Government Accountability & Balance of Powers
March/April 2013 Edition
by Jim Webb, The National Interest Magazine
IN MATTERS of foreign policy, Congress, and especially the Senate, was designed as a hedge against the abuses exhibited by overeager European monarchs who for centuries had whimsically entangled their countries in misguided adventures. America would not be such a place. The Constitution would protect our governmental process from the overreach of a single executive who might otherwise succumb to the impulsive temptation to unilaterally risk our country’s blood, treasure and international prestige. Congress was given the power to declare war and appropriate funds, thus eliminating any resemblance to European-style monarchies when it came to the presidential war power.
Importantly and often forgotten these days, Article I, Section 8 of the Constitution was also carefully drawn to give Congress, not the president, certain powers over the structure and use of the military. True, the president would act as commander in chief, but only in the sense that he would be executing policies shepherded within the boundaries of legislative powers. In some cases his power is narrowed further by the requirement that he obtain the “Advice and Consent” of two-thirds of the Senate. Congress, not the president, would “raise and support Armies,” with the Constitution limiting appropriations for such armies to no more than two years. This was a clear signal that in our new country there would be no standing army to be sent off on foreign adventures at the whim of a pseudo-monarch. The United States would not engage in unchecked, perpetual military campaigns.
Congress would also “provide and maintain a Navy,” with no time limit on such appropriations. This distinction between “raising” an army and “maintaining” a navy marked a recognition of the reality that our country would need to protect vital sea-lanes as a matter of commercial and national security, confront acts of piracy-the eighteenth-century equivalent of international terrorism-and act as a deterrent to large-scale war.
Practical circumstances have changed, but basic philosophical principles should not. We reluctantly became a global military power in the aftermath of World War II, despite our initial effort to follow historical patterns and demobilize. NATO was not established until 1949, and the 1950 invasion of South Korea surprised us. In the ensuing decades, the changing nature of modern warfare, the growth of the military-industrial complex and national-security policies in the wake of the Cold War all have contributed to a mammoth defense structure and an atrophied role for Congress that would not have been recognizable when the Constitution was written. And there is little doubt that Dwight D. Eisenhower, who led the vast Allied armies on the battlefields of Europe in World War II and who later as president warned ominously of the growth of what he himself termed the “military-industrial complex,” is now spinning in his tomb.
Perhaps the greatest changes in our defense posture and in the ever-decreasing role of Congress occurred in the years following the terrorist attacks on U.S. soil of September 11, 2001. Powers quickly shifted to the presidency as the call went up for centralized decision making in a traumatized nation where quick, decisive action was considered necessary. It was considered politically dangerous and even unpatriotic to question this shift, lest one be accused of impeding national safety during a time of war. Few dared to question the judgment of military leaders, many of whom were untested and almost all of whom followed the age-old axiom of continually asking for more troops, more money and more authority. Members of Congress fell all over themselves to prove they were behind the troops and behind the wars.
Hundreds of billions of dollars were voted for again and again in barely examined “emergency” supplemental appropriations for programs to support our ever-expanding military operations. At the same time, party loyalties over a range of contentious policy decisions became so strong that it often seemed we were mimicking the British parliamentary system, with members of Congress lining up behind the president as if he were a prime minister-first among Republicans with George W. Bush and then among Democrats with Barack Obama. And along the way, Congress lost its historic place at the table in the articulation and functioning of national-security policy.
This is not the same Congress that eventually asserted itself so strongly into the debate over the Vietnam War when I was serving on the battlefield of that war as a Marine infantry officer. It is not the Congress in which I served as a full committee counsel during the Carter administration and the early months following the election of Ronald Reagan. It is not the Congress, fiercely protective of its powers, that I dealt with regularly during the four years I spent as an assistant secretary of defense and as secretary of the navy under Reagan.
From long years of observation and participation it seems undeniable that the decline of congressional influence has affected our national policies in many ways, although obviously not everyone in Congress will agree with this conclusion. As in so many other areas where powers disappear through erosion rather than revolution, many members of Congress do not appreciate the power that they actually hold, while others have no objection to the ever-expanding authority of the presidency. Nonetheless, during my time in the Senate as a member of both the Armed Services and Foreign Relations committees, I repeatedly raised concerns about the growing assertion of executive power during the presidencies of both Bush and Obama as well as the lack of full accountability on a wide variety of fronts in the Department of Defense. These issues remain and still call for resolution.
