Balkinization  

Saturday, December 29, 2012

Obama's Way of War

Stephen Griffin

Having finished the last edits on my book Long Wars and the Constitution (available in five months!), I thought I would share the newest section on the Obama administration's use of war powers.  I will follow with some thoughts on the international law/human rights critique of the Obama administration's targeted killing policy, thoughts which follow up on what I say on this topic below.

When we situate Bush and Obama within the post-1945 constitutional order, the parallels with the positions occupied by Truman and Eisenhower respectively are striking. Like Truman, Bush initiated major military commitments, both overt and covert, in an atmosphere of emergency. Like Eisenhower, Obama had to wind down a war (the Iraq War) but at the same time maintain a commitment to a “long war” against a foreign threat. Obama even had his own version of Eisenhower’s “Old Guard” Republicans – liberals suspicious of executive power who demanded criminal investigations of the excesses of the Bush administration. To cope with these varied national security challenges amid the reality of a war-weary public, Obama, also like Eisenhower, increasingly turned to “covert” means of war such as drone strikes, after initially expanding the conventional commitment in Afghanistan. As in the Eisenhower administration, this meant that the role of the CIA’s clandestine service expanded significantly.

Obama in effect endorsed the post-1945 constitutional order in his widely noticed address accepting the 2009 Nobel Peace Prize. He declared: “Whatever mistakes we have made, the plain fact is this: the United States of America has helped underwrite global security for more than six decades with the blood of our citizens and the strength of our arms. The service and sacrifice of our men and women in uniform has promoted peace and prosperity from Germany to Korea, and enabled democracy to take hold in places like the Balkans.” The global commitment Obama invoked is of course one of the founding stones of the post-1945 constitutional order. That commitment, backed by the enormous post-World War II capacity of the U.S. to intervene worldwide, generates the problematic situation we have been analyzing.

Liberals who complained that Obama did not successfully break with all of the controversial policies of the Bush administration, much less the imperial presidency, perhaps did not pay sufficient attention to what might be termed Obama’s Eisenhower moment. Because the 9/11 Wars were such salient issues in the 2008 presidential election, Obama’s decisions were underwritten by democratic deliberation. Obama opposed the Iraq War as a senator, a position that did not hurt him in the run-up to the election, as the public had soured on the war. At the same time, he gave clear indications in the presidential campaign that he would expand the nation’s commitment in Afghanistan to prevent a resurgence of al-Qaeda. When Obama followed through on this commitment, sending tens of thousands of additional troops to Afghanistan to revive a moribund war effort, this should not have been a cause for great surprise. This does underscore, however, that by the time Obama took office, critiques of excessive presidential power relied far more heavily on rule of law considerations than the kind of failure of democratic deliberation that had occurred in the Iraq War.
 
Yet Obama signaled that he was not necessarily comfortable with all of the elements of the post-1945 constitutional order. Obama did draw an important distinction with the Bush administration by declaring that all of his legal authorities for continuing the war against al-Qaeda came from the September 2001 AUMF or other acts of Congress. As we saw in Chapter 6, Obama’s OLC, like Clinton’s, conceded that Congress has some role in authorizing war. On the other hand, Obama’s position on his Article II power was not altogether clear, partly because he did not repudiate the Bush administration’s position. In October 2011, for example, Obama ordered 100 armed military advisers to central Africa to combat the Lord’s Resistance Army. While this was arguably in service of a policy previously adopted by Congress, the president noted that “he had decided to act because it was ‘in the national security and foreign policy interests of the United States.’” In invoking his authority under Article II, this rationale was of course expressive of the post-1945 order as I have defined it.

President Obama’s intervention in Libya illustrated the continuing complexities of the president’s role under the post-1945 constitutional order. Obama initiated military operations (largely air strikes and the provision of intelligence) against the Libyan regime of Muammar al-Qaddafi in 2011. These actions were first begun by the U.S. to enforce a U.N. Security Council resolution and then carried out under the aegis of NATO. Obama’s Libya operation was similar to Reagan’s 1986 air strike on Qaddafi in that it was aimed more nearly at the Libyan leader himself and his military rather than the Libyan nation as a whole. Arguably the U.S. and Libya were engaged throughout the 1980s in a low-intensity military conflict spurred by Qaddafi’s claims over the Gulf of Sidra, aggressive U.S. naval responses to maintain freedom of navigation, and Qaddafi’s subsequent sponsorship of terrorist attacks in Europe that killed and wounded a large number of American citizens. Reagan’s strike on the cities of Tripoli and Benghazi was popular because Americans perceived a morally justifiable link between Qaddafi’s earlier terrorist attacks and the administration’s response. Obama’s operation, while taken with support from the international community and successful in helping to remove Qaddafi, received a far more equivocal public reaction.

