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The Politics of War Powers in Iraq

Jack Goldsmith
Wednesday, August 20, 2014, 7:39 AM
The WSJ reports that the initial success of American airstrikes in Iraq is spurring a push for broader military engagement against the Islamic State (IS, or ISIS, or ISIL) in Iraq.  Our deepening military involvement in Iraq accentuates the dysfunctional politics of war powers that Julie Hirschfeld Davis

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The WSJ reports that the initial success of American airstrikes in Iraq is spurring a push for broader military engagement against the Islamic State (IS, or ISIS, or ISIL) in Iraq.  Our deepening military involvement in Iraq accentuates the dysfunctional politics of war powers that Julie Hirschfeld Davis writes about in the NYT.  President Obama has reinstituted the use of force in Iraq without congressional authorization based on his inherent Article II powers.  Whatever one thinks of the legality of unilateral force in Iraq right now – as the mission expands away from protecting “U.S. personnel and facilities,” it becomes harder to justify legally – there is a powerful prudential case for congressional participation in the decision to use force.  “A country faces few decisions as grave as using military force, even when that force is limited,” and “the people’s representatives must be invested in what America does abroad.”  Those are but a few of the President’s words on the need for congressional authorization in his speech last August on Syria. But although the principles of the Syria speech apply with even greater force to Iraq, the President is not seeking congressional authorization for Iraq.  Davis offers two plausible explanations why: (1) “most lawmakers have little appetite for” a vote on Iraq, and (2) President Obama “spent considerable political capital last year on a lobbying campaign to persuade lawmakers in both parties to back military action in Syria” – a campaign that “yielded paltry support” and that the President does not want to repeat this year. Congress doesn’t want to vote on the issue because it doesn’t want any responsibility for the mission.  Davis quotes the President last summer addressing Senate Democrats:
“Guys, you can’t have it both ways here,” Mr. Obama told the group, according to Senator Tim Kaine of Virginia. “You can’t be ducking and dodging and hiding under the table when it comes time to vote, and then complain about the president not coming to you”
One hopes that Davis is right in saying that President made this statement in humor, for Congress can have it both ways.  It can complain about unilateralism and then try to dodge a vote.  And more importantly, it can stay on the sidelines, let the President own the Iraq endeavor, and criticize, criticize, criticize, especially when things go wrong (as they will, as a result of either too much force in the wrong place, or not enough force in the right place). Congress’s pusillanimous calculus is easy to understand.  So too is the President’s thinking.  He cannot shirk responsibility for national security threats.  But he can meet those responsibilities in ways that minimize political costs – at least in the short term.  “Mr. Obama has little patience for repeating the episode now [of seeking congressional authorization], three months before midterm congressional elections,” says Davis.  The President has no interest in spending political capital on a war vote that Congress doesn't want to take, concerning a country where the President promised to end war (and bragged about doing so), especially since the expenditure will only diminish the enthusiasm of his political base in the midterms.  Another important consideration is that the President likes the flexibility of unilateral war powers.  The Obama administration has long pushed the canard that it doesn’t want congressional authorization for military force against Islamist terrorists for fear that Congress will give it too much power.  This is nonsense as it concerns the use of force against IS, for at least four reasons: (1) Davis makes clear that the administration’s worry is whether Congress will authorize any force against IS, not too much force; (2) the President has enormous leverage in the negotiations over authorizations of force and could refuse to sign any authorization that did not suit him, especially since he claims to possess Article II powers to meet the threat if Congress does not give him what he wants; (3) if Congress gives him too broad an authorization for force, he need not exercise force beyond what he thinks fit; and (4) the administration that purports to worry about receiving too much power from Congress has pushed unilateral Article II war powers beyond past limits during the past six years. And so again we witness presidential unilateralism in the use of military force because unilateralism advances the short-term interests of both political branches.  Tim Kaine is quite right to say (in the NYT piece) that “[w]e should not be putting American men and women’s lives at risk if we are not willing to do the political work to reach a consensus that it’s necessary.”   This was the premise of the the President's speech on Syria a year ago.  Today the President no longer thinks congressional support for the use of force “is the right thing to do for our democracy,” or that “our power is rooted . . . in our example as a government of the people, by the people, and for the people,” or that that “all of us should be accountable as we move forward, and that can only be accomplished with a vote.”  And that in turn suggests that the President’s eloquent paean last August to the vital importance of congressional participation in the decision to use force was opportunistic or insincere or both.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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