Tuesday, April 5, 2011

Context is everything

It must be difficult to be an op-ed columnist. You have to come up with a certain number of words twice a week or so, and the words have to make enough sense to an editor to avoid provoking a "what are you talking about?" reaction. Sometimes one wonders how a particular column has managed to clear this hurdle. Take Maureen Dowd's "Fight of the Valkyries". As L. Sjoberg pointed out at Duck of Minerva, Dowd misunderstands feminist IR theory. But toward the end of the column, there is also this:

As compelling as the gender split is, it’s even more interesting to look at the parallels between Obama and W. Candidate Obama said about a possible strike on Iran, “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

Obama's quoted statement referred to a possible decision to launch a unilateral U.S. strike on Iran, and the considerations in such a case are different from those involved in a multilateral, UN-authorized intervention. Still, it's possible that Obama meant that a president needs congressional approval for any use of U.S. forces that does not respond to "an actual or imminent threat" (or, like the 'Afghan surge,' relate directly to an ongoing conflict). If so, he would not be the first president to have said one thing about the scope of presidential power during a campaign and then to have discovered, once in the Oval Office, that he found a somewhat more expansive notion of executive power to be congenial.

Presidential systems, as opposed to parliamentary ones, seem designed to encourage a certain amount of gridlock stemming from the almost constant tug-of-war between president and legislature, especially in periods of divided or semi-divided party control (as is the case now, with the Republicans in control of the House). And congressional action can frustrate what should be properly be executive branch decisions, as in the case of where to put Khalid Sheikh Mohammed and his co-conspirators on trial.

But to come back to the quote on Iran, I'm inclined to think that Obama said it in the context of that particular issue and probably meant it to be less sweeping than the actual words themselves would suggest.

3 comments:

hank_F_M said...

LCF


Obama's quoted statement referred to a possible decision to launch a unilateral U.S. strike on Iran, and the considerations in such a case are different from those involved in a multilateral, UN-authorized intervention.


A UN enforcement action under ART 43 authorizes a country to take action but it does not replace a countries constitutional and legal requirements for it’s leaders to take action ( unless, of course, a country chose to modify it's procedures.)

If, and I would hope not, there was such a clear case to authorize a unilateral attack on Iran the need for surprise would mitigate against advance congressional approval. The need was not that great in the case of Libya I think the President was in his rights if he quickly followed up with a case to the Congress. The War on Terror resolution possibly could be stretched thin enough to cover the action. But a UN resolution does not give him any more authority in domestic law than he had without it.

LFC said...

Hank,

I think you're right that "a UN resolution does not give [the President] any more authority in domestic law than he had without it." And it may be the case that, for political if not legal reasons, Obama should have taken the Libya involvement to Congress for debate and approval after it had been launched, as Cameron did with Parliament.

A multilateral, UN-authorized intervention in Libya has more legitimacy, both normatively and in terms of international law, than a hypothetical unilateral, non-UN-authorized U.S. attack on Iran, absent some clear act of aggression by Iran. I agree with you that the existence of UN authorization does not change the President's powers under the Constitution or US law, however, and my post probably should have been clearer about that.

Speaking of "context is everything," I don't have the context for the sentence of Obama's that Dowd quotes, just the sentence itself, which makes drawing inferences here that much more difficult. What I objected to the most in Dowd's piece was a part I didn't reproduce but probably should have, where she goes on to compare Obama's action in Libya to G.W. Bush's invasion of Iraq on grounds that both were impulsive, or something like that. I think that is a rather ridiculous comparison, and Dowd's whole column is pretty awful, imo.

A side point: I don't think the post-9/11 resolution authorizing military force vs. al-Qaeda covers an action vs. Iran (or Qaddafi for that matter).

LFC said...

P.s. You might be interested in this piece by Scott Horton at FP. I've read only the opening paragraphs.