drones aren’t “hostile,” they’re just AGGRESSIVELY FRIENDLY

I don’t agree with his line of argument supporting President Obama’s lack of interest in involving Congress in the Libya war, but I do respect Akhil Reed Amar as a scholar. So I’m linking to this anyway, in the interest of giving a small platform to opposing views.

Amar’s points are, in the main, two. First, presidential war is traditional:

In 1962, President Kennedy used the Navy to quarantine Cuba and prevent nuclear blackmail. In 1983, President Reagan sent troops to Grenada to undo a murderous coup and protect American students on the island. In 1994 President Clinton sent the military into Haiti to restore order and prevent an international refugee crisis. By its general design and actual language, the Constitution empowers presidents to react to fast-breaking events. When bad stuff happens, Congress might not even be in session.

Of course, the fact that something is traditional makes it neither legal nor right. The Founders, drafting the Constitution, did indeed foresee occasions on which the President might need to act unilaterally to defend the country (or even its citizens abroad) from attack. But as I wrote here, that understanding did not extend beyond defense, at least in the understanding of Thomas Jefferson, who during his presidency sought Congressional authorization to fight the Tripolitans (i.e., Libya). Jefferson declared the military “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.” Or there’s Roger Sherman’s neat summary, from the Constitutional Convention: “The Executive should be able to repel and not to commence war.”

But suppose we allow that at times the line between defense and attack may be blurred, and that the President needs leeway to act. But he has just such leeway under the War Powers Resolution, the law which governs these situations, and which gives the President sixty days to seek Congressional approval (with an additional 30 days to draw down troops, should approval be refused). This is precisely what President Obama has failed to do. Yet here, too, Amar claims that President Obama has acted lawfully.

More than 90 days have elapsed since the Libya mission began, and Congress has not passed a law authorizing the mission or extending the 90-day clock. But the clock starts to tick only when troops have been “introduced into hostilities,” and this statutory phrase is hardly self-defining. True, American planes and drones are dropping bombs. But they are not taking fire. There are no American body bags. American forces are arguably not so much “into” hostilities as “above” them.

The War Powers Resolution itself, in the very subsection setting out the 60-90 day clock, emphasizes “the safety of United States Armed Forces.” Shortly after the resolution was enacted, a key executive-branch document (PDF) defined the “into hostilities” phrase as involving situations “in which there is a serious risk from hostile fire to the safety of United States forces….”

The ambiguities and oddities of the War Powers Act invite a second look at the Constitution, whose basic vision the law purports to implement. Interestingly enough, the Constitution distinguishes between armies and navies, and regulates armies more strictly. (For example, army appropriations must be re-voted every two years; not so for navy appropriations.) This distinction exists because the Framers believed that armies posed a greater threat to American lives and liberty than did navies. Today, the air power is likewise less of a threat to American lives and limbs.

This is a very strange argument to make indeed. The Founders would not have objected, in Amar’s view, to a president conducting an unlimited naval blockade of, say, England, without consulting Congress or the people? Only armies, and not navies, are relevant to the Congress’s role in declaring war? Again, somebody should have told Jefferson, who refused to allow his navy to attack the Tripolitan fleet without Congressional authorization.

What about that “key executive-branch document”? Laying aside the question of why the Office of Legal Counsel, the author of the document, or the Defense and State Departments, which contributed the relevant sentence, should be taken as definitive authorities on legislative intent regarding the WPR, Amar appears to be giving that document a very selective reading. The full paragraph, in a letter from the two Departments to a House committee chairman during deliberations on the War Powers Resolution, attempts to define “hostilities” as

a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces, and “imminent hostilities” was considered to mean a situation in which there is a serious risk from hostile fire to the safety of United States forces. In our view, neither term necessarily encompasses irregular or infrequent violence which may occur in a particular area.

Units of our armed forces are clearly engaging opposing units of hostile forces with fire, so I suppose Amar is hanging his argument on the word “exchanges” — if Qaddafi’s forces are armed with rifles and we’re attacking them with bombers, they can’t shoot our planes down, so there’s no real “exchange” of fire, right? This is a very dubious bit of reasoning. I suppose by this logic the President can fire nukes at any non-nuclear power he desires, too.

