Getting a Bit of Democracy Back

Big news that changes everything isn’t supposed to break in the early afternoon of the Saturday of Labor Day weekend. College football begins that day. There are important baseball games – the Dodgers setting records, the woeful Pittsburgh Pirates somehow still in first place, and the Yankees, with the highest payroll ever seen in the game, in the odd position of trying to save their sorry butts. There are picnics and state fairs too, and mattress sales – and it’s the last weekend of summer, so folks are off to the beaches or the mountains or at least some leafy park. Tuesday morning it will back to work, seemingly forever, as the world grows cold and darker and darker, day by day. That’s depressing, and no one wants to think about any serious stuff on the last weekend of summer, so they don’t. Congress is in recess anyway. Nothing is happening. The big political fights over what sort of country we should have will come later, starting the second Monday in September – our representatives take an extra week off. That can wait. No one is paying attention to the big issues – which is probably why one might want to announce something radical on that particular Saturday afternoon. Maybe no one will notice. As for those who might be outraged, and will want to tell the American people how outraged they are, as everyone should be, well, they’re still on vacation. If you’re going to drop a bomb, drop it then.

That’s what Barack Obama did. He chose that Saturday afternoon to drop a bomb about not dropping bombs:

President Obama stunned the capital and paused his march to war on Saturday by asking Congress to give him authorization before he launches a limited military strike against the Syrian government in retaliation for a chemical weapons attack.

In a hastily organized appearance in the Rose Garden, Mr. Obama said he had decided that the United States should use force but would wait for a vote from lawmakers, who are not due to return to town for more than a week. Mr. Obama said he believed he has authority to act on his own but did not say whether he would if Congress rejects his plan.

With the Brits deciding they’d rather not join us in bombing Syria, and Congress saying don’t do it, or that bombing’s not enough, depending on who you ask, and with the American people more than a little wary of the whole idea, Obama came up with a new plan. Everyone’s full of advice – do it, don’t do it, think of this consequence or that, don’t be a jerk and make the decision all on your own – so maybe everyone should put up or shut up. If you think this is so easy, or that the right thing to do is so damned obvious, vote for what should be done. Talk is cheap. You say that Congress should make such decisions? Fine – decide.

One immediate reaction comes from Kevin Drum:

Good for him. He only did it under pressure, but at least he did it. Not only is this the right thing to do, but it also forces Congress to exercise its constitutional responsibilities, something they should spend more time doing and less time constantly squawking about.

As for whether or not Obama will go ahead with an attack even if Congress rejects it, I can hardly imagine he would. Am I wrong about that? Is there even the slightest chance he’d go ahead even if Congress votes against it?

There’s an answer to that:

US Secretary of State John Kerry said in appearances on several television news shows Sunday that Obama had the right to take action against Syria, with or without Congress approval.

But he stopped short of saying Obama was committed to such a course even if lawmakers refused to authorize the force. Congress is to return from a summer break on September 9.

Obama will go ahead with an attack even if Congress rejects it, or he might not, but he could. That’s beside the point. It time to get Congress on record. Simply whining and complaining won’t do now. Take a position, damn it. Stand FOR something for a change. Don’t bitch. Choose. That’s how our representative democracy is supposed to work. The president was never supposed to be a king. The days of an Imperial Presidency really do have to end.

This should be interesting. Republican senators did start to explain what it will take to win their votes for air strikes against Syria:

“We need to have a strategy and a plan,” John McCain said on the CBS program Face the Nation. “In our view, the best way to eliminate the threat of Bashar Assad’s continued use of chemical weapons would be the threat of his removal from power. And that, I believe, has to be part of what we tell the American people.” …

Republican Sen. Saxby Chambliss of Georgia said Congress should vote against a strike on Syria unless it receives convincing assurance that the U.S. will not be drawn into an all-out military conflict there. “My constituents are war weary,” he said. “They don’t want to see us involved in this.”