WHEN IT comes to foreign policy, today’s Americans are often a romantic and rather eager lot. Our country’s continually changing, multicultural demographics and relatively short national history tend to free many strategic thinkers from the entangled sense of the distant past that haunts regions such as Europe and East Asia. The “splendid isolation” of the North American continent obviates the need to account for future challenges that otherwise would be inherent due to geographic boundaries as with Germany, France and Russia in Europe, or China, Korea, Japan and Russia in East Asia.
And so when our security is threatened we tend to take a snapshot view of how to respond, based on the analytical data of the moment rather than the historical forces that might be unleashed by our actions down the road. This reliance on data-based solutions that emphasize the impact of short-term victories was Robert McNamara’s great oversight as he designed our military policy in Vietnam during Lyndon Johnson’s administration. It was also Donald Rumsfeld’s strategic flaw as the George W. Bush administration planned and executed the “cakewalk” that soon became the predictable quagmire following the invasion of Iraq.
Resolving foreign-policy challenges depends not only on reacting to the issues of the day but also on understanding how history has shaped them and how our actions may have long-term consequences. This reality may seem obvious to people who devote their professional lives to foreign affairs, but many American political leaders tend to lose sight of it as the cameras roll and the ever-present microphones are thrust into their faces, putting one a mere five minutes away from a YouTube blast that might ruin his or her career. Politicians are expected to utter reasonably profound truths and to have at least talking points if not solutions, even if they are not intimately familiar with the historical trends that have provoked the crisis of the moment.
But in the aftermath of the analytically simpler challenges of the Cold War, present-day crises have become more complicated to explain with any expertise, even as the electoral process has become more obsessed with the necessities of fund-raising and as the political messages themselves have been reduced to blunt one-line phrases. As former House Speaker Thomas P. “Tip” O’Neill famously put it decades ago, most politics are local, and most politicians learn about the essentials of foreign policy only after they have been elected, if at all. This dichotomy explains the nearly total absence of any real foreign-policy debate in our electoral process, whether at the congressional or presidential level.
Nowhere is this truth more self-evident than in the national discussions that have emerged in the aftermath of the 9/11 terrorist attacks. Despite more than ten years of ongoing combat operations, and despite the frequent congressional trips to places such as Iraq and Afghanistan (usually on highly structured visits lasting only a few hours, or at the most a day or two), Congress has become largely irrelevant to the shaping, execution and future of our foreign policy. Detailed PowerPoint briefings may be given by colonels and generals in the “battle zones.” Adversarial confrontations might mark certain congressional hearings. Reports might be demanded. Passionate speeches might be made on the floor of the House and the Senate. But on the issues of who should decide when and where to use force and for how long, and what our country’s long-term relations should consist of in the aftermath, Congress is mostly tolerated and frequently ignored. The few exceptions come when certain members are adamant in their determination to stop something from happening, but even then they do not truly participate in the shaping of policy.
This is not an accusation or a condemnation; it is an observation. Consider a few relatively recent examples.
In December 2008, after more than a year of largely secret negotiations with the Iraqi government, the outgoing George W. Bush administration signed an ambitious, far-reaching document called the Strategic Framework Agreement (SFA). Not to be confused with the mundanely technical Status of Forces Agreement, a common document that with minor variations governs jurisdiction over U.S. forces serving in nearly ninety countries around the world, the SFA addressed a broad range of issues designed to shape the future relationship between the United States and Iraq. This was not quite a treaty, which would have required debate on the Senate floor and the approval of sixty-seven senators, but neither was it a typical executive-branch negotiation designed to implement current policy and law. Included in the SFA, as summarized in a 2008 document published by the Council on Foreign Relations, were provisions outlining “the U.S. role in defending Iraq from internal and external threats; U.S. support of political reconciliation; and U.S. efforts to confront terrorist groups,” as well as measures “shaping future cooperation on cultural, energy, economic, environmental, and other issues of mutual interest.”
Despite years of combat in Iraq, the expenditure of hundreds of billions of dollars of national treasure and deep divisions that remained in the American body politic regarding our future role in this tumultuous region, over the period of more than a year during which the Iraqi SFA was negotiated and finalized, Congress was not consulted in any meaningful way. Once the document was finalized, Congress was not given an opportunity to debate the merits of the agreement, which was specifically designed to shape the structure of our long-term relations in Iraq. Nor, importantly, did the congressional leadership even ask to do so.
Until finalized, the agreement was kept from public and media scrutiny, to minimize any debate that might have put it into jeopardy. From the overt and palpable body language of the executive branch, it was clear that opening up such an important and time-sensitive issue for congressional or public scrutiny would be counterproductive. When this writer asked to read the full document in the weeks before it was signed, I was required to do so inside a soundproof room normally reserved for reviewing classified materials, even though the proposed agreement was not itself classified. And from the logbook I signed before being able to read (but not copy or take with me) the agreement, it appears that I was the only member of the Senate who at least at that point had actually read it.
