Congress and War

It is easy to conclude that the U.S. Congress is simply incapable of playing a constructive role in matters of war and peace. Paralyzed by gridlock, the hyperpartisan body regularly betrays its constitutional responsibility to act as a serious check on the executive branch, often preferring instead to launch ideological crusades aimed at scoring political points. Congress has spent thousands of hours on deeply partisan investigations of the murders of four U.S. officials and contractors in Benghazi, Libya, but refrained from making any decision on the military intervention that brought them to that chaotic city in the first place. Although the Obama administration began arming and training rebels in Syria over three years ago, neither chamber of Congress has held a debate over the U.S. policy in the civil war there. And two years after the administration started sending U.S. forces into Iraq and Syria to fight the Islamic State, or ISIS, Congress hasn’t bothered to hold a vote on whether to authorize the use of force for the campaign.

It doesn’t have to be this way, and indeed, it wasn’t always. Most recently, from the late 1960s to the early 1990s, Congress weighed in responsibly on conflicts in Southeast Asia, Central America, the Middle East, and southern Africa. Sometimes, it blocked arguably misguided action on the part of the executive branch, while at other times, it partnered with it to improve outcomes. The congressional foreign affairs committees took steps to develop independent perspectives on U.S. policy, and party leaders assembled political coalitions to process clear, binding legislation on the use of force. When Congress encountered large, formally covert CIA paramilitary operations, it subjected them to the same open debate and legislative supervision as other war policies.

All these tools remain available today. The arrival of President Donald Trump could revive Congress’ political will to use them. Trump lacks diplomatic experience, possesses ill-defined views on military intervention, and confronts a public disillusioned with recent engagements. It’s the perfect time for congressional leaders to breathe new life into an essential component of American democracy.

It’s the perfect time for congressional leaders to breathe new life into an essential component of American democracy.

FROM INFLUENCE TO IRRELEVANCE

The U.S. Constitution gives Congress the power to declare war, while assigning no such responsibility to the president. In terms of military authority, it refers only to the president’s “executive Power” and position as “Commander in Chief of the Army and Navy.” As records from the 1787 Constitutional Convention show, the authors of the Constitution envisioned that the president would act alone only in emergencies, to repel sudden attacks. Overall, the document calls for the legislative and executive branches to share power, and when it comes to authorizing hostilities against foreign nations, it envisions Congress playing a major, if not dominant, role.

During the country’s first century, practice largely conformed to this principle. To be sure, presidents sometimes acted alone to dispatch the military to deal with Native Americans, pirates, and smugglers. But these operations fell under the powers of the executive because they were motivated principally by a desire to protect U.S. citizens from enemies that were deemed to be nongovernmental groups, and they never lasted long. Things began to change after 1900, when presidents unilaterally dispatched forces to China, Central America, and the Caribbean for broader foreign policy objectives, such as fostering U.S. economic interests and preventing European countries from gaining footholds in the Western Hemisphere. Yet Congress remained a vital actor in foreign policy, debating and deciding on the United States’ entry into World War I, passing extensive legislation on neutrality in the 1930s in a vain effort to avoid a new war, backing military aid to the United Kingdom under the lend-lease policy to fight Nazi Germany, and declaring war against Japan after it attacked Pearl Harbor.

Then came the Cold War. As worldwide conflict between the Western and Soviet blocs took shape, presidents managed to acquire greater military, diplomatic, and intelligence resources and invoked the need to act quickly in a dangerous world. From Korea to the Dominican Republic to Vietnam, Congress yielded the decision to use force to the executive branch. Out of public view, meanwhile, the CIA launched major covert paramilitary operations in Cuba, Congo, and Laos. Congress looked the other way.

But as the casualties piled up in Vietnam, leading members of Congress and much of the public began to question the competence of “the best and the brightest” in the executive branch who were running the war. From 1969 to 1973, Congress passed a series of laws banning the introduction or reintroduction of U.S. forces into Southeast Asia. It halted CIA paramilitary aid to rebels in Angola in 1976, repeatedly limited or blocked similar aid to the contras in Nicaragua throughout the 1980s, and imposed conditions on renewed support for the Angolan rebels and counterinsurgency assistance to El Salvador’s military in the early 1990s. In 1991, it debated and voted in favor of the Persian Gulf War. When a nation-building mission in Somalia went bad in 1993, killing 18 U.S. soldiers, Congress voted to withdraw U.S. forces.

