August 25, 2011 | National Review Online

Et Tu, Yoo?

August 25, 2011 | National Review Online

Et Tu, Yoo?

I’m disheartened to find my friend John Yoo lending his voice to the bogus claim that opposition to U.S. intervention in Libya’s civil war makes one an “isolationist.” And Ramesh Ponnuru is right to point out that the constitutional questions arising out of the Libya intervention are much more complex than John suggests.

If we were only talking about the House Republicans’ decision to make President Obama’s violation of the War Powers Act the focal point of their opposition, John’s legal criticism would be well taken. At least, I think it would: I can’t say for sure, because John does not specifically mention the WPA. Instead, he suggests that there was a generalized Republican opposition to “the president’s authority to use force abroad to protect U.S. national-security interests.” I don’t think that accurately portrays the opposition — but we’ll come to that. Assuming the WPA is part of his beef, I agree with him. The WPA is almost certainly unconstitutional. Where the Constitution has given the president a war power, that power cannot be nullified or diminished by a statute. Furthermore, the Republican emphasis on the WPA smacked of political opportunism: Many of the same Republicans who objected to Obama’s violation of the WPA supported President Bush’s terrorist-surveillance program, even though it ran afoul of the constitutionally dubious FISA statute. Symmetrically, Democrats who loved FISA when Bush was in the hot seat now think the WPA is much ado about nothing.

The Republicans should have based their opposition on Congress’s constitutional war powers, not the WPA. On that score, let’s put to the side my humble opinion that, as a limitation on presidential war-making, Congress’s power to declare war is neither as trivial as John argues it is nor as muscular as, say, Ron Paul contends. There is support for each of these contentions, and the controversy simply is not going to be settled. Where does that leave us? It depends on the situation. I think there are four relevant scenarios.

First, there is virtually unanimous agreement on the proposition that the president has not only the power but the duty to use force to repel an attack against the United States — he need not wait for congressional authorization. Second, there is a consensus — or something very close to it — that this proposition extends to circumstances where the United States is under imminent threat of attack. I think even Representative Paul would agree with that. But then things get murkier. There is the third situation, the one John describes: The president decides, in the absence of an attack or threatened attack, and without congressional authorization, “to use force abroad to protect U.S. national-security interests.” There is less support for the notion that this is constitutional. I happen to agree with John that it is, and I believe most informed commentators concur. But it is a closer question, and there is a strong counterargument.

That brings us to situation No. 4, where the pendulum swings in the other direction. This is the notion that the president may, without congressional authorization, initiate a military attack abroad under circumstances in which the U.S. has not been attacked or threatened, and in which there are no vital U.S. national-security interests at stake.

I appreciate John’s position that Congress’s power to declare war is merely authority to set the legal relations between belligerent nations in a state of total war. But that is a controversial view, and others who’ve studied it conclude that the war power is a more meaningful check on the president’s power to take the nation to war in the first place. For what it’s worth, I think Congress’s war power is broader than John believes it is. In my mind, the exceptions to Congress’s power to declare war involve exigencies in which the nation’s vital interests would be threatened — perhaps existentially imperiling us — if the president’s hand were stayed until Congress could convene and act. Barring that, the president should seek congressional authorization.

In any event, situation No. 4 describes Libya. It is not enough to concede (as Defense Secretary Robert Gates did) that there was no vital U.S. interest at stake. Qaddafi was actually considered by the Bush and Obama administrations to be an important American ally against our wartime enemies: al-Qaeda and its affiliates. In part, this was because he was providing our country with intelligence about jihadists in Libya — Libya having  been home to more jihadists who traveled to Iraq to fight American troops than any other country per capita. So valuable did President Obama consider Qaddafi that, with strong bipartisan support, the administration increased aid to his regime this year, including military aid. That there was American blood on Qaddafi’s hands and that he continued to be a serial human-rights violator (the two justifications most often cited by those favoring intervention in Libya) did not seem to be a problem from 2003 through early 2011, when our government embraced Qaddafi and declared his terrorist atrocities to be a settled matter.

So we had a situation in which a despot who had apparently reformed from his anti-American terrorism was in a civil war against an amalgam of factions that include some of the very jihadists whose active anti-Americanism was part of the rationale for embracing Qaddafi as a U.S. ally in the first place. And while much has been said about the Qaddafi regime’s atrocities, pro-intervention commentators glide conveniently by the shocking human-rights abuses — including torture and murder — carried out by the “rebels” against black Africans, whom they see as Qaddafi’s allies.

The anti-intervention argument therefore had two major points. The first was practical: There is considerable reason to believe that a post-Qaddafi Libya will be worse for the United States than Qaddafi’s Libya. Most of us think that the objective of the War on Terror is to eradicate al-Qaeda’s capacity to project power, and therefore we are resistant to strategies that have potential to empower al-Qaeda and its sympathizers. And while it now provokes snickers to suggest that Qaddafi’s Libya was better for us than other foreseeable alternatives, that conceit actually was U.S. policy from 2003 through early 2011, under both Bush and Obama. In any event, the United States did not have a vital interest in the outcome of a civil war between competing anti-American factions, and that was a good reason to stay out of it. We steer clear of military involvement in most other countries’ civil wars and insurrections, even when we have a clear preference for one side.

The second anti-interventionist point is legal — or, better, a mixture of law and politics. We are never going to settle the constitutional question of exactly how much congressional war powers are meant to check executive war powers. It is not justiciable, so no court will or should decide it. It has to be resolved by politics.