But were these actions constitutional under the “declare war” clause? Debate over Obama’s operation came to focus on the meaning of the word “hostilities” in the WPR in starting the sixty-day clock. While the Obama administration did not dispute the constitutionality of the WPR, it did claim that the Libya operation, which ran over the sixty-day limit, did not constitute hostilities and thus the WPR had not been violated. Although widely derided, this argument was surely an example of a rather arcane dispute over statutory interpretation substituting for a discussion that should have engaged more meaningfully with constitutional values. The issue is how that discussion should proceed.

One of my purposes in writing this book is to suggest that while asking the constitutional question with respect to every single presidential military action, including those clearly short of war, may not be wholly misguided, it is certainly not very helpful. Consider that the original constitutional order was designed to handle questions concerning war, not intermittent military operations short of war conducted on a global basis. Contrary to what originalists may think, there is no way to generate meaningful doctrine from the original constitutional order to answer every contemporary military contingency. There is also something slightly perverse in the way the war powers debate focuses on every presidential military action as if it might be a new Vietnam. This may be an outgrowth of a common misunderstanding about the key significance of the Johnson administration’s decision to Americanize the war in 1965 as compared to the incremental decisions to aid South Vietnam taken before that time. But it is nonetheless odd. As the Obama administration observed, there was nothing about the Libya operation that made it close to a war or even remotely likely that it would become one.

With respect to the WPR itself, there is a sense in which the close parsing of its terms misses the point its proponents were trying to make in 1973. Prior to its passage, Congress had spent nearly seven years practically begging the executive branch to take the initiative in establishing a sounder basis for interbranch deliberation on matters of war. The response from the Nixon administration was consistently negative, indeed, intransigently so. What Congress should be asking for today is for the executive branch to consistently engage with it on matters of foreign policy and national security strategy, not to file reports to start arbitrary clocks.  As I discuss below, however, doing this in a meaningful way will require Congress to change its structure, much as the executive branch was reorganized after 1945.

One practical point we should take away from the Libya operation is the difficult nature of the task we have imposed on presidents. It eventually emerged that Britain and France, America’s allies in the war against al-Qaeda and the Taliban in Afghanistan, sought U.S. involvement in Libya as a kind of quid pro quo, viewing the chaos engulfing the Qaddafi regime as a security threat in their region of the world. Seen in this light, Libya was not an otherwise puzzling stand-alone operation to depose a leader, but part of a broader web of national security relationships that it is the president’s job to manage, often within the boundaries of diplomatic discretion. In this sense, it turned out that the Libya operation was in fact related to the war Congress authorized in Afghanistan.

By the time Obama won reelection in 2012, it was evident that the true “long war” was not the Iraq War or, strictly speaking, the War in Afghanistan, but the war against al Qaeda and its affiliates. Particularly in the Obama administration, this war extended well beyond the borders of Afghanistan to encompass drone strikes or “targeted killings” in Pakistan, Somalia, and Yemen. For various reasons, the war against al Qaeda, what perhaps should be called the 9/11 War rather than the War in Afghanistan, has been a continuing source of contention and unease.

This is despite the clear authority Congress granted in the September 2001 AUMF, which provided the substantive constitutional and legal framework for striking back at those responsible for the 9/11 attacks. The AUMF was broad in several respects. It authorized all force necessary and appropriate and applied to nonstate entities and persons as well as states. It further applied not only to the organization directly responsible for the attacks (al Qaeda) but to those who assisted or harbored them, with the goal of preventing all future acts of terrorism. It clearly contemplated military action in multiple jurisdictions at once. In enacting the AUMF, Congress, supported by the overwhelming majority of the American people, had done everything it could think of to authorize a war or, under the terms of international law, the use of armed force. Yet one undisputable fact that will undoubtedly be studied by future historians is that many distinguished observers, both international and domestic, never accepted the resulting conflict as a war or, at least, an unconventional war occurring pursuant to the terms of the AUMF. What I am interested in here is how the unconventional war against al Qaeda and the criticism it has received illustrate some important themes of this book.