But it’s clear that even in the view of the Office of Legal Counsel, the firing of shots back and forth in an “exchange” can’t be the defining factor in determining the definition of “hostilities.” E.g., quoting a House report on the drafting of the WPR,

The word hostilities was substituted for the phrase armed conflict during the subcommittee drafting process because it was considered to be somewhat broader in scope. In addition to a situation in which fighting actually has begun, hostilities also encompasses a state of confrontation in which no shots have been fired but where there is a clear and present danger of armed conflict. “Imminent hostilities” denotes a situation in which there is a clear potential either for such a state of confrontation or for actual armed conflict.

In other words, Amar’s “exchanges of fire” threshold is not the definitive test; mere “confrontation” is enough — and no one would deny that we are engaged in a “confrontation” with Qaddafi’s forces. And “armed conflict” is certainly one way to describe a sustained bombing campaign.

Finally, Amar’s read on the legislative intent behind the word “hostilities” is particularly peculiar in light of the historical context in which the WPR was passed, since the law was crafted specifically in response to the carpet bombing of Cambodia, which, like the Libya campaign, did not involve a ground fight. If bombing Cambodia without the support of Congress or the American people was so beyond acceptability that Congress felt it necessary to re-assert its Constitutional role in declaring war by passing the War Powers Resolution, why is it acceptable for President Obama to bomb Libya for months on end without getting the approval of the people’s representatives?

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7 Responses to drones aren’t “hostile,” they’re just AGGRESSIVELY FRIENDLY

  1. Nathan says:

    Not a rhetorical question here…I’m honestly ignorant on the subject:

    Is there anything preventing Congress from issuing a resolution stating that they’ll withhold funding for hostilities in Libya beginning on such-and-such date if the Administration doesn’t make it’s case and get approval by then? Can’t Congress act unilaterally if it believes it’s following the War Powers Resolution?

    On a separate topic, I’d be interested in your view on McCain and Kerry lobbying for a “Marshall Plan”-like intervention into some of the countries undergoing the “Arab Spring”. I have to admit that my knee-jerk reaction is to agree.
    1. I think we should be doing something over there.
    2. I always react positively when someone wants to enact a Marshall Plan.
    -Truman and Marshall are two of my heroes mostly because of the way they handled post-war Europe and Japan. It wasn’t lost on them that WWII was the result, in no small part, of the short-sighted, punitive treaties at the end of WWI. That being said, while you can inflict whatever plan you want on a defeated nation, you’d kinda need voluntary cooperation in a place like Egypt. It’s a little harder to assert your will in a place where your current relationship is a bit nebulous at the moment. (I suppose a similar situation exists (existed?) in Iraq, since we “liberated” them instead of defeating them.)

    • thehandsomecamel says:

      Ultimately, yes — Congress does have some authority to act on its own. It could refuse to fund the operation, or it could try to impeach the President for violating the WPR. But although the “power of the purse” is frequently cited as Congress’s ultimate weapon against the executive, I’ve literally never heard of a case where there was the political will to actually pull funding from combat in progress. It looks too much like pulling the rug out from under the military, I think. Even Vietnam and Afghanistan, both wildly unpopular at home, didn’t get de-funded. So I’m not sure that that’s actually a meaningful power, since it’s never, ever been used.

      I’m also not sure that there’s any political will for an impeachment. My sense of that is that Congress burned up the public’s patience with impeachment hearings during the Monica Lewinsky scandal, and it may take some time before that’s replenished.

      As for a Marshall Plan — I’m not sure how that would look, but I’d certainly be in favor of anything that made us look less like raging imperialist jerks to the people of that region. I suspect what would work best would be block grants to new regimes once they are legitimately democratic. Attempts to strongly dictate how the money is spent will probably be met with hostility — especially in Egypt, where we’re seen as supporters of the old regime.

