This is not an accusation or a condemnation; it is an observation. Consider a few relatively recent examples.
In December 2008, after more than a year of largely secret negotiations with the Iraqi government, the outgoing George W. Bush administration signed an ambitious, far-reaching document called the Strategic Framework Agreement (SFA). Not to be confused with the mundanely technical Status of Forces Agreement, a common document that with minor variations governs jurisdiction over U.S. forces serving in nearly ninety countries around the world, the SFA addressed a broad range of issues designed to shape the future relationship between the United States and Iraq. This was not quite a treaty, which would have required debate on the Senate floor and the approval of sixty-seven senators, but neither was it a typical executive-branch negotiation designed to implement current policy and law. Included in the SFA, as summarized in a 2008 document published by the Council on Foreign Relations, were provisions outlining “the U.S. role in defending Iraq from internal and external threats; U.S. support of political reconciliation; and U.S. efforts to confront terrorist groups,” as well as measures “shaping future cooperation on cultural, energy, economic, environmental, and other issues of mutual interest.”
Despite years of combat in Iraq, the expenditure of hundreds of billions of dollars of national treasure and deep divisions that remained in the American body politic regarding our future role in this tumultuous region, over the period of more than a year during which the Iraqi SFA was negotiated and finalized, Congress was not consulted in any meaningful way. Once the document was finalized, Congress was not given an opportunity to debate the merits of the agreement, which was specifically designed to shape the structure of our long-term relations in Iraq. Nor, importantly, did the congressional leadership even ask to do so.
Until finalized, the agreement was kept from public and media scrutiny, to minimize any debate that might have put it into jeopardy. From the overt and palpable body language of the executive branch, it was clear that opening up such an important and time-sensitive issue for congressional or public scrutiny would be counterproductive. When this writer asked to read the full document in the weeks before it was signed, I was required to do so inside a soundproof room normally reserved for reviewing classified materials, even though the proposed agreement was not itself classified. And from the logbook I signed before being able to read (but not copy or take with me) the agreement, it appears that I was the only member of the Senate who at least at that point had actually read it.
Congress did not debate or vote on this agreement, which set U.S. policy toward an unstable regime in an unstable region of the world. By contrast, the Iraqi parliament voted on it twice.
A FEW years later the executive branch, headed by a new president, followed a similar pattern with respect to Afghanistan. In May 2012, after what was officially termed “a year and a half of negotiations,” President Obama traveled overnight to Afghanistan in order to sign a strategic partnership agreement with Afghan president Hamid Karzai. The agreement was characterized by the White House as “a legally binding executive agreement, undertaken between two sovereign nations.” Its purpose was to frame the structure of the future relationship between the United States and Afghanistan, including American commitments to that country’s long-term security, social and economic development, as well as an anticipated American military presence that would continue after 2014, partially to address issues of overall regional security. To that end, Afghanistan was designated as a “Major Non-NATO Ally” in order to “provide a long-term framework for security and defense cooperation.”
The Obama administration has proven itself to be acutely fond of executive orders designed to circumvent the legislative process in domestic politics. Thus, it is not surprising that this approach would be used also in foreign policy. The phrase “legally binding” as it pertains to executive agreements had come up earlier in the Obama administration. In November 2009, the administration announced that the president would return from a conference of the United Nations Framework Convention on Climate Change in Copenhagen, Denmark, with a “binding commitment” for a nationwide emission-reduction program. On November 25, 2009, this writer sent a cautionary letter to the president, reminding him that “only specific legislation agreed upon in the Congress, or a treaty ratified by the Senate, could actually create such a commitment on behalf of our country.”
It is difficult to understand how any international agreement negotiated, signed and authorized only by our executive branch of government can be construed as legally binding in our constitutional system. And, with respect to Afghanistan, one strains to find the rationale under which the president alone holds the power to commit our country to a long-term economic and security arrangement that far transcends his authority as commander in chief to oversee combat operations against international terrorism. If such an agreement were “legally binding,” one must ask what law binds it and how, and against whom it would be enforced?
Unless Americans accept that we have by fiat devolved into a political system where the president has become a de facto prime minister, it is difficult to understand why Congress has remained so complacent when the executive branch has negotiated and signed agreements affecting long-term security and economic issues. Congress did not participate in the development of an agreement which, if not a security treaty, still could bind certain fiscal and security policies of our country through many ways, including pure financial inertia. Nor, again, did congressional leaders from either house or either political party even ask for a debate, much less a vote, as to whether it should be approved.
As with the SFA in Iraq, the Afghan parliament did in fact vote on this agreement, even as our Congress was not formally consulted.
THE FAILURE of Congress to meet its historical obligations while the president unilaterally engaged in combat operations in Libya promises even deeper consequences for future crises. In many international situations the future promises a different kind of warfare, made possible (and politically more complex) by the use of special-operations forces, CIA operatives, drones and precision munitions, thus removing the average American from the consequences and even the direct knowledge of military actions that a president might undertake at his or her sole discretion. But to what extent should this “cleaner” way of war also remove Congress as an arbiter of when and where our nation should become involved in overseas hostilities?
The inherent right of self-defense allows the president, as commander in chief, to order strikes anywhere in the world against legitimate terrorist targets if the country in which they operate either cannot or will not take appropriate action itself. But this is a different concept than unilaterally commencing hostilities in situations that do not directly threaten our country. When we examine the conditions under which the president ordered our military into action in Libya, we are faced with the prospect of a very troubling, if not downright odd, historical precedent that has the potential to haunt us for decades.
The issue in play in Libya was not simply whether the president should ask Congress for a declaration of war. Nor was it wholly about whether Obama violated the edicts of the War Powers Act, which in this writer’s view he clearly did. The issue that remains to be resolved is whether a president can unilaterally begin, and continue, a military campaign for reasons that he alone defines as meeting the demanding standards of a vital national interest worthy of risking American lives and expending billions of dollars of taxpayer money.
And what was the standard in this case?
The initial justification was that a dictator might retaliate against people who rebelled against him. No thinking person would make light of the potential tragedy involved in such a possibility in Libya (or, at present, in Syria). But it should be pointed out that there are a lot of dictators in the world and very few democracies in that particular region. This gives the Obama standard a pretty broad base if he or any future president should decide to use it again. And then, predictably, once military operations began, the operative phrase became “human suffering” and the stated goal became regime change, with combat dragging on for months.
In a world filled with cruelty, the question is not only how but whether a president should be allowed to pick and choose when and where to use military force on the basis of such a vague standard. Given our system of government, the fundamental question is: Who should decide? And even if a president should decide unilaterally on the basis of an overwhelming, vital national interest that requires immediate action, how long should that decision be honored, and to what lengths should our military go, before the matter comes under the proper scrutiny—and boundaries—of Congress?
As a measure for evaluating future crises, it is useful to review the bidding that led to our actions in Libya. What did it look like when President Obama ordered our military into action in that country, and what has happened since?Image: Pullquote: It is difficult to understand how any international agreement negotiated, signed and authorized only by our executive branch of government can be construed as legally binding in our constitutional system.Essay Types: Essay