These initiatives usually had a partisan frame. Often, it was one or two Democratic-controlled chambers challenging a Republican president. Yet partisanship was never decisive: efforts tended to succeed only when one party could win over allies on the opposite side of the aisle. Sometimes, Congress partnered with the administration or some of its key officials. In 1989, for example, it struck a bipartisan accord on Nicaragua policy with the George H. W. Bush administration, a deal in which the governing junta would agree to hold elections in return for the phasing out of U.S. military aid to the contra rebels. Legislation on Angola and El Salvador helped empower those in the same administration who were trying to move those conflicts to the negotiating table.

Congress started backsliding in the early 1990s, when the Clinton administration sent forces to Haiti, Bosnia, and Kosovo without congressional authorization. But after 9/11, it abdicated responsibility almost entirely. In 2002, it granted President George W. Bush’s request for authorization to use force in Iraq in a rushed process. Within a week, three of the four party leaders in Congress signed on; moreover, members ignored a crucial, late-arriving National Intelligence Estimate on Iraq’s supposed weapons of mass destruction program. In 2009, Congress declined to vote on Barack Obama’s decision to double the number of U.S. forces in Afghanistan. Instead, members accepted the administration’s argument that the eight-year-old law authorizing force against those who “planned, authorized, committed or aided” the 9/11 attacks somehow permitted the president to send tens of thousands more troops to Afghanistan on a nation-building mission.

Most recently, it has been on Libya and Syria that Congress has failed most egregiously to play its constitutional role. The interventions in both countries have had disappointing, if not disastrous, results, underlining the need for broader and deeper deliberation. By looking closely at what Congress did and didn’t do in these difficult cases, one can understand how it can improve its performance in the future.

ABSENT IN LIBYA

In late February 2011, as the Obama administration contemplated a response to the uprising against Muammar al-Qaddafi’s regime in Libya, Congress failed to weigh in. Part of the blame lies with the White House: it held substantial discussions with its NATO and Arab partners, rebel leaders, and outside foreign policy experts, but not with members of Congress. Yet leaders of the Republican-controlled House and the Democratic-controlled Senate made no attempts to participate in the policymaking.

The passivity continued after the conflict began. On March 17, as Qaddafi’s troops advanced toward the city of Benghazi, the UN Security Council passed Resolution 1973, which authorized the use of force to “protect civilians . . . threatened with attack.” Two days later, the Americans, the British, and the French launched what would rapidly become a NATO-led air war against the Qaddafi regime. Yet it was not until March 31 that the Senate Foreign Relations Committee and the House Foreign Affairs Committee held their first hearings on the crisis. For the House committee, this would be its only hearing on the intervention.

Over the seven months of the operation, the Senate committee, chaired by the Democrat John Kerry, held just four substantive hearings. Only one of them featured witnesses who were not administration officials. Not once did the committee hear public testimony from Defense Department officials or outside military analysts, who might have offered insights into the administration’s military strategy and its likely consequences. The committee’s less public efforts to seek information proved equally unbalanced. Members met with Mahmoud Jibril, the leader of the rebel government, but not with officials from the Libyan government or the African Union, the regional organization that was conducting a serious effort to mediate the conflict.

Most troubling was the committee’s failure to penetrate the administration’s deceptive description of its goals in Libya. Obama avowed that the campaign was “narrowly focused on saving lives” and that “broadening our military mission to include regime change would be a mistake.” In reality, however, from its early days, the intervention went beyond humanitarian protection and contravened Resolution 1973, which backed UN and African Union negotiations among the warring parties to achieve a cease-fire and a democratic political transition. Leon Panetta later admitted that in July 2011, just after he succeeded Robert Gates as secretary of defense, he had “said what everyone in Washington knew but we couldn’t officially acknowledge: that our goal in Libya was regime change.” 