Congress did not debate or vote on this agreement, which set U.S. policy toward an unstable regime in an unstable region of the world. By contrast, the Iraqi parliament voted on it twice.
A FEW years later the executive branch, headed by a new president, followed a similar pattern with respect to Afghanistan. In May 2012, after what was officially termed “a year and a half of negotiations,” President Obama traveled overnight to Afghanistan in order to sign a strategic partnership agreement with Afghan president Hamid Karzai. The agreement was characterized by the White House as “a legally binding executive agreement, undertaken between two sovereign nations.” Its purpose was to frame the structure of the future relationship between the United States and Afghanistan, including American commitments to that country’s long-term security, social and economic development, as well as an anticipated American military presence that would continue after 2014, partially to address issues of overall regional security. To that end, Afghanistan was designated as a “Major Non-NATO Ally” in order to “provide a long-term framework for security and defense cooperation.”
The Obama administration has proven itself to be acutely fond of executive orders designed to circumvent the legislative process in domestic politics. Thus, it is not surprising that this approach would be used also in foreign policy. The phrase “legally binding” as it pertains to executive agreements had come up earlier in the Obama administration. In November 2009, the administration announced that the president would return from a conference of the United Nations Framework Convention on Climate Change in Copenhagen, Denmark, with a “binding commitment” for a nationwide emission-reduction program. On November 25, 2009, this writer sent a cautionary letter to the president, reminding him that “only specific legislation agreed upon in the Congress, or a treaty ratified by the Senate, could actually create such a commitment on behalf of our country.”
It is difficult to understand how any international agreement negotiated, signed and authorized only by our executive branch of government can be construed as legally binding in our constitutional system. And, with respect to Afghanistan, one strains to find the rationale under which the president alone holds the power to commit our country to a long-term economic and security arrangement that far transcends his authority as commander in chief to oversee combat operations against international terrorism. If such an agreement were “legally binding,” one must ask what law binds it and how, and against whom it would be enforced?
Unless Americans accept that we have by fiat devolved into a political system where the president has become a de facto prime minister, it is difficult to understand why Congress has remained so complacent when the executive branch has negotiated and signed agreements affecting long-term security and economic issues. Congress did not participate in the development of an agreement which, if not a security treaty, still could bind certain fiscal and security policies of our country through many ways, including pure financial inertia. Nor, again, did congressional leaders from either house or either political party even ask for a debate, much less a vote, as to whether it should be approved.
As with the SFA in Iraq, the Afghan parliament did in fact vote on this agreement, even as our Congress was not formally consulted.
THE FAILURE of Congress to meet its historical obligations while the president unilaterally engaged in combat operations in Libya promises even deeper consequences for future crises. In many international situations the future promises a different kind of warfare, made possible (and politically more complex) by the use of special-operations forces, CIA operatives, drones and precision munitions, thus removing the average American from the consequences and even the direct knowledge of military actions that a president might undertake at his or her sole discretion. But to what extent should this “cleaner” way of war also remove Congress as an arbiter of when and where our nation should become involved in overseas hostilities?
The inherent right of self-defense allows the president, as commander in chief, to order strikes anywhere in the world against legitimate terrorist targets if the country in which they operate either cannot or will not take appropriate action itself. But this is a different concept than unilaterally commencing hostilities in situations that do not directly threaten our country. When we examine the conditions under which the president ordered our military into action in Libya, we are faced with the prospect of a very troubling, if not downright odd, historical precedent that has the potential to haunt us for decades.
The issue in play in Libya was not simply whether the president should ask Congress for a declaration of war. Nor was it wholly about whether Obama violated the edicts of the War Powers Act, which in this writer’s view he clearly did. The issue that remains to be resolved is whether a president can unilaterally begin, and continue, a military campaign for reasons that he alone defines as meeting the demanding standards of a vital national interest worthy of risking American lives and expending billions of dollars of taxpayer money.
And what was the standard in this case?
The initial justification was that a dictator might retaliate against people who rebelled against him. No thinking person would make light of the potential tragedy involved in such a possibility in Libya (or, at present, in Syria). But it should be pointed out that there are a lot of dictators in the world and very few democracies in that particular region. This gives the Obama standard a pretty broad base if he or any future president should decide to use it again. And then, predictably, once military operations began, the operative phrase became “human suffering” and the stated goal became regime change, with combat dragging on for months.
