On Friday, I spoke on Capitol Hill at the Federalist Society’s symposium “The Constitutional War Powers of the Executive and Legislative Branches.” This weekend’s column is adapted from those remarks.
As we gather here on Capitol Hill today, the United States armed forces are engaged in combat operations in several global hot spots. In Syria, we have not only conducted attacks against the regime without any congressional authorization; we are now occupying territory as well.
Ostensibly, we are there to fight not the regime or its Russian and Iranian allies but the Islamic State jihadist organization (also known as ISIS). But to the extent that is a legally “authorized” conflict, it is against an enemy that arguably did not exist when the relevant authorizations for the use of military force (AUMF) were debated and enacted about 15 years ago.
Now, you could say, as we have been saying, that ISIS is merely a breakaway faction of al-Qaeda — it began as the terror network’s Iraqi franchise. Consequently, it is covered under the existing AUMF. This, however, ignores the inconvenience that al-Qaeda, along with its allied Islamist factions, is also fighting ISIS and the Assad regime in Syria. Essentially, the enemy that we started out fighting after it attacked America in 2001, and that still regards the United States as its mortal enemy, is nevertheless fighting in Syria alongside the “rebel” elements that we support.
In that sense, the situation mirrors our misadventure in Libya. That was another recent conflict in which a president, without congressional authorization, launched an aggressive war against a foreign sovereign that not only posed no threat to the United States but was actually regarded as a key counterterrorism ally — precisely because, for all its many flaws, the Qaddafi regime was providing us with intelligence about militants in places like Benghazi and Derna, the Libyan support hubs for the jihad against the United States in Iraq and Afghanistan.
That is to say, in Libya, we initiated an unnecessary war without any debate among the people’s representatives, much less any congressional authorization, and the result was a catastrophe: the undoing of a counterterrorism ally in a dangerous neighborhood, the empowerment of our jihadist enemies, a failed state, and an administration reduced to absurd rationalizations about how its aerial bombing raids on regime targets were somehow not acts of war.
It is tempting on this record to draw the conclusion that modern practice has superseded the Constitution’s separation of war powers and division of war-making authorities between the commander-in-chief and the Congress. But when we get down to brass tacks, this simply is not true.
It is not true for a reason that is often forgotten in our debates about war powers, which are dominated by lawyers. They tend to take place under the auspices of legal academic institutions or organizations like our host today, my good friends and colleagues of the Federalist Society.
The reason is this: We are a body politic, not a legal community — at least, not in the main. For any free society to flourish, it must of course be undergirded by the rule of law. But the Constitution is basically a political document, not a legal one. It is the assignment and division of political authority among actors who compete and collude based on the attendant circumstances.
This is critical because war is a political exercise — “politics by other means,” as Carl von Clausewitz memorably put it. There are legal elements to it, but it is basically a political endeavor — the use of government power, in this instance force, against a foreign enemy in order to break the enemy’s will. Though you wouldn’t know it to listen to most war-powers discussions, there is a limit to how much war can be “judicialized” or subjected to antecedent legal rules and procedures.
A state of war, after all, is the antithesis of our domestic peacetime footing. It is the proud boast of our legal system that we would rather see the guilty go free than have a single person wrongly convicted. Thus, we presume against the government. The accused is presumed to be innocent and has no burden to prove anything. The government must meet weighty standards of proof to conduct a search, obtain a wiretap, make an arrest, or secure a conviction. Our bottom line, as former Bush-41 attorney general William Barr has observed, is that we would rather see the government lose — i.e., justice is not the conviction of the guilty; it is a government forced to meet its burden under strict due-process rules.
War is entirely different. In war, we don’t want the government to lose, and we cannot give the enemy the presumption of innocence. In war, it is in the national interest that the government prevail. Yes, our troops are the world’s best trained and most disciplined, and we demand of them adherence to the laws and customs of civilized warfare. But the highest national interest is to defeat the enemy and to achieve the objective so vital that it was worth going to war over.