Legislators often sense that the administration is not telling them the whole truth but do nothing to call it out.

During the Senate committee’s hearings, some Republicans evinced concern about mission creep. But no one pursued Gates’ little-noticed testimony during a March 31 hearing of the Senate Armed Services Committee, that the operation might “degrade” the Libyan military to the point where Qaddafi might be overthrown. Nor did any member follow up on press reports in which Western officials acknowledged that the mission was designed to compel Qaddafi to step down. The Senate committee did not explore the implications of NATO’s strategy of targeting all of the regime’s military assets or question its concentration of firepower on the Tripoli area—including Qaddafi’s offices and residence—which the regime controlled and where civilians faced little threat.

Senators also failed to raise questions about the United States’ and NATO’s nonnegotiable demands that Qaddafi unilaterally suspend hostilities and turn contested areas containing up to one million people over to the rebels. These demands were also at odds with Resolution 1973, which encouraged a mutual cease-fire and did not mention unilateral government withdrawals. Nor did anyone bring up the inconsistency between the declared mission of protecting civilians and the military aid that U.S. partners were supplying to the rebels. And since it largely ignored the elephant in the room—violent regime change—the committee expressed little sense of urgency about how a country with little civic or democratic tradition might fare after its strongman was ousted.

As with Libya, Congress has largely absented itself from the debate over intervention in Syria.

It was not until the end of June that the committee passed an authorization for use of force, which mainly repeated the administration’s public rationale. Democrats voted in favor, while Republicans were split. No matter: Harry Reid of Nevada, the leader of the Democrats in the Senate, declined to take up the bill. The committee did not publicly complain.

The House also failed to act on Libya, but at least it finally debated the war, for more than six hours, in June and July. It did so, however, only after Dennis Kucinich, an Ohio Democrat, invoked a procedure under the War Powers Act to force John Boehner, the Republican Speaker of the House, also from Ohio, to take up the issue. Boehner arranged votes on three very different resolutions: one that would authorize the use of force in Libya, one that would defund U.S. drones’ participation in the operation while leaving other U.S. air assets in place, and one (Kucinich’s) that would mandate an immediate U.S. withdrawal. None passed, leaving the impression that the House had no coherent position on the intervention. But it’s conceivable that a more carefully crafted compromise would have garnered a majority. As some members pointed out, the House Foreign Affairs Committee’s failure to bring a piece of bipartisan legislation to the floor left them to choose among unsatisfactory alternatives. Moreover, many felt constricted by the lateness of the debate: with the mission in Libya begun long ago, legislators feared that congres­sional action might jeopardize the United States’ relationship with its NATO partners.

The intervention ended on October 20, when rebels murdered Qaddafi after a U.S. drone and two French jets struck his convoy. But the costs continue to this day. Hundreds of lawless militias vie for power in Libya. A new branch of ISIS has arisen there. Arms and extremists have spread beyond the country’s borders, destabilizing Mali and bolstering jihadists across Africa and the Middle East. The chaos has collapsed coastal controls over migration into Europe. U.S. relations with the African Union and Russia have suffered.

Given this outcome, it is useful to explore a counterfactual: what would have happened if Congress had engaged early in the decision-making process on Libya, exposed the inconsistency between U.S. aims and Resolution 1973, and raised concerns about postwar chaos? Most likely, energetic congressional probing would have weakened both international and domestic support for the intervention. Even support within Obama’s party would likely have dropped, given that in the absence of such inquests, a full third of House Democrats voted for Kucinich’s resolution. So internally divided was the administration that it might well have reconsidered its options. Perhaps it would have pursued its avowed policy of protecting civilians through limited military means while applying only political and economic pressure to bolster the rebels’ position. Or maybe it would have combined humanitarian protection with support for the African Union’s credible negotiations to end the conflict. Arguably, either option would have served the underlying U.S. policy of aligning the United States with the Arab Spring and preventing mass atrocities, while alleviating the destabilizing consequences of the intervention.

