The Weakness of Power
September 14, 2014 § 1 Comment
The Theme of this Essay
One thing insufficiently noted and understood about the exercise of power is that responsibility for its exercise is coextensive with its scope. When the President of the United States assumes personal responsibility for committing our lives and treasure to a war in plain violation of the restrictions on his authority imposed by our Constitution, his decision is both dangerous for us and foolish for him.
I thought of entitling this essay, “I Told You So”, but decided that would be tacky. This is not the first time I have dissented from the notion that we should treat acts of terrorism as an excuse for waging war. See “Bush’s Dumb War and Obama’s Track and Whack War”. posted on this blog. Wars expand government’s authority to infringe liberties protected by the Constitution. Treating criminal acts as declarations of war is both unnecessary and dangerous.
The First Commander in Chief of Our Worldwide Thousand Year War
President Obama has now committed the United States of America to an interminable, unlimited responsibility to rid the world of an amorphous, amoral, murderous, ill-defined, barbarous, military organization claiming affiliation with Islam, called ISIS or ISIL or “Islamic State” or “The Islamic Caliphate”. Those names are only the latest ones. The organization has demonstrated expertise in the use of social media and digital communication technology. It calls itself by whatever name suits its purpose: To attract and recruit members and support from all over the world.
His decision, probably the most consequential of his presidency, was not made after reasoned negotiations with possible allies, extensive analysis of “actionable intelligence”, or public debate in the U.S. Congress. It was made in the aftermath of two sensational TV executions of two American journalists, while Congress was in recess and during the opening days of a national midterm election. Congress was not called back into session so that the issues could be debated. President Obama first declined to call his plan to bomb targets in Syria a “war”, referring to it as opposition to a “terrorist group”. When skeptical journalists gleefully picked at that distinction, his press secretary, after two or three days of pundit discussion, finally said, “Yes. We are at war with ISIL”.
[Why the President and his staff choose to call this group “The Islamic State in the Levant”, continues to mystify me. I assume about one percent of Americans understand what the “Levant” is. I looked it up. According to Wikipedia, the “Levant” is an area at the East end of the Mediterranean. Historical definitions have varied but it is generally understood to include Cyprus, Israel, Jordan, Lebanon, Palestine, Syria and part of southern Turkey. Regardless of the ambiguity of the term, whatever it is, according to the Obama Administration, if ISIS is present in it, we are at war with it.]
President Obama has not stated any defined geographical area as the battleground for this new war. He has ceded to ISIS (or whatever form or designation it chooses to assume in the future) the right to determine where we will wage war. He has also ceded to ISIS the right to determine how long we will wage war: i.e. until ISIS agrees to extinguish itself or surrender.
These circumstances are typical, indeed inevitable consequences of making “war” on ideas rather than on geographically located countries. They also suggest the peculiar risks of designating hostility toward ideas as “wars”, and then applying to those wars the rules and customs developed over centuries in wars against geographically located countries. The power to choose the limits of those “wars” are vested in those who profess the challenged ideas.
I see no reason to believe that ISIS (I’ll use this moniker to encompass all the various names.) will ever surrender or be eliminated. ISIS does not refer to a place or to a specific organization of people. It refers to an idea.
Consider Zionism. A sustained nuclear attack could destroy Israel, but it could not destroy Zionism unless every person committed to the goal of establishing a Jewish homeland could be found and killed. Given the origin of that idea in the Old Testament and its prominent place in Jewish theology, that result seems unrealistic. Centuries of brutality have proved unable to accomplish the destruction of Zionism.
Consider Al-Qaeda. The combined might of the United States and the “coalition of the willing” have waged war on Al-Qaeda for thirteen years, wrecked havoc and caused hundreds of thousands of deaths in countries in the Middle East and North Africa, invaded Iraq and Afghanistan with massive armies. Al-Qaeda still exists and shows no sign of disappearing.
I do not mean to equate Zionism with ISIS or Al-Qaeda. The ideas are entirely different. But both refer to ideas that have long histories. ISIS is a Muslim Sunni tribal group claiming to represent all Muslims in the world. Those claims and the conflict between the Sunni and Shia sects within Islam date back to the 6h Century CE.