No matter what you think in principle of the need for strong executive war power (and I happen to agree with John that it needs to be very strong), as a political matter, the further you get away from a real threat against the country the more important it is to get congressional endorsement for the use of force. I’m talking prudence here; what the Constitution may demand is beside the point.

War is not an executive undertaking; it is a national undertaking. The more doubt there is about whether there are vital interests that justify the use of force, the more important it is for the president to make the case for using force — to state our interests, outline our objectives, identify whom we will be fighting and whom we will be helping, and explain why the venture is worth sacrificing American blood and treasure. When a president is unwilling to do this, as President Obama was in the case of Libya, it strongly suggests that there is no American interest worth going to war over.

In this instance, even worse, the administration sought permission from the United Nations and consulted with the Arab League — but not Congress. And worse still, the U.N. resolution was transparently pretextual: It authorized the protection of civilians, but we used it to wage war on Qaddafi’s regime while turning a blind eye to the rebels’ treatment of civilians.

All of this should be distressing to conservatives, who are gravely concerned that the Obama administration is degrading American sovereignty and attempting to run the country by executive diktat rather than through constitutional processes. How peculiar that so many commentators who are appropriately outraged by President Obama’s administrative state — the EPA’s reversal of Congress on emissions, the Interior Department’s contempt for court rulings on drilling, the NLRB’s claim of power to dictate where a corporation can do business, the Justice Department’s evisceration of the immigration laws, and so on — are nevertheless content to green-light a president’s unilateral instigation of a war, with no vital U.S. interests at stake, against a country then considered a U.S. ally, one whose military American taxpayers were then supporting, for the benefit of . . . we don’t know exactly who — except that there is no shortage of jihadist and Islamist elements among them. (See, e.g., John Rosenthal’s report, here.) This is a terrible precedent, and I fear those who supported it will rue the day, especially if there is a second Obama term.

I’m also dismayed by John’s end-justifies-the-means snark at House Republicans: “If they all thought the war was illegal and a bad idea, do they want to give Libya back to Qaddafi now?” No, what I imagine they want — just as I want, just as any patriotic American with misgivings about the Libya war wants — is that we naysayers turn out to be wrong about the rebels, that the real secular democrats in Libya turn out to outnumber the Islamists three-to-one rather than the reverse, and that a reasonably stable country that is not an enemy of the United States emerges.

Unfortunately, I expect that will not happen. But if we end up with predictable chaos, a lot of bloodshed, and an anti-American regime, I sure hope I resist the urge to scold my interventionist friends: “Happy now? This what you wanted? Al-Qaeda and the Muslim Brotherhood making mayhem?” I hope we’ll all take a deep breath and realize this is Libya: It was guaranteed to be a mess no matter what we did or didn’t do. But regardless of the outcome, the process by which the Obama administration took the country to war was deplorable. We ought to be able to debate that and fear what it portends without being painted as Qaddafi fans.

We don’t know what will happen in post-Qaddafi Libya. The first signs, however, are not very hopeful. The proposed draft constitution, in its very first article, installs Islam as the state religion and sharia as the fundamental law. This is the same thing that happened in Iraq (increasingly, a satellite of the Islamic Republic of Iran, and a place where homosexuals and religious minorities are brutally persecuted) and Afghanistan (where two men have been put on trial for apostasy from Islam, a capital crime under sharia). All of the constitution’s rosy bits about liberties and respecting human rights must be read in the context of sharia’s supremacy in the event of a conflict. Moreover, we learn that Mustafa Mohammed Abduljalil, formerly the justice minister and now a prominent spokesman for the “rebels,” is the subject of a Wikileaks cable in which he complained about the “Libyan people’s concern about the U.S. government’s support for Israel,” and expressed the belief that the root cause of terrorism is the perception that the United States and Europe are against Islam. (Hat tip to Andrew Bostom.)

Moreover, John’s summons to make the “Bush freedom agenda” our compass for when to intervene is not persuasive. He says, “It is in our interests to bring down the authoritarian dictatorships in the Middle East and hopefully replace them with democracies allied in some way with the United States.” Hopefully? No. This is not an area in which it is responsible to substitute hope for a clear-eyed assessment of whether the dictator is likely to be replaced by something worse.

We hoped that Mubarak would be replaced with something better, and what we’ve got is the Muslim Brotherhood poised to take power — in an Egypt in which, with Mubarak gone, al-Qaeda now freely crosses the Sinai to conduct terrorist operations in Israel; an Egypt in which the people now call for cancelling the Camp David peace accords and protest outside the Israeli embassy in Cairo with signs bearing swastikas, warning Jews that “the gas chambers are ready.” The freedom agenda has also given us a democratic election that put Hamas in control of Gaza. Yes, we were hopeful that the accountability of governance would make the monsters more responsible actors. How’s that working out?

As I’ve said before, I am not an isolationist, and I believe in U.S. leadership on the world stage. That does not mean we are obliged to intervene militarily in every conflict. Nor does leadership mean that everything that happens in the Middle East is within our control — any more than it means that everything that happens there is our fault. The choice is not, as John would have it, between energetic intervention and “pulling out wholesale.” That is an oversimplification. I would suggest, instead, a foreign policy that is driven by concrete American interests (e.g., crushing al-Qaeda, regime change in Iran, undermining instead of empowering the Muslim Brotherhood) rather than dreamy hopes for the alchemical capacity of freedom to transform our enemies into our friends.

—  Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.