The Threat of the Imperial Presidency

Historically, American presidents have "encroached on Congress's war making responsibilities, leaving the legislative branch increasingly irrelevent," according to an analysis by Bennett Ramberg, a former State Department analyst in the first Bush administration.

Recent hearings by the Senate Intelligence Committee on CIA director John Brennan's authority and the House Judiciary Committee into drones are at least momentary signs that Congress may be ready to reclaim some of its powers. Statements by President Obama literally asking Congress to write "new legal architecture" to "rein in" his presidency and those of his successors, are clear indications that the growth of an Imperial Presidency may be limited. The bipartisan vote of nearly 300 House members against the administration's launching of the six-month 2011 Libyan war is the most concrete example of legislative unease.

As Congress considers its options, it is crucial that the public be included in a rightful role. The public sends its sons and daughters to risk their lives in war, pays the taxes that fund those wars and accepts the burden of debt, the paring back of social programs and restrictions on civil liberties in the name of war. The public has a right to know, obtained through public debate and public elections, the rationale, the costs and the predicted outcomes of any military venture. James Madison, cited by Ramberg, gave the reason centuries ago: "Those who are to conduct a war cannot in the nature of things be proper or safe judges, whether a war ought to be commenced, continued or concluded."

Section 4(b) of the War Powers Resolution mandates that "the President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad." Yet only insistent congressional pressure has forced the Obama administration to disclose some of its internal legal memoranda concerning drones, apparently in exchange for senate approval of Brennan's nomination. It continues to resist the spirit of Section 4(b).

Hopefully, the Congressional Progressive Caucus (CPC) will take up the reform of war-making powers as a major priority. Already, one of the CPC's co-chairs, Representative Keith Ellison, has expressed the need to reform and reverse the administration's secret drone war. In the Senate, strong leadership on transparency has come from Senator Ron Wyden. Libertarian Republican senator Rand Paul is demanding to know whether the White House will unleash drone strikes on American citizens. Longtime activist groups like Code Pink suddenly are finding themselves in the center of a national conversation.

Three senators who voted for Brennan's confirmation--Wyden, Mark Udall and Susan Collins--also issued a call on March 5 "to bring the American people into this debate and for Congress to consider ways to ensure that the president's sweeping authorities are subject to appropriate limitations, oversight and safeguards."

By most accounts, this fuss over the Imperial Rresidency wasn't supposed to be happening. The drone wars were supposed to be cheap for the taxpayer, erase American military casualties and hammer the terrorists into peace negotiations. The assassination of Osama bin Ladin was supposed to be the turning point. But even with the wars being low-intensity and low-visibility, the "secrets" have remained in the public eye, especially the drone war.

From a peace movement perspective, pressure from anywhere for any steps that will complicate and eventually choke off the unfettered use of drones will be an improvement over the status quo.

From a peace movement perspective, pressure from anywhere for any steps that will complicate and eventually choke off the unfettered use of drones will be an improvement over the status quo. For some, like Ramberg, a reform of the 1973 War Powers Act is overdue. That resolution, which passed during an uproar against the Nixon presidency, actually conceded war-making power to the president for a two-month period before requiring congressional authorization. The original 1973 Senate version of the war-powers bill, before it was watered down, required congressional authorization except in the case of armed attack on the US or the necessity of immediate citizen evacuation. No president has ever signed the war powers legislation, on the grounds that it encroaches on the executive branch, although most presidents have voluntarily abided by its requirements.

Ramberg lists the US military actions undertaken after the War Powers Resolution "with minimal or no congressional consultation," as: Mayaguez (1975), Iran hostage rescue action (1980), El Salvador (1981), Lebanon (1982), Grenada (1983), Libya (1986), Panama (1989), Iraq (May 1991, 1993), Somalia (1993) Bosnia (1993-95), Haiti (1993, 2004) and Kosovo (1999), leaving out Sudan (1998) and the dubious authorizations for Iraq and Afghanistan.

The immediate issue ripe for attention is the drone policy, conducted especially in Pakistan by the CIA in utter secrecy, but also spreading through Afghanistan, Yemen, Somalia, and Mali.

Drone attacks clearly are acts of war as defined by the War Powers Resolution, although the WPR was written mainly to contain the deployment of American ground forces. The drone war rests more squarely on the 2001 Authorization for Use of Military Force (AUMF), the underlying legal rationale for the "global war on terrorism."