  2. Nathan says:

    Re: Kerry/McCain…I’m not sure how that plan would look either, but they seem to have two different avenues in mind. They’re both fully on-board for continued intervention in Libya, but also (according to the Washington Post):

    The elder statesmen are also hoping to forge something resembling a Marshall Plan for the Middle East, aiming to spur massive private-sector investment across a region remade by revolution. The pair traveled to Egypt last weekend with eight Fortune 500 executives in an attempt to ignite investment in a country that has struggled since the February fall of longtime leader Hosni Mubarak.

    At least it sounds like they’re trying to think outside the box.

  3. Eric says:

    I don’t know what the answer is, exactly. I’m not convinced the President has much choice about supporting our allies, but I’m also not convinced he couldn’t get authorization under the War Powers Act if he just went to Congress–while I understand him not wanting to burn political capitol, especially with the debt-ceiling fiasco unraveling right now, I think the Republicans would probably rather huff a bit and then fold rather than set themselves up to be attacked from the right on national defense in the next election cycle. I could be wrong, of course.

    But the thing I really wanted to comment on was some of the Constitutional discussion. This is a situation, I think, that highlights some of the problems with the document, both as far as how it is a dated document that hasn’t kept up with time (something we Americans have glossed over by pretending it’s the same document in spite of several massive unwritten revisions in our understanding, e.g. the American Civil War’s settlement of Federalism/State’s Rights issues) and in terms of the Founders being fallible. Whether Amar’s legal argument is correct or not, his historical argument actually is cogent: the Founders had a poor understanding of naval power and did in fact consider armies a greater problem and more significant issue. As I think I’ve said elsewhere, a tipoff is the Article I Section 8 Letters Of Marque clause taken into consideration with the Congress’ failure to fund a standing Navy through the first decade of the Republic: it really does appear that Congress thought it would be a sufficient protection of American interests to have a few Coast Guard cutters in service and to hire pirates for everything else. (There’s actually a real answer to your rhetorical question about a blockade of England: the Founders wouldn’t have objected to a President blockading Britain because they weren’t willing to pay for enough ships to do it–even if the budget would have permitted matching the greatest navy in the world in that era–and so the idea would have made their heads explode; indeed, the very idea of a modern standing navy would have triggered a Congressional crisis. The military we have today is nothing like what the Founders imagined or made provision for in the Constitution.)

    I think what I’m getting at is something that doesn’t solve the problem of the legality (or illegality) of the President’s course in Libya, but rather is pointing at the larger problem here: the Constitution is simply insufficient to address the technological and economic realities of modern war and the historic reality that the United States have become a unified Federal state since 1861. The Founders imagined a situation in which the United States is protected by vast moats on two sides and impassible wilds on the others, in which state militias would provide the backbone of national defense until short-term Federal armies could be levied with Congressional authorization, in which oceans took months to cross and the vastly more powerful European navies could be sufficiently held at arm’s length on the cheap by mercenaries hired for hit-and-run actions and compensated by their spoils. That the vast distances of the world would become passable in mere hours, that military equipment would become prohibitively expensive and beyond the means of States or citizen-soldiers, that weapons and tactics would become extraordinarily complex and requiring of very specific skill sets and training necessitating the existence of career soldiers, that the United States would become a global power with interests far outside its borders, etc.–these things pretty clearly didn’t cross the Founders’ wildest dreams, and now we’re left two centuries later trying to make reality jibe with a document that reluctantly tolerates the enlistment of gun-toting farmers for the fending-off of foreigners and Natives who try to take our stuff. Observations that don’t help, as the real solution is a Constitutional convention, and this country is largely in thrall to jackasses who shouldn’t be trusted to write a village ordinance, much less lead the country in revising our central operating principles and procedures (if we could even agree on the principles).

    • thehandsomecamel says:

      Yep. Can’t disagree with any of that. A constitutional convention would be a fantastic idea, except for the part where morons would keep trying to define marriage and exempt flag-burning from free speech protections.

      (EDIT: On reflection, it’s not fair to blame the nation’s morons for these things. Perhaps substitute the phrase “vulgar panderers” in the sentence above.)

  4. Pingback: deep defense cuts: more brains, less muscle | The Handsome Camel

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