There are many ideas that emerge from time to time and capture the imagination and commitment of large groups of people. Teddy Roosevelt thought the United States was destined to spread its doctrine of freedom and democracy to nations all over the world “Manifest Destiny” rhetoric inspired thousands of Americans to engage in wars and colonialism in Cuba and the Philippines. George W. Bush used similar oratory to enmesh our country in Middle East wars. If Dick Chaney had his way, we would still be, as he said, “on offense” toward those NeoCon fantasies.
The point is that, while ideas may go out of fashion, they cannot be defeated or destroyed. In fact, when they are recognized by the most powerful country on the planet as sufficiently important to require a worldwide war of unlimited scope, they assume importance and gravity that they could never otherwise achieve.
The Alternative: Obey the Law
I think the English immigrants who tore this country away from England, after a couple of false starts (e.g. The Articles of Confederation), had a good idea: They created the first government in the history of the world without any king, queen, Pope or chief. [We can quibble over the Mayflower Pact, but that agreement did not create a new nation.] They decided to rule by consent to a contract, a constitution. They amended it to insure that journalists, lawyers and courts could protect it. They recognized that the most dangerous possibility was the misuse of military force.
To address that threat, they did several things. One was to protect the right to bear arms. They trusted local militias and citizens with weapons would never allow the central government to overpower the checks on authority put in place by the constitution. They had a healthy distrust of standing armies led by professional soldiers.
They knew they would have to defend against the envy and greed of other nations, so they provided a carefully crafted system to enable national defense without risking a coup de etat from within. Their main fear centered on the President. They had experienced the problem of dealing with kings and took care not to create a new one.
The government created by the Constitution was one of limited powers; the only rights allowed for the federal officials were those granted by the constitution. All residual power was left with the states and the people.
Here is how they protected us from out-of-control military adventurers and ambitious war hawks: The House of Representatives was granted the following powers:
“To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
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, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
Here is the entire grant of authority granted to the President as “Commander in Chief”:
“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;”
It is impossible for any sensible person with a basic knowledge of plain English to interpret these provisions of the Constitution without understanding that the framers took pains to keep the Commander in Chief on a very short leash. The Congress was given the power to make “rules and regulations” to govern the “land and naval forces”. Military appropriations were limited to two-year terms. The arming, disciplining and regulation of the part of the militia used “in the service of the United States” was the responsibility of the Congress, not the Commander in Chief.
The Constitution gave us a careful, reasonable way to govern ourselves free of the whims of politicians who might be both stupid and ambitious, of which we have had, and have now, plentiful examples. They had recently freed themselves from the antics of King George III, a loser in the gene-pool-lottery.
Unfortunately these provisions of the Constitution did not lend themselves to judicial review. When the restrictions were ignored, it was up to the Congress to enforce them, with impeachment if necessary. The history of the past 200 years is a history of repeated failure of nerve and the triumph of political ambition and fear over steadfast dedication to their oath of office.
No elected federal official, including the President, is granted the authority to protect American citizens from harm. There is no obligation stated in the Constitution requiring that our government protect us from other nations. Every elected official is sworn to protect “The Constitution of the United States”.
It is true, of course, as Mr. Justice White once remarked, the “Constitution is not a suicide pact”. But neither is it a menu of rights and duties that elected officials may treat as if they are in a cafeteria, free to choose which ones they find appealing on a given day. This latest episode is an example of what happens when the President arrogates to himself the power and obligation to be our protector instead of our elected agent, bound by the terms of his contract of employment. When Obama claimed unlimited authority, he imposed upon himself unlimited duty. He allowed himself to be goaded into a bad decision by loud mouthed fools like John McCain and Lindsey Graham and trash-talkers of Fox News.
But the most culpable and feckless offenders were the Congressmen and Congresswomen who walked away from their posts, threw open the gates and skulked off to the cocktail parties, fish frys, bar-b-ques, cocktail parties and fundraisers incident to their re-election campaigns, too fearful to enforce the document they were sworn to “defend and protect”. They eagerly took advantage of the President’s naive willingness to assume their responsibilities.
We are facing some very complicated and dangerous choices. We should confront them with faith in our constitution. We should require the Congress to perform its constitutional function. The people should be given a chance to learn the facts and the truth about the consequences of what our government does.