Kevin Drum offers a translation:

McCain will vote in favor only if there’s a plan in place that pretty much guarantees escalation of U.S. involvement. Chambliss will vote in favor only if there’s a plan in place that pretty much guarantees there won’t be any further escalation. I can’t wait to see the text of the actual resolution that Congress eventually votes on. I predict maximum weaseliness – which, I admit, will be sort of amusing to watch considering the endless neocon bellowing for the past couple of years about Obama’s wimpiness in the Middle East. Now we’ll get to see if Republicans are willing to put their money where their mouths are.

That seems unlikely, and what Drum doesn’t mention is what else will happen. Ted Cruz and the Tea Party crowd will no doubt say they’ll gladly vote for the Syria attacks, if Obama agrees to defund Obamacare and make it go away, or agrees to eliminate unemployment insurance and food stamps, or gets rid of the EPA, or ends all financial regulation, or deports anyone who even seems Hispanic, or bans gay marriage, or brings back Don’t-Ask, Don’t-Tell. They might demand a cabinet post for Ted Nugent. The possibilities are endless. They will sense maximum leverage here. This could get real crazy, real fast.

So be it. The decision was made, and the New York Times’ Mark Landler tells the tale of how it was made:

President Obama’s aides were stunned at what their boss had to say when he summoned them to the Oval Office on Friday at 7 p.m. on the eve of what they believed could be a weekend when American missiles streaked again across the Middle East.

In a two-hour meeting of passionate, sharp debate in the Oval Office, he told them that after a frantic week in which he seemed to be rushing toward a military attack on Syria, he wanted to pull back and seek Congressional approval first.

He had several reasons, he told them, including a sense of isolation after the terrible setback in the British Parliament. But the most compelling one may have been that acting alone would undercut him if in the next three years he needed Congressional authority for his next military confrontation in the Middle East, perhaps with Iran.

If he made the decision to strike Syria without Congress now, he said, would he get Congress when he really needed it?

This was a tactical decision, and also driven by circumstances:

Even as he steeled himself for an attack this past week, two advisers said, he nurtured doubts about the political and legal justification for action, given that the United Nations Security Council had refused to bless a military strike that he had not put before Congress. A drumbeat of lawmakers demanding a vote added to the sense that he could be out on a limb.

“I know well we are weary of war,” Mr. Obama said in the Rose Garden on Saturday. “We’ve ended one war in Iraq. We’re ending another in Afghanistan. And the American people have the good sense to know we cannot resolve the underlying conflict in Syria with our military.”

The speech, which crystallized both Mr. Obama’s outrage at the wanton use of chemical weapons and his ambivalence about military action, was a coda to a week that began the previous Saturday, when he convened a meeting of his National Security Council.

In that meeting, held in the White House Situation Room, Mr. Obama said he was devastated by the images of women and children gasping and convulsing from the effects of a poison gas attack in the suburbs of Damascus three days before. The Aug. 21 attack, which American intelligence agencies say killed more than 1,400 people, was on a far different scale than earlier, smaller chemical weapons attacks in Syria, which were marked by murky, conflicting evidence.

That shook him, but other things shook him too:

White House aides were in the meantime nervously watching a drama across the Atlantic. They knew that Prime Minister David Cameron’s attempt to win the British Parliament’s authorization for action was in deep trouble, but the defeat on a preliminary motion by just 13 votes on Thursday was a jolt. Although aides said before the vote that Mr. Obama was prepared to launch a strike without waiting for a second British vote, scheduled for Tuesday, the lack of a British blessing removed another layer of legitimacy.

Mr. Obama was annoyed by what he saw as Mr. Cameron’s stumbles, reflecting a White House view that Mr. Cameron had mishandled the situation. Beyond that, Mr. Obama said little about his thinking at the time.

It was only on Friday that he told the aides, they said, about how his doubts had grown after the vote… And if the British government was unable to persuade lawmakers of the legitimacy of its plan, shouldn’t he submit it to the same litmus test in Congress, even if he had not done so in the case of Libya?

It was time to take a walk:

All of these issues were on Mr. Obama’s mind when he invited his chief of staff, Denis R. McDonough, for an early evening stroll on the south lawn of the White House. In the West Wing, an aide said, staff members hoped to get home early, recognizing they would spend the weekend in the office.

