Andrew C. McCarthy
8th March 2012 - National Review Online
Secretary of Defense Leon Panetta gave testimony in the Senate yesterday that was just breathtaking: asserting that the Obama administration believes it can go to war against Syria by obtaining permission from an international tribunal — the United Nations and/or NATO — and that no authorization from Congress is needed.
The video is posted by Breitbart TV. Powerline’s John Hinderaker also has it, in conjunction with a goodargument that Obama goes even further than Sen. John Kerry’s infamous “global test” for the use of force.
Let me say this about that.
1. Secretary Panetta disingenuously conflates two different principles in dodging Sen. Jeff Sessions’ questions.
Principle I: No one disputes that the president may act without congressional approval when the national security of the United States is truly threatened — I think even Ron Paul agrees that if our nation is attacked or is in imminent danger of being attacked, the president is obliged to use whatever force is necessary to overcome our enemies and protect our interests.
Principle II: No one disputes that, if U.S. interests are so gravely threatened that the use of force is justified, and there is time to assemble a coalition of nations whose interests are similarly threatened, it makes sense to seek the endorsement of relevant international tribunals.
Panetta, however, mashes these two principles together and comes up with something that everyone should dispute: Namely, that anytime a president decides to use force, regardless of whether the national security of the United States is actually threatened, he just needs to get the approval of an international tribunal — with no need for congressional authorization, notwithstanding that Congress (our representatives on our behalf) would be expected to pay for the whole thing (with our money).
2. The United States never needs permission from an international tribunal to act in our national defense. Under the Constitution, the only authorization the commander-in-chief needs to make war comes from Congress, which has the power to declare war and the power of the purse. If our national interests are sufficiently threatened that the use of force is appropriate, it may well make political sense to join our allies in seeking a resolution from the U.N. Security Council. But our nation should view that as an endorsement we seek for political purposes, not an authorization we need for legal purposes — and if the delay in obtaining it threatens operational success, we should be prepared to proceed without it. The U.N. and its Security Council are composed of countries that are hostile to the U.S. and seek to frustrate our policy. We should never concede that they have a check on our power to act in our interests. The only legal check on our military power is the one our Constitution gives to our Congress.
3. I do not agree with those who contend that some talismanic form of “declaration of war” is required before force is authorized — the Constitution does not say any such thing. Congress can and many times has authorized the use of military force without a formalistic declaration of war. But this does not make the power to declare war irrelevant. The framers meant for Congress to have an important role in the decision to go to war. The presumption is that the president needs congressional authorization to use force, and this requirement is only waived when we are attacked or our vital interests are so imperiled that seeking pre-approval from Congress would increase the danger to our country (for example, because of the time it would take or because publicity would compromise the secrecy needed for military success).
4. When, as is the case in Syria, and as was the case in Libya, no vital interests of the United States are at stake, the president must seek authorization from Congress before legitimately using force. My own view is that the Constitution requires this authorization — although scholars for whom I have great respect, like John Yoo, disagree. But regardless of our legal disagreement, there is little or no dispute that presidents should seek congressional authorization as a matter of policy. The less vital the American interests are in given a situation, the more important it is for an administration to explain its rationale for using force and obtain political support for achieving the objectives the administration seeks to achieve. Military expeditions that lack political support at home are apt to fail, and failure can be catastrophic. That means going to Congress for authorization.
5. It would be preposterous to argue that imposing a no-fly zone in Syria by using or threatening to use military force is not an act of war. Moreover, since Syria is not being attacked from outside its borders, a no-fly zone does not make much sense … unless its real purpose, as in Libya, would be to attack assets of the regime on the ground. If we were to support military operations in Syria, that would be making war, no matter that the Obama administration would attempt to rationalize it as something less than war.
6. Unfortunately, Republicans continue to take their national security cues from the McCain wing of the party. This wing substantially agrees with Secretary Panetta’s wayward legal analysis. If the GOP wants to shake the “stupid party” label, it needs to rethink things — or maybe I should say think about them for the first time.