ASLEEP IN SYRIA

As with Libya, Congress has largely absented itself from the debate over intervention in Syria. Since March 2011, when the revolt against President Bashar al-Assad’s government began, neither chamber of Congress has passed any legislation dealing with the conflict. That has remained the case even as the U.S. government has steadily increased its involvement, furnishing rebels first with nonlethal aid and then with arms and training.

Over the course of 2012 and 2013, both congressional foreign affairs committees did hold a number of public hearings on Syria featuring administration figures and outside experts. But the latter constituted a rather narrow group; they tended to be former officials from Washington-based think tanks, nearly all of whom called for greater U.S. military support for the rebels. Moreover, although committee members journeyed to Syria’s borders to visit refugee camps and meet with rebel leaders and officials from neighboring countries such as Jordan and Turkey, they never appear to have arranged similar meetings with representatives of the Syrian government or its principal backers, Iran and Russia.

When Congress did attempt to shape U.S. policy toward the Syrian civil war, it acted meekly and quickly retreated. In May 2013, the Senate Foreign Relations Committee overwhelmingly adopted the Syria Transition Support Act, which authorized economic sanctions against the regime, support for democratic structures, humanitarian assistance to the Syrian people, and military aid to rigorously vetted rebels. But the bipartisan senators who voted for it appeared strikingly uncertain about the adequacy of the weapons that would be provided and the trustworthiness of the rebels receiving them. One of the backers of the legislation, Barbara Boxer, a California Democrat, tepidly endorsed it, saying, “we’re trying to shape [the conflict] just a little bit.” “We all have trepidation,” she confessed, but the bill “gives the administration the wind at their back if they want to move forward.” This was hardly the kind of congressional leadership the founders had in mind.

When Congress did attempt to shape U.S. policy toward the Syrian civil war, it acted meekly and quickly retreated.

Less than a month later, the administration effectively preempted the committee’s proposal for overt, controlled military aid by rolling out a program of its own, a covert CIA effort to arm and train the rebels. Reid never brought the committee’s bill to the floor for a vote, and the committee never pressed him to. Bob Corker of Tennessee, its ranking Republican, complained that the administration’s resort to covert methods was “leaving the public and most of Congress in the dark” and “effectively prevents any real debate about U.S. policy.” He was right.

There was one exception to this pattern, a fleeting moment of bipartisan congressional influence. In August 2013, Assad’s regime attacked civilians with chemical weapons, thus crossing what Obama had called a “redline” a year earlier. After preparing to unleash retaliatory air strikes, the administration made an about-face and sought congressional approval for an attack. Leaders of both parties indicated that they would support one, and the Senate Foreign Relations Committee held a hearing on the question that exclusively featured administration witnesses. But the public was not on board, and over the course of two weeks, constituents deluged their representatives with phone calls and letters opposing the attack. Then, just as the Republican-led House appeared on the verge of rejecting the president’s plan (possibly along with the Democratic-led Senate), Russia swooped in with a diplomatic initiative for the disposal of Syria’s chemical arsenal, and the administration accepted the offer.

Yet this episode was not an unambiguous assertion of congressional power. It was the president who kicked the decision about intervention to Congress, forcing it to take a stand. Obama’s reluctance to act alone stemmed in part from his awareness that, unlike in Libya, there was no UN or NATO backing, and no imminent massacres. And Congress was following the public’s fear of a wider war more than leading an informed public debate.

Since then, Congress has reverted to acting as a bystander. As the CIA ramped up its covert program—by June 2015, the agency had armed and trained 10,000 rebels at a cost approaching $1 billion a year—Congress confined its discussion of the program to secret sessions of the intelligence committees, which have a history of getting co-opted by presidents undertaking covert action. To this day, the House and the Senate have held no public debate over the CIA program. Nor have they held any such debate on other policy options, even as the administration has flitted between contemplating the establishment of no-fly zones and safe zones and launching negotiations for a political settlement that would eventually displace Assad. The foreign affairs committees, meanwhile, have paid declining attention to the civil war as their attention has shifted to the separate but related fight against ISIS in Iraq and Syria.