We might observe first the relationship between the textual obligation to authorize the war through Congress and the broader, implied value of interbranch deliberation. Although the obligation was met, the value of interbranch deliberation was undermined. The potential of the AUMF to spur public discussion was frustrated by the Bush administration’s inability or refusal to use the deliberative process to think through the unconventional war it was about to launch. This was true in several senses. The administration probably did not take the congressional process as seriously as it might have because acquiescence in a strong resolution was assured. Besides, the administration never believed its authority depended on that process. As we saw in the previous chapter, the Bush administration did not accept that presidential authority to prosecute the war depended wholly on congressional authorization. The administration always argued that it had an independent line of authority to prosecute the war based in Article II. In addition, Bush stoked public expectations for an all-out “war,” without paying much attention to the obvious differences between the coming unconventional war against al Qaeda and the conventional wars the U.S. had fought previously. In particular, matters such as whether the war would be fought in multiple countries, what would be done with those captured, and whether the rules of wartime would apply inside the United States were never discussed.

The Bush administration undoubtedly clouded the waters further by referring to the conflict as the “war on terror” or the “global war on terror,” implying to many informed observers that the target was terrorism itself rather than organizations and persons linked to 9/11 under the AUMF. Keeping what Congress had enacted firmly in mind would have spared the public many unproductive debates. Nevertheless, there was never any doubt that Bush and Obama had a public consensus behind them in waging a war, however unconventional its methods, against al Qaeda, as well as any affiliated support groups. There was also no doubt that all three branches of the national government were on record as affirming that a war was being fought against al Qaeda.

This surely helps explain why critics were unable to gain any traction in their disputes with both administrations, particularly with respect to detention policies at Guantanamo Bay and so-called “targeted killings.” The objections to these policies were founded largely on international law and moral considerations. Arguments have been made, for example,  based on worries about reciprocity. What if another country used the same tactics against the United States?

The history of the Cold War can help us understand why the critics won no favor with the public. During the early Cold War when there was a public consensus behind vigorous action against the threat of communism, Americans were not impressed by arguments based on reciprocity. Americans, then and now, had a tendency to see their country as on the right side of history, both in prudential and moral terms. In the run-up to the Cuban missile crisis, for example, Americans “saw their country in a mortal struggle against a ruthless enemy” and rejected arguments based on the theory that the Soviet Union and Cuba had an equal right to defend themselves. This should have a familiar ring.

The Obama administration made promises to reverse Bush administration policies, but was unable to deliver in some notable respects. The facility at Guantanamo Bay remained open and the Obama administration acted even more aggressively than the Bush administration in pursuing targeted killings against terrorists when it had a solid basis in intelligence to believe they were dangerous. The arguments of critics that this contravened international law had little influence with the public. If anything, Congress stood to the right of the administration on these matters. In saying this, I am not trying to dispute the relevance of international law and the possibility of reciprocity invoked by the critics. But to avoid what might be termed a democratic deficit, these arguments should be made as appropriate within the kind of domestic deliberation that attended the AUMF, not confined to an elite international discourse.

To be sure, resting the entire burden of settling the controversies arising from the war against al Qaeda on the AUMF would not be a fully satisfactory way to proceed. After all, the Tonkin Gulf Resolution was not regarded by many as fully effective in underwriting the Vietnam War. However, it cannot be shown easily that the AUMF had the same defects. The immediate aftermath of the 9/11 attacks left few doubts about the gravity of the situation. So understood, the basic problem pointed out by the critics was that the deliberation in September 2001 had not anticipated all the possible issues that might arise in the war. But this would be an unrealistic basis on which to ignore the legal authority provided by the AUMF.

A more promising line for criticism is that neither the Bush nor the Obama administration thought through what would happen after al Qaeda’s ability to strike had been significantly degraded and Osama bin Laden was killed or captured. At that point, perhaps already reached in 2011, the nature of the conflict could well be said to have changed in terms that the public could understand, which might have been a wise time to go back to Congress for another resolution, possibly to terminate the war. This would appropriately invite a public debate.

Critics also charged that a continuing endless war promised an unreasonable extension of broad executive power. Yet as we have seen, general worries about increased executive power based in notions of the “imperial presidency” are misplaced. After 9/11, violations of civil liberties were minor in comparison with past wars. But they were also minor relative to where the true dangers of executive leadership lay—that without proper deliberative support from Congress, policy becomes deranged. Congress and the public agreed to back a war against al Qaeda and its affiliates. This meant that the policies pursued by the executive branch would in all likelihood be well adapted to those ends. They did not anticipate or discuss, however, a war against Iraq in September 2001. As we saw in the last chapter, public support for the Iraq War depended partly on the advocacy of a false link between 9/11 and Saddam Hussein. This demonstrates once again the importance of interbranch deliberation and the relationship between the executive branch and Congress.

 

 

Home