ISIS poses a threat to the “Levant” far more immediate than to us. But, I predict that the governments in the Levant will be perfectly happy for us to assume the responsibility for protecting them and defending them against ISIS. They have indigenous Muslim leaders and populations much larger and more powerful than we do. They are in a better position to discredit ISIS’s claims to religious authenticity than we are. It will require that they stop funding ISIS and stop tolerating extremist Muslim groups inside their country. That will involve some risk that they are loath to take, but it is more properly their problem than ours.
I hope some ISIS thugs don’t come here and murder some of our citizens. But that seems likely, whether or not we continue on our present course. We should use our technology and surveillance capability to prevent it, but recent history shows that those measures will not ultimately be sufficient.
If that happens, we should cooperate with other nations in an effort to track down and arrest or kill the perpetrators. If arrested, they should be tried in civilian courts, like other murderers. That will not involve us in sectarian feuds and cross-border wars.
One of the many abominations inflicted by the George W. Bush administration, reading like Dick Chaney’s wet dream, is the Authorization for the Use of Military Force, yahooed through a cowering Senate shortly after the World Trade Center bombing. It unleashed Bush and his band of amateur believers in gunpoint democracy on the Middle East. Some of them may have been so deluded as to imagine that the Arabs were breathlessly waiting for deliverance from centuries of oppression. Instead, their ham-handed military forces spawned chaos and violence in Iraq Afghanistan and Pakistan, wasted billions of dollars, destabilized several other countries and caused the deaths and injuries of thousands of Americans. The legions of brutal groups who emerged or were strengthened in response to those wars and the excesses incident to them, are still active and destructive.
Here is the full text of that infamous document:
To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.
Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and
Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and
Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and
Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and
Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
Section 1 – Short Title
This joint resolution may be cited as the ‘Authorization for Use of Military Force’.
Section 2 – Authorization For Use of United States Armed Forces
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supersedes any requirement of the War Powers Resolution.”
The meaning of this ill conceived document has been often debated. So far as I am aware, the Supreme Court has not resolved the debate.
The issue is this: Does the language of Section 2(a) limit the war-making authority to war “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons”
Does Section 2(a) authorize a war against any nation, organization or person if the motive is to “prevent any future acts of international terrorism against the United States”?
I have argued, but have not been able to convince a friend of mine, that the resolution limits its scope to those with some connection with the bombing of September 11, 2001. The Bush lawyers and, apparently, the Obama lawyers, all interpret the resolution to be a completely open ended grant of authority to make war without any further involvement of Congress on anyone anywhere if the President claims the object of military force either intends to harm the United States, is aiding someone intending to harm the United States or is harboring someone who is intending to harm the United States.
I think that requires ignoring the specific reference to the September 11 bombing in Section 2(a) as well as the phrase “such organizations or persons” at the end of Section 2(b).
It also, not incidentally, deletes all meaning from the above quoted provisions of the Constitution that limit the war powers of the President. Ironically, the War Powers Resolution cited in the AUMF, was an effort to prevent a repetition of Dick Nixon’s lawlessness when, during the Viet Nam War, he authorized the invasion of Cambodia, which even the fraudulent Tonkin Gulf Resolution did not authorize.
The AUMF, as interpreted by Presidents Obama and Bush, also wipes out all meaning of the War Powers Resolution.
I write these complaints with some sadness. I thought that when a Constitutional law professor and accomplished writer was elected president of the United States, we could look forward to the thrill of being led by a disciplined scholar. I admire many of Obama’s accomplishments and I abhor the barely hidden racist assaults which have hounded his presidency.
I fear, however, that, like Woodrow Wilson, his judgment about the proper place of our country in the world will, as Wilson’s did, lay the predicate for more terrible wars with all the horror that comes with them. Wilson thought European diplomacy and American idealism could create an orderly and peaceful world.
A few decades later, the colonial deals made when the Ottoman Empire shattered led to the emergence of several dictators whose oppression of Arab countries and Persian Iran, produced pent up rage and Islamic extremism. In Germany, Hitler used the sanctions imposed after WWI to mobilize anger and hopelessness to produce Nazism and a new and more destructive world war.
If, as I fear, we are on the precipice of another outbreak of worldwide violence, it is a bad time for us to abandon the protection of our Constitution from reckless involvement in foreign sectarian struggles. I was hopeful we had an Abraham Lincoln. We got Woodrow Wilson. Now I look in vain for an FDR or a JFK or a Winston Churchill. What I see is Hillary Clinton, who, as a Senator, voted for the AUMF. And the House of Representatives? Fugettaboutit!