Does the War Powers Act Even Matter?

"Let's be Best Friends Forever! Some restrictions may apply. Subject
to change without prior notice. Offer not valid in Libya." 

If you thought that I was getting less nervous about the horribly named Operation Odyssey Dawn, you'd be wrong. In fact, my discomfort with the entire enterprise grows the more I learn about it.

Early this morning I watched Charlie Rose's Monday night interview with NBC correspondent Richard Engel. Engel made a very worrying point when he said that a safe haven for the civilians of Libya's contested cities had already been established. Problematically, according to Engel, this isn't what the rebels want. They want air cover as they march on Tripoli, as one would expect they would.

The rebels can also be neatly divided into two groups, defecting units from the Libyan national army and civilian volunteers who would very much like to be done with Gaddafi. The volunteers are rushing out to do battle with Gaddafi loyalist and mercenary forces and, unsurprisingly, getting their asses kicked. Unlike Afghanistan's Northern Alliance in 2001, none of these people have any military experience, let alone of the insurgent combat variety. The defecting units, meanwhile, are staying on their bases and not engaging the government, even with international air support.

This isn't going to end well. I'm more convinced of that each passing day. Everyone seems to have competing interests and objectives, the Arab League is of the opinion that we've already overstepped our mandate, and we still don't know anything about the rebels that we're supposedly supporting. President Obama has declared Libyan regime change to be the official policy of the United States, but there is no indication that the current military exercises will be utilized to achieve that aim. Without ground troops, which the Americans have already ruled out, I don't even think that's possible, since I'm now aware of another government that's been overthrown solely by an air offensive.

There are basically three ways this can work out, none of them particularly attractive. The first is to send ground troops in and take Gaddafi out ourselves, which there has been no political preparation for. Second, eventually abandoning the inept rebels to their fate and reconcile ourselves to an emboldened Gaddafi that has just faced down the world.  The third option is the most likely. Accepting a protractrated stalemate and establish a politically unsustainable permanent no-fly zone, like the one that contained Saddam Hussein for twelve years. If we do that, Gaddafi still wins and probably resumes his sponsorship of international terrorism to test our will.

Oh, and everyone is freaking the fuck out in the United States. Admittedly, they're doing it in the most adorably hypocritical ways. The War Powers Resolution of 1973 has suddenly been resurrected, seemingly out of the ether. Liberals are citing it as a predicate to possibly impeach Obama and conservatives have begun waving it as a bloody shirt, mostly to be a pain in everybody's ass.

The fact is that conservatives have uniformly hated the War Powers act since the day Congress overrode Richard Nixon's veto of it. I'm not aware of a single conservative or Republican holding up the Act as constitutionally binding before this week. Moreover, no president - Democrat or Republican - has recognized its constitutionality. When presidents have committed force abroad, they have without exception stated that they did not require congressional authorization to do so.

Presidents have generally followed the Act, but they made clear that they did so as a courtesy, not a binding obligation. The single exception is Bill Clinton during the Kosovo operation, which the same liberals that now mutter about impeaching Obama were in lockstep supporting. Long story short, everybody's lying.

The only precedent that Obama to follow that makes any sense at all is Harry Truman and the Korean War. Garry Willis details this in his fine book Bomb Power: The Modern Presidency and the National Security State. Truman - and more exactly, his Secretary of State, Dean Acheson - believed that if the treaty establishing American participation in the United Nations was binding U.S law, so then were military directives of the Security Council, making congressional approval unnecessary.

As I've pointed out in the comments over at the great Jay Currie's place, this isn't a completely meritless position. You could make an interesting case that this is specifically allowed by Article Six of the United States Constitution, which states "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding" (italics mine.)

Now that's a thin reed upon which to assert that surrender of Congress' war powers, but it was one that went unchallenged by anyone at the time, which makes it a standing precedent. And as we saw in the case of Goldwater v. Carter (1979), which would have determined if a president has the power to unilaterally abrogate a treaty that was ratified by the Senate, the courts are often too cowardly to resolve such constitutional disputes.

But let's not pretend that this is an unprecedented usurpation of power by a rogue president, okay? It really isn't. Not only do the Truman and Clinton precedents stand, Congress funded both operations without hesitation or even serious debate. If those silly "authorizations of military force" constitute an acceptable constitutional substitute for a declaration of war, so then should the ongoing funding of any military operation. I obviously don't agree with that line of thought. I much prefer actual declarations of war. But I'm not going to pretend that those precedents and the surrounding history don't exist, and neither should anyone else.

However, if there is sufficient outrage in Congress, there are two constitutional remedies available: cutting off the funding and impeachment. In my personal opinion, neither happens nearly enough and that, more than anything else, has created a runaway presidency.

Congress can reassert its prerogative under the Constitution anytime it chooses. The only problem is that it doesn't want to. In that, Dave Weigel was right in a column that has made every idiot blogger on the planet crazy. There are few members of either party who are willing to seriously (by which I mean legislatively, as opposed to holding a wholly useless press conference) challenge a president on matters of war. Even if a proposed resolution to cut off funding or a commencement impeachment proceedings fails, members are forced to take a position on the record. And they don't want to do that because it's politically dangerous.

Congress, like the courts, are cowards when it comes to foreign policy. Either could force the issue and restore a constitutional balance, but they don't because they're afraid to.

Granted, this won't go on forever. The day is soon coming when the United States simply won't have the financial wherewithal to let presidents do whatever they want. It might take twenty or thirty years, but that day will arrive. I just don't imagine that either side will be particularly happy when it does.