One of America's glaring hypocrisies is to lecture the world on the 'Rule of Law' as we contrive infinite stratagems to bypass, bend, fold or mutilate it, if we do not just outright ignore it. Libya and the War Powers Act is an excellent case in point. The only humor in this is that the Administration's contention that the US is not engaged in hostilities is more absurd than Anthony Weiner's assertion that he could not positively affirm the identity of his personal 'real estate' in a photo that he took.
First let us dispense with a few contextual issues that tend to cloud this discussion.
1. Quaddafi is undeniably a bad dude and worthy of separation from his current employment.
2. It is appropriate that the US, if engaged at all, has taken a secondary role and placed NATO in primary position. It sends a message and sets a precedent that is long overdue. We ought not be 'the policemen of the world'. This role seems to be cherished only by the same people in Congress and elsewhere who are unwilling to pay the bill, except at someone else's expense. And 'the bill' is not paid only in cash.
3. Yes, the President needs the flexibility to respond immediately to crises that do not allow the luxury of interminable congressional deliberation and grand-standing.
4. Yes, there are issues that are not entirely black and white, and the use of force may not always follow bright lines of morality and ethics. It's still a nasty, savage world.
But with all of this said, one would think that an expert in constitutional law would appreciate both the political and legal advantages of something like the War Powers Act, and would seek to distance himself from the precedent of his predecessor. Let's consider the possibilities.
We have members of both parties coming down on both sides of the prudence for our involvement. For the President, this must be the equivalent of managing a swarm of 535 gnats. Wouldn't it be politically better to force Congress to declare itself on the issue, even at the risk of its net opposition? This is admittedly risky once one has committed to military action, but that is precisely the point of the act. It is a check on the Executive to prevent ill-conceived adventures, recognizing the possible military and international and domestic political repercussions of forced premature disengagement.
The Executive's check on an irresponsible Congress is his ability to appeal directly to the American people, who ultimately pay the tab in blood and taxes. But that appeal cannot be made on Day 59. A defeat in public opinion is survivable. A defeat or withdrawal from battle is more costly for all involved.
Further, recognizing that few issues are resolved on the battlefield much faster than in Congress (See Iraq shock-and-awe, and aftermath), there is often more opportunity for debate than we tend to recognize. The advantage for the President of engaging Congress is that if he emerges with support, he may have a stronger hand to act, and the very fact of that may incline an adversary to forego the military option, knowing that it can and will be executed with Congressional support (not to mention our disinclination for interminable engagements).
The Executive's best defense is to engage select members of Congressional foreign affairs, intelligence and military committees in a forward looking exercise of emerging issues and broad options when they first appear in order to build a consensus regarding the conditions and boundaries for military and other action. This would involve the kind of bipartisan collaboration that the President professes to want. It also lifts the burden of deciding and acting from his shoulders alone, where it should not be in the first place. This would also serve to put loose cannon's like Senator McCain, chicken hawks like Senator Lieberman, and ventriloquists like Senator Lindsey Graham, in a bit of a box since the appropriate deliberation would be institutionally based and not media based.
It is true that in many areas of our national life, Congress in aggregate has conducted itself as a bunch of spoiled, narcissistic children. It is understandable that a president, any president, would want to bypass this carnival and 'do the nation's business'. But it is not good process; and bad process is what has gotten this country into so many of its problems: financial, social, political, economic, environmental, international, military.
In my chosen field of accounting, we are taught to distinguish substance from form of transactions, and give priority to substance. Too much of our nation's governing processes have degenerated into mere form.
It is alleged that the 40 year old War Powers Act is inadequate. I hope it is not being faulted primarily on age. What would we say then of the Constitution? But if it is otherwise flawed, let's fix it; not ignore it. The War Powers Act, in principle, is part of the checks and balances that are supposed to make our government work. It vests power in institutions, not individuals.
Contrary to assertions of some, not much has changed in forty years. Yesterday's Gulf of Tonkin was today's WMD. Yesterday's blood is no different from today's blood, whether extracted by 7.62 caliber ammunition or a Hellfire remotely controlled missile. Somebody's finger is on the trigger, and a projectile fired is still not subject to recall.
In carpentry there is an adage: measure twice; cut once. It recognizes that good wood should not be wasted by careless planning. Neither should good life.
Onward.
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