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Robert Naiman

Robert Naiman

Posted: March 24, 2011 02:26 PM

When the House Comes Back, You're Gonna Get in Trouble


Here is some unsolicited advice for the Obama administration: you essentially have four days to put US involvement in the Libya war on a path that doesn't look like open-ended quagmire.

Otherwise, when the House comes back next week, you're going to get in trouble.

Many people have difficulty imagining the possibility that Congress could give the Obama Administration difficulty over the Libya war. Since 2001, many people think, Congress has rolled over for both the Bush and Obama Administrations on questions of war and peace. Why should now be any different?

The view that Congress has only rolled over misses important history. For example, the legislative fight over a timetable for withdrawal from Iraq was a significant contributor to the fact that we have such a timetable for withdrawal today, even though such a timetable was never enacted legislatively. Congress lost the issue legislatively, but eventually won the issue politically.

But the more important point here that many people aren't thinking about yet is that the political dynamics of the coming debate over the Libya war could be very different from the debates over Iraq and Afghanistan. If the Libya war is going full-bore next week with heavy US involvement, there could be significant opposition in Congress, especially in the House, from both Democrats and Republicans.

One key difference from the Iraq and Afghanistan wars is that regardless of what many regard as the "true" motivations of those conducting the Libya war - control of energy resources, maintaining U.S. domination over the Middle East, etc., which would be broadly consistent with what many have believed to be the true motivations of the Iraq and Afghanistan wars - the public presentation of the Libya war has been fundamentally different than for those wars. At the heart of the public justifications of the Iraq and Afghanistan wars there were national security stories: weapons of mass destruction and terrorism. Of course, in both cases there were also humanitarian intervention stories overlaid on the national security stories. But the absence of a public national security story - a threat to Americans - for the Libya war makes it fundamentally more vulnerable politically.

A critic of the Libya war can't easily be accused of being soft on terrorism, or unconcerned about defending the United States. Indeed, Pentagon officials, including Defense Secretary Gates, made sharp public criticisms of calls for U.S. military intervention in Libya, and everyone knows it. So it will be extremely difficult to bully critics of the war by portraying them as soft on defense.

A second key difference from the Iraq and Afghanistan wars is that regardless of whatever else may be true about them, they were authorized by Congress. By taking the US to war without Congressional authorization, the Obama Administration has opened itself to criticism of usurping Congressional authority. This is always a good way to make Congress angry, regardless of the issue at hand, and doing so gives Congress a political opening to pass legislation to limit the Administration's actions.

A third factor is that half of the House Democratic Caucus is already livid over the Obama Administration's repeated escalations of the Afghanistan quagmire. In just the last month, half of the House Democratic caucus has voted to essentially eliminate funding for the war in Afghanistan; half of the House Democratic Caucus has voted to require that US forces be withdrawn from Afghanistan by the end of the year. Numerically, these votes were drowned out by the fact that the overwhelming majority of House Republicans have continued to vote for the war; but on the Libya war, House Republicans aren't tied down to a previous position, and have much more room for maneuver because there is no public national security justification. Meanwhile, The Hill notes, the Libya war is burning through the cuts that House Republicans won to reduce the deficit.

Of course, if a significant number of Congressional Republicans turn against the Libya war, then we can expect a major effort to bully Democrats to "support the President," regardless of what they think about the merits of the war, or the fact that the Administration did not seek Congressional authorization. But it may be hard to bully some Democrats to "support the President" on the Libya war while the President is burning them on Afghanistan; indeed, many Democrats, not just the most liberal ones, have already spoken out against the Libya war and the Administration's decision to launch it without Congressional authorization.

Moreover, many Democrats understand that a dangerous precedent will be set if President Obama is allowed to bomb Libya without Congressional authorization; if Obama can bomb Libya without Congress' approval, a future President Palin could bomb Iran without Congress' approval.

If Congress decides to take action, it can do many things.

One thing Congress could easily do is expressly prohibit the introduction of US ground troops to Libya. Such action would be hard for the Administration to oppose politically, because it is an overwhelmingly popular position politically, and because President Obama has promised not to introduce US ground troops into Libya. So Congress would simply be nailing President Obama's promise to the wall.