What could a more energetic Congress have done? Above all, it could have made clear, through public discussion and serious legislative proposals, that incremental doses of aid to Syria’s fractious insurgents were unlikely to break the military stalemate. They would inevitably be counterbalanced by additional support to Assad by his foreign backers. Congress could have debated the two basic options that the United States and its allies have in Syria: use overwhelming military force to occupy the country and install supposed moderates in Damascus or employ diplomacy to push most of the Syrian parties and their foreign allies toward a gradual political transition. The former course appears politically infeasible, leaving patient diplomacy (perhaps buttressed by limited, temporary military operations that do not derail negotiations) to de-escalate a damaging civil war.

A TO-DO LIST FOR CONGRESS

Congress can do better. It possesses a number of proven instruments it can employ to handle tough foreign policy questions. First, it should use its foreign affairs committees to lead the way in formulating independent assessments of vexing policy choices. Public hearings should be timely, balanced, and aimed at promoting dialogue. The classic model is the Fulbright Hearings, the Senate Foreign Relations Committee’s rigorous inquiries into the Vietnam War policies of the Johnson and Nixon administrations, convened by its chair, William Fulbright. The most formidable non-administration witnesses were of the type that rarely appears in today’s hearings: the master Cold War strategist George Kennan, the dissenting lieutenant general James Gavin, the renowned Asia correspondent Robert Shaplen, the world-class Vietnam expert John Lewis, and a young Kerry, then a navy lieutenant representing a new constituency, Vietnam Veterans Against the War. Fulbright’s hearings, well covered by the media, galvanized the antiwar movement and spurred legislation to limit American involvement in Vietnam.

Today’s committees need to modernize to maintain the interest of their busy members and a distracted public. It boggles the mind that despite technology that can bring relevant foreign voices and scenes into the room in real time, the panels hear almost exclusively from Washington insiders. It’s also disturbing that members allot so much time to introductory posturing at the expense of genuine questioning.

Congress’ committees and ad hoc entities can also learn from well-focused international travel. In 1984, as the longtime Philippine dictator Ferdinand Marcos refused to undertake reforms amid rising democratic opposition and a communist insurgency, Richard Lugar, the Indiana Republican who chaired the Senate Foreign Relations Committee, dispatched a bipartisan staff study team to the country for three weeks. Their public analysis of the political crisis helped convince Congress to promote a democratic transition. In 1989, a special House task force headed by Joe Moakley, a Massachusetts Democrat, undertook an on-the-ground investigation of the murder of six Jesuit priests in El Salvador. The group not only solved the crime—fingering top officials in the Salvadoran military—but also proved instrumental in getting Congress to limit U.S. military assistance to the country and thus helped bring about a political settlement ending the long civil war there.

Given the value of congressional travel, it was disappointing when, in 2009, legislators meekly accepted stringent Defense Department restrictions on congressional delegations in Afghanistan just as the administration was contemplating a troop surge there. Limited to a single overnight stay in the country per trip, congressional members and staff tended to spend one day meeting with U.S. and Afghan officials in Kabul and a second with U.S. troops outside the capital. Virtually no time was left to hear from anyone who could have offered competing perspectives: Afghans who didn’t work for the government, journalists, or researchers.

Second, foreign policy leaders in Congress should take advantage of their positions to fight back against deception on the part of the executive branch. These days, legislators often sense that the administration is not telling them the whole truth but do nothing to call it out—except in stirring postmortems. In contrast, back in 1975, Dick Clark, the Iowa Democrat who chaired the Senate Foreign Relations Subcommittee on Africa, juxtaposed conflicting closed-door testimony by State Department and CIA witnesses over the Ford administration’s covert aid to paramilitary groups in Angola to convince his colleagues that the State Department was concealing from them an unsavory operation that the CIA was conducting alongside South Africa. As a result, Congress killed the program.

