Deciding to Ask For Permission

John McCain was a fighter pilot, and by all accounts a kick-the-tires-and-light-the-fires kind of guy. He didn’t like those preflight checklists. He wanted to be up there, blasting away, right now. If some part of his A-4 Skyhawk wasn’t working right, so be it – he’d take his chances. The point was to take the fight to the enemy, not to be plodding and methodical – and he was shot down early in that war in Vietnam. That sometimes happens when the bold, who don’t sweat the details, are the real warriors willing to take chances – and McCain missed most of that war, entirely. He was a guest at what they called the Hanoi Hilton. He was a prisoner of war, but he parlayed that into a brilliant political career, as a war hero who knew a lot about war. He knew how to deal with our enemies – defeat them – but what he had done, with courage and honor, was to survive years of being cut off from knowing anything at all about what was happening over there, day to day, week to week, and over the long years as the tide turned against us, no matter what we did. He heard about the 1968 Tet Offensive, that was the beginning of the end for us in Vietnam, years later, after the fact. He knew nothing of Kissinger’s Paris negotiations that gave us a way out, or of Nixon’s massive Christmas carpet-bombing of anything that moved in North Vietnam, to make a point in the middle of those negotiations. We were not to be trifled with.

This was a chess game, with bombs, and on the ground there were daily changes in tactics, and periodic shifts in our strategy, and, in the end, a reassessment of what our objective was. Nixon settled on Peace with Honor. There was no winning this war, and the nation had finally sided with the hippies. It was time to get out. Peace with Honor was the best we could do.

John McCain missed all of that. He had a different expertise – heroic survival, alone and isolated, in the worst possible circumstances. He was a real hero, but he was never an expert in geopolitics, and he had never wrestled with the question of whether to go to war in the first place, and with who gets to decide that. Only Congress can formally declare war, as we did in 1941, against Japan and then against Germany a few days later, to make things clear – but we’ve been in war after war since then. The commander-in-chief has needed permission to take military action from time to time, but without a Pearl Harbor attack or a Hitler, a formal declaration of war seems like overkill. Military action from time to time isn’t war, really, and Congress always authorizes some sort of military action to take care of this problem or that, with restrictions of course.

For a kick-the-tires-and-light-the-fires kind of guy, who sat out the Vietnam War, being tortured and abused, all of that is like the preflight checklist on the Skyhawk. Is that really necessary? Can’t we just take the fight to the enemy? That’s why, in his 2008 campaign, McCain was all for bombing Iran – they wouldn’t develop nuclear weapons if we turned the place into smoking rubble. That summer, when Russia invaded Georgia – their former province, not the one here with the peaches and the grits – McCain said it was time to confront Russia, militarily, because we were all Georgians now, as he put it. Obama urged caution, and waiting to see how things worked out – both with Georgia and Iran. That meant that that November, America was faced with the choice between the kick-the-tires-and-light-the-fires guy, and the careful guy, who really should have mentioned to McCain, in one of those debates, that presidents can’t just do those sorts of things. He would have to ask Congress for permission, and they’d have questions, and they’d insist on restrictions. Heck, it was just like those preflight checklists he’d hated. They have a say in these things too. McCain might have been a war hero, of sorts, but Obama had been a constitutional law professor. The Constitution was designed to tamp down enthusiastic boldness – a check here, a bit of balancing there.

John McCain never had to face that depressing reality, but with Vietnam, what the Gulf of Tonkin Resolution of 1964 established is still unclear, but one way to look at it is to say it was a resolution ceding the authority to wage war to the executive branch, as the legislative branch didn’t want to decide or declare anything – in short, it was tossing the constitutional authority and prerogative to declare and wage war down the street to the White House, in that case to Lyndon Johnson. In a way it was an admission that the Constitution doesn’t work in this modern world – one man in the White House should decide these things. It’s quicker, more efficient, and, if you’re in Congress you don’t catch crap when things go badly. Let the executive branch do what it will, and Lyndon Johnson flooded Vietnam with, finally, more than a half-million American troops – but there was a reaction. The War Powers Resolution of 1973 tried to walk that back a bit – now the president has to notify Congress within forty-eight hours of committing armed forces to military action, and forbids those armed forces from remaining for more than sixty days wherever they are sent, except for a thirty-day withdrawal period, unless the president gets an authorization for the use of military force or a declaration of war.