Forty-five minutes later, shortly before 7, Mr. Obama summoned his senior staff members to tell them that he had decided to take military action, but with a caveat.

“I have a pretty big idea I want to test with you guys,” he said to the group, which included Mr. McDonough and his deputy, Rob Nabors; the national security adviser, Susan E. Rice, and her deputies, Antony J. Blinken and Benjamin J. Rhodes; the president’s senior adviser, Dan Pfeiffer; and several legal experts to discuss the War Powers Resolution.

The resistance from the group was immediate. The political team worried that Mr. Obama could lose the vote, as Mr. Cameron did, and that it could complicate the White House’s other legislative priorities. The national security team argued that international support for an operation was unlikely to improve.

At 9 p.m., the president drew the debate to a close and telephoned Mr. Kerry and Secretary of Defense Chuck Hagel to tell them of his plans.

The rest is history, and then John Kerry weighed in:

Kerry said hair and blood samples from first responders who were helping victims in East Damascus “have tested positive for signatures of sarin.” While it was the first time anyone in the administration had pinpointed the poison, Mr. Kerry did not say how the administration had obtained the evidence. But he said the case against Mr. Assad was “going to build,” and insisted there was no cost to delaying.

“We do not lose anything; we actually gain,” Mr. Kerry said. “And what we gain is the legitimacy of the full-throated response of the Congress of the United States and the president acting together.”

In short, let’s do this the right way, and show that Assad fellow a thing or two.

There are bigger issues than that, however, which the Atlantic’s Garrett Epps lays out here:

American intervention in Syria is fraught with legal, as well as military, danger – and that constitutionally, as well as in foreign-policy terms, it may be a problem with no good solution.

Before discussing American constitutional law, we should admit that the world situation is terrifying, and the arguments for American intervention – alone, if need be – are powerful. Syria has apparently used chemical weapons against civilians on a mass scale – a crime against humanity. Use of chemical weapons is a “red line” not only to Obama but in international law; perhaps only the threat or use of nuclear weapons would be a worse violation of the laws of war. The United Nations, created and empowered to deal with just such an emergency, is paralyzed because two great powers, Russia and China, have shameless decided to pursue short-term self-interest and defend the criminals in defiance of the world.

Does that crisis in some way create a new legal regime, a change both in international law and in American constitutional norms?

That is a possibility:

Since the very beginning of the Republic, presidents have used force to defend American ships, military personnel, and civilians abroad. No one doubts, in 2013, that a commander-in-chief could order emergency military action to defend Americans, or the nation as a whole, from attack. And sometimes that emergency power has been stretched to include a real-time response to fast-moving events that threaten world order, even if U.S. targets are not involved. Time enough, when seconds count, to consult Congress after the dust has cleared a bit.

American presidents have also used force, without consulting Congress, to fulfill American treaty obligations. The most famous example was President Harry Truman’s decision to commit American troops to the war in Korea without requesting authorization even after the fact. Truman argued that he was obliged, under the U.N. Charter and a Security Council resolution, to come to the aid of South Korea, and that that obligation superseded the Article I § 8 cl. 11 reservation of the power to “declare war” to Congress alone.

President George H. W. Bush, in seeking authorization for the first Gulf War, claimed that he did not need it, because of a Security Council resolution authorizing action against Kuwait. (The bluff worked, and Congress approved the war.) President Bill Clinton committed U.S. forces to intervention in the former Yugoslavia, and never sought authorization. In Kosovo, there was no Security Council resolution, but Clinton claimed to be acting under the NATO Treaty and at the request of the other nations of the Balkans.

It’s just that Syria is a different kettle of fish:

First, the crisis is undoubtedly an emergency – but it is not an emergency that demands presidential action within minutes or hours. The U.S. is preparing in deliberate, even stately, fashion for a carefully choreographed attack on Syria; there’s plenty of time for the president to invoke the “extraordinary occasions” language of Article II § 3 and convene a special session of Congress.

Internationally, a strike against Syria would go well beyond the flimsy justification offered even for Kosovo. The Security Council has not authorized action against Syria, and will not. Even with U.N. personnel producing the evidence that the Damascus regime has used chemical weapons, the U.S. apparently does not plan even to ask for permission to use force. The nations in the Middle East region have not asked for U.S. intervention. NATO does not support it — and for heaven’s sake, not even Britain will stand with the U.S.