In 2002, the congressional foreign relations and intelligence committees muffed a golden opportunity to raise questions about the administration’s dubious case for war in Iraq. After receiving the National Intelligence Estimate on Iraq’s weapons of mass destruction, including a declassified version, they failed to point out the yawning gap between the document’s conclusions and the evidence adduced to support them.

The committees have powerful legal tools to help them fight back against the executive branch’s penchant for secrecy, but they almost never use them. In 1990, Moakley’s task force looking into the murders in El Salvador dangled the threat of a subpoena to persuade the Defense Department to allow it to interview a U.S. major who possessed critical information about the Salvadoran military’s involvement.

Third, party leaders should take the initiative to build political coalitions that enable Congress to speak with one voice. A good illustration comes from Congress’ struggle with the Reagan administration over aid to the contra rebels in Nicaragua: a leading role was played by Jim Wright, a Texas Democrat who was then Speaker of the House. Tapping into his deep knowledge of Central America, this powerful leader was often able to strike compromises among both liberal and conservative Democrats and moderate Republicans to limit aid to the contras. Another example comes from 1995, when Bob Dole, the Senate majority leader and a Kansas Republican, co-authored a measure lifting a UN-sanctioned arms embargo against Bosnia, which was under attack from separatists. Partly because the measure passed both houses with veto-proof margins, President Bill Clinton became more engaged in ending the war.

Finally, Congress must make clear and binding law. The ultimate test of Congress’ determination to live up to its constitutional role is whether it enacts such legislation to authorize or regulate a war—a standard Congress often met from the late 1960s to the early 1990s. There is thus no good reason why large CIA paramilitary ventures—which inevitably become public—should be sheltered from congressional debate. These can and do lead to larger military interventions, which is why Congress subjected the CIA programs in Angola and Nicaragua to public votes. It should do the same for the Syrian program today.

CONGRESS’ CHALLENGE

None of this will happen, of course, without the requisite political will. It is encouraging, then, that members of both parties have increasingly expressed their dissatisfaction with Congress’ post-9/11 deference to the executive branch. Foreign policy luminaries in the Senate—such as Corker and the Virginia Democrats Tim Kaine and Jim Webb—have called for reforms. During the House debate on Libya in 2011, politicians from both sides of the aisle rebuked the Obama administration for evading the time limits that the War Powers Act imposes on the president’s deployment of U.S. forces. The Democratic-controlled Senate Foreign Relations Committee even formally repudiated the Democratic administration’s legal rationale. And in 2013, as the Obama administration contemplated striking Syria, 192 House members (119 Republicans and 73 Democrats) demanded that Congress vote on the use of force.

Politically, the current era echoes the post–Vietnam War one, the last period of congressional activism. Opinion polls confirm the public’s widespread disillusionment with the wars in Afghanistan as Iraq, as well as its fear that limited interventions, as in Syria, could metastasize into major ones. Now, as before, partisan divisions help frame the issues, but the boundaries have become much more fluid. Opposition to intervention in both Libya and Syria made strange bedfellows, with left-wing Democrats such as Kucinich voting the same way as libertarian Republicans such as Justin Amash, a representative from Michigan. It would be wrong to assume that the new Congress will remain passive because it is controlled by the president’s party. Trump’s reluctance to pursue regime change in the Middle East, for example, may create conflict with Republican hawks and earn support from Democratic doves.

The missing ingredient from the previous era is leadership. In the decades during and after Vietnam, the committee chairs, party leaders, and other members who upheld the Constitution were not reflexively following opinion polls. They were thoughtful, committed, sometimes courageous individuals who took real political risks to better U.S. foreign policy. Their actions energized the rest of Congress, galvanized political constituencies, and cajoled presidents into unexpected partnerships.

Today, a new generation of congressional foreign policy leaders has the opportunity to make its own mark. Some of them may find it tempting to remain passive, whether because they remain more interested in tearing down their political opponents or because they fear looking weak in the face of a foreign adversary. But they owe it to their country to take a more active role. As the great historian Arthur Schlesinger, Jr., wrote, looking back in 1973, “History had shown that neither the Presidency nor the Congress was infallible, and that each needed the other—which may well be what the Founding Fathers were trying to tell us.”