A second thing Congress could do is prohibit US manned aircraft from flying over Libyan airspace. This would ensure that no US pilots are shot down over Libya, or crash in Libya for any other reason, as happened this week. Thus, no US pilots could be killed or injured or become hostages.

A third thing Congress could do is establish a timetable for the withdrawal of US military forces from the conflict.

A fourth thing Congress could do is establish a ceiling - for example, a billion dollars - of what the Administration can spend on the Libya war without further authorization.

Of course, Congress could do many other things if it so chooses, including shutting down US participation in the war immediately.

Making such proposals the subject of legislative debate is an intrinsic good, regardless of whether they are enacted into law; they are a form of pressure that will limit the ability of the Administration to escalate the war.

There are important historical precedents.

As a 2004 CRS report on the history of the War Powers Resolution notes, in 1990-1 the first Bush Administration tried to argue that it did not need explicit Congressional authorization to attack Iraq. Then, as now, the President argued, among other things, that he was implementing a UN Security Council resolution and that he did not need additional Congressional authority. But Members of Congress disputed this claim; 45 Democrats sought a judicial order enjoining the President from offensive military operations unless he consulted with and obtained an authorization from Congress. The request for injunction was denied, but on grounds that did not address the underlying legal claim. In the event, Congressional leaders announced that they were going to debate the issue and there was a Congressional authorization of force.

In October 1995, the House, by a vote of 315-103, passed a resolution asserting that "no United States Armed forces should be deployed on the ground in the territory of the Republic of Bosnia and Herzegovina to enforce a peace agreement until the Congress has approved such a deployment." In December 1995, the House narrowly defeated H.R. 2770, which would have prohibited the use of Federal funds for the deployment "on the ground" of U.S. Armed Forces in Bosnia-Herzegovina "as part of any peacekeeping operation, or as part of any implementation force," by a vote of 210-218. The House then approved H.Res. 302 reiterating "serious concerns and opposition" to the deployment of U.S. ground troops to Bosnia.

On April 28, 1999, the House of Representatives passed H.R. 1569, by a vote of 249-180, prohibiting the use of funds appropriated to the Defense Department from being used for the deployment of "ground elements" of the U.S. Armed Forces in the Federal Republic of Yugoslavia unless that deployment were specifically authorized by law.

The same day the House defeated, in a dramatic 213-213 tie vote, S.Con.Res. 21, the Senate resolution passed on March 23, 1999, that supported military air operations and missile strikes against Yugoslavia.

Two days later, the ACLU sent a letter to Senate Majority Leader Trent Lott:

We are writing to urge that you insist on strict compliance with the Constitution in connection with the commitment of U.S. troops in Kosovo, Yugoslavia and surrounding areas. The possible commitment of U.S. ground troops requires prior congressional authorization under the U.S. Constitution and the War Powers Resolution. In fact, such authorization is also required for any air and missile strikes by U.S. forces in connection with any air war in Yugoslavia. Mere consultation with members of Congress, while a step in the right direction, does not meet the constitutional requirement that congressional authorization precede U.S. military intervention.

The air war was never authorized. That didn't stop it; a legal effort to block the air war on this basis was ultimately dismissed in the courts on the grounds that 1) Congressional action had sent contradictory messages, and if it had wanted to explicitly prohibit the air war from continuing, Congress could have done so and 2) the Members of Congress who sued did not have standing since they did not represent the majority of Congress.

Nonetheless, the failure of the House to pass the resolution in support of the air war had a salutary political effect on the Clinton Administration: it made the Administration less intransigent in international diplomacy to resolve the crisis. After the vote, President Clinton suggested that there could be a "pause" in NATO's bombing of Yugoslavia to allow space for diplomacy. There was a peace accord a month later, in which the Clinton Administration accepted terms it likely could have achieved without the bombing.

So far, there has been no serious diplomatic effort backed by the West to resolve the crisis in Libya without the escalation of violence; efforts by others to achieve a diplomatic resolution have been dismissed. It seems likely that the only way to convince the US, France and Britain to give negotiations a chance is to put some obstructions in the current path towards military escalation. Therefore, the best thing Congress can do to help save lives in Libya right now is to construct some political obstacles to further military escalation.

Moreover, as we all know from bitter experience, there is an intrinsic tendency of wars to escalate and expand. Those who support the current military operations, but do not want them to expand and escalate, should support efforts to prevent their expansion.

 

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