difficulty multiplied by trying to do this in the middle of a civil war - remains.
Sources:
http://my.firedoglake.com/nsolomon/2013/09/01/obama-will-launch-a-huge-propaganda-blitz-and-may-attack-syria-even-if-he-loses-the-vote-in-congress/
http://livewire.talkingpointsmemo.com/entry/obama-admin-officials-dont-rule-out-syria-strike
http://www.theguardian.com/commentisfree/2013/sep/01/obama-congress-syria-authorization
http://firstread.nbcnews.com/_news/2013/08/30/20256971-nbc-poll-nearly-80-percent-want-congressional-approval-on-syria?lite
http://thehill.com/blogs/defcon-hill/operations/321103-white-house-insists-it-may-strike-syria-without-congressional-approval#ixzz2eQbDZqme
http://thinkprogress.org/security/2013/09/06/2581091/administration-official-obama-strike-syria-congressional-approval/
http://www.huffingtonpost.com/2013/09/06/john-kerry-congress-syria_n_3881200.html?ir=Politics
http://www.huffingtonpost.com/2013/09/09/syria-2013_n_3895606.html?ref=topbar#25_obama-thinks-it-would-be-legal-to-bomb-syria
http://livewire.talkingpointsmemo.com/entry/mccain-harder-for-obama-to-intervene-in-syria
http://talkingpointsmemo.com/archives/2013/09/am_i_all_wet_on_war_powers.php?ref=fpblg
http://www.spartacus.schoolnet.co.uk/JFKcoxA.htm
http://www.washingtonpost.com/wp-dyn/content/article/2010/02/20/AR2010022001270.html?hpid%3Dtopnews&sub=AR
http://www.usconstitution.net/xconst_A2Sec2.html
http://www.usconstitution.net/xconst_A1Sec8.html
http://www.ushistory.org/Declaration/document/
http://www.thecre.com/fedlaw/legal22/warpow.htm
https://www.youtube.com/watch?v=tYdJqSG3K6c
http://screen.yahoo.com/mccain-dont-think-obama-asked-090511405-cbs.html
http://firstread.nbcnews.com/_news/2013/08/30/20256971-nbc-poll-nearly-80-percent-want-congressional-approval-on-syria?lite
http://www.scribd.com/doc/165409346/Paul-Syria-Amendment
http://www.huffingtonpost.com/2013/09/11/us-syria_n_3906124.html?ref=topbar#167_us-struggling-to-destroy-its-own-chemical-weapons-stockpile
http://www.theguardian.com/world/2013/sep/11/us-syria-chemical-weapons-destruction
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