To sum up: U.S. citizens and military personnel are not under attack. It is not a split-second emergency. The President does not face a request from the Security Council, NATO, the Arab League or even the Organization of Eastern Caribbean States.

Obama taught constitutional law, so he knows what this is:

This is precisely the kind of situation for which the Framers of our Constitution designed its division of authority between President and Congress. Sending our missiles against Syria is an act of war. If it is to be done, Congress, not the president, should approve.

Epps provides the historical context:

We are, of course, a long way from Philadelphia 1787, and much of what the Framers thought and intended is now obscure. But there’s not much question they gave the power to commence war to Congress. The idea of a single chief executive arose within the first week of the Convention, and John Rutledge of South Carolina declared that “he was for vesting the Executive power in a single person, though he was not for giving him the power of war and peace.”

This theme carried through. The Framers gave Congress even the minor powers that go with making war – prescribing military discipline, issuing letters of “marque and reprisal,” etc. The Committee of Detail gave the entire power to “make war” to Congress, not the President; Madison moved the change to “declare,” saying he did so to make clear that the president would have power “to repel sudden attacks.” Before the vote to change that language, Elbridge Gerry spoke for many when he said he “never expected to hear in a republic a motion to empower the Executive alone to declare war.”

That is the power that Barack Obama might have exercised, but he thought better of it, even if the choice was hard:

It’s important to acknowledge the pressures on the president. An international legal system that does not punish and deter the use of sarin gas is not worthy of the name. The established mechanisms have failed. We may be facing the equivalent of Italy’s attack on Ethiopia with poison gas, which revealed the bankruptcy of the League of Nations and set the world on the course for World War II. Weighed down by the specter of what will happen if no one acts against Bashar al-Assad, Obama may believe he dare not risk rejection from a dysfunctional Congress.

If that is his rationale, however, he should say so, not claim some pernickety new exception to the Constitution. He should, perhaps, say that the president of the United States is also de facto Prime Minister of the World, with the prerogative to defend sovereign peace, and that he must act when others do not.

Stand down. He didn’t claim any new exception to the Constitution, and Slate’s Fred Kaplan kind of likes that:

If Obama had simply announced that he was launching an attack, he would have prompted endless sniping from Congress, especially if the first few days of airstrikes had no effect. And Assad would watch the sniping with glee, concluding – rightly or wrongly – that the American attacks wouldn’t last long, so he should hold firm for a few days more.

An authorization on the use of force binds Congress to Obama’s actions – assuming the measure passes. It will also have the salutary effect of shifting precedents on America’s use of force generally. Maybe the new standard will be that Congress does play a role in any such decision. No more lazy sniping – or hollow rooting – from the sidelines. Those who have long urged Obama to do something about Syria, and then criticized him in recent days for doing something (just because it’s Obama who’s doing it), will now have to step up and take a stand.

That won’t be pretty. Somehow Obamacare will come up, or even school prayer, or something about abolishing capital gains taxes, but it had to be done, and it made for an extraordinary Saturday:

As Obama walked away from the podium, a reporter asked what he would do if Congress voted down a resolution. He said nothing, but the answer seems pretty clear. If Congress votes no, he won’t launch an attack. The legislators will come to realize this, and will see that this is not a parlor game, and I think that’s why they’ll vote in favor.

There will be lessons noted from Iraq, and I suspect the authorization will impose limits on the duration and perhaps the scope of military action. Some will complain that these limits constrain the president, but in fact they free him. Who knows? Maybe we will learn – contrary to the experience of the past decade – that a democracy can go to war in a full and open vote without deceit.

That would be a change. That actually might be a first, and something so radical it was best to slip it in on a lazy Saturday afternoon at the end of summer. Perhaps that was the plan. By the time the long weekend is over it will no longer be the hot immediate story of the day, just an interesting idea that came up earlier, and kind of a done deal. We get a bit of democracy back. That might make the colder days coming just a little more bearable.


About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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