The challenge of reform, as opposed to emergency tinkering, will require prolonged efforts to amend and clarify both the WPR and AUMF. Allowing any president a sixty-day period before seeking congressional authorization, as the WPR does, makes no sense in drone warfare. Instead, the president should be required to seek congressional permission if he wishes to target a clearly definable "enemy," and be required to issue public guidelines, including necessary disclosure, governing the use of force he contemplates. That means:

First, Congress should establish a special inspector general, like the SIGUR created for Iraq and Afghanistan, to define, monitor and determine civilian casualties ("collateral damage") from drone strikes. Currently that information is collected by the CIA, which has a conflict of interest, not to mention a curtain of secrecy.

Second, Congress will need to draft guidelines sharply narrowing--or even banning--the use of "signature strikes," which permit drone attacks against targets profiled according to identity, such as young males of military age (which could be civilians, participants in a wedding or funeral, etc.).

The open window for "reining in" the president's executive powers could close at any time.

Third, Congress or the courts will have to restore the open-ended concept of "imminent threat" to its traditional meaning, as an immediate operational threat aimed at American citizens, US territory or facilities. Under the elastic formulation employed by Brennan and others, the simple fact of ill-defined jihadists holding meetings anywhere on the planet is an "imminent threat" justifying military action. And according to the CIA interpretation, the threat is a "continuous" one, carrying over from war to war. But if every "potential" threat is defined as "imminent," and all the threats are continuous, the CIA, Special Forces and American military will be spread thin indeed from the jungles of the Philippines to the ghettos of Britain.

The 2001 AUMF was written to justify the unofficial military doctrine of the "long war," developed by counterinsurgency advisers to General David Petraeus and the State Department, like David Kilcullen, who project a conflict of fifty- to eighty-years' duration against ill-defined Muslim fundamentalists. The designated targets of the AUMF are "Al Qaeda" and "associated" terrorist groups. That overly broad definition authorizes a global war in the shadows against forces whose actual links to Al Qaeda are difficult to discern and who may or may not be threats against the United States. If targeted by the United States, however, the likelihood of their becoming threats will only increase.

A recent example in a long list of these targets is Mokhtar Belmokhtar, the 40-year-old Algerian who may or may not have been killed last week in Chad. Belmokhtar allegedly carried out the January attack on an Algerian gas plant in which thirty-seven foreign hostages died. He did so in retaliation against France's military intervention in its former colony of Mali, and against Algeria's siding with Western counterterrorism policies. Otherwise, Belmokhtar was nicknamed the "Marlboro Man" because of his decades-long involvement in smuggling cigarettes. Ten years ago he led one faction of Al Qaeda in the Islamic Maghreb, before breaking away to form his own force in the Sahel.

The question is whether the 2001 AUMF was written to cover a regional warlord like the "Marlboro Man" whose history is "smuggling, kidnapping and fighting for decades in the Sahel," or whether it is being used as a blanket authorization for official kill lists and CIA drone assassins everywhere.

Finally, Congress should commission an independent body to evaluate whether the war on terrorism, including the drone attacks, has made Americans "safer." The rise of the drones--as well as cyber-warfare--has a lulling effect on public opinion since American group operations are ending and casualties are down. But the 9/11 attacks took place unexpectedly as a result of burning grievances in the Muslim world. The official metrics of safety (e.g., how many jihadist "leaders" have been killed, whether insurgent attacks are up or down) ignore the incendiary hatred and desire for revenge building in Muslim communities suffering from remote drone attacks. A few empirical studies have shown a direct correlation between the rise of suicide bombers and US/Western occupation of Muslim lands, but the mass illusion of safety from terrorism tends to persist. A national conversation, including the forgotten ways in which we are made less safe by the war on terrorism, is sorely needed.

In perspective, the effort to prevent the restoration of an Imperial Presidency is long and politically difficult, something like reversing the mass incarceration policies and police buildups that followed the neoconservatives' "war on gangs" campaign of the early 1990s, which the Clinton administration adopted. Many liberals in general, and Democrats in particular, cringe at being labeled "soft on crime" (or "soft on terrorism"). Some on the left, on the other hand, seem to think that the threat of terrorism is manufactured. However, if another attack should occur against the United States, the danger that a second Patriot Act will pass is real. Current US policies inadvertently provoke that possibility, with the drone strikes the equivalent of attacking a hornet's nest. Therefore, the open window for "reining in" the president's executive powers could close at any time. Hearings to reform of the 2001 AUMF and the 1973 WPR could not be more urgent.