In a world filled with cruelty, the question is not only how but whether a president should be allowed to pick and choose when and where to use military force on the basis of such a vague standard. Given our system of government, the fundamental question is: Who should decide? And even if a president should decide unilaterally on the basis of an overwhelming, vital national interest that requires immediate action, how long should that decision be honored, and to what lengths should our military go, before the matter comes under the proper scrutiny-and boundaries-of Congress?
As a measure for evaluating future crises, it is useful to review the bidding that led to our actions in Libya. What did it look like when President Obama ordered our military into action in that country, and what has happened since?
Was our country under attack, or under the threat of imminent attack? No. Was a clearly vital national interest at stake? No. Were we invoking the inherent right of self-defense as outlined in the UN Charter? No. Were we called upon by treaty commitments to come to the aid of an ally? No. Were we responding in kind to an attack on our forces elsewhere, as we did in the 1986 raids in Libya after American soldiers had been killed in a Berlin disco? No. Were we rescuing Americans in distress, as we did in Grenada in 1983? No.
The president followed no clear historical standard when he unilaterally decided to use force in Libya. Once this action continued beyond his original definition of “days, not weeks,” into months and months, he did not seek the approval of Congress to continue military activities. And, while administration members may have discussed this matter with some members of Congress, the administration never formally conferred with the legislative branch as a coequal partner in our constitutional system.
Obviously, these points are not raised out of any lasting love for the late Libyan leader Muammar el-Qaddafi. But this is not about Qaddafi; it is about the manner in which our nation decides to use lethal military force abroad. This is a region rife with tribalism, fierce loyalties and brutal retaliation. Libya represented the extreme (at least so far) of executive action in the absence of the approval of Congress. We took military action against a regime that we continued to recognize diplomatically, on behalf of disparate groups of opposing forces whose only real point of agreement was that they wished to rid Libya of Qaddafi. This was not even a civil war. As then secretary of defense Robert Gates put it to this writer during a Senate Armed Services Committee hearing, it is not a civil war when there is no cohesive opposition facing a regime. The too frequently ignored end result of this process was not only the rampant lawlessness that possibly contributed to the assassination of our ambassador and three other U.S. officials, but also the region-wide dispersion of thousands of weapons from Qaddafi’s armories.
The inaction (some of it deliberate) of key congressional leaders during this period has ensured that the president’s actions now constitute a troubling precedent. Under the objectively undefinable rubric of “humanitarian intervention,” President Obama has arguably established the authority of the president to intervene militarily virtually anywhere without the consent or the approval of Congress, at his own discretion and for as long as he wishes. It is not hyperbole to say that the president himself can now bomb a country with which we maintain diplomatic relations, in support of loosely aligned opposition groups that do not represent any coalition that we actually recognize as an alternative. We know he can do it because he already has done it.
Few leaders in the legislative branch even asked for a formal debate over this exercise of unilateral presidential power, and in the Senate any legislation pertaining to the issue was prevented from reaching the floor. One can only wonder at what point these leaders or their successors might believe it is their constitutional duty to counter unchecked executive power exercised on behalf of overseas military action.
AT BOTTOM, what we have witnessed in these instances, as with many others, is a breakdown of our constitutional process. Opinions will surely vary as to the merits of the actual solution that was reached in each case, but this sort of disagreement, which in and of itself forms the basis of our form of government, is the precise reason why each one of these cases, and others, should have been properly debated and voted on by Congress. In none of these situations was the consideration of time or emergency so great as to have precluded congressional deliberation. In each, we can be certain that Congress was deliberately ignored or successfully circumvented, while being viewed by some members of the executive branch as more of a nuisance than an equal constitutional partner. And there is no doubt that some key congressional leaders were reluctant, at best, to assert the authority that forms the basis of our governmental structure.
When it comes to the long-term commitments that our country makes in the international arena, ours can be a complicated and sometimes frustrating process. But our Founding Fathers deliberately placed checks and counterchecks into our constitutional system for exactly that purpose. The congressional “nuisance factor” is supposed to act as a valuable tool to ensure that our leaders-and especially our commander in chief-do not succumb to the emotions of the moment or the persuasions of a very few. One hopes Congress-both Republicans and Democrats-can regain the wisdom to reassert the authority that was so wisely given to it so many years ago.
And as for the presidency, a final thought is worth pondering. From a political standpoint, it is far smarter to seek congressional approval on controversial matters of foreign policy, as was done in the October 2002 authorization to invade Iraq, than to attempt to circumvent the legislative branch. At home, Congress and the presidency will then share accountability. Abroad, the international community will know that America is united and not acting merely at the discretion of one individual.
Jim Webb is a former U.S. senator from Virginia and served as Secretary of the Navy in the Reagan administration.