When it comes to matters of national security, all constitutional law is political.
The constitutional text says that Congress has the power to declare war, but there is a long history of presidents using force without such a declaration. In international law prior to the United Nations Charter, not every use of force amounted to a war. While contemporary international law speaks of force, not war, the constitutional text is distinctly not a modern document. Since countries no longer “declare war,” Congress’s role with respect to the use of force is a matter of interpretation. This is a debate in which we get little help from judges, who generally think issues of war and peace are better left to the representative branches of government.
No one really believes that Congress must approve every use of force, but what is distinctly odd is that popular consensus covers extremes at both ends. Presidents routinely use force to protect American nationals abroad and to respond to specific, limited threats. Everyone also agrees that presidents do not need congressional approval to defend the nation from attack or the threat of attack. Indeed, we have given the president control over a world-destroying nuclear power with no legal barrier at all between his decision and his launching warheads. Somewhere between saving a kidnapped citizen and destroying the world, arguments over presidential authority arise.
The law cannot solve the problem of making distinctions in this middle range. This was not a political problem as long as war looked like an instrument of national aggrandizement. If war was used to seize territory or change legal entitlements, it was easily distinguishable from self-defense. The United States is not in the business of annexing territory anymore. Every likely use of force will be cast as a matter of law enforcement — as is the case with any response to the Syrian use of gas against its own people. Politically, every use of force for law enforcement can be cast as a matter of self-defense. This is just what we see with the claim that the Syrian weapons might be used against us or our allies.
Inevitably, law rapidly gives out to politics in matters of force. This is probably as it should be: it is far more important that the president have the support of the people than the formal approval of Congress. If he is going to use force, we need to trust his judgment. Very few of us any longer trust the judgment of Congress, whose approval rating has fallen to single digits.
Political decisions should be principled, but also accountable to the consequences. The use of force is like an election in this respect: there are no excuses after the fact. When Bush administration officials excused their disastrous decision on Iraq by pointing to faulty intelligence, they did not gain much sympathy. Unfortunately, it is harder and harder to predict what will be the consequences of any military action. Victory is no longer a possibility; it is not even a goal for the proposed intervention in Syria. We live in a world in which politics has become so complex that pressure on any one point can cause reactions in places that seem quite far removed. We can’t know whether an intervention in Syria will cause a reaction in Egypt, Iran, Lebanon, Israel, or the U.S. Yet, what is to be done?
Even if military intervention cannot control political outcomes, it can still cause disruption. It can hit something like a reset button, from which politics can take off anew. But if force is a clumsy, unpredictable weapon and every use of force by an American president is a political act that will be judged by its consequences, how does a president manage? It remains true that he is the most powerful man in the world; he alone has the power to intervene. With power comes responsibility. When children are being gassed in Syria, the entire world asks what the president is going to do, for only he has the power to do something. What he does not have is the ability to guarantee that whatever he does will be effective or will not make matters worse. He controls the U.S. military, not history.
All this means that the president must speak to multiple audiences at once. This is exactly what we see President Obama doing. To the rest of the world, he must hold out the possibility of a military response. The president has command over a huge instrument of military threat. It is not for nothing that the United States has invested a fortune in its military. The behavior of other nations is responsive to this threat and it is in our nation’s interest that they take the threat seriously. If the president has good judgment, it is in everyone’s interest that the threat be taken seriously. Of one thing we can be pretty confident: if Congress does not support the president, Obama will in the near future find some other situation in which to demonstrate his capacity unilaterally to use force. That is a structural necessity of an international order that operates under the shadow of American power. If he chooses wisely, Congress will support him after the fact, since they have little interest in disabling America’s superpower status.
Domestic politics, however, is not international politics. Since any use of force has unpredictable consequences, the president has an interest in involving Congress early. More, however, is involved domestically. The president knows that he has predecessors whose judgment on the use of force was not to be trusted. This creates the real dilemma for him: how to respond to the international political necessity of executive unilateralism without increasing the risk that some future president will use his action as a precedent for global misadventure. Thus, the odd posture of speaking to the world with the message “I can do this by myself” while addressing Congress with another: “I want your support.”
Congress almost always supports the president when he uses force. The president may win his Syria bet, but it is no sure thing. Obama believes that he should govern with Congress, but the feeling has not been mutual. We used to say that politics ends at the water’s edge — that U.S. leaders ought to present a unified political front to the world. For better or worse, that is no longer true.