Presidents do get that, however. McCain had seen that. In 2002 there was the Authorization for Use of Military Force against Iraq – to match the 2001 Authorization for Use of Military Force against Terrorists – which was really a catch-all. George Bush got to be bold, and the terms of the 2001 act were wonderfully vague. Bush could do whatever he wanted, anywhere, and Congress would advance the funds, because jihadist terrorism was everywhere, not just in Iraq, and we were fighting terrorism in general, really, which is everywhere, and as Bush put it, we were really fighting evil itself, which is certainly everywhere. That was blanket permission and that resolution is still in force.

Obama has that 2001 Authorization for Use of Military Force against Terrorists in his hip pocket – he has had his folks say that everyone should assume that gives Obama authorization to bomb the crap out of those ISIS folks, not just in Iraq but now in Syria too. Maybe it does, but Obama doesn’t have a declaration of war, and now he seems to be realizing the previous authorizations may not cover the current situation, and it’s time to fix that, which prompted the editorial board at the New York Times to offer this:

Nearly five months after launching a war against the Islamic State, in Iraq and Syria, the Obama administration has gotten around to requesting formal authorization from Congress to conduct that war.

While indefensibly late, the move is nonetheless welcome if it triggers the long-needed substantive debate about the goals, scope and justification of a military intervention that was launched with the claim of authority from laws passed more than a decade ago to allow the use of force in Afghanistan and Iraq.

In seeking a three-year authorization, President Obama appears to be trying to avoid leaving an open-ended mandate that his successor could interpret unjustifiably broadly, much as his administration has. The request sets limits on the use of ground forces, which is good news if Congress and the White House view that as explicitly ruling out another protracted intervention.

But don’t get all excited:

The parameters of a proposed war authorization the White House sent to Congress on Wednesday, however, are alarmingly broad. It does not limit the battlefield to Syria and Iraq, the strongholds of the Islamic State, also known as ISIS or ISIL, which is attempting to form a caliphate. It also seeks permission to attack “associated persons or forces” of the brutal group, a term that appears to be excessively expansive and could undermine Mr. Obama’s stated intent to limit the force authorization.

And here’s the prediction:

While that type of sweeping mandate makes some Democrats uneasy, Mr. Obama is likely to get backing from many Republicans. Certainly, there is cause to be alarmed by the threat posed by the Islamic State. The savagery of the group, which has beheaded journalists and aid workers, warrants a muscular response from the international community. “If left unchecked, ISIL will pose a threat beyond the Middle East, including to the United States homeland,” Mr. Obama wrote in the letter.

Obama will get his authorization and things will be fine, or as Josh Rogan reports, perhaps they won’t be:

Congress is flummoxed about how to deal with President Barack Obama’s proposed authorization for war against the Islamic State. While there’s a sizeable majority of members who favor putting congressional guidance on the war, the lack of agreement on how to do so raises the possibility that efforts to pass legislation will flounder on Capitol Hill.

All week, Republicans and Democrats in the House and Senate have been meeting behind closed doors to strategize on the White House’s proposal, which places vague limits on the use of ground troops, allows the president to expand the war to any country, and sunsets in three years. Many Republicans want to give Obama (and his successor) more flexibility; many Democrats want to tighten restrictions.

Both parties acknowledge the need for some bipartisan support for their ideas. But neither leadership has figured out how to craft a coalition that can muster 60 votes in the Senate and 218 in the House.

That is a problem:

Senate Foreign Relations Committee Chairman Bob Corker favors a compromise that can create broad bipartisan support, several senior Senate aides told me. His committee has jurisdiction over the bill, so it will go first with hearings and approve the first version of the legislation. That bill is likely to track the president’s version, which was based on legislation written by Committee ranking member Robert Menendez and his Democratic colleague Senator Tim Kaine.

The Senate Armed Services Committee, led by John McCain, will have its own hearings. McCain and committee Republican Lindsey Graham favor removing all restrictions on the use of ground forces.

The kick-the-tires-and-light-the-fires guy is still at it, for what that’s worth, but he may not have the final say:

The divisions inside the Republican Senate caucus were visible in a Wednesday afternoon meeting at the Capitol. Prior to the conference, a memo circulated to all Republican senate offices (which I obtained) outlined the Republican concerns with the president’s version of the bill.

“A legislative restriction on the president’s ability to use force may test the Founders’ wisdom that we have one Commander-in-Chief under the Constitution, rather than 535. It may also undermine the seriousness of purpose, conviction, and perseverance the United States likely wishes to signal in its conduct of the armed conflict against ISIL,” the memo stated.

The memo also discussed widespread frustration and skepticism on Capitol Hill about how the White House has handled the whole issue of seeking war authorization. It noted that the administration has long called for Congressional authorization publicly but waited six months before seriously engaging Congress on the issue or proposing actual legislation.

This is a bit of a mess, but Obama still has the previous authorizations and may have wanted a mess:

For months, the Obama administration and Congress have had an unspoken agreement; both sides publicly called for a new war authorization while neither side actually pushed the issue out of a mutual comfort with the status quo. Now that the White House has made its move, Congress is forced to respond, but infighting among lawmakers could result in a failure to exert the oversight power they claim to wield.

For the White House, it’s actually a win-win. If Congress manages to pass something, it will be seen as a bipartisan endorsement of the president’s war, despite widespread discontent with how he is actually prosecuting it. If Congress balks, the president retains even more flexibility to fight the war than he is asking for, and Congress will have ensured its own irrelevance in the debate.

That’s cool, and Ryan Lizza notes that Obama certainly did force folks to take a position:

Speaking for the doves, Vermont Senator Bernie Sanders, an Independent who is considering a campaign for the Democratic Presidential nomination, immediately came out against the resolution because, he said, it does not sufficiently restrict the deployment of American troops in Iraq and Syria. “I oppose sending U.S. ground troops into combat in another bloody war in the Middle East,” Sanders said in a statement. “I therefore cannot support the resolution in its current form without clearer limitations on the role of U.S. combat troops.”

The hawks have been led by Senator Marco Rubio, a Florida Republican, who is also weighing a Presidential run. Rubio didn’t say that he would oppose Obama’s resolution, but he made it clear he wanted a more expansive version. “There is a pretty simple authorization he could ask for, and it would read one sentence,” Rubio said in a speech on the Senate floor on Thursday. “And it would read one sentence. And that is: We authorize the President to defeat and destroy ISIL, period.”

This is certainly an important debate to have, even if it is happening, absurdly, six months after the United States went to war against ISIS. But unless Congress also revisits the authorization of force passed on September 14, 2001, which President Obama has claimed applies to strikes against ISIS, the new debate is all but meaningless.

Salon’s Jim Newell doesn’t think so:

The good news for people who don’t like open-ended ground wars – which, shockingly but not shockingly, is not everyone – is that the administration won’t pursue what could euphemistically be described as “maximum flexibility.” It has backed away from its previous posture, as annunciated by Secretary of State John Kerry in congressional testimony last December, that it didn’t want an explicit ban on ground combat troops. That’s the key thing here, and it was a pleasure to make such a fuss over it.

The president has always claimed that he will not deploy combat troops to fight a ground war against ISIS in multiple countries in the Middle East. But according to the administration’s current, dicey justification for war – the 2001 AUMF against Al Qaeda and affiliates, and conveniently lenient legal readings thereof – the only thing getting in the way of a ground war is the president’s judgment. As in: President Obama could simply change his mind. Or incoming President John Bolton or Hillary Clinton could decide that yes, an open-ended ground war in multiple countries in the Middle East would be an excellent investment of resources. This is why it’s so important to straitjacket the presidency, and Obama seems to understand how this could affect his legacy.

Now it’s just a matter of getting the words right. Specifically, five words: “enduring offensive ground combat operations.” This is what the White House’s draft AUMF prohibits – the language it uses to bar the “long-term, large-scale ground combat operations like those our Nation conducted in Iraq and Afghanistan.”

But in the text of Obama’s letter to congress there are exceptions:

The authorization I propose would provide the flexibility to conduct ground combat operations in other, more limited circumstances, such as rescue operations involving U.S. or coalition personnel or the use of special operations forces to take military action against ISIL leadership. It would also authorize the use of U.S. forces in situations where ground combat operations are not expected or intended, such as intelligence collection and sharing, missions to enable kinetic strikes, or the provision of operational planning and other forms of advice and assistance to partner forces.

Newell sees problems there:

If the prohibition on “enduring offensive ground operations” explicitly means everything but those itemized exceptions – special ops on high value targets, spotters, search and rescue teams, intelligence officials, advisers – then that’s not so bad. Most of the AUMF proposals have allowed these exceptions. The “boots on the ground” that are important to restrict are those that could blossom into tens or hundreds of thousands.

But that’s just what the letter says, and a letter is just a letter.

And Newell adds this:

The obvious problem with regards to tightening the prohibition of ground combat troops is that the Republican Party controls Congress. And its leaders will want to move in the opposite, more expansive direction. It seems ironic – at first – that the Republican Party would want to give the Imperial Tyrant President the broadest imaginable executive authority here, authority that the Imperial Tyrant President himself isn’t even calling for. This isn’t really about the current president, though. It’s about the presidency. The stakes aren’t just about who’s in charge today, but about who’s going to be in charge come January 2017 and beyond. If that person wants a ground war against ISIS, they should have to come to Congress and make that case.

Obama may know that, and he may have changed his mind since, when he was running for president the first time, he gave that now largely forgotten 2007 speech:

These last few years we’ve seen an unacceptable abuse of power at home. We face real threats. Any President needs the latitude to confront them swiftly and surely. But we’ve paid a heavy price for having a President whose priority is expanding his own power. The Constitution is treated like a nuisance. Matters of war and peace are used as political tools to bludgeon the other side. We get subjected to endless spin to keep our troops at war, but we don’t get to see the flag-draped coffins of our heroes coming home. We get secret task forces, secret budgeting, slanted intelligence, and the shameful smearing of people who speak out against the President’s policies.

All of this has left us where we are today: more divided, more distrusted, more in debt, and mired in an endless war. A war to disarm a dictator has become an open-ended occupation of a foreign country. This is not America. This is not who we are. It’s time for us to stand up and tell George Bush that the government in this country is not based on the whims of one person – the government is of the people, by the people and for the people.

We thought we learned this lesson. After Vietnam, Congress swore it would never again be duped into war, and even wrote a new law – the War Powers Act – to ensure it would not repeat its mistakes. But no law can force a Congress to stand up to the President. No law can make Senators read the intelligence that showed the President was overstating the case for war. No law can give Congress a backbone if it refuses to stand up as the co-equal branch the Constitution made it.

Now he’d rather they didn’t stand up to him, unless he secretly thinks they should, or something. He does seem to want to play by the rules, even if he may be asking for almost as much leeway as George Bush was given, which led to our Iraq disaster. At least he’s asking – and this is his preflight checklist. What would President McCain have done? That’s not a pretty thought.

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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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One Response to Deciding to Ask For Permission

  1. Rick says:

    I hate these goddam war-powers discussions, as crucial as they are. The issue is so hazy, probably intentionally so, and I don’t like hazy.

    But at some point, Americans will have to figure out a better way than Constitutional “Declarations of War”, and then all these fudgy “AUMFs”, to let Congress weigh in on these conflicts. How about a Constitutional Amendment that mandates an “opt-out” scheme instead of the “opt-in” that we have now?

    In other words, once the President either starts a war or declares his intention to do it, Congress can then choose to pass a law to end it — the flip-side of outright Declaring war.

    Yes, the President could always just veto that, but Congress can also then override his veto, but if they don’t have the votes to do that, the President gets his war. And, of course, if Congress chooses not to pass that law, that should be seen as a “Declaration of War” by default. Off the top of my head, this seems easier to implement than the system we have now.

    Don’t know if there’s some good reason this wouldn’t work, but I’m just thinking out loud